Federal Election Commission: Membership and Policymaking Quorum, In Brief

Summary

Three commission vacancies, one of which has been disputed, occurred during the first four months of 2025. These developments left only three commissioners remaining in office, thus precluding a policymaking quorum; FECA requires at least four agreeing votes from commissioners to take various policymaking, regulatory, and enforcement actions. The quorum loss marked the fourth in the FEC's history. The first lasted six months in 2008. The second lasted for approximately nine months and spanned parts of 2019 and 2020. The third lasted for approximately six months during the second half of 2020.

FEC commissioners are presidential appointees who are subject to Senate advice and consent. Commissioners may remain in office in holdover status beyond the end of their six-year statutory terms. As of this writing, it is unclear when or whether the President might make, or the Senate might consider, new nominations.

Introduction

The 2025 loss of the FEC's policymaking quorum marks the fourth such episode in the agency's history, and the first since 2020.

The terms FEC, commission, and agency often—including in other CRS products—are used interchangeably to refer to the Federal Election Commission. Because this report emphasizes policymaking and enforcement duties specified in statute, it generally reserves commission to denote appointed members of the FEC, as opposed to agency staff. In this report, agency and FEC generally refer to the commission and staff collectively.

(data are current as of May 8, 2025)

Commissioner

Term Expiration

Date Confirmed

Party Affiliation

Recent Vacancy Notes

Shana M. Broussard

04/30/2023 (remains in holdover status)

12/09/2020

Democrat

—

Dara Lindenbaum

04/30/2027

05/24/2022

Democrat

—

James E. "Trey" Trainor III

04/30/2023 (remains in holdover status)

05/19/2020

Republican

—

[Vacant]

[new occupant's term would expire 04/30/2027]

—

—

Previous occupant Sean J. Cooksey (R); resignation effective 01/20/2025

[Vacant]

[new occupant's term would expire 04/30/2031]

—

—

Previous occupant Allen Dickerson (R); resignation effective 04/30/2025

[Vacant]

[new occupant's term would expire 04/30/2031]

—

—

Source: Legislative Information System/Congress.gov nominations database. CRS added party affiliation based on FEC publications and press accounts.

Commission membership dropped from six to three between January and April 2025, resulting in a policymaking-quorum loss. Those vacancies developed, in chronological order, as follows:

• Commissioner Sean J. Cooksey resigned effective January 20, 2025, to serve as counsel to Vice President Vance.⁴ The Cooksey resignation did not affect the policymaking quorum, as five commissioners remained in office.
• Effective January 31, 2025, President Trump reportedly removed Commissioner Ellen L. Weintraub, who was serving as the commission chairperson.⁵ By February 7, 2025, the FEC website was updated to reflect two vacancies (for the Cooksey and Weintraub seats) on the commission, and four of six commissioners remaining in office.⁶ Commissioner Weintraub and some Members of Congress have argued that her dismissal is impermissible.⁷ Legal analysis of the dismissal dispute is beyond the scope of this report. Open commission meetings were canceled on February 13 and 27, 2025, and on March 13, 2025. Weintraub did not participate in subsequent open meetings, which began on March 27, 2025.⁸
• Commissioner Allen Dickerson resigned effective April 30, 2025, at the end of his term.⁹ Dickerson's resignation marked the departure of a third commissioner. With only three commissioners remaining in office (Shana M. Broussard, Dara Lindenbaum, and James E. "Trey" Trainor), the commission lost its policymaking quorum.

Congress originally designed eight positions for the FEC: six commissioners and two nonvoting ex officio members (the Clerk of the House and Secretary of the Senate). Under that structure, two commissioners were appointed by the President, two by the President pro tempore of the Senate, and two by the Speaker of the House.

In a broad revision of FECA in 1976, undertaken in response to the Buckley decision, Congress adopted the current appointment method. Today, all commissioners are presidentially appointed subject to Senate advice and consent.¹² Members of the congressional leadership or committees of jurisdiction (the House Committee on House Administration and Senate Rules and Administration Committee) apparently continue to influence the appointment process.¹³

FECA specifies few qualifications for FEC commissioners, noting simply that they "shall be chosen on the basis of their experience, integrity, impartiality, and good judgment."¹⁴ As one former general counsel notes, although many commissioners are lawyers, "a commissioner does not have to be a lawyer and the commission has a long history of having non-lawyers serve as members."¹⁵ Commissioners typically have had experience as congressional staffers, political professionals, election lawyers, or some combination thereof.

