What Can Be Done to Fix the Federal Elections Commission?

The agency charged with monitoring and enforcing the fiscal integrity of elections in the United States, the Federal Elections Commission, no longer has a commissioner serving a non-expired term. Caroline Hunter, who was appointed in 2008 under President Bush, will be serving an expired term as of Tuesday.

As the last of the FEC’s 5 commissioners to reach the end of their term, Hunter’s term expiration reaffirms the long-overdue need to revamp the agency. Ellen Weintraub, the current chair, was appointed on December 6, 2002 and has been on the commission the longest. Her term expired in 2007.

Traditionally, two new commissioners are appointed to six-year terms every two years, yet the last round of FEC appointments was in 2008.

The FEC is currently comprised of 5 commissioners (even though there are six seats): two Democrats — Ellen Weintraub (chair) and Steven Walther — and three Republicans — Donald F. McGahn II (vice-chair), Matthew S. Peterson, and Caroline Hunter.

Various solutions have been suggested by government watchdogs and critics alike as to what can be done to fix the federal elections commission. From outright disbanding the agency to appointing a new swath of bipartisan commissioners, these suggestions fail to recognize the institutional stumbling block which prevents the commission from operating efficiently.

As required by law, a maximum of three appointees can belong to any one party. A team of nonpartisan commissioners would curb much of the partisan deadlock that has paralyzed the FEC in many crucial decisions.

Still facing the commission are a number of complaints and questions of policy clarification, many of which concern the role of ‘dark money’ 501(c)4 social welfare groups in elections.

Groups like Organizing for Action or American Crossroads GPS can easily test the limits of existing regulations with little to no recourse. These groups are not required to disclose donors even if they engage in electioneering communications (expressly advocating for the election or defeat of a candidate).

Additionally, the FEC has yet to define a clear policy with regards to how the 2010 Citizens United Supreme Court decision affects independent expenditure reporting. The legal lines between issue advertising and electioneering remain blurry, which will have a detrimental impact on future elections.

Giving tax-exempt protections to organizations that are clearly engaged in partisan politics not only prevents the electorate from being better informed, but also leaves a large nondisclosure loophole in the political process.

Given the imposing likelihood of partisan opposition to a Democratic or even Republican nomination, few are confident progress will be made in the way of new FEC appointments anytime soon. President Obama has left few signals that action will be taken to solve the mounting crisis at the FEC.

However, nonpartisan appointments could pressure both parties to confirm independent regulators, which may enable the commission to function as intended.

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