iCommissioner Ann Ravel’s decision to resign from the Federal Election Commission will have short term and long term effects on an agency empowered to interpret and enforce the federal campaign finance laws and disclose the money raised and spent in federal elections. Its short term effects should be minimal. The statute requires four votes for all significant agency actions, and with three Republican and two Democratic commissioners remaining, all decisions will still require a bi-partisan consensus. The long term effects could be more significant. Ironically, Commissioner Ravel is the only FEC Commissioner serving a current term. All other commissioners’ terms expired years ago. This presents the President with the opportunity to replace the entire FEC, though if history is a guide, the consequences of that may be less dramatic than it first appears. We discuss both short and long term effects below.
Immediate Effect of The Departure of Commissioner Ravel
Commissioner Ravel has announced that she will send a letter of resignation to President Trump this week. The FEC will soon have three Republican commissioners and two recommended by Democrats (technically Commissioner Steven Walther is registered as an Independent, though he was recommended by then Senate Majority Leader Harry Reid for a “Democratic” seat). By statute all rulemaking, enforcement, and similar agency actions require the vote of at least four commissioners, assuring that there is bipartisan support for all agency actions. While Commissioner Ravel was frequently willing to join Republicans to form a consensus early in her term, over time she has been reluctant to do so. Instead, she has become a vocal critic of the Republicans on the FEC, especially over a lack of support for enforcement. Currently, Commissioners Walther and Matthew Petersen are more frequently the source of consensus on the Commission. So the loss of Commissioner Ravel should not significantly impede those few areas where a bipartisan consensus is possible.
Long Term Effect of the Departure of Commissioner Ravel
The departure of Commissioner Ravel presents the President and the leaders of both political parties with some interesting choices.
First: How many commissioners to appoint? As noted above, all of the remaining Commissioners are holding over in expired terms. Commissioner Lee Goodman’s term expired in 2015, Commissioner Caroline Hunter’s in 2013, Commissioner Petersen’s in 2011, Commissioner Walther’s in 2009 and Commissioner Ellen Weintraub’s in 2007. By statute, none can be re-appointed. While the President has the ability replace the entire FEC, the backlog of confirmations for other administration positions, and a desire for some continuity may lead the administration to make two or four nominations, instead of six.
Second: How will the President make his selections? By statute, no more than three FEC commissioners can be of a single political party. Historically, the President has turned to the opposing party’s congressional leadership for recommendations. While at least twice in the past, Presidents have refused to honor the opposing party’s recommendation (Carter and Reagan), the confirmation process moves most smoothly if each party picks its own commissioners. While some have speculated that the President might seek an ideological coup at the FEC by appointing a single non-Republican libertarian, this will spark a messy confirmation fight on issues that put the President at odds with his “drain the swamp” campaign theme. Instead, we expect President Trump will follow tradition and turn to Congressional Democrats for recommendations.
Third: What kinds of people will be nominated? On the Republican side, President Trump’s White House Counsel, Don McGahn, previously served as an FEC commissioner and knows the agency well. McGahn also has a long and close working relationship with Senator McConnell, who cares more than any other Republican in Congress about campaign finance law. Senator McConnell and Mr. McGahn share a deregulatory, First Amendment-focused approach to campaign finance law, so we should expect the nominee(s) on the Republican side to follow in that tradition.
The Democrats face a more complicated set of choices. First, who decides? In the past, there was a sense that the Democratic side of the FEC had a House seat, a Senate seat and a White House seat. That tradition eroded over time and in recent years, most decisions were made in the Senate. So what role does Minority Leader Pelosi play in the process? Second, Democrats have consistently selected commissioners more concerned with enforcing the restrictions in the law, imposing penalties when wrongdoing is found, and closing loopholes. But there is a split within the party between the Democrats’ reform wing and its more pragmatic side. With the fervency of the anti-Trump movement within the party, and the sense among Democrats that the Republicans at the FEC have refused to enforce the law regardless of how clear the evidence was of a violation, does the party select a more combative, reform-minded voice? While neither Commissioner Ravel nor Weintraub began their tenure at the FEC in that role, they have both migrated to it out of frustration with how difficult it has been to find Republican support for what they thought of as moderate positions.
Finally
Finally, and perhaps most importantly, will President Trump consider the overall make-up of the FEC in selecting new commissioners. Over the last eight years, the FEC has been a turbulent place, with commissioners turning to talk radio, the blogosphere and comedy shows to take their disputes to the public. Discord at the top has led to a poisonous atmosphere within the building, and the plummeting of employee satisfaction to the lowest depths of any federal agency. At the same time, the courts have re-written the scope of what can be regulated, and chastised the agency for not regulating enough. The amount of money raised and spent has grown, and there is a sense that there is no sheriff in town.
The President has an opportunity to work across the aisle to find commissioners who – even if they don’t agree on all questions of the law – can find an amicable way to provide clear guidance on what laws will be enforced and then do so. Finding the right commissioner(s) to set that tone takes time and focus, and for too many administrations, the FEC has just not seemed worth it. Events set in motion by the resignation of Commissioner Ravel will show us if it is different this time.
