We begin with the Federal Election Commission or FEC. It’s a federal agency that’s costing you more than $70 million this year. So you might be shocked to hear that as we head into the height of the FEC’s most important time— national elections— the FEC is all but shut down. Critics say even when it’s up and running, it’s dysfunctional. Our cover story is “Busted and Broke.”
Every time you see a political ad, that note at the end telling who’s behind the ad is there because the Federal Election Commission requires it.
Ensuring the public knows who’s paying to promote national candidates is just one role of the FEC.
Meredith McGehee heads up the bipartisan watchdog group “Issue One.”
Sharyl: If you could say in simple terms for people who don't know much about it, which is most of us, what is the Federal Election Commission?
Meredith McGehee: The Federal Election Commission is the federal agency that's charged with enforcing the campaign finance laws that are on the books. But even put in a different context, when you say campaign finance laws, it's really corruption laws and anti-corruption laws.
McGehee’s group has issued a report arguing that the FEC is “Busted and Broke.”
McGehee: The upshot is that we have a federal agency that is actually the most successful agency in Washington because it's doing exactly what it was intended to do, which is not much of anything.
Sharyl: Are you suggesting that possibly Democrats and Republicans alike agree on this sort of dysfunctional status quo of the Federal Election Commission?
McGehee: They have managed to set up a system in which that agency is failing repeatedly, an agency that's broke and busted, and is not enforcing the law against those politicians.
The FEC was created in 1975 in the shadow of scandals under President Nixon to enforce laws about money spent on political campaigns.
At the time, McGehee says, Republicans advocated for a stronger FEC. But the most powerful Democrat in Congress, Wayne Hays, had something else in mind: an FEC with half Democrats and half Republicans ensuring lots of ties — and stalemates.
McGehee: He was an old paw from the Democratic party, and he ruled the House, the way the House operated, with an iron fist. And the person who first proposed that there be a five member commission was Minority Leader Scott, a Republican from Pennsylvania. It went over the House side. Mr. Hays said “over my dead body, and I'm going to make this as toothless as possible. I'm going to make it three and three so it has to tie.”
Sharyl: So that was basically the story of your whole time there?
Ann Ravel: That was.
Sharyl: Deadlocks, three to three on one issue after another.
Ann Ravel was an FEC commissioner from 2013-2017.
Ann Ravel: It always split three, three. We even split three, three on funding for the commission itself.
Sharyl: In 2015 while chairman of the FEC, Ravel lampooned her own agency’s dysfunction on a comedy show:
DAILY SHOW: Would you say the FEC is more or less useless than men’s nipples?
Ravel: I would say that the FEC and men’s nipples are probably comparable.
A Democrat, Ravel largely blamed her three Republican colleagues.
Ann Ravel: I knew very quickly that there was never going to be an occasion where the Republicans ever crossed lines.
Sharyl: There wasn't?
Ann Ravel: Not on any thing of any significance. In a particular situation, the chair was a Republican. And he himself said that he did not put some very important cases on our agenda to decide, because he felt that the complaints were all filed by good government groups, and that they were mainly going after Republican groups, and therefore he was not going to put it on the agenda.
Sharyl: Who was that?
Ann Ravel: Lee Goodman.
Lee Goodman: My voting record stands for itself.
Lee Goodman was a Republican member of the FEC alongside Ravel, and chairman in 2014.
Lee Goodman: I voted to dismiss cases against Barack Obama involving foreign money. I voted to dismiss cases against Hillary Clinton. My voting record as far as any partisan bias is pristine. As far as arranging the agenda, the only thing I ever was concerned about was that I saw partisan voting behavior among my Democratic colleagues, particularly commissioner Ravel.
Political squabbles aside, Goodman insists if the FEC had an odd number of commissioners, it would put one political party in the driver’s seat over the others. The 50-50 split between Democrats and Republicans prevents that.
Sharyl: So you think that's a good structure?
Lee Goodman: I think it was a prudential feature of the commission, not a inherent problem of the commission.
Sharyl: The FEC has made some important rulings over the years. A group that spent tens of millions of dollars trying to get Democrat John Kerry elected president in 2004 was fined $775,000 in a settlement over illegal handling of contributions.
On the Republican side, the FEC issued $940,000 in fines after foreign interference in the 2016 campaign.. a Chinese couple made improper donations to a super PAC supporting Jeb Bush. But in both cases, the candidates had already received the benefit of the improper donations long before the fines came down.
No matter how one views the makeup of the FEC as we head into the heart of the 2020 campaign, there’s a more pressing problem.
Lee Goodman: The biggest challenge facing the federal election commission right now is the absence of a quorum. There are only three sitting commissioners on the FEC right now.
Sharyl: Out of six.
Lee Goodman: Out of six. And the law requires there be at least four for the commission to do business. And so right now the commission is out of business.
Not only that, the serving FEC commissioners including chairman Caroline Hunter shouldn’t even be there. Their terms expired years ago — and nobody has been named to replace them.
Sharyl: So the current Chairman's term expired back in 2007?
Meredith McGehee: In 2007, right. And we've had, whether it was President Obama, whether it's President Trump, we've had a record where the Presidents either appoint folks that are really more interested in protecting the partisan interest of their President, or they don't appoint anybody at all.
Sharyl: The power to end the paralysis is shared.
Senate leaders Mitch McConnell, a Republican and Democrat Chuck Schumer are responsible for submitting nominations to the President, he appoints them, and the Senate confirms them. Last summer, Senate Democrats suggested a name, but President Trump didn’t nominate her. President Trump recently nominated the same Republican choice for a fourth time after the Senate took no action to confirm him the first three times.
With a $70 million budget and the inability to even hold public meetings, ex-FEC commissioners from both parties agree it’s a problem.
LEE: Without a quorum, enforcement matters and other matters are backing up in the agency. It cannot even issue an advisory opinion, and requests for advisory opinions that help people comply with the law are backing up as well.
Sharyl: That's dysfunctional.
Lee Goodman: That is dysfunctional, but is not the design of the agency that makes it so. It is the political process that has driven this agency into lack of a quorum with no right to do business.
Ann Ravel: But the other problem is, people know about the dysfunction at the FEC. The lawyers who represent the candidates understand it. And they recognize that they can violate the law rampantly. And either nothing is going to happen, or it's going to happen in five years, and it's just gonna be a slap on the wrist.
For now, approaching the height of campaign season, there’s a growing backlog of hundreds of cases. And the FEC remains unable to pass rules, do investigations, make rulings or issue fines.
Sharyl: What should the FEC be doing right now in terms of the election season, and what do you think they're not doing?
McGehee: What the FEC should be doing as these campaigns heat up is really serve as the effective watchdog on behalf of the American people. The laws that are in place are meant to ensure against corruption and the appearance of corruption. If FEC isn't doing its job, the American people are in the dark.
A liberal-leaning watchdog group, Common Cause, recently filed a complaint with the FEC accusing a Bernie Sanders nonprofit of violating campaign money limits. For the moment, the complaint sits with all the others in limbo.