While routine administrative work continues, the agency cannot enforce the law, vote on investigations, provide guidance or conduct audits — activities that are especially crucial and timely for a presidential election, which is projected to be the most expensive one to date.
In a joint letter Monday, 31 attorneys across the political spectrum and whose clients are regulated by federal campaign finance law asked President Trump and congressional leaders for “swift attention to this situation, which has languished for far too long.”
“In representing those clients, we often find ourselves in adversarial positions in the legal arena,” they wrote. “Yet we are united in our commitment to the rule of law and the need for the agency tasked with regulating federal campaign finance laws to fully function and carry out the mission assigned to it by Congress.”
The list of signatories include some of the most prominent legal experts working in campaign finance, representing a diverse cross-section of politically active groups and individuals from both major parties.
They include attorneys who have represented the Democratic National Convention, former president George W. Bush’s 2004 campaign, House Minority Leader Leader Kevin McCarthy (R-Calif.) and former president Barack Obama’s 2012 campaign.
FEC commissioners are confirmed by the Senate. Senate Majority Leader Mitch McConnell (R-Ky.) and the White House want to appoint a slate of six new commissioners, since the three serving are all holdovers with expired terms.
Democrats have pushed back on the idea, noting all it takes is one appointment to restore a quorum. Senate Democrats have recommended one attorney, and Sen. Charles E. Schumer’s (D-N.Y.) office said it has interviewed others.
A Senate GOP aide, speaking on the condition of anonymity to talk frankly about internal discussions, said Monday that there is an “ongoing effort to fill all six FEC commissioner seats. To do that, though, Senator Schumer and Senate Democrats must replace the two longtime Democratic holdovers. A clean slate of members will go a long way toward fixing some of the perceived dysfunction at the commission.”
The White House did not respond to requests for comment on Monday.
While the partisan standstill continues, the FEC’s enforcement work is piling up.
There were 35 matters involving foreign nationals under consideration as of Dec. 1, 2019, with seven cases awaiting a vote by a full quorum, according to an end-of-year report by FEC Chairwoman Ellen Weintraub, a Democrat. And the agency’s enforcement backlog is growing. Foreign nationals are barred under federal law from donating to U.S. campaigns.
With less than a month until the first votes are cast in the 2020 elections, the lawyers who advise clients on election matters are sounding the alarms.
The lack of a quorum has led to uncertainty over how campaigns and organizations, and their methods of reporting donations or expenses, may be affected by recent changes in the law, they said.
“The inability to know how the rules apply to particular organizations or people so they can engage in what is the core protected First Amendment activity while complying with their legal obligations — it’s very frustrating,” said Beth Kingsley, a partner at Harmon, Curren, Spielberg & Eisenbeg, LLP, one of the attorneys who led the effort to write and circulate the letter.
Candidates and organizations being cited in enforcement cases are left wondering whether and how much they need to pay in civil penalties; politically active nonprofit groups are unclear which of their donors may now be subject to disclosure as a result of a recent court decision; and others are seeking clarity on how to comply with the law while using the newest technological tools to run political ads, they said.
“This is really the first day of business in 2020 in Washington. The election process is starting,” said Cleta Mitchell, a partner at Foley & Lardner LLP, who led the effort with Kingsley. “It’s starting. It’s now. . . . We need a fully functioning Federal Election Commission. It’s really inexcusable for people to not realize that it’s time to do this.”
The idea for the letter came out of a long-standing group of Republican, Democratic and independent lawyers who practice in election laws and meet regularly to discuss procedural developments and more, Mitchell said.
“Our hope is that it will help to show a united front, that this is not a partisan issue. Can we not just agree to hold the rule of law?” Mitchell said.