FEC can't enforce election laws right now, because of Mitch McConnell’s obstruction

After a GOP appointee quits — and Mitch won't replace him — Federal Election Commission literally can't do its job

By Igor Derysh

Managing Editor

Published August 27, 2019 6:37PM (EDT)

Mitch McConnell (AP/Carolyn Kaster)
Mitch McConnell (AP/Carolyn Kaster)

The Federal Election Commission will effectively shut down after a Republican appointee resigned, leaving the panel without a legally-required four-member quorum.

Republican appointee Matthew Petersen, who was nominated to be a federal judge by President Trump before withdrawing after being unable to answer basic legal questions, announced his resignation Monday. 

The move comes days after Petersen and the lone other Republican on the panel blocked the FEC from investigating a complaint alleging that Russian operatives may have illegally funneled money to the Trump campaign through the NRA. 

With Petersen out, the six-member panel is down to just three members, one short of the four members they need to take any official action.

“Without a quorum, certain Commission activities will not take place. For example, the Commission will not be able to hold meetings, initiate audits, vote on enforcement matters, issue advisory opinions, or engage in rulemakings,” Republican commissioner Caroline Hunter said in a statement Monday.

The lack of a quorum leaves the FEC with its hands tied heading into the 2020 election cycle.

Rick Hasen, an election law expert at the University of California at Irvine, wrote on Twitter that the panel was already “dysfunctional” but “given the threat of foreign intervention in the 2020 elections, the inability of the FEC to act on an emergency basis is BAD NEWS."

There is no good reason that the FEC, which is supposed to have six members, has just three. Two new FEC commissioners are usually nominated every two years. Since Mitch McConnell, an opponent of campaign finance laws who has blocked multiple election security bills, became Senate majority leader in 2015, not a single commissioner has been confirmed. There has been no indication McConnell plans to address the FEC issue, even though the president nominated a pro-Trump lawyer to the panel two years ago. The Senate has yet to hold a confirmation hearing.

“With foreign governments and others potentially looking to interfere in the 2020 elections, it is essential we have a working FEC with a full complement of commissioners,” Hasen told Mother Jones. “Even if the Democrats and Republicans on the commissioners would deadlock on ordinary enforcement matters, there is at least a chance they could come together in an emergency to help ensure the integrity of the 2020 campaign.”

FEC chairwoman Ellen Weintraub, a Democrat, tried to put a positive spin on the panel’s inability to act in a statement on Monday.

“I will continue to remain vigilant to all threats to the integrity of our elections — and Americans’ faith in them,” Weintraub said. “But we do need to have a functioning quorum on this Commission.”

But Republicans appear to want Weintraub and the panel’s other Democratic holdover gone. 

A senior Republican Senate aide said that there have been discussions about “nominating a slate of six appointees and remaking the ­panel,” The Washington Post reported. FEC rules require that there be no more than three Democratic members and no more than three Republican members. The aide said that such a move would require Democrats to “replace the two longtime Democratic holdovers.” 

Weintraub has been a staunch defender of campaign finance laws, pushing for investigations into campaigns from both parties while Republicans have typically voted to block most inquiries into campaign finance violations.

Tensions boiled over last week when the FEC’s Republican commissioners, Petersen and Hunter, blocked an investigation into a report that Russian central banker Alexander Torshin and his protege Maria Butina illegally funneled money to the Trump campaign by using the NRA as a conduit.

“The FEC’s Republican commissioners blocked the Commission from enforcing a complaint alleging a serious threat to our country’s democracy,” Weintraub said in a statement. “As a result, this agency barely lifted a finger to find out the truth behind one of the most blockbuster campaign finance allegations in recent memory.”

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

MORE FROM Igor Derysh