No more than three commissioners may be affiliated with the same political party.¹⁶ In practice, the commission has been divided equally among Democrats and Republicans, although former Commissioner Steven Walther identified as an independent.¹⁷ FECA staggers commissioner terms so that two expire every other April 30 during odd-numbered years (e.g., 2023, 2025, etc.).¹⁸ This arrangement means that, at least as designed, two new commissioners would assume office biennially. However, the President is under no obligation to make biennial nominations.

These and other commissioners could remain in office because FECA provides that an FEC member may serve in "holdover" status, exercising full powers of the office, after his or her term expires "until his or her successor has taken office as a Commissioner."²²

FECA requires affirmative votes from at least four commissioners to authorize most policymaking or enforcement activity. In particular, this includes

• holding hearings;
• making, amending, or repealing rules;
• initiating litigation or defending the agency in litigation, including appeals;
• issuing advisory opinions;
• conducting investigations, and making referrals to other enforcement agencies;
• approving enforcement actions and audits; and
• issuing and amending forms (e.g., those used in the disclosure process).²³

Matters without at least four votes for or against an action can have the effect of leaving questions of law, regulation, or enforcement unresolved, as some view the issues in question as having been neither approved nor rejected.²⁴

When fewer than four commissioners remain in office, existing campaign law and regulation remain in effect. Agency staff and remaining commissioners may continue to provide general information, and to prepare for a repopulated commission. In addition, as explained below, the commission revised its internal procedures in 2007 to clarify functions during a quorum loss.

Following expired recess appointments and amid ongoing Senate consideration of FEC nominations, the agency had just two commissioners for the first six months of 2008. In late 2007, in anticipation of only two commissioners remaining in office in 2008, commissioners amended the FEC's rules of internal procedure to permit executing some duties if the commission lost its four-member policymaking quorum. These revisions to the FEC's Directive 10 permit the commission to continue meeting with fewer than four members to approve general public information, such as educational guides; appoint certain staff; and approve other basic administrative and employment matters.²⁵

During the loss of the commission's policymaking quorum in 2008, the two remaining commissioners (David Mason (R) and Ellen Weintraub (D)) met publicly to discuss advisory opinions, but could not vote to approve or disapprove those opinions. At the time, the commissioners explained that although they recognized that the commission lacked a quorum, they were attempting to provide general feedback, particularly given the ongoing 2008 election cycle. That practice generated some controversy, however, as some practitioners contended that remaining commissioners did not have the authority to meet and provide guidance.²⁶ (The commission did not hold public discussions such as these during later quorum losses.)

After the Senate confirmed nominees in June 2008, the new commissioners faced a backlog of enforcement matters, litigation, advisory opinions, and rulemakings to implement portions of the Honest Leadership and Open Government Act of 2007 (HLOGA).²⁷ The commission returned to normal operations during the rest of 2008 and throughout 2009.

When the FEC loses its policymaking quorum, agency operations do not cease. The agency remains open for business with remaining commissioners and its regular staff. Previously authorized work requiring commission approval may continue. Although new enforcement or policy matters cannot advance until a quorum is reconstituted, a repopulated commission could, unless statutorily prohibited from doing so, consider older matters.²⁸ In addition, the Justice Department may pursue criminal enforcement on its own authority, regardless of the FEC's operating capacity for civil matters.²⁹

As discussed in the body of this report, Federal Election Commission (FEC) membership fell below the level required for a quorum for the first time in 2008. In addition, several resignation and nomination events affecting the FEC occurred between 2017 and 2020, some of which affected eventual losses in the commission's policymaking quorum in 2019 and 2020. The FEC lost its policymaking quorum twice during this latter period: once, for approximately nine months, between August 2019 and June 2020, and a second time, for approximately six months, between July 2020 and December 2020. By December 2020, the commission's policymaking quorum was restored.

For historical reference, this Appendix contains information about how the 2017-2020 nominations activity led to or resolved quorum losses. Versions of this content were previously included in the body of this report. Previous versions of the report also contain additional historical discussion.³⁰

At the beginning of February 2017, the commission was at full membership. As discussed below, commission membership fell gradually throughout 2017 and 2019, which eventually resulted in the commission's second quorum loss. A quorum was briefly restored but then again lost. A quorum was restored in 2020 and held until the 2025 loss discussed in the body of this report.

