The Federal Election Commission After Slaughter
Bipartisan, independent civil enforcement was already collapsing, but formal presidential control will end it—and a weaponized DOJ may fill the vacuum.
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On Monday, concluding that the president possessed broad removal power over independent agencies, the Supreme Court declined to distinguish among agencies based on different structural features, such as whether they are “balanced along partisan lines.” One such “balanced” agency is the Federal Election Commission, and it is an interesting case study of one effect of the Court’s Slaughter decision: the likely final collapse of bipartisan civil enforcement of federal campaign finance laws, and the prospect of an expanded weaponization portfolio at the Department of Justice.
As an agency with an inherently political mission—setting the rules for the financing of federal elections—the FEC was structured as a bipartisan, “independent” agency. Among other measures to protect against one-party control, the law establishing the FEC provides that no political party may command more than half of the members of this six-member commission and that, without a bipartisan vote, the commission cannot act on enforcement matters or issue advisory opinions interpreting the law. While, for whatever reason, the statute did not include a statutory restriction on presidential removal, the FEC’s appointment process was governed for years by the application of a norm of partisan balance. Presidents who filled vacancies previously held by the opposition party were expected to, and for a period of years did, consult with the congressional leaders of that party and choose from a list they provided. In a footnote in his concurrence in Slaughter, Justice Gorsuch states that the absence of a statutory removal limitation has “in practice . . . generally proved no bar to [the FEC’s] independence until today.”
Gorsuch does not note that the norm has been steadily fraying. Not surprisingly, Trump became the first president to fire a commissioner affiliated with the opposition party, removing Ellen Weintraub, a Democrat who had held her seat for 23 years, 18 of them as a holdover. Weintraub argued that the firing was illegal but did not contest her removal in court. Now, after Slaughter, presidents will have even less reason to honor the “norm” of partisan balance. Firing FEC commissioners as they choose can simply be part of doing the job—of exercising unapologetically the executive authority conferred by the Constitution. A commissioner who votes against the president’s party’s interest—Democratic or Republican—is subject to dismissal, and for just that reason. A president who does not care for the agency’s mission could at any time fire all the commissioners and destroy the quorum without which the agency cannot act at all. (In fact, as a result of a complex history I will not address here, the FEC is currently disabled by the lack of a quorum.)
Through the use of now constitutionally grounded firing power, presidents are immeasurably aided in a project to engineer a regulatory scheme compatible with their and their party’s political interests. They can exercise this power to block enforcement of the array of substantive provisions of federal campaign finance law, such as contribution limits, corporate and foreign national spending prohibitions, and reporting requirements. Add to this power the position this president has taken by executive order that he has the last word on agency legal interpretations, and he acquires, as well, the capacity to rig the rules in favor of one party and to the disadvantage of the other.
The FEC was generally expected to be the first stop for campaign finance law enforcement, along with authority to refer apparently criminal violations to the Department of Justice. It could negotiate voluntary civil settlements that included payment of fines, and it could file suit to seek a judicial resolution if negotiations failed. If bipartisan civil enforcement is now on the cusp of complete collapse, there is no reason to doubt that the weaponization of the criminal law, already well underway, will proceed apace, if not intensify. It is already the case that the FEC has been hobbled in its mission of credible bipartisan enforcement. A weaponized DOJ is available to fill the vacuum.
The Court discussed in Slaughter how its decision raises the question of whether, when setting up various independent agencies such as the FEC, Congress would have chosen differently if it understood that the agency it was establishing could not be insulated from presidential political control. This may be an open question for any number of agencies—but not for the FEC. Neither political party would have agreed to an agency with regulatory authority in campaign finance—among the issues at the heart of two-party political competition—if the party with a president in the White House could direct enforcement priorities and decisions.
Some campaign finance reform advocates may shrug off this development and reply that the entire experiment in federal campaign finance regulation has failed anyway. The statute operated too much as designed: each party in a split commission was given veto power over any significant decision. This, from a reform perspective, was a major problem. The commission has routinely deadlocked in major cases that either party considered critical to its interests. But what reformers despair about, the parties care about: having the power to check the opposition.
It is impossible to know at this point what will eventually become of the FEC or any independent agency civil enforcement scheme. What is clear is that, unless the country elects to abandon all substantive political money controls, the FEC is now no longer, as a matter of norm or law, independent from one-party control. Partisan balance in the conduct of a mission laden with political significance is receding far into the past. The independence that Congress envisioned for the FEC is no more real than it is at DOJ.