Federal Election Commissioner Caroline Hunter’s term expired on April 30. This wouldn’t be newsworthy except for one thing: It means that as of now, all the members of the agency that enforces the nation’s campaign laws—and is supposed to oversee the flood of money candidates and their allies spend—are working on borrowed time. President Obama hasn’t nominated anyone to succeed them. So the current commissioners are simply lingering in their expired seats.
To say the FEC is broken is a parody of understatement. The agency’s structure—three Democratic commissioners and three Republicans, serving single six-year terms—means it often deadlocks along party lines. That’s what happened when it tried to update its own regulations in the aftermath of the 2010 Supreme Court decision in Citizens United, the case that helped open the door to unlimited political spending. The commission’s three Democrats wanted to consider tightening disclosure requirements; the Republicans insisted on reviewing only those rules that conflicted with the court’s ruling. That put the commissioners on the sidelines when spending by independent groups tripled to $1 billion in 2012, up from $300 million in 2008, according to the Center for Responsive Politics, a research group that tracks campaign spending.
The FEC’s inability to do its job has emboldened some groups to test legal boundaries, says former Senator Russ Feingold, a Wisconsin Democrat who introduced legislation to replace the FEC with a stronger regulator (it went nowhere). “This is about the core issue, the credibility of our elections,” Feingold says. “You have people willing to push the envelope because they know the FEC is a feckless institution.”
Many of the most influential political groups, including Karl Rove’s Crossroads GPS, the pro-Obama Priorities USA, and the U.S. Chamber of Commerce, didn’t report their donors to the FEC in the 2012 election. Americans for Prosperity, supported by conservative billionaire energy executives Charles and David Koch, spent $36 million on the 2012 elections, up from $340,752 in 2008, without disclosing its donors, according to the Center for Responsive Politics. The nonprofit arm of the group Patriot Majority USA spent $7 million to help elect Democrats, also without identifying the source of the money.
These groups argue that, because they’re nonprofits, the law doesn’t require them to reveal their contributors. Yet in Citizens United, the Supreme Court ruled the government can choose to mandate disclosure. It’s the FEC’s job to decide whether nonprofits spending money on political campaigns must identify donors. But the deadlocked commission can’t even get a majority to discuss the issue.
That means old, more lenient FEC rules about disclosure, adopted before the rush of new spending since Citizens United, stay in place. Outside groups “are well aware” that the FEC will not examine their spending, says Craig Holman, who lobbies on campaign finance issues for Public Citizen, a group that advocates transparency in government. “The election was swamped with undisclosed money by increasingly brazen nonprofit organizations.”
In more than four years in office, President Obama has made just one FEC nomination, labor lawyer John Sullivan, only to withdraw the name after Senate opposition. Meanwhile, one by one, commissioners, all named by George W. Bush, have timed out but stayed in their jobs. Commissioners, who earn $155,500 a year, can continue to hold their seats until the Senate confirms their replacements. That decreases the urgency of finding new commissioners while increasing the ineffectiveness of the agency. Even in off years, the FEC needs to have eyes and teeth: Candidates and special interests are spending millions of dollars this year on special elections for the Senate in Massachusetts and the House in South Carolina. (Current FEC Chairwoman Ellen Weintraub, who’s stayed on since her term expired in 2007—that’s right, six years ago—didn’t return telephone calls seeking comment.)
White House spokesman Eric Schultz says he won’t speculate on Obama’s future appointments, saying only that “the president intends to nominate well-qualified candidates, and we will continue to support strong enforcement of our campaign finance laws.” The administration is vetting two candidates and aims to nominate them when the Senate returns from its Memorial Day recess in June, according to a person familiar with the process who spoke on condition of anonymity because the announcement is pending.
The president traditionally names three commissioners from his party and allows the Senate leader of the opposing party to nominate the other three. It’s not publicly known whether Republicans have recommended any names to Obama. All nominees must be confirmed by the Senate. James Bopp Jr., a Republican election lawyer who has successfully challenged FEC regulations, says Senate Minority Leader Mitch McConnell of Kentucky will use the filibuster to prevent Obama from picking his own Republican to replace one of the holdovers. “Republicans would not permit it,” Bopp says. “That would be a death struggle. They have plenty of political power to prevent that from happening.”
The FEC was created in 1974 to monitor U.S. elections after the Watergate scandal, with its secret slush funds and illegal activities funded by unregulated private donations to President Nixon’s 1972 reelection campaign. The commission is supposed to enforce election laws and collect fundraising and spending reports filed by candidates, political parties, and outside groups. It also has the authority to conduct investigations and pursue fines or criminal convictions of those suspected of violating campaign finance laws.
Today, the FEC doesn’t even have its full complement of six commissioners: Democrat Cynthia Bauerly, who stayed on after her term expired in 2011, resigned on Feb. 1. That would appear to leave the Republicans with a 3-2 advantage. But it doesn’t work that way—the law requires four votes to take action.
A decade ago, commissioners crossed party lines to impose penalties on campaigns and groups they found to have violated the law. Since then, the partisanship has hardened. Last year the commission couldn’t muster four votes to act against American Crossroads, a super PAC aligned with Rove, for airing footage from a candidate’s commercial in its own ads supporting that same candidate, which FEC investigators said was an improper in-kind donation of $450,000.
The percentage of proposed enforcement actions blocked by a split vote has risen from less than 1 percent in 2007 to 18.5 percent in 2012, according to Public Citizen. “The real question is, why should anybody follow the rules?” says Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington. “Why should you pay all that money to campaign finance lawyers to make sure you’re doing the right thing when there’s no penalty if you’re not?”