America’s elections cop will be stuck on the sidelines for what could be months, unable to complete investigations, mete out punishments or even give candidates advice about what is and isn’t legal, just as the 2020 election season gets underway.
Federal Election Commission (FEC) vice chairman Matthew Petersen said Monday he will resign effective Friday. His departure will leave the FEC with only three commissioners out of six seats — one shy of a quorum.
Without at least four commissioners, the FEC will be unable to take action on its core mission, enforcing campaign laws.
The FEC “will now pretty much grind to a halt,” said Paul S. Ryan, vice president of policy and litigation at Common Cause. “This is a big deal that the FEC is now going to be without a quorum.”
Guidelines published in 2008, the last time the commission was left without a quorum, show the FEC cannot act on all but the most basic administrative functions.
The commission will be unable to complete investigations into possible campaign violations, audit campaign committees or make new rules. It cannot even issue fines for those who break campaign finance law.
There are signs that the shutdown may last much longer than the 2008 quagmire, said Michael Toner, a Republican who served on the FEC from 2002 to 2007.
A decade ago, the Senate raced to confirm several nominees when it became apparent that the late Sen. John McCainJohn Sidney McCainThe Biden-Harris train wreck may have its savior: 2024 GOP nominee Donald Trump Kelly raises million in third quarter Legislative limbo — how low can they go? MORE (R-Ariz.), the Republican nominee for president at the time, would request matching funds for his general election campaign — something only a functioning FEC could vote to allow.
This time, ahead of another presidential election, neither President TrumpDonald TrumpTrump criticizes Justice for restoring McCabe's benefits Biden: Those who defy Jan. 6 subpoenas should be prosecuted Hillicon Valley — Presented by LookingGlass — Hackers are making big money MORE nor the Democratic nominee are likely to take matching funds, and there are few other incentives that could spur the Senate to act.
“Neither the Trump administration nor Congressional Democrats have made the FEC a priority,” Toner said. “This shutdown could last quite a lot longer.”
Trump has nominated one person to serve on the commission, Texas attorney James “Trey” Trainor, a Republican. But Trainor’s nomination went nowhere in the last Congress. Trump renominated him in January. The Senate Rules and Administration Committee has not taken up his nomination, and is unlikely to do so until Trump nominates a Democrat alongside him.
“With the resignation of Commissioner Petersen, I believe the Senate must act quickly to maintain a quorum at the FEC as we head into the 2020 elections,” Rules Committee Chairman Roy BluntRoy Dean BluntHartzler pulls in 6,000 for Missouri Senate bid with .65M on hand McConnell gets GOP wake-up call The Hill's Morning Report - Presented by Facebook - After high drama, Senate lifts debt limit MORE (R-Mo.) said in an emailed statement. “I would like to see a full slate of commissioners at the FEC and will work with our Democrat colleagues on the committee to move that effort forward.”
FEC staff can continue day-to-day operations, including posting filed campaign finance reports and alerting candidates of filing deadlines. The staff can also accept complaints against candidates or political committees alleged to have broken campaign finance laws.
But once a complaint is filed, the commission must take a so-called “reason to believe” vote to open an investigation. Without four commissioners, that vote cannot take place.
What may be of more consequence is an inability to offer advisory opinions, legally binding policy statements that offer candidates or political committees clarity on what is and is not permitted under law. Ryan said those opinions offer candidates and committees legal cover in what can be a murky area of the law.
“One of the most important things the Federal Election Commission does is provide clarity on how the law applies to particular candidates or political committees or individuals who wish to engage in conduct they may be uncertain about,” Ryan said. “The FEC has power to give candidates or committees a shield against future enforcement activities.”
The number of advisory opinion requests typically ramp up in an election year, when candidates and campaigns are raising and spending the most money. Without a functioning FEC, those requests cannot be heard.
The elections board has been under stress for years, plagued by high turnover and low employee morale. Enforcement of existing laws and fines has plummeted in recent years, staffing levels are at a historic low, and several senior career positions have been vacant for years.
Petersen is the third commissioner to quit since 2017, when Democrat Ann Ravel left before her term expired. Republican Lee Goodman resigned in February 2018, leaving the commission with only the barest quorum.
The three remaining commissioners — Democrat Ellen Weintraub, Republican Caroline Hunter and independent Steven Walther — are all serving long past the point when their six-year terms expired. Weintraub, the longest-serving commissioner, has served 12 years past her term’s expiration. Petersen’s term expired in 2011.
“It was a dysfunctional agency yesterday, and it continues being dysfunctional today,” said Sheila Krumholz, executive director of the Center for Responsive Politics.
The lack of a quorum, she said, “makes it that much harder to get back to business if there were a willingness to negotiate and debate in good faith and come up with compromises and solutions.”
Updated at 7 p.m.