Federal Election Commissioner Caroline Hunter’s term expires today, which means all of the commission members are now serving on borrowed time.
It’s the latest embarrassment for the Obama administration and the FEC, which for years has been stymied because its partisan split -- three Democratic members and three Republicans -- has paralyzed the agency on election enforcement cases and efforts to rewrite campaign-finance disclosure rules to adapt to the new groups that entered the political arena in the 2012 campaigns.
As the members’ terms began expiring in 2007, Barack Obama, then a candidate for president, told a Chicago-based advocacy group in a questionnaire that the “FEC needs to be strengthened” and that his “initial goal as president will be to determine whether we can make the FEC more effective through appointments.”
Since taking office in 2009, Obama has made just one nomination, later withdrawn, in more than four years. Meanwhile, all of the FEC commissioners’ terms have expired; they continue to serve until replacements are confirmed by the U.S. Senate.
“It’s sort of like the stunning last piece of evidence” of the collapse of the election-monitoring organization, said former Senator Russell Feingold, a Wisconsin Democrat who introduced legislation while in office to replace the six-member FEC with a three-member agency.
White House spokesman Eric Schultz said he wouldn’t speculate on future appointments.
“But the president intends to nominate well-qualified candidates, and we will continue to support strong enforcement of our campaign-finance laws,” he said.
The failure to appoint new commissioners with fresh perspectives has had consequences.
The current FEC deadlocked on a plan to review its own regulations in the wake of the U.S. Supreme Court decision in Citizens United versus the Federal Election Commission that helped open the floodgates to political spending. The three Democrats wanted to look at whether they needed to tighten disclosure requirements; the Republicans insisted on focusing only on regulations conflicting with the court 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 Washington-based research group that tracks campaign spending. Most of it financed attack ads; more than three of every four commercials were negative, according to Kantar Media’s CMAG, a New York-based firm that tracks ad spending.
Many of the groups decided not to report their donors to the FEC, and some didn’t report their spending as well, according to CMAG data and FEC reports. An earlier Bloomberg News review of TV station records in 2010 found groups running ads close to Election Day without reporting it to the FEC even though federal law requires it.
While the Senate could block new nominees, that doesn’t mean Obama should do nothing, said former FEC general counsel Larry Noble, president of Americans for Campaign Reform, an advocacy group based in Concord, New Hampshire.
“There’s a responsibility to nominate people to the commission,” said Noble. “The power is there, the ability is there, to at least put up a fight.”
The administration is vetting two candidates and aims to nominate them when the Senate returns from its Memorial Day recess, according to a person familiar with the process who spoke on condition of anonymity because the announcement hasn’t been made.
Current FEC Chairwoman Ellen Weintraub, whose term expired in 2007, didn’t return telephone calls seeking comment.
The FEC was created in 1974 to monitor U.S. elections after the Watergate scandal that led to the resignation of Republican President Richard Nixon. That investigation found secret slush funds and illegal activities funded by some of the unregulated private donations to Nixon’s 1972 re-election campaign.
The commission is supposed to enforce election laws and be the depository for reports filed by candidates, political parties and outside groups on their spending and fundraising. It also has the authority to conduct investigations and seek fines or criminal convictions of those suspected of violating campaign-finance laws.
Yet, to avoid giving either party a partisan advantage, the appointment process has become unconventional. The president traditionally names three commissioners from his party and allows the Senate leader of the opposing party to nominate the other three. All must be confirmed by the Senate.
Today, the FEC doesn’t even have a full complement of commissioners since Democrat Cynthia Bauerly resigned Feb. 1. Republicans can’t take advantage of that vacancy because the law requires four votes to take action -- another unique and partisan-leveling characteristic of the agency.
In the past, commissioners have crossed party lines to impose penalties on campaigns and groups, including Democratic-aligned America Coming Together and Republican-friendly Swift Boat Veterans for Truth, both of which were active in the 2004 presidential race.
Since then, the partisan lines have hardened. In November 2008, the Republican members rejected a previously negotiated agreement with a U.S. Chamber of Commerce-funded outside group accused of illegal spending practices during the 2004 elections.
Last year, the commission couldn’t muster four votes to act against the super-political action committee American Crossroads, a group aligned with Republican strategist Karl Rove, for airing footage from a candidate’s commercial in its own ads, which FEC investigators said was an improper in-kind donation of $450,000.
“The law has been misinterpreted and ignored by the FEC over the last several years,” said former FEC Chairman Trevor Potter, president of the Campaign Legal Center, a Washington-based advocacy group that supports strengthening campaign finance laws. “The shameful number of 3-3 partisan deadlocks, which prevent the commission from doing its job, is a matter of public record.”
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, a Washington-based advocacy group that backs stronger enforcement.
In addition to promising to strengthen the FEC, Obama told the Chicago-based Midwest Democracy Network in November 2007 that he would choose commissioners “committed to enforcing our nation’s election laws.”
Instead, he has offered only one nominee, labor lawyer John Sullivan, whose name was withdrawn 15 months later with no Senate action. He was opposed by Feingold and Arizona Republican Senator John McCain, who urged the president to submit a full slate of replacements.
“It’s a disaster, it couldn’t be worse, and this is a president who campaigned on fixing some of these problems,” said Melanie Sloan, executive director of the watchdog group Citizens for Responsibility and Ethics in Washington.
The FEC’s failure to enforce the law has prompted some groups to push legal boundaries, knowing there will be no consequences if they do, Feingold said.
“This is about the core issue, the credibility of our elections,” Feingold said. “You have people willing to push the envelope because they know the FEC is a feckless institution.”
Craig Holman, who lobbies on campaign finance issues for Public Citizen, said outside groups “are well aware” that the FEC will not examine their spending. “The election was swamped with undisclosed money by increasing brazen nonprofit organizations,” he said.
Americans for Prosperity, supported by 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 Patriot Majority USA spent $7 million to help elect Democrats, also without identifying the source of the money; it didn’t exist in 2008.
“We’re in a situation where we do not have the disclosure that the Supreme Court said in Citizens United that we should have for the good of the country,” Potter said.
Representative Chris Van Hollen, a Maryland Democrat, has sued the FEC, saying the 2002 McCain-Feingold law requires groups spending money on campaigns to disclose their donors. The U.S. District Court agreed, though the U.S. Court of Appeals reversed that decision. An appeal in the case was filed by two outside groups; the FEC couldn’t get four votes to act.
Election lawyer James Bopp Jr., a Republican who has successfully challenged FEC regulations, said McConnell will use the filibuster to prevent Obama from picking his own Republican to replace one of the holdovers.
“Republicans would not permit it,” Bopp said. “That would be a death struggle. They have plenty of political power to prevent that from happening.”