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.

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Photo of Robert Lenhard Robert Lenhard

Robert Lenhard is a member of the firm’s Election & Political Law practice group and advises corporations, trade associations, not-for-profit organizations, and high-net-worth individuals on compliance with federal and state campaign finance, lobbying, and government ethics laws.

Mr. Lenhard routinely assists clients in…

Robert Lenhard is a member of the firm’s Election & Political Law practice group and advises corporations, trade associations, not-for-profit organizations, and high-net-worth individuals on compliance with federal and state campaign finance, lobbying, and government ethics laws.

Mr. Lenhard routinely assists clients in establishing and operating federal and state PACs, compliance programs associated with campaign finance and pay-to-play laws; advises advocacy groups and their donors; conducts compliance trainings and audits of federal and state lobbying and political programs; and counsels clients on compliance with congressional gift and travel rules.

Prior to joining the firm in 2008, Mr. Lenhard served as Chairman of the Federal Election Commission (FEC) in 2007 and Vice Chairman of the agency in 2006, during which time the agency handled over 10 major rulemakings, had among its most productive years in enforcement and audit, and adopted several reforms to the enforcement process.  Mr. Lenhard has also led the Presidential Transition Team that reviewed the FEC for the incoming Obama administration in 2008-2009.

Photo of Robert Kelner Robert Kelner

Robert Kelner is the chair of Covington’s Election and Political Law Practice Group. Mr. Kelner provides political law compliance advice to a wide range of corporate and political clients.  His compliance practice focuses on federal and state campaign finance, lobbying disclosure, pay to…

Robert Kelner is the chair of Covington’s Election and Political Law Practice Group. Mr. Kelner provides political law compliance advice to a wide range of corporate and political clients.  His compliance practice focuses on federal and state campaign finance, lobbying disclosure, pay to play, and government ethics laws, as well as legal ethics rules.  His expertise includes the Federal Election Campaign Act, Lobbying Disclosure Act, Ethics in Government Act, Foreign Agents Registration Act, and Foreign Corrupt Practices Act.  He is also a leading authority on the arcane rules governing political contributions by municipal securities dealers, investment advisers, hedge funds, and private equity funds.  Mr. Kelner advises Presidential political appointees on the complex process of being vetted and confirmed for such appointments.

In addition, he regularly advises corporations and corporate executives on instituting political law compliance programs.  He conducts compliance training for senior corporate executives and lobbyists.  He has extensive experience conducting corporate internal investigations concerning campaign finance and lobbying law compliance, as well as other corporate compliance matters.  Mr. Kelner regularly defends clients in investigations by the Federal Election Commission, the U.S. Department of Justice, the U.S. House & Senate Ethics Committees, the House Oversight & Government Reform Committee, the House & Senate Judiciary Committees, the House Energy & Commerce Committee and its Subcommittee on Oversight & Investigations, the Senate Finance Committee, the Senate Special Committee on Aging, the Senate Permanent Subcommittee on Investigations, the Senate Health, Education, Labor, and Pensions Committee, and other congressional committees.  He has prepared numerous CEOs and corporate executives for testimony before congressional investigation panels, and he regularly leads the Practicing Law Institute’s training program on congressional investigations for in-house lawyers.  He also defends clients in Lobbying Disclosure Act audits by the GAO and enforcement actions and audits by state election and lobbying enforcement agencies.

Mr. Kelner has appeared as a commentator on political law matters on The PBS News Hour, CNBC, Fox News, and NPR, and he has been quoted in the New York Times, Washington Post, Wall Street Journal, Legal Times, Washington Times, Roll Call, The Hill, Politico, USA Today, Financial Times, and other publications.