By: Kolton Whitmire
The Biden administration has recently been under pressure to pack the Federal Election Commission (“FEC”) with more pro-enforcement Democrats or Independents. The timing of this pressure, no doubt, stems from frustration over a 2019 D.C. Circuit Court decision that determined an FEC’s non-enforcement decision was unreviewable by the courts.Non-enforcement by the FEC has been made commonplace by the statutory mandate that no more than three commissioners may be affiliated with the same political party. Scrupulous presidents and senators can readily take advantage of registered independents to skirt the statute’s substantive aim while complying with its form. For instance, Bernie Sanders—usually a registered independent—could be appointed as an Independent commissioner alongside three registered Democrats.
This packing solution may be even more attractive in light of the FEC’s four-vote threshold for any enforcement action and the FEC’s massive backlog of cases caused by its prolonged lack of quorum. Indeed, because H.R. 1 is unlikely to pass without major changes to the Senate filibuster and because President Biden has recently unequivocally supported changes to the Senate filibuster rules, FEC packing seems more likely now than at any time in recent memory. Aside from being more likely, packing may also be more necessary now because even before the lack of quorum, FEC gridlock caused a shocking and frustrating lack of guidance for businesses seeking advisory opinions on permissible lobbying tactics and independent expenditures.
However, even if the Biden administration were to consider packing the FEC, prospective nominees would be difficult to surmise because even non-lawyers may serve as commissioners – widening the candidate pool – and the majority of politicians prefer a passive FEC to an aggressive one – narrowing the possibilities. Certainly, a progressive slate of aggressive FEC prospects has not been drafted in some time. Regardless of the likelihood of packing or who would serve as Commissioner, the issue remains vitally important.
Of particular importance to businesses would be (1) stricter enforcement of the current disclosure regime, (2) expansion of that regime, (3) updated rules for SuperPAC administration, and (4) an increased likelihood that private actors could be forced to appear at an FEC proceeding.
First, disclosure laws have been thoroughly thwarted by deadlock in the recent past, and stricter enforcement would have important implications for upcoming complaints such as one against Turning Point USA, which consistently seeks to conceal its sources of funding by characterizing itself primarily as a “social welfare organization.” Currently, Turning Point USA need not disclose its donors because it is classified as a 501(c)(3) and because the FEC has deadlocked on considerations of enforcement actions against Turning Point USA, disclosure or reclassification remains unlikely.
Second, currently, most independent expenditures are not reported to the FEC. One of the simplest ways that a more aggressive FEC could expand the disclosure regime is by employing a more searching inquiry into the “primary purpose” of 501(c)(4) groups who currently claim a right to non-disclosure.
Third, while SuperPACs do have to disclose their donors, other problems with SuperPAC entities persist.SuperPACs have quickly become a mainstay of modern politics. Unfortunately, the Supreme Court has largely constrained the FEC in solving the problems posed by SuperPACs by explicitly foreclosing the argument that excessive money in politics is a compelling enough interest to regulate. However, the solution to SuperPAC oversight is similar to the solution for the disclosure regime: a more searching scrutiny. SuperPACs can only spend indefinite amounts if their expenditures are independent and uncoordinated from a campaign, but the reality of modern campaigning is that even where independent expenditures are not strictly coordinated, they are often choreographed. A more aggressive FEC could fashion a test for determining a level of choreographed strategy sufficient to establish coordination in order to more strictly regulate SuperPACs and subject them to contribution limits.
Fourth, because so many campaign finance decisions at the FEC have a partisan angle, the Commission frequently deadlocks on the most significant violations. Deadlock effectively sanctions the behavior not pursued outside of a few types of flagrant violations, allowing the Department of Justice to pursue the matter. A more active FEC, less prone to deadlock, would inevitably lead to more parties being forced to appear before the FEC to defend their actions.
President Biden certainly has plenty of incentive to pack the FEC, but whether he will expend the political capital remains to be seen. However, when H.R. 1 stops making headlines and the news cycle inevitably moves on
those incentives quickly disappear. FEC packing may be now or never for the Biden administration. e,
 See generally Memorandum from Anonymous Source, to Joe Biden & White House Officials (Feb.1, 2021), https://www.documentcloud.org/documents/20510821-biden-fec-memo(urging the Biden administration how and why it should consider putting an additional Democrat Commissioner alongside two other Democrats and an Independent who frequently votes with Democrats).
 See Citizens for Responsibility and Ethics in Washington v. Federal Election Commission, 923 F.3d 1141 (D.C. Cir. 2019); see also Anna Massoglia & Karl Evers-Hillstrom, Court Says It Can’t Rescue FEC From Partisan Deadlock … Again, The Ctr. For Responsive Politics (May 14th, 2019, 2:03PM), https://www.opensecrets.org/news/2019/05/court-cant-rescue-fec-from-partisan-deadlock/.
 52 U.S.C. § 30106(a) (2018).
 See Igor Derysh, Trump and GOP Are Moving to Pack the FEC With Partisans, Says Watchdog Group, truthout(Nov. 14th, 2020), https://truthout.org/articles/trump-and-gop-are-moving-to-pack-the-fec-with-partisans-says-watchdog-group/ (noting the Trump administration’s decision to nominate Democrat-backed independents over registered Democrats on two occasions).
