Deadlocked Votes Among Members of the
Federal Election Commission (FEC): Overview
and Potential Considerations for Congress
R. Sam Garrett
Analyst in American National Government
August 26, 2009
Congressional Research Service
7-5700
www.crs.gov
R40779
CRS Report for Congress
P
repared for Members and Committees of Congress
Deadlocked Votes Among Members of the Federal Election Commission
Summary
In the mid-1970s, Congress designed the Federal Election Commission (FEC) to be a bipartisan
independent regulatory agency. By congressional design, the agency’s structure is intended to
guard against partisan enforcement of campaign finance law. Consequently, the six-member
Commission has been evenly divided among Democrats and Republicans. The Federal Election
Campaign Act (FECA) also requires that the Commission muster at least four votes to exercise
core functions—meaning that no measure can advance without at least some bipartisan support.
Perhaps because of that structure, however, the Commission has been criticized for sometimes
failing to achieve consensus on key policy issues, resulting in what are typically termed
deadlocked votes, in which matters of law or regulation may be left unresolved. In August 2009,
citing deadlocks and other issues, Senators Feingold and McCain introduced legislation (S. 1648)
to restructure the agency.
Although the topic of deadlocked votes arises frequently, empirical analyses of the phenomenon
are rare. Those that exist focus on older data. Accordingly, this report asks whether deadlocks are
as common as popular wisdom suggests and whether deadlocks fall along party lines. Both points
are commonly cited (although often without quantitative data) in anecdotal accounts. The report
addresses those questions by exploring deadlocked votes in rulemakings, enforcement matters,
and advisory opinions (AOs) during the current Commission’s first year in office—from July
2008 through June 2009—when concern over deadlocks has most recently reemerged.
The data show that deadlocked votes occurred throughout the current Commission’s first year in
office, but they represented a minority of the Commission’s votes during the review period.
Specifically, deadlocks occurred in about 13% of matters under review (MURs) and in about 17%
of AOs. No deadlocks occurred on rulemakings. Those issues on which deadlocks occurred,
however, featured staunch disagreement among Commissioners and reflected apparently
unsettled positions on some major policy questions. In addition, when deadlocks occurred,
Commissioners always voted in partisan blocs. Deadlocked votes can be interpreted from various
perspectives, which may influence whether Congress decides to maintain the status quo or pursue
oversight or legislative action.
This report will be updated periodically to reflect new data or as developments warrant.
Congressional Research Service
Deadlocked Votes Among Members of the Federal Election Commission
Contents
Introduction ................................................................................................................................ 1
What are Substantive Deadlocks?.......................................................................................... 4
No Deadlocked Votes on Rulemakings ........................................................................................ 4
Deadlocked Votes in Enforcement Matters .................................................................................. 5
Deadlocked Votes on Advisory Opinions ..................................................................................... 7
Party Affiliation and Deadlocked Votes ....................................................................................... 8
Cases and Issues Involving Deadlocked Votes: A Brief Overview ................................................ 8
Considerations for Congress...................................................................................................... 11
Perspectives on Deadlocked Votes....................................................................................... 11
Policy Options .................................................................................................................... 12
Maintain the Status Quo................................................................................................ 12
Conduct Oversight ........................................................................................................ 13
Pursue Legislative Change ............................................................................................ 13
Conclusion................................................................................................................................ 14
Figures
Figure 1. Substantive Deadlocks in Publicly Available Matters Under Review (MURs)
Closed July 1, 2008-June 30, 2009 ........................................................................................... 6
Figure 2. Substantive Deadlocks in Publicly Available FEC Advisory Opinions
Considered July 1, 2008-June 30, 2009 .................................................................................... 7
Tables
Table 1. Current Members of the Federal Election Commission................................................... 2
Table 2. Substantive Deadlocks in Publicly Available FEC Enforcement Matters Closed
July 1, 2008-June 30, 2009....................................................................................................... 6
Table 3. Substantive Deadlocks in Publicly Available FEC Advisory Opinions Considered
July 1, 2008-June 30, 2009....................................................................................................... 7
Table 4. Overview of Substantive Deadlocks in Publicly Available Matters Under Review
(MURs) Closed July 1, 2008-June 30, 2009.............................................................................. 9
Table 5. Overview of Substantive Deadlocks in Publicly Available Advisory Opinions
Considered July 1, 2008-June 30, 2009 .................................................................................. 11
Contacts
Author Contact Information ...................................................................................................... 15
Congressional Research Service
Deadlocked Votes Among Members of the Federal Election Commission
Introduction
Congress established the Federal Election Commission (FEC) via the 1974 Federal Election
Campaign Act (FECA) amendments.1 The six-member independent regulatory agency is
responsible for civil enforcement of the nation’s campaign finance law. The Commission also
administers public financing of presidential campaigns (applicable to participating candidates)
and presidential nominating conventions.2 In addition to enforcement and regulatory duties, the
FEC conducts a variety of outreach and educational activities.
