It’s Past Time to Overhaul the Federal Election Commission

Elections & Politics Policy Brief #73 | By: Ian Milden | April 12, 2023

Header photo taken from: brennancenter.org

Policy Summary

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The Federal Election Commission (FEC) is supposed to be the primary regulator for federal campaigns. However, the structure of the organization has made it dysfunctional for years. This brief will discuss the consequences of the FEC’s dysfunction and propose some potential reforms.

Photo taken from: govexec.com/Mark Van Scyoc/shutterstock.com

Policy Analysis

The Federal Election Commission was founded in 1975 to enforce campaign finance rules described in the Federal Election Campaign Act of 1971 for Presidential and Congressional campaigns. It is an independent agency led by six commissioners. These commissioners are appointed by the President and confirmed by the Senate. Commissioners serve for six years in staggered terms. No more than three commissioners are allowed to be of the same party. The commission was designed this way to promote bipartisan decision-making.

The Federal Election Commission is required to have paperwork registering every new campaign organization and political action committee. These organizations are required to report their fundraising and spending activities every quarter to the FEC. The FEC examines filings for potential violations and makes rules on what campaign funds can be spent on. Serious violations of campaign finance laws are referred to the Justice Department for criminal investigation.

Candidates for federal offices are also required to file a personal financial disclosure form once they raise or spend $5000 dollars. The deadlines for the filing are May in the year before the primary or within 30 days of meeting the $5000 fundraising threshold. There is a fine for failing to file the personal financial disclosure form, but this is rarely enforced. Several current members of Congress failed to file a personal financial disclosure form on time during their most recent campaign.

Unfortunately, the current structure of the commission has resulted in gridlock. Many non-criminal campaign finance violations, such as sloppy record keeping, go unpunished due to a 3-3 vote by the commissioners or the campaigns get off with very light fines. The gridlock on revising the rules is also problematic for regulating the digital activities of campaigns as online fundraising and advertising tools have evolved fast enough to render many existing rules moot. At times in recent years, the FEC has not had enough commissioners on unexpired terms, which has left the FEC without the ability to make decisions or enforce penalties.

The FEC also maintains a system for public financing of campaigns, but the rules for spending campaign funds are so severely restrictive that most campaigns since 2008 have not used it except for long-shot candidates who make desperate attempts to keep their campaigns alive. The FEC may need new legislation from Congress to overhaul or abolish this outdated and dysfunctional system, which costs taxpayers money when hopeless candidates decide to use it.

The FEC has also done a poor job of regulating campaign organizations that remain in operation after a particular campaign has ended. There are several campaign organizations that continue to spend funds on consultants, restaurants, transportation expenses, and more items long after the candidates they are supposed to be promoting have left public office or, in some cases, when a candidate has died. The media has called these campaigns “zombie campaigns”. The Tampa Bay Times published an extensive investigation into zombie campaigns in 2018. Many other unsuccessful campaign organizations still exist because they are unable to pay their debts. For example, Newt Gingrich’s 2012 Presidential Campaign still exists because it has been unable to pay off the millions of dollars in debt that Gingirch acquired during the campaign. Gingrich’s 2022 year-end report lists $4.6 million in remaining debt.

Photo taken from: brennancenter.org/BCJ/Getty/Phil Roeder

Potential Reforms

Senator Michael Bennet (D-CO) introduced the ZOMBIE Act in 2021, which would require campaign organizations to close their accounts within six months of the end of a campaign unless a candidate filed for re-election. It did not pass and GovTrack indicates that the bill never received a floor vote.

In addition to Senator Bennet’s Zombie Act, new legislation is needed to address specific circumstances that the current FEC has failed to effectively deal with. Specific punishments for non-criminal violations like sloppy financial records may deter campaigns from trying to cut corners or violate rules. These punishments should be adjusted by law every campaign cycle relative to inflation, cost of living, and other changes in campaign finance rules that affect how much campaigns can raise and spend.

If the FEC is to become a respected enforcer of campaign finance rules, major changes to the structure of the organization are necessary. The structure of the six-member commission is no longer viable in a highly partisan environment. The number of commissioners should be changed to an odd number of commissioners in order to eliminate the 3-3 votes. While the law preventing a majority of commissioners being from the same party is a good idea, it would be better to make a majority of the commissioners non-partisan. Specific regulations on who can be appointed should be included to uphold the non-partisan ideal. Examples of potential appointees for future commissioners could include long-time civil servants, academics, retiring judges, or other judicial officials who lack significant ties with any party or campaign.

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