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The Federal Election Commission Can Finally Meet Again. And It Has A Big Backlog

Dec 24, 2020
Originally published on December 25, 2020 4:29 pm

The Federal Election Commission has not been able to operate since July, when a Republican commissioner resigned, leaving the FEC short of the four commissioners necessary to meet and unable fulfill its job of enforcing campaign finance law.

Following Senate action earlier in December, it now has a full compliment of six commissioners: three Democrats, two Republicans and one independent.

Still, former FEC associate counsel Adav Noti is not optimistic that even now the FEC will be able to accomplish much.

"No, I would not say I'm hopeful about the FCC performing any of its functions," Noti tells NPR. "I think the restoration of the quorum means that the agency will resolve matters. But those resolutions are likely to be partisan deadlocks in all but the most trivial of cases."

Noti, now senior director for trial litigation and chief of staff at the Campaign Legal Center, says the commission is divided not so much by party, but ideology.

"The usual situation has been that the Democratic FEC commissioners have tried to enforce campaign finance law against both Democrats and Republicans, have tried to enforce it somewhat stringently," he says. "And the Republican commissioners have generally opposed enforcement of the law, regardless of whether the law-breaker was a Republican group or a Democratic group."

One of the highest-profile cases before the FEC was brought by the Campaign Legal Center against the Trump campaign and a related political action committee. It charges the campaign "disguised nearly $170 million of campaign spending by laundering the funds through firms headed by Trump's recent campaign manager, Brad Parscale, and/or created by Trump 2 campaign lawyers." The campaign has denied the charge.

Former FEC chairman Bradley Smith, a Republican, says the differences on the commission are usually over how campaign law should be interpreted.

"I think this idea that the commission frequently deadlocks is probably vastly overstated," he says. "Most of the cases are pretty routine. It does come up on questions of how aggressively I think at times to interpret the law and whether one one views it as something that should be interpreted narrowly or broadly in scope."

While the FEC was idled by lack of a quorum, it amassed a backlog of some 446 cases.

Smith says one issue he'd like the commission to address is political contributions by nonprofits, like the Sierra Club or National Right to Life. He says it's unclear whether the names of donors to those groups — who may not have given for political reasons, but to support the cause — should be disclosed.

"It's not quite clear how much [the groups] need to disclose in terms of donors who may have given for totally different reasons. And it's not like a donor who gives to a campaign or donor gives to a political party or a PAC and expects it to be used on politics. So this is a tough issue out there," he says.

Another big case pertains to Mike Bloomberg, according to Michael Beckel with the political reform group Issue One. Beckel says the former New York City mayor transferred $18 million from his failed presidential bid this year to the Democratic Party.

"Michael Bloomberg's self-funded his presidential campaign, which made this $18 million transfer essentially an $18 million donation from him to the DNC, which far exceeded our campaign contribution limits. So that's a big high-profile case," he says.

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For the first time since July, the Federal Election Commission has a quorum. That means the agency, which enforces federal campaign finance law, can once again investigate and act on possible violations. And even though the 2020 election cycle is all but over, there is still plenty for the six commissioners to pursue, as NPR's Brian Naylor reports.

BRIAN NAYLOR, BYLINE: The FEC has not been able to operate since July, when a Republican commissioner resigned, leaving it short of the four commissioners necessary to meet. Following Senate action in early December, it now has a full complement of six commissioners. Three are Democrats, two are Republicans, and one's an independent. But former FEC associate counsel Adav Noti is not expecting much.

ADAV NOTI: No, I would not say I'm hopeful about the FEC performing any of its functions. I think the restoration of the quorum means that the agency will resolve matters, but those resolutions are likely to be partisan deadlocks in all but the most trivial of cases.

NAYLOR: Noti, now with the Campaign Legal Center, says the divisions on the commission fall along ideological lines.

NOTI: The usual situation has been that the Democratic FEC commissioners have tried to enforce campaign finance law against both Democrats and Republicans - have tried to enforce it somewhat stringently. And the Republican commissioners have generally opposed enforcement of the law, regardless of whether the lawbreaker was a Republican group or a Democratic group.

NAYLOR: Bradley Smith is a former Republican FEC chairman. He says the differences on the panel are usually over how campaign law should be interpreted.

BRADLEY SMITH: I think this idea that the commission frequently deadlocks is probably vastly overstated. The - most of the cases are pretty routine. It does come up on questions of how aggressively, I think, at times to interpret the law and whether one views it as something that should be interpreted narrowly or broadly in scope.

NAYLOR: While the FEC was idled by a lack of a quorum, it amassed a backlog of some 446 cases. Smith says one issue he'd like the commission to address is political contributions by nonprofits - say, the Sierra Club or National Right to Life. He says it's unclear whether the names of donors to those groups who may not have given for political reasons but to support the cause should be disclosed.

SMITH: And so under the law, it's not quite clear how much they need to disclose in terms of donors who may have given for totally different reasons. And it's not like a donor who gives to a campaign or a donor who gives to a political party or a PAC and expects it to be used on politics. So this is a tough issue out there.

NAYLOR: Another big case, says Michael Beckel with the political reform group Issue One, pertains to Michael Bloomberg. Beckel says the former New York City mayor transferred $18 million from his failed presidential bid this year to the Democratic Party.

MICHAEL BECKEL: Michael Bloomberg self-funded his presidential campaign, which made this $18 million transfer essentially an $18 million donation from him to the DNC, which far exceeded our campaign contribution limits. So that's a big high-profile case that is a complaint that's still pending before the FEC.

NAYLOR: As is another complaint filed by the Campaign Legal Center against the Trump campaign and a related political action committee charging it disguised nearly $170 million in campaign spending by laundering it through firms created by Trump's former campaign manager. It's a charge the Trump campaign has denied.

Brian Naylor, NPR News.

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