Under FECA, no more than three Commissioners may be affiliated with the same political party.3
In practice, the Commission has been divided equally among Democrats and Republicans.
Affirmative votes from at least four commissioners are required to (among other duties): make,
amend, or repeal rules, issue advisory opinions (AOs), and approve enforcement actions.4 (For
the purposes of this report, enforcement actions can include finding “reason to believe” FECA has
been violated, which prompts an enforcement investigation.5) 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.6
Throughout its history, the Commission has been criticized for failing to reach at least a four-vote
consensus on some key policy and enforcement issues, resulting in what are commonly termed
deadlocked votes.7 The issue of deadlocked votes has received renewed attention since late June
1 FECA is 2 U.S.C. 431 et seq. The 1974 amendments were P.L. 93-443. The Commission was originally composed of
six members and two ex officio members (the Clerk of the House and Secretary of the Senate). Two Commissioners
were appointed by the President, two by the President Pro Tempore of the Senate, and two by the Speaker of the House.
Congressional appointments were based on leadership recommendations. In Buckley v. Valeo (1976), 424 U.S. 1, the
Supreme Court of the United States invalidated the original congressional-appointments structure. On Buckley, see
CRS Report RL30669, The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and Its Supreme
Court Progeny, by L. Paige Whitaker. In 1993, the U.S. Court of Appeals for the D.C. Circuit held the ex officio
appointments unconstitutional. See FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C. Cir. 1993). Today, although
congressional leaders may influence FEC nominations, they are presidential appointments.
2 See CRS Report RL34534, Public Financing of Presidential Campaigns: Overview and Analysis, by R. Sam Garrett
and CRS Report RL34630, Federal Funding of Presidential Nominating Conventions: Overview and Policy Options,
by R. Sam Garrett and Shawn Reese.
3 2 U.S.C. § 437c(a)(1).
4 See 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); and CRS Report
RS22780, The Federal Election Commission (FEC) With Fewer than Four Members: Overview of Policy Implications,
by R. Sam Garrett.
5 Finding reason to believe (RTB) does not necessarily mean that a violation has occurred. Rather, it is the threshold at
which an investigation could begin. See 2 U.S.C. § 437g(a)(2).
6 Practitioners reportedly have different interpretations of deadlocked votes. In enforcement matters, for example, some
practitioners reportedly view deadlocks as an opportunity to challenge the boundaries of the law (because no violation
was found), whereas others regard deadlocks as leaving the issue unresolved. See Kenneth P. Doyle, “Increasing
Prevalence of Split FEC Votes On Key Issues Could Shape Next Campaigns,” Daily Report for Executives, April 9,
2009, p. C-1.
7 For an overview, see, for example, Michael M. Franz, “The Devil We Know? Evaluating the Federal Election
Commission as Enforcer,” Election Law Journal, vol. 8, no. 3, pp. 167-187; Thomas E. Mann, “The FEC:
Administering and Enforcing Campaign Finance Law,” in The New Campaign Finance Sourcebook, Anthony Corrado,
Thomas E. Mann, Daniel R. Ortiz, and Trevor Potter (Washington: Brookings Institution Press, 2005), pp. 239-241;
and Scott E. Thomas and Jeffrey H. Bowman. 2000. “Obstacles to Effective Enforcement of the Federal Election
Campaign Act.” Administrative Law Review 52(2): 575-608.
