Order Code RS22780
Updated June 26, 2008
The Federal Election Commission (FEC) With
Fewer than Four Members:
Overview of Policy Implications
R. Sam Garrett
Analyst in American National Government
Government and Finance Division
Summary
Three recess appointments to the Federal Election Commission (FEC) expired at
the end of the first session of the 110th Congress, leaving the agency with just two
commissioners. Because the Federal Election Campaign Act (FECA) requires that at
least four commissioners vote affirmatively to execute some of the agency’s major
functions, the FEC was unable to issue regulations, approve enforcement actions, and
administer aspects of the presidential public campaign financing program. The
Commission also could not issue advisory opinions. Existing campaign finance law and
regulations remained in effect. Remaining commissioners and staff continued routine
business.
On June 24, 2008, the Senate confirmed five nominees to the FEC. Those five new
commissioners will join a sixth member who continues to serve in holdover status.
Therefore, the commission is now restored to full decision-making strength. This report
will not be updated unless the Commission again loses its quorum.
The Commission and Recent Nominations: Brief Overview
Throughout the first session of the 110th Congress, the Senate considered four
nominations to the six-seat FEC.1 Nominees Robert D. Lenhard (D), Hans A. von
Spakovsky (R), and Steven T. Walther (D) served in recess appointments at the agency
during that time and until their appointments expired at the end of the first session.2 The
fourth nominee, David M. Mason (R), served at the agency since 1998 and was
1 No more than three of the six commissioners may be affiliated with the same political party.
See 2 U.S.C. § 437c(a)(1). Due to a resignation, the Commission had five members instead of
six for much of 2007.
2 On recess appointments, see CRS Report RS21308, Recess Appointments: Frequently Asked
Questions, by Henry B. Hogue.

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renominated (although his re-nomination was withdrawn in May 2008, as was von
Spakovsky’s).
Throughout the first session of the 110th Congress, the von Spakovsky nomination
generated controversy. In particular, some Senators and others debated von Spakovsky’s
actions on voting rights issues while serving at the Justice Department.3 Much of a June
13, 2007, Senate Rules and Administration Committee hearing and subsequent markup
focused on von Spakovsky. On September 26, 2007, after being unable to reach
agreement on reporting the nominations individually, the committee reported all four
nominees en bloc without recommendation. In the closing days of the first session, the
Senate was unable to reach a compromise over the nominees, including whether they
should be considered on the floor separately or as a group.4 The apparent stalemate over
the nominations continued into the second session of the 110th Congress.5
The Lenhard, Mason, von Spakovsky, and Walther nominations remained pending
in the Senate early in the second session of the 110th Congress, but because the three
recess appointments expired at the end of the first session, just two commissioners —
Mason (R) and Ellen L. Weintraub (D) — remained in office. Both were previously
confirmed by the Senate and could continue serving in holdover status following expired
terms.
Few developments occurred in early 2008. However, additional nomination activity
took place beginning in April. First, Lenhard requested that his nomination be
withdrawn.6 Second, on May 6, 2008, President George W. Bush made three new
nominations to the FEC and withdrew Mason’s re-nomination. Donald F. McGahn II (R),
an election lawyer, was nominated to the Mason seat.7 At the same time, the President
withdrew Lenhard’s name and nominated Cynthia L. Bauerly (D), a Senate staffer, to that
seat. Caroline C. Hunter (R), then a member of the Election Assistance Commission
(EAC), was nominated to the FEC seat formerly held by Michael E. Toner. (Toner
resigned from the Commission in 2007.) On May 16, 2008, von Spakovsky requested
3 The Rules and Administration Committee posted a transcript of the hearing on its website at
[http://rules.senate.gov/hearings/2007/061307correctedTranscript.pdf]. On the hearing and
controversy surrounding the von Spakovsky nomination, see, for example, Kenneth P. Doyle,
“Senate Rules Hearing on FEC Nominees Focuses on Von Spakovsky Role at Justice,” Daily
Report for Executives, June 14, 2007, p. A-12.
4 Sen. Robert Bennett, “FEC Vacancies,” remarks in the Senate, Congressional Record, daily
edition, vol. 153 (December 18, 2007), pp. S15820-S158222; and Sen. Harry Reid, “Federal
Election Commission Nominees,” remarks in the Senate, Congressional Record, daily edition,
vol. 153 (December 19, 2007), p. S15981.
5 See, for example, Mary Jacoby, “Election Agency Lacks Quorum To Rule on Key Issues This
Year,” Wall Street Journal, February 26, 2008, p. A8; and Matthew Mosk, “Money Matters,”
Roll Call, April 2, 2008, at
[http://www.rollcall.com/issues/53_113/money_matters/22760-1.html].
6 Matthew Murray, “Democratic FEC Nominee Withdraws; Reid Blasts White House,” Roll Call,
April 14, 2008, at [http://www.rollcall.com/issues/1_1/breakingnews/22987-1.html?type=pf].
7 The chairmanship is not connected to particular seats. Therefore, McGahn will not
automatically become chair. The commissioners elects the chair and vice chair. Under FECA,
the chair and vice chair must be from opposing parties. See 2 U.S.C. § 437c(a)(5).

