How H.R. 1 could solve the FEC’s basic operational issue of partisan gridlock

About the Author: Annie Cho is a second-year part-time law student at American University- Washington College of Law. Annie graduated from George Mason University.

 

During the 116th Congress, House Democrats introduced a comprehensive reform package, H.R. 1, the For the People Act, that would improve voting rights, reduce the influence of wealthy donors in politics, and overhaul government ethics.[1] The bill only passed through the House, but after recent events surrounding the 2020 presidential election and the January 6, 2021 insurrection at the United States Capitol, congressional Democrats reintroduced the bill in 2021 urging for reform in America’s democracy.[2] Even though the bill is unlikely to pass in the Senate, the House passed the legislation again on March 3, 2021.[3] Despite the partisan nature of passing the legislation, the bill does propose significant changes that could restore our democracy. A notable provision highlighted in H.R. 1 changes how the Federal Elections Commission (FEC) would enforce campaign finance laws by addressing the issue of gridlock.[4]

After the infamous Watergate scandal that brought down President Richard Nixon, Congress took action to reform campaign finance laws by passing the Federal Election Campaign Act to regulate political campaign fundraising and spending.[5] The FEC was established in 1975 as an independent agency to enforce and administer the Federal Election Campaign Act.[6] The agency is uniquely composed of six members, with no more than three commissioners of the same political party, and a quorum requirement of at least four votes.[7] Although the structure of the FEC was intended to ensure fairness and transparency, it frequently positioned the agency in politically aligned gridlock.[8] The gridlock prevents the FEC from enforcing the law and has led to a backlog of cases. In turn, there has been an increase of secret spending and wealthy special interests rigging politics in their favor.[9]

H.R. 1 would modify the FEC structure to prevent gridlock by requiring the agency to have an odd number of commissioners.[10] The bill would reduce the number of commissioners from six to five, with no more than two commissioners from either political party, and one commissioner who would be the tie-breaking independent vote.[11] This makeup would ensure a majority vote which would enable official action rather than being hamstrung by a tied vote. Additionally, the bill would assign a chair of the FEC to serve as the chief administrative officer of the agency with expansive authority, including how investigations may be conducted by the general counsel.[12] This means gridlock would no longer prevent the general counsel from recommending an investigation into allegations of misconduct.[13] H.R. 1 would also define strict term limits for commissioners to prevent them from serving beyond their term.[14] With stricter term limits, the president would be incentivized to nominate new commissioners in a timely manner to ensure a quorum.[15]

Whenever the FEC is trapped in gridlock, major campaign finance violations are swept under the rug and ultimately Americans are left in the dark on where sources of campaign spending come from. Political corruption has been an ongoing issue that erodes our democracy, and it is time our elected officials take action rather than prioritizing their personal ideologies. Even though chances of H.R. 1 becoming law are low, Americans should note that the bill is an imperative change for the FEC to be an effective watchdog.

 

[1] For the People Act, H.R. 1, 116th Cong. (as passed by House, Mar. 8, 2019).

[2] For the People Act, H.R. 1, 117th Cong. (2021).

[3] Mike DeBonis, House Democrats pass sweeping elections bill as GOP legislatures push to restrict voting, Washington Post (Mar. 3, 2021 at 11:15 p.m. EST), https://www.washingtonpost.com/politics/house-elections-voting-pelosi-/2021/03/03/e434df58-7c22-11eb-a976-c028a4215c78_story.html.

[4] Donald Shaw, FEC Quorum Restored. Next stop, Gridlock!, Real Sludge (Dec. 10, 2020 4;49 PM EST), https://readsludge.com/2020/12/10/fec-quorum-restored-next-stop-gridlock/.

[5] Federal Election Campaign Act, 2 U.S.C. §§ 30101-30146 (1972) (amended 1974).

[6] Federal Election Commission, https://www.fec.gov/about/mission-and-history/ (last visited on Feb. 15, 2021).

[7] Id.

[8] Ann M. Ravel, Dysfunction and Deadlock at the Federal Election Commission, New York Times (Feb. 20, 2017), https://www.nytimes.com/2017/02/20/opinion/dysfunction-and-deadlock-at-the-federal-election-commission.html.

[9] Trevor Potter, How to bolster federal elections, Hill (Nov. 18, 2020 10:00 AM EST), https://thehill.com/opinion/campaign/526462-how-to-bolster-federal-elections; Brian Naylor, The Federal Election Commission Can Finally Meet Again. And It Has a Big Backlog, NPR (Dec. 24, 2020 5:00 AM ET), https://www.npr.org/2020/12/24/949672803/the-federal-election-commission-can-finally-meet-again-and-it-has-a-big-backlog.

[10] Jon Schwarz, The “For the People Act” Would Make The U.S. A Democracy”, Intercept (Feb. 14, 2021, 8:00 a.m.), https://theintercept.com/2021/02/14/democracy-voting-campaign-finance-hr1/.

[11] For the People Act, H.R. 1, 117th Cong. (2021).

[12] Id.

[13] Id.

[14] Id.

[15] Id.

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