• Effective February 28, 2017, Democratic Commissioner Ann M. Ravel resigned, leaving the commission with five members and thus maintaining its policymaking quorum.³¹
• On February 7, 2018, Republican Commissioner Lee Goodman announced his intention to resign, effective February 16, 2018.³² Once Goodman left the FEC, the commission had four remaining members and thus maintained its policymaking quorum.
• As discussed in more detail below, President Trump nominated James E. "Trey" Trainor III to Republican Commissioner Matthew S. Petersen's seat during the 115^th and 116^th Congresses. Petersen initially remained in office and resigned effective August 31, 2019.³³ With the Ravel, Goodman, and Petersen vacancies, the commission then dropped to three members, thus losing its policymaking quorum for the second time in the agency's history. The Senate confirmed Trainor to the Petersen seat on May 19, 2020. Trainor was sworn in on June 5, 2020, thus restoring the agency's policymaking quorum.³⁴
• Also as discussed below, the commission again lost its policymaking quorum effective July 3, 2020—the third such instance in FEC history—when Republican Commissioner Caroline C. Hunter resigned. As noted in the body of this report, the Senate subsequently confirmed Shana M. Broussard, Sean J. Cooksey, and Allen Dickerson in 2020, thus restoring the commission's policymaking quorum.³⁵

Background on Circumstances Surrounding the Petersen Vacancy

Commissioner Petersen's 2019 departure from the FEC ended a two-year period of uncertainty about when a vacancy in his seat might occur. A brief description appears below for historical reference.

• On September 11, 2017, President Trump nominated Petersen for a federal judgeship.³⁶ Petersen subsequently withdrew from consideration for the judgeship, reportedly writing, "until the time is otherwise appropriate, I look forward to returning to my duties at the Federal Election Commission."³⁷ Petersen remained on the commission in holdover status until his August 31, 2019, resignation.
• After Petersen was nominated to the federal judgeship,³⁸ but before he withdrew from consideration for that position, President Trump nominated a replacement for Petersen at the FEC. On September 14, 2017, President Trump nominated James E. "Trey" Trainor III to the Petersen seat. Petersen continued serving at the commission, and the Trainor nomination was returned to the President at the end of the first session of the 115^th Congress.³⁹ The White House resubmitted the nomination on January 8, 2018, at the start of the second session of the 115^th Congress, and the nomination was returned to the President at the end of the Congress.⁴⁰ The White House resubmitted the Trainor nomination at the beginning of the 116^th Congress and again early in the second session of the 116^th Congress.⁴¹ The Senate Rules and Administration Committee held a hearing on the Trainor nomination on March 10, 2020. It ordered the nomination reported favorably on May 7, 2020. The Senate confirmed Trainor to the seat on May 19, 2020.⁴²

Footnotes

52 U.S.C. §§30101-30146.

This report supersedes CRS Report RS22780, The Federal Election Commission (FEC) With Fewer than Four Members: Overview of Policy Implications, by R. Sam Garrett.

See, respectively, CRS Report R41542, The State of Campaign Finance Policy: Recent Developments and Issues for Congress, by R. Sam Garrett; archived CRS Report R44318, The Federal Election Commission: Overview and Selected Issues for Congress, by R. Sam Garrett; archived CRS Report R44319, The Federal Election Commission: Enforcement Process and Selected Issues for Congress, by R. Sam Garrett; and CRS Report RL31980, Senate Consideration of Presidential Nominations: Committee and Floor Procedure, by Elizabeth Rybicki.

On Cooksey's resignation, see Letter from Sean J. Cooksey, Commissioner, Federal Election Commission, to Joseph R. Biden, President, January 13, 2025, https://www.fec.gov/resources/cms-content/documents/Letter-from-Commissioner-Sea-Cooksey-to-President-Joseph-Biden-Jan-13-2025.pdf. See also, for example, Reese Gorman, "JD Vance Is Bringing His Senior Senate Staff to His VP Office," NOTUS, January 17, 2025, https://www.notus.org/trump-transition/jd-vance-senior-staff-vp-office.

Weintraub announced on social media on February 6, 2025, that she had received a January 31, 2025, letter from President Trump "purporting to remove me." See, for example, Ellen L. Weintraub (@EllenWeintraub), X post, February 6, 2025, https://x.com/EllenLWeintraub/status/1887648967300694270.