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that his nomination be withdrawn.8 On May 22, 2008, following a hearing the previous
day, the Senate Rules and Administration Committee favorably reported the Bauerly,
Hunter, and McGahn nominations. Also on May 22, 2008, the White House announced
the President’s intention to nominate Matthew S. Petersen (R), a Senate staffer, to the seat
formerly held by von Spakovsky.9 Walther’s nomination also continued to remain
pending.
On June 24, 2008, the Senate confirmed Bauerly, Hunter, McGahn, Petersen, and
Walther. The five new commissioners joined Ellen Weintraub, who continues to serve
at the FEC in holdover status.10
Effects of a Commission with Fewer than Four Members
Functions that Could Continue Unaffected. Even a two-member
Commission was not halted entirely. FECA does not appear to require a four-
commissioner majority to permit the FEC to carry out basic information-gathering
functions, such as requiring written reports, gathering evidence in enforcement cases, and
authorizing subpoenas.11 With fewer than four commissioners, agency staff and
remaining commissioners could also continue to provide general information, and to
prepare for a repopulated Commission. Existing campaign law and regulations remained
in effect.
In addition, in December 2007, when the FEC still had five commissioners, the
Commission voted to amend its rules of internal procedure to permit remaining
commissioners to execute some duties. Revisions to the FEC’s so-called “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.12
Functions That Require a Four-Commissioner Majority. FECA requires
affirmative votes from at least four commissioners to: (1) make, amend, or repeal rules,
(2) approve enforcement actions, (3) initiate, or defend itself in, certain court actions, (4)
issue advisory opinions, (5) develop forms, (6) conduct hearings and investigations, and
8 See, for example, Matthew Murray, “FEC May Be Back in Business Soon,” Roll Call, May 19,
2008, p. A1.
9 White House, Office of the Press Secretary, “Personnel Announcement,” May 22, 2008, at
[http://www.whitehouse.gov/news/releases/2008/05/20080522-9.html]. No hearing was held on
Petersen.
10 “Confirmations,” Congressional Record, daily edition, vol. 154 (June 24, 2008), p. S6096.
11 2 U.S.C. § 437c(c); and 2 U.S.C. § 437d(a)(1)-2 U.S.C. § 437d(a)(1)(5). Duane Pugh, Deputy
Director, Congressional Affairs, FEC, provided consultations on some points in this section
(telephone conversations with R. Sam Garrett, December 10, 2007).
12 Federal Election Commission, “Rules of Procedure,” 73 Federal Register 5568, January 30,
2008. Section L (p. 5570) of the document refers to operations with fewer than four
Commissioners; that language was adopted in December 2007.

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(7) refer cases of apparent criminal conduct to law enforcement.13 FECA also requires a
minimum four-vote majority to administer at least some elements of the presidential
public financing program, including certifying payments to eligible candidates.14
Conclusion
The Federal Election Commission was without a quorum of four commissioners for
more than six months in 2008. Commission staff and the remaining two commissioners
continued to provide information to the regulated community and to prepare for additional
commissioners. In the interim, however, the absence of a quorum at the FEC delayed
administering aspects of the presidential public financing program, rulemakings, and
enforcement actions.15 Immediate issues facing the repopulated Commission include
rulemaking to implement portions of the Honest Leadership and Open Government Act
of 2007 (HLOGA), pending enforcement cases and advisory opinion requests, and
administering the presidential public campaign financing program.16 The Commission
may also need to respond to ongoing litigation surrounding the Bipartisan Campaign
Reform Act.17
13 2 U.S.C. § 437c(c); 2 U.S.C. § 437d(a)(6)-2 U.S.C. § 437d(a)(9); and 2 U.S.C. § 437g(a).
14 2 U.S.C. § 437c(c). Wanda Thomas, director of the FEC’s public financing program, provided
consultations on some points related to presidential public financing (telephone conversation with
R. Sam Garrett, December 11, 2007; and by e-mail, April 10, 2008). On presidential public
financing, see CRS Report RL34534, Public Financing of Presidential Campaigns: Overview
and Analysis, by R. Sam Garrett.
15 This assumes that a quorum would have chosen to address those issues and that a majority
could have reached agreement on a resolution.
16 HLOGA is P.L. 110-81. For additional discussion of required HLOGA rulemakings related
to campaign finance, see CRS Report RL34324, Campaign Finance: Legislative Developments
and Policy Issues in the 110th Congress, by R. Sam Garrett.
17 On BCRA, see P.L. 107-155; 116 Stat. 81. For additional information, see CRS Report
RL31402, Bipartisan Campaign Reform Act of 2002: Summary and Comparison with Previous
Law, by Joseph E. Cantor and L. Paige Whitaker. Cantor is now retired from CRS. Contact R.
Sam Garrett with questions regarding Mr. Cantor’s portfolio.

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