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New hope, new problem: Will the Federal Election Commission shut down?

Agency could lose quorum just as liberals, conservatives find sliver of common ground

By Dave Levinthal📷📷

5:00 am, December 20, 2017 Updated: 1:46 pm, April 6, 2018

Caroline Hunter and Ellen Weintraub share a relationship that’s sometimes icy, occasionally testy and rarely dull. Their public disagreements as Federal Election Commission commissioners have spanned a decade across myriad matters material and trivial — political ads, memory skills, breakfast food.

But the dynastic duo, who on Thursday became FEC chairwoman and vice chairwoman for 2018 — both have served years in these capacities before — are forging a detente. 

Hunter, a Republican, recently sought out Weintraub, a Democrat, to privately discuss FEC issues, from improving agency efficiency to more tightly regulating internet-based political communications, on which they might actually agree. In separate interviews, both commissioners said they’re focusing not on their differences, but commonalities — a marked change of tone from two strong personalities who’ve gone stretches without speaking to one another.

At issue is whether their thaw is ultimately for naught. The six-member commission, which regulates and enforces the nation’s campaign finance laws, could face a de facto shutdown just as 2018 congressional midterm elections heat up.

Absent speedy intervention by President Donald Trump and the U.S. Senate, the FEC could soon lose at least two commissioners, and with them, the requirement that four commissioners be present to conduct high-level business such as making rules, levying fines, approving audits and offering political committees official guidance.

Worst case scenario? Hunter and Weintraub find themselves alone atop the FEC, with nothing to do.

Both are Zen about the possibility.

“We’ll just need to keep plugging and chugging while we still have a quorum,” Hunter said.

“It’s so out of my hands I can’t worry about it, but it’s an argument for making every day we’ve got count,” Weintraub said.

A slow bleed

Of the FEC’s six commissioner slots — no more than three may be occupied by a single political party — one has sat vacant since March, when Democrat Ann Ravel resigned.

Outgoing Chairman Steven Walther, an independent, and Republican Commissioner Lee Goodman, could quit at any moment. Both continue to serve in “holdover status” despite their six-year terms having long ago expired — the same situation in which Hunter and Weintraub also find themselves.

Walther says he’ll be back at the FEC to begin 2018 as a rank-and-file commissioner, but hasn’t decided how long he’ll stay. “I’m mulling it over,” he said.

Goodman, for his part, has eyed leaving the FEC for months. A political attorney by trade, he says he’s had several private sector opportunities. But he’s so far turned them down.

“Every time I look to leave [the FEC], there’s another fire to put out. I am open to leaving; I’m not bound by any commitment to stay,” Goodman said.

(Update, 11:11 a.m., Feb. 7, 2018: Calling his time at the FEC a "profound honor," Goodman announced his resignation, effective Feb. 16, in a letter to Trump. Goodman will join law firm Wiley Rein LLP as a partner. Goodman's "accomplishments as a member of the FEC, combined with his other government experience and private-sector acumen, will be a tremendous asset for our clients who seek advice on high-profile and sensitive compliance issues," said Michael Toner, co-chair of the firm's election law and government ethics practice and, like Goodman, a former FEC chairman.

“I don’t expect major changes to occur at the FEC because the law still requires four affirmative votes to take regulatory action,” Goodman told the Center for Public Integrity. “The remaining commissioners have all served ten or more years together and they know each other well. I don’t expect any issues in the operations in the agency.")

Then there’s the curious case of Republican Commissioner Matthew Petersen.

Petersen’s departure from the FEC appeared imminent, as Trump in September nominated him to serve as a federal district judge for the District of Columbia. But Petersen’s Senate Judiciary Committee confirmation hearing last Wednesday proved disastrous, with Petersen, who the American Bar Association ranked as “qualified,” struggling to answer a flurry of pointed questions about both the law and his experience.

Calling video of the exchanges “my two worst minutes on television,” Petersen withdrew from consideration Monday, saying in a letter to Trump that “until the time is otherwise appropriate, I look forward to returning to my duties at the Federal Election Commission.”

Trump had already nominated Texas lawyer Trey Trainor as Petersen’s replacement after briefly slotting Trainor to replace Goodman. The Senate Rules and Administration Committee has not conducted a confirmation hearing for Trainor, nor is one yet scheduled. Given this, it’ll be weeks, even months, before Trainor could plausibly join the FEC.

And while Senate Rules and Administration Committee officials declined to comment on the record, two people familiar with Trainor’s confirmation process confirmed the committee is unlikely to move forward with hearings and votes until Trump also nominates a Democrat.

The White House acknowledged questions from the Center for Public Integrity about Trump’s plans for nominating FEC commissioners, but did not answer them. Trump’s White House counsel is former FEC Chairman Don McGahn, an outspoken critic of federal campaign finance regulations who frequently sought to limit the scope of FEC authority.

The FEC last lost a quorum and shut down a decade ago. The six-month hibernation not only froze agency business but “it was very, very congested with enforcement cases when we got back up,” Walther said.

“Today, we need a full commission as fast as possible,” Walther added, “but that’s very much up to the president.”

FEC not well-known

Such uncertainty surrounding FEC leadership comes at a time when the public is acutely concerned about matters — such as the sources behind political advertisements — within the commission’s jurisdiction, even if they know little about the panel itself.

More than 70 percent of Americans say their knowledge of the FEC doesn’t extend beyond knowing the agency’s name, according to a Center for Public Integrity/IPSOS poll conducted last week. Just 8 percent of respondents considered themselves “very familiar” with the FEC; 30 percent have “never heard of” the FEC, the poll indicates.

But more than eight in 10 poll respondents, regardless of party affiliation, either “strongly agree” or “somewhat agree” that political ads both on TV and online should be required to say who paid for the ad. The FEC in early 2018 is expected to consider new rules for online political advertising disclosure, which are less stringent that rules governing political ads on TV.

Poll respondents are also divided on whether U.S. political elections are “fair and open:” 50 percent say they “somewhat” or “strongly” agree that they are, while 43 percent say they “somewhat” or “strongly” disagree.

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