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FEC, hamstrung for months, can start meeting again

Agency could still deadlock on enforcement despite Senate action

James E. Trainor III's confirmation by the Senate means the Federal Election Commission has enough members to meet, but is no guarantee that enforcement efforts won't end in gridlock.
James E. Trainor III's confirmation by the Senate means the Federal Election Commission has enough members to meet, but is no guarantee that enforcement efforts won't end in gridlock. (Caroline Brehman/CQ Roll Call file photo)

Corrected 7:07 p.m. | The Senate confirmation of Texas lawyer James “Trey” Trainor III to the Federal Election Commission means the beleaguered campaign finance agency now will have a quorum to hold meetings and conduct official business. But even so, don’t expect a whirlwind of enforcement action.

The Senate voted 49-43 Tuesday to put the Republican attorney on the commission, which has been down to just three members since September. The agency, which is designed to have three Democrats and three Republicans, requires four commissioners for a quorum. 

With Trainor, the FEC will have an equal number of Republican and Democratic appointees, so it likely will still be deadlocked on major action — as it often had been before an insufficient number of commissioners forced into virtual lockdown. Four votes is the minimum for the commission to take enforcement action, so even with Trainor, the commissioners would need to be unanimous to act.

Routine actions, including the collection and publication of campaign finance disclosures, continued to be performed by staff. But any effort to investigate or punish violations required action by the commission, which could not meet.  

“I’m looking forward to having a quorum, that would be a good thing,” said Ellen Weintraub, a Democrat on the commission. “That’s the bare minimum requirement. How functional we will be, that remains to be seen. I’m not going to make any predictions on that.” 

Weintraub said the FEC has a long backlog to work its way through as campaigns navigate the 2020 elections during the coronavirus pandemic. The agency has 350 enforcement matters awaiting commissioners’ attention, she added.  

The nomination of Trainor, who was an attorney for President Donald Trump’s 2016 campaign, drew criticism from Senate Democrats and outside groups that focus on campaign finance rules. 

“Having a federal agency without a quorum is just bad government. In that sense, there is some value” to having a fourth confirmed commissioner, said Meredith McGehee, executive director of Issue One, which lobbies for overhauling campaign finance laws. “But it’s so far outweighed by what this particular nominee has indicated what his views are, and that’s my concern.”

Trainor has questioned the benefit of the disclosure of campaign donations, according to numerous news reports, and McGehee says that’s what has her most concerned. 

“It’s not good to not have a quorum, but either deadlocking or giving people a pass, giving people a pass is worse than no action at all,” she added. 

Senate Democrats, including Amy Klobuchar of Minnesota, the ranking member on the Senate Rules and Administration panel, said Tuesday on the Senate floor that she opposed both Trainor’s nomination and the process by which Republicans moved it. Typically, FEC nominees are taken up in bipartisan pairs.

[Senate moves a step closer to restoring FEC quorum]

“My Republican colleagues . . . have repeatedly said that by confirming Mr. Trainor, they are doing some good, restoring a quorum,” Klobuchar said. “OK, but that is not the full story of this nomination. It ignores the fact that gridlock will persist and that Republicans have intentionally left a Democratic seat on the commission vacant for more than 1,100 days.”

Missouri Republican Roy Blunt, the Rules and Administration chairman, told reporters after the GOP’s lunch with Trump on Tuesday that it was important to have a functioning FEC.

He noted that the likely Democratic presidential nominee, former Vice President Joe Biden, announced this week a joint fundraising structure with other Democratic committees that could accept a maximum $620,600 from a single donor to fund party building and get-out-the-vote activities around the country.

“I’m sure that’s legal, but I’m also sure that we need an FEC in place to look at any challenges to that, or any other issue,” Blunt said. “So the FEC could actually open an investigation on anything, which they have not been able to do for eight months now, the longest time ever that the FEC did not have a working majority. We’ll do something about that today.”

Blunt’s committee sent Trainor’s nomination to the floor on a party-line vote earlier this month.

The FEC has two additional openings, and the other three commissioners are all operating on expired terms. FEC commissioners are appointed for six-year terms. Weintraub has been on the commission since 2002. 

Former FEC commissioner Bradley A. Smith, a Republican, praised Trainor for his qualifications, especially for offering the perspective of someone who has represented campaigns.

“One of the real strengths he brings is that knowledge of a practitioner,” Smith said during a brief interview. “He’s also strongly conscious of the First Amendment problems that always hang over the commission’s activity, so that will be a plus.”

Correction: This report was revised to accurately reflect the number of enforcement cases in the FEC backlog.

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