What is the FEC?

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The second in a series of stories about the FEC.

Q: When was the Federal Election Commission formed and what purpose was it created to serve?

A: At the beginning of the 20th century, President Theodore Roosevelt identified a need for campaign finance regulations in order to prevent corporate money from entering political campaigns. For several decades, Congress passed various motions in an attempt to keep corporate money separate from federal elections. In 1971, decades of campaign finance regulations came together in the Federal Election Campaign Act (FECA).

FECA created stricter campaign finance disclosure requirements for federal candidates, political committees and political action committees. The only thing missing was a federal entity dedicated to the enforcement of these regulations.

In 1972, allegations of serious campaign violations surfaced, ultimately revealing campaign finance violations that served as the underbelly of Watergate that same year. Following the scandal, Congress made numerous amendments to FECA in 1974. The most notable revision to the act was the introduction of the Federal Election Commission (FEC), an independent agency that would enforce campaign finance law.

The FEC officially opened for business in April 1975.

The FEC’s structure is unique to that of other federal agencies in that it has an even-number of voting members. The six-commissioner structure, with no more than three individuals from the same political party serving at a time, ensures that neither Republicans nor Democrats ever hold a majority. The FEC regulates campaign finance law on a national level, with jurisdiction over U.S. House and Senate campaigns as well presidential and vice-presidential campaigns.

How does the FEC enforce campaign finance laws and what are the roles of voting commissioners?

The FEC deals with a wide range of cases, from simple matters, which may be solved by simply administering a fine, to more complex issues, which may require in-depth investigations. The enforcement process begins when an individual or organization files a complaint or when a finding is brought to attention within the FEC offices. Once a complaint has been properly filed, the Office of General Counsel (OGC), the FEC’s nonpartisan entity, provides each alleged violator of the law with a copy of the complaint. The OGC then reviews any written materials submitted by the respondents and makes a recommendation to commissioners on how to proceed.

The Commission may find a reason to believe that a respondent has violated or may violate the law, they may choose to dismiss the case and allocate their resources to more complex matters or they may find no reason to believe that a violation has or is about to take place. If four or more commissioners vote affirmatively for either of the latter two options, a case is generally closed. If that same majority votes that there is reason to believe that a violation occurred or will occur, they may proceed by opening an investigation, settlement negotiations, etc.

For every step of the enforcement process, four affirmative votes are necessary for a matter to move forward.

Many bipartisan government agencies have an odd number of voting members, where one party holds the majority at any given time. The FEC has a six-member structure in which there can be no more than three commissioners of the same political affiliation serving at the same time. Historically, the Commission has had three Democratic and three Republican commissioners serving at a time. Steven T. Walther is the first registered Independent to serve as an FEC commissioner.

How are FEC commissioners chosen and what are the term lengths?

The Commission looks a bit different today than it did at its conception more than 40 years ago. Congress initially intended for the FEC to have eight members, rather than the six it has today. The first structural plan included six commissioners and two nonvoting members, the Clerk of the House and the Secretary of the Senate. Under this original structure, two commissioners were appointed by the President, two by the President pro tempore of the Senate and two by the Speaker of the House. In the 1976 Supreme Court Buckley v. Valeo decision, the courts determined that a commissioner appointment by Congress violated the Appointments Clause of the U.S. Constitution.

In 1993 the U.S. Court of Appeals of the District of Columbia ruled that the presence of two congressional ex-officio members in the FEC went against the congressional separation of power.

Under the current appointment system, all commissioners are appointed by the U.S. Senate and confirmed by the president. Commissioners serve six-year terms, with two commissioner terms expiring on April 30 every other year. But the president is under no obligation to nominate a new commissioner once a term expires. Likewise, commissioners may remain in holdover status and continue to serve under an expired term until they are replaced.

Of the six commissioners currently serving, three remain in holdover status. Commissioners Ellen L. Weintraub, Steven T. Walther and Sean J. Cooksey have collectively served more than 27 years of expired terms.

What happens if the FEC loses its policymaking quorum?

The FEC needs a minimum of four commissioners in order to carry out the majority of its duties, including issuing and conducting investigations and creating or altering rules.

The FEC lost its quorum during the first six months of 2008, when just two commissioners served. Commissioners Ellen L. Weintraub (D) and David M. Mason (R) met publicly to discuss matters, including advisory opinions, as a way to provide general feedback and guidance despite not being able to vote on matters.

When the new commissioner nominees were confirmed later in 2008, the FEC faced a backlog of matters that had not been addressed during the time in which the agency did not meet its policymaking quorum.

Throughout much of 2019 and 2020, the FEC again lacked a quorum and could not vote, enforce or decide on any matters. Since December 2020, the commission has been restored to full capacity with six members.