The federal agency responsible for enforcing federal campaign finance law will soon have too few members to officially make decisions, as the agency announced Aug. 26 that its vice chairman, Matthew Petersen, would be leaving at the end of the month.

“I am deeply grateful for the opportunity to have served on the commission,” said Petersen in a news release. “The work of a commissioner is challenging because it involves taking actions that impact the free speech rights of the American people. For this reason, I take satisfaction in having fulfilled my obligation to safeguard First Amendment interests while faithfully administering and enforcing the federal campaign finance laws.”

The FEC is designed to have six commissioners, who are appointed by the president and serve for six-year terms. But commissioners can serve far beyond that mark if no one is nominated to take up their seat.

By law, no more than three commissioners may be from the same political party and any official action taken by the commission requires four votes, including issuing new rules or voting on the outcome of an election finance investigation.

Petersen’s departure will drop the number of commissioners to three, making the agency effectively inoperable as the commission is incapable of passing any official actions.

“I think it’s really concerning, The FEC was set up as an independent agency after the Watergate scandal to enforce election law and to be the referee to blow the whistle on politicians that cheat. That referee has grown increasingly ineffectual, in part because of a number of systemic issues with the commission,” said Rep. Derek Kilmer, D-Wash., in an interview with Federal Times.

“With the loss of a quorum, we’re going from having an ineffectual referee to a referee that’s completely off the field.”

Kilmer has been working with other members of Congress to establish the Restoring Integrity to American Elections Act, which was included in the House’s expansive For the People Act of 2019 and would make a number of changes designed to make the FEC more effective.

The bill would reduce the number of FEC commissioners from the current six to five, creating a quorum of three votes and mandating that at least one member of the commission is unaffiliated with any party. A blue ribbon commission would be created and tasked with finding qualified candidates from both parties or with no political affiliation to recommend to the president when a seat becomes vacant, and those approved by the Senate would only be allowed to serve for six years, with an optional one year extension if their seat is not filled.

The bill would also prohibit politicians from serving on the commission and reform the investigative process to give the general counsel the authority to move a complaint into an investigation, rather than requiring commission sign-off.

“This came out of a bipartisan group in Congress called the Bipartisan Working Group,” said Kilmer.

“There are Republican colleagues that are outraged by the fact that we have a federal agency that’s not able to do anything, and that’s not good for taxpayers.”

The group invited a former chair of the FEC to talk about the operations of the commission, and members form both parties said that they would be interested in pursuing the reforms proposed.

“These are among the issues that cause Congress to be held in low regard. When there is a clear problem here that is central to the integrity of American democracy, and it’s bipartisan … and at this point the Senate has been nowheresville on this issue and I think that’s a real problem,” said Kilmer.

“There seems to be a perspective by some that we shouldn’t enforce the law.”

Those reforms, of course, would require the FEC to have nominees that are approved by the Senate to reestablish a quorum.

President Donald Trump has nominated James Trainor to take over Petersen’s seat, but the nomination has been returned by the Senate twice due to inaction.

According to Kilmer, the only real solution to getting nominations made and confirmed is to increase the public profile of what the FEC does and why it will be inoperable.

“I’ve traveled every nook and cranny of my district, and you know what I’ve never heard anybody say? I’ve never heard someone say, ‘we should make it easier for politicians to cheat,’” said Kilmer.

“We have to elevate this issue because, generally speaking, Congress takes action when the American people demand it.”

The FEC is not the only agency to lack sufficient presidentially appointed members. The Merit Systems Protection Board recently lost its last remaining member and prior to that had been operating without a quorum for nearly three years.

About Jessie Bur

Jessie Bur covers federal IT and management.

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