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Deadlocked Votes Among Members of the Federal Election Commission
2008, when most of the current Commissioners took office (see Table 1), and following a six-
month loss of the agency’s policymaking quorum.8
Table 1. Current Members of the Federal Election Commission
Commissioner
Term Expires
Date Confirmed
Party Affiliation
Cynthia L. Bauerly
04/30/2011
06/24/2008
Democrat
Caroline C. Hunter
04/30/2013
06/24/2008
Republican
Donald F. McGahn
04/30/2009 (remains in
06/24/2008 Republican
holdover status)
Matthew S. Petersen
04/30/2011
06/24/2008
Republican
Steven T. Walther
04/30/2009 (remains in
06/24/2008 Democrat
holdover status)
Ellen L. Weintraub
04/30/2007 (remains in
03/12/2003 Democrat
holdover status)
Source: Legislative Information System nominations database. CRS added party affiliation based on the seating
chart distributed at FEC meetings and based on various media accounts.
Some deadlocked votes among current (and previous) Commissioners were marked by
controversy and apparently staunch, public disagreement. For example, two enforcement cases—
one involving the 527 organization9 the November Fund and another involving Arjinderpal
Sekhon, a former congressional candidate—featured an exchange of sharply worded “statements
of reasons” articulating Commissioners’ justifications for their votes. In the November Fund case,
which focused on whether the organization should have registered with the Commission as a
political committee, a deadlock resulted in the Commission rejecting an already-signed
conciliation agreement.10 In the Sekhon case, a deadlock forced the Commission to refund a civil-
8 Commissioner Walther had previously served on the Commission. For background on the transition from the previous
Commission to the one that took office in June 2008, see CRS Report RS22780, The Federal Election Commission
(FEC) With Fewer than Four Members: Overview of Policy Implications, by R. Sam Garrett.
9 As the term is commonly used, 527 refers to groups registered with the Internal Revenue Service (IRS) as political
organizations. Although 527s influence federal elections in some cases, their activities generally fall outside the
confines of federal election law and FEC regulation. By contrast, political committees (which include candidate
committees, party committees, and political action committees) are regulated by the FEC and federal election law.
Although political committees are 527s for tax purposes, not all 527s are political committees. For additional
discussion, see, for example, CRS Report RS22895, 527 Groups and Campaign Activity: Analysis Under Campaign
Finance and Tax Laws, by L. Paige Whitaker and Erika K. Lunder; and CRS Report R40091, Campaign Finance:
Potential Legislative and Policy Issues for the 111th Congress, by R. Sam Garrett.
10 Commissioners Bauerly and Weintraub characterized the November Fund deadlock as a “dramatic departure…from
the Commission’s prior enforcement efforts and the law itself.” Bauerly and Weintraub also stated that “Our
colleagues’ refusal to accept the signed conciliation agreement with the November Fund amounts to a refusal to enforce
the law.” Commissioners Hunter, McGahn, and Petersen characterized the notion that they were refusing to enforce the
law as an “overly simplistic allegation” and contended that “we were unable to divine a coherent and sound legal
theory upon which to impose the limitations of ‘political committee’ status upon The November Fund,” and, therefore,
to find that FECA had been violated. See Cynthia L. Bauerly and Ellen L. Weintraub, Statement of Reasons of
Commissioners Cynthia L. Bauerly and Ellen L. Weintraub, Federal Election Commission, document no. 28044222186
accompanying MUR 5541, December 19, 2008, pp. 1, 6, http://eqs.sdrdc.com/eqsdocs/28044222185.pdf; and Matthew
S. Petersen, Caroline C. Hunter, and Donald F. McGahn, Statement of Reasons of Vice Chairman Matthew S. Petersen
and Commissioners Caroline C. Hunter and Donald F. McGahn, Federal Election Commission, document
29044223820, accompanying MUR 5541, January 22, 2009, p. 1, http://eqs.sdrdc.com/eqsdocs/29044223819.pdf.
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Deadlocked Votes Among Members of the Federal Election Commission
penalty check that had already been submitted.11 Amid deadlocks in these and other cases, some
Members of Congress, media organizations, and interest groups began to comment on what was
characterized as the “increasingly public and acrimonious” nature of