 See Karl Evers-Hillstrom, Senate Restores FEC as Agency Confronts Massive Backlog of Cases, The Ctr. For Responsive Politics (December 9, 2020, 12:51PM), https://www.opensecrets.org/news/2020/12/fec-restored-by-senate/.
 See H.R. 1, 117th Cong. (2021) (overhauling, among other things, campaign finance law); Richard L. Hasen, H.R. 1 Can’t Pass the Senate. But Here Are Some Voting Reforms That Could., Wash. Post (March 16, 2021, 12:33PM), https://www.washingtonpost.com/outlook/2021/03/16/hr-1-voting-reforms/; Alana Wise & Amita Kelly, Biden Supports Changes to Filibuster, Returning It to ‘What It Used To Be’, NPR (March 16, 2021, 9:29PM), https://www.npr.org/2021/03/16/978018267/biden-supports-changes-to-filibuster-returning-it-to-what-it-used-to-be.
 See Alexandra Ringe, New Findings: FEC Stonewalling Candidates, Parties, Seeking Guidance About Super PACs, Other Substantive Issues, Brennan Ctr. For Just. (April 29, 2019), https://www.brennancenter.org/our-work/analysis-opinion/new-findings-fec-stonewalling-candidates-parties-seeking-guidance-about; see also Daniel I. Weiner, Fixing the FEC: An Agenda for Reform, Brennan Ctr. for Just. (April 30, 2019), https://www.brennancenter.org/our-work/policy-solutions/fixing-fec-agenda-reform.
 See Lawrence M. Noble, In Search of Qualified FEC Commissioners, Campaign Legal Ctr. (June 30, 2015), https://campaignlegal.org/update/search-qualified-fec-commissioners.
 See id.
 See Ringe, supra note 7.
 See generally Ringe, supra note 7 (proposing ways to fix the FEC such as increased civil enforcement actions, rethinking SuperPAC regulation, and an overall more active agency).
 See Daniel I. Weiner, The FEC Deadlocks (Again) on Dark Money, Brennan Ctr. For Just. (Aug. 1, 2014), https://www.brennancenter.org/our-work/analysis-opinion/fec-deadlocks-again-dark-money (noting that transparency used to be the norm); Lachlan Markay, Pro-Trump Group Accused of Illicitly Shielding Donors, Axios (Mar. 25, 2021), https://www.axios.com/turning-point-trump-donor-fec-georgia-election-senate-3c945c71-2bab-49f3-8305-bbfd83dd0160.html.
 See Markay, supra note 12.
 See Dark Money Basics, Ctr. for Responsive Politics, https://www.opensecrets.org/darkmoney/dark-money-basics.php (last visited Mar. 26, 2021) (noting that only one-third of independent expenditures were reported to the FEC in 2015 and that trend is increasing).
 See id.
 See Idrees Kahloon, Does Money Matter?, Harv. Mag., July-Aug. 2016, https://www.harvardmagazine.com/2016/07/does-money-matter (noting that post-Citizens United SuperPACs caused a flood of money into elections).
 Anna Massoglia & Karl Evers-Hillstrom, ‘Dark money’ Topped $1 Billion in 2020, Largely Boosting Democrats, Ctr. For Responsive Politics (Mar. 17, 2021), https://www.opensecrets.org/news/2021/03/one-billion-dark-money-2020-electioncycle/.
 See Citizens United v. Federal Election Com’m, 130 S.Ct. 876, 882 (2010) (ruling against regulation of independent expenditures).
 See Ian Vandewalker, Since Citizens United, a Decade of Super PACs, Brennan Ctr. For Just. (Jan. 14, 2020), https://www.brennancenter.org/our-work/analysis-opinion/citizens-united-decade-super-pacs (noting that the top-spending SuperPACs are run by “top staff of party leaders”).
 Office of Commissioner Ann M. Ravel, Dysfunction and Deadlock: The Enforcement Crisis at the Federal Election Commission Reveals the Unlikelihood of Draining the Swamp 1-2 (2017) (noting an increase in deadlock on enforcement actions between 2006 and 2016 from 2.9% to 30%); see also D. Mark Renaud & Eric Wang, FEC Deadlocks on Foreign National Contributions, Wiley Rein LLP (May 2015), https://www.wiley.law/newsletter-5297; William Gray, FEC Deadlocks and Greenlights Workaround for House Members Spending on Charter and Private Flights. Personal Use of Leadership PAC Funds Should Be Banned., Issue One (June 12, 2019), https://www.issueone.org/fec-deadlocks-on-house-members-spending-on-charter-flights-personal-use-of-leadership-pac-funds-should-be-banned/. But see Statement of Chair Caroline C. Hunter on CREW’s Motion for Entry of Default Judgement in CREW v. FEC, Fed. Election Comm’n(Mar. 20, 2020), https://www.fec.gov/resources/cms-content/documents/statement_of_Chair_Caroline_C_Hunter_in_CREW_v_FEC.PDF (doubting Commissioner Ravel’s report and emphasizing areas where the Commission agrees).
 See Gray, supra note 19 (noting that the deadlock creates a workout due to the vacuum of non-enforcement).