A group of Democratic Senators wrote to President Trump on February 12, 2025, objecting to the dismissal and calling it an "illegal attempt to remove Chair Ellen Weintraub." See Letter from Sens. Alex Padilla et al. to Donald J. Trump, President, February 12, 2025, https://www.padilla.senate.gov/wp-content/uploads/02.12.25_Letter-to-POTUS-on-Removal-of-FEC-Chair-Weintraub.pdf. For another Member statement on the dismissal, see, for example, Committee on House Administration (Minority), "Morelle Statement on President Trump Firing Federal Election Commission Chair," press release, February 6, 2025, https://democrats-cha.house.gov/media/press-releases/morelle-statement-president-trump-firing-federal-election-commission-chair. According to a February 6, 2025, media report, a White House spokesperson stated, in part, "'The President has made a decision on who he'd like to chair the Federal Election Commission (FEC), and it's not [Weintraub].'" See Ross O'Keefe, "FEC Chairwoman Rejects Trump's Attempt to Remove Her," Washington Examiner, February 6, 2025, https://www.washingtonexaminer.com/news/white-house/3313625/fec-chairwoman-rejects-trump-attempt-remove-her/.

See Letter from Allen J. Dickerson, Commissioner, Federal Election Commission, to Donald J. Trump, President, April 23, 2025, https://www.fec.gov/resources/cms-content/documents/Letter-from-Commissioner-Allen-J-Dickerson-to-President-Donald-Trump.pdf. See also, for example, Dave Levinthal, "The Federal Election Commission Is Facing a De Facto Shutdown," NOTUS, April 25, 2025, https://www.notus.org/policy/federal-election-commission-shutdown; and Max Greenwood, "FEC Commissioner Resigns, Paralyzing Watchdog," Campaigns & Elections, April 30, 2025, https://campaignsandelections.com/industry-news/fec-commissioner-resigns/.

52 U.S.C. §30106(a)(2)(A). Commissioners appointed before December 31, 1997, or announced as intended nominees before November 30, 1997, were eligible for reappointment. See 111 Stat. 1305 and 111 Stat. 2523.

For historical background, see archived CRS Report RL34324, Campaign Finance: Legislative Developments and Policy Issues in the 110th Congress, by R. Sam Garrett; and archived CRS Report RS22780, The Federal Election Commission (FEC) With Fewer than Four Members: Overview of Policy Implications, by R. Sam Garrett.

The statute of limitations for civil and criminal violations is five years. See 28 U.S.C. §2462 and 52 U.S.C. §30145, respectively. Other actions, such as rulemaking activities that are already under way, may continue indefinitely. However, as noted above, new rulemakings could not be initiated or finalized without a quorum.

For an overview of various civil versus criminal provisions and administration/enforcement in campaigns and elections, see CRS Report R45302, Federal Role in U.S. Campaigns and Elections: An Overview, by R. Sam Garrett.

Congressional requesters may contact the author of this report for additional information.

See Federal Election Commission, "Shana Broussard, Sean Cooksey, Allen Dickerson Sworn in as Commissioners," press release, December 18, 2020, https://www.fec.gov/updates/shana-broussard-sean-cooksey-allen-dickerson-sworn-commissioners/. See also PNs 2237, 2302, and 2303, https://www.congress.gov/nomination/116th-congress/2237, https://www.congress.gov/nomination/116th-congress/2302, and https://www.congress.gov/nomination/116th-congress/2303.

Dave Levinthal, "New Hope, New Problem: Will the Federal Election Commission Shut Down?" Center for Public Integrity, December 20, 2017, updated February 7, 2018, https://www.publicintegrity.org/2017/12/20/21410/new-hope-new-problem-will-federal-election-commission-shut-down. For additional discussion, see, for example, Kenneth P. Doyle, "Lawyer with No Courtroom Experience Withdraws as Judge Nominee," Daily Report for Executives, December 19, 2017. The circumstances surrounding the judicial nomination and withdrawal are beyond the scope of this report.

See "Nominations Returned to the Senate," Congressional Record, daily edition, vol. 163, no. 216 (January 3, 2018), pp. S25-S26. The September 2017 Trainor nomination was one of a large group returned to the President at the end of the first session under Senate Rule XXXI. However, this rule was waived for another group of nominations, and these were kept in status quo into the second session. See Sen. Mitch McConnell, "Nominations Remaining in Status Quo," remarks in the Senate, Congressional Record, daily edition, vol. 163, no. 209 (December 21, 2017), p. S8241; and Sen. Mitch McConnell, "Nominations Remaining in Status Quo," remarks in the Senate, Congressional Record, daily edition, vol. 163, no. 215 (January 2, 2018), p. S8289. CRS Specialist Henry Hogue provided consultations on this information.

The Senate confirmed Trainor with a 49-43 vote. See record vote no. 96.