If one more leaves without being replaced, the FEC will lack a quorum and be effectively paralyzed.
As a presidential candidate, Trump blasted the influence of wealthy donors, criticized opponents for skirting limits on coordinating with their super PACs and said he would overhaul the “rigged” campaign finance system.
A chorus of advocates — both liberal and conservative — are urging Trump to fulfill his campaign pledge by appointing new commissioners.
“A weak FEC really contributes to filling the swamp, not draining it,” said John Pudner, executive director of the group Take Back Our Republic, which aims to build conservative support for reducing the influence of wealthy interests in politics.
The White House declined to comment.
Trump’s opportunity to remake the FEC comes as two high-profile matters involving the president are pending before the commission.
The agency is working on new rules that would require greater transparency about the sponsor of online ads, a response to Russian interference in the 2016 elections. And the FEC must decide how to handle a recently lodged complaint alleging that a payment to an adult-film star who claims to have had an affair with Trump broke campaign finance rules.
The stakes are high because the FEC is responsible for enforcing federal election regulations. It audits reports submitted by campaigns of their spending and fundraising and investigates complaints filed against federal candidates and their campaigns.
Commissioners serve six-year terms but can continue serving until there is a replacement named. But these “holdover” commissioners can resign at any time.
Already, the shorthanded panel — split between two Republican members, one Democrat and an independent who caucuses with Democrats — struggles to come to decisions. The law requires four votes for any action, and members are often deadlocked along party lines.
FEC Chairwoman Caroline Hunter, a Republican who was appointed in 2008 and whose term has expired, declined to answer whether the vacancies have affected the operations of the commission.
As a presidential candidate, Trump expressed his disgust with the power of big donors, calling super PACs that can take unlimited donations a “total scam.” In 2016, he said super PACs backing his primary opponents amounted to “buying an election,” calling it a “broken system.”
“He is somewhat unique in that he was elected as a Republican presidential candidate while talking about money in politics issues,” said Matthew Sanderson, who served as a campaign finance lawyer for the 2008 McCain-Palin ticket. “I thought there might be some opportunity for him to do something.”
Last year, Trump nominated conservative Texas lawyer James E. “Trey” Trainor III to the panel, but the Senate has not scheduled a confirmation hearing. It’s unclear when more nominations will be made.
Per tradition, the president defers to the opposition party’s leader in the Senate to make recommendations for nominees from his party. Advocates say Trump and Senate Minority Leader Charles E. Schumer (D-N.Y.) could be taking a more active role if they wanted to move the process along.
The last Democratic commissioner resigned a year ago, but aides to Schumer declined to say whether he has suggested a replacement. Schumer’s spokesman Justin Goodman said the senator is working with the administration to make recommendations for all the open minority seats on regulatory bodies.
Don Stewart, spokesman for Senate Majority Leader Mitch McConnell (R-Ky.), said McConnell “is looking forward to confirming FEC commissioners who will protect the First Amendment in the important arena of political speech.”
It may take the resignation of one more commissioner and loss of quorum to prompt urgency, said Lawrence Norton, a former FEC general counsel.
The last time that happened was in 2008, when only two of the six seats were filled at the start of a presidential election year.
The two commissioners still held meetings, but there was a backlog of complaints, Norton said. Then, once new commissioners were confirmed, there was a “ramp-up time” as they got adjusted to their new roles, which led to further delays, he said.
“It’s certainly foreseeable that we could be in the same position soon once again in an election year,” Norton said.
GOP election law lawyer Charlie Spies, who served as counsel for Mitt Romney’s 2008 presidential campaign, said he hopes to see Trump appoint “rule of law” commissioners with the same fervor with which he has made judicial appointments of conservative judges.
Trump demonstrated the power of small donors in his campaign, Spies said, by hauling in impressive amounts of low-dollar campaign contributions and using social and earned media rather than paid advertising.
“On a wide range of campaign finance issues, I think President Trump comes out looking very good compared to the competition, [Democrats],” Spies said.
A week after his inauguration, Trump signed a far-reaching ethics policy on lobbying. Several campaign finance experts said they viewed it as a sign that Trump was preparing to make broader changes to the financing of elections.
After he became president, Trump continued to criticize the role of donors: “I used to be a donor. Used to get everything I wanted,” he said during a May 2017 speech.
But last week, he reportedly dined with wealthy donors at the home of a prominent Washington lawyer, a sign that he is hewing more closely to his predecessors in his attitude toward major contributors.
Trevor Potter, a former Republican FEC commissioner and founder of campaign-finance advocacy group Campaign Legal Center, said he hopes that things will change under Trump this year.
“I am hopeful that he will turn to those issues in the second year of his term, now that he has dealt with tax cuts and health care and substantive legislative issues in the first year,” Potter said.