Roiled in Partisan Deadlock, Federal Election Commission Is Failing
By Craig Holman and Abigail Winchester
Roiled in Partisan Deadlock, Federal Election Commission Is Failing
In just the last few years, a sharply pervasive partisan split on the Federal Election Commission (FEC) has largely prevented the agency from fulfilling its mission. In both numbers of actions taken and immobilizing deadlocked votes, the FEC is showing a dramatic and uncharacteristic inability to perform its duties more or less in all categories – enforcement, audits, regulations and advisory opinions. As of September 1st, 2019, the FEC has lost its quorum, rendering the agency incapable of making formal decisions.
One of the most critical functions of the FEC is to enforce the Federal Election Campaign Act (FECA), nation’s campaign finance law, but today’s agency is falling desperately short in this mission.
Split Votes on Proposed Enforcement Actions
| Year | Split Votes | Total Votes | % of Split Votes |
| 2003 | 9 | 1036 | 0.9 |
| 2004 | 11 | 594 | 1.9 |
| 2005 | 12 | 823 | 1.5 |
| 2006 | 5 | 569 | 0.9 |
| 2007 | 2 | 612 | 0.2 |
| 2008 | 14 | 140 | 10 |
| 2009 | 42 | 263 | 15.9 |
| 2010 | 14 | 139 | 10.1 |
| 2011 | 28 | 189 | 14.8 |
| 2012 | 25 | 135 | 18.5 |
| 2013 | 46 | 204 | 22.5 |
| 2014 | 21 | 185 | 11.4 |
| 2015 | 42 | 209 | 21 |
| 2016 | 95 | 364 | 26 |
| 2017 | 75 | 274 | 27.4 |
| 2018 | 92 | 332 | 27.7 |
| 2019 | 132 | 386 | 34.2 |
| Totals | 665 | 6,454 | 10.3% |
As noted below, today’s FEC is pursuing far fewer audits than it had done so previously, and when the question of conducting an audit arises, the agency is often inclined to deadlock on the issue, resulting in no further action.In addition to enforcing the law, the FEC is charged with conducting audits of the financial activity of candidates and committees, in order to ensure compliance with the law. The audit function is designed to monitor compliance with the contribution limits, reporting requirements and handling of public funds by presidential candidates. Audits are performed on a random basis or when preliminary investigations suggest a need for further review, except that all publicly financed candidates are subject to regular audits.
Split Votes on Proposed Audits
| Year | Split Votes | Total Votes | % of Split Votes |
| 2003 | 0 | 59 | 0 |
| 2004 | 0 | 57 | 0 |
| 2005 | 1 | 61 | 1.6 |
| 2006 | 5 | 82 | 6.1 |
| 2007 | 0 | 42 | 0 |
| 2008 | 1 | 62 | 1.6 |
| 2009 | 1 | 9 | 11.1 |
| 2010 | 0 | 13 | 0 |
| 2011 | 7 | 20 | 35 |
| 2012 | 10 | 27 | 38 |
| 2013 | 2 | 12 | 16.7 |
| 2014 | 11 | 30 | 36.7 |
| 2015 | 4 | 17 | 23.5 |
| 2016 | 3 | 7 | 42.8 |
| 2017 | 6 | 14 | 42.8 |
| 2018 | 2 | 5 | 40 |
| 2019 | 1 | 3 | 33.3 |
| Totals | 54 | 520 | 10.38% |
The Federal Election Commission is that agency responsible for promulgating rules and regulations to facilitate implementation of the nation’s campaign finance laws. The Commission clarifies the FECA and the public funding statutes through regulations, codified in Title 11 of the Code of Federal Regulations.
The agency has shown episodes of conflict and deadlocked votes when it comes to promulgating regulations, with the agency today rivaling its past episodes of indecision. Furthermore, the FEC is showing a strong disinclination to make use of its rulemaking authorities.
Split Votes on Proposed Rules
| Year | Split Votes | Total Votes | % of Split Votes |
| 2003 | 4 | 28 | 14.3 |
| 2004 | 6 | 30 | 20.0 |
| 2005 | 0 | 24 | 0 |
| 2006 | 7 | 29 | 24.1 |
| 2007 | 0 | 7 | 0 |
| 2008 | 0 | 4 | 0 |
| 2009 | 1 | 13 | 7.7 |
| 2010 | 2 | 11 | 18.2 |
| 2011 | 4 | 12 | 33.3 |
| 2012 | 0 | 5 | 0 |
| 2013 | 2 | 4 | 50 |
| 2014 | 1 | 7 | 14.3 |
| 2015 | 7 | 10 | 70 |
| 2016 | 4 | 22 | 18 |
| 2017 | 4 | 23 | 17.4 |
| 2018 | 4 | 13 | 30.8 |
| 2019 | 0 | 5 | 0 |
| Totals | 55 | 238 | 23.1% |
Finally, the Federal Election Commission is supposed to provide advice to candidates and committees on how the law will reasonably be interpreted and how candidates and committees may avoid running afoul of the law. The Commission issues written advisory opinions (AOs) to people seeking guidance on the application of the campaign finance law to their own specific activities.
Individuals and organizations involved in an activity approved in an AO may rely on the AO without
risk of enforcement action by the FEC, provided they act in accordance with the AO’s provisions. Here, too, the FEC shows a troubling trend toward deadlocking on advisory opinion requests, leaving candidates and committees pretty much on their own when it comes to fielding how the law will be enforced.
Split Votes on Advisory Opinions
| Year | Split Votes | Total Votes | % of Split Votes |
| 2003 | 6 | 51 | 11.8 |
| 2004 | 5 | 51 | 9.8 |
| 2005 | 3 | 26 | 11.5 |
| 2006 | 7 | 38 | 18.4 |
| 2007 | 6 | 43 | 13.9 |
| 2008 | 7 | 31 | 22.6 |
| 2009 | 5 | 33 | 15.2 |
| 2010 | 12 | 41 | 29.3 |
| 2011 | 7 | 31 | 22.5 |
| 2012 | 27 | 52 | 51.9 |
| 2013 | 6 | 21 | 28.6 |
| 2014 | 2 | 24 | 8.3 |
| 2015 | 6 | 26 | 23.1 |
| 2016 | 6 | 22 | 27 |
| 2017 | 4 | 16 | 25 |
| 2018 | 1 | 13 | 7.7 |
| 2019 | 5 | 16 | 31.3 |
| Totals | 115 | 535 | 21.5% |
Sources: Craig Holman, Ph.D., Lobbyist; Abigail Winchester, Researcher; Public Citizen (2020)