In a 49-43 vote along party lines, the Senate confirmed Texas attorney James “Trey” Trainor to the Federal Election Commission today. This gives the FEC a quorum for the first time since August 31, 2019, when former Commissioner Matt Petersen stepped down to enter private practice. What effect will this have on the FEC and the 2020 election? Here are a few preliminary answers to that question.
Curb your enthusiasm. By statute the FEC has six commissioners and all actions of significance require the affirmative vote of four of those six individuals. When Commissioner Trainor takes his seat, only four of those six positions will be filled. This means that all significant actions of the agency will require the unanimous vote of all sitting Commissioners. The deep partisan and ideological divisions between the three current Commissioners has limited the agency’s actions in the past, and that is likely to continue. So expect no big things from the FEC in the near future.
Clearing the docket. The absence of a quorum for the past eight months has led to a backlog of cases which have been settled at the staff level, but not approved by the Commissioners. These will be easy votes for Commissioner Trainor, so expect a flurry of closed matters in the next several weeks. The other thing that will appear in those closed cases will be matters where the statute of limitations ran while there was no quorum. Again, an easy vote for a new Commissioner, so expect those early.
Advisory Opinions. There are four advisory opinion requests pending and the agency has agreed to decide those matters within 30 days of the Commission’s first open meeting after a quorum is established. So expect early decisions on these matters as well. They involve reasonably non-controversial topics:
- Can a candidate’s campaign committee pay for the candidate’s health insurance;
- Can a for-profit company hosting an on-line forum on politics avoid the FEC’s regulations when advertising using a candidate’s name;
- Can a PAC use a candidate’s initials in its name; and
- Can a PAC forwarding earmarked contributions retain a processing fee?
We expect others to seek advisory opinions in the run-up to the election, though the Commission has historically been reluctant to make significant changes to the rules shortly before an election, so most decisions should clarify the law in incremental ways.
Enforcement: While not visible to the public, the greatest significance of a quorum for practitioners will be the reviving of the agency’s enforcement machinery. At several steps in the FEC enforcement process, staff lawyers must return to the Commissioners for a vote to proceed. For the past eight months, enforcement cases have been stalling when they reach one of these points in the process. Commissioner Trainor is likely to want to look closely at some of these matters, for how the agency proceeds may have significant consequences. But slow or fast, these investigations will begin again.
Rulemaking: As a practical matter, the divisions among the FEC’s Commissioners have left the agency with no significant rulemakings in the past decade. The presence of only four Commissioners and the need for unanimity ensures that this will remain true.
It is better that government functions than not, so achieving a quorum at the FEC is a step in the right direction. But its importance is modest, as the deep divisions among the Commissioners are likely to continue, and the ability of the agency to interpret and enforce the law will be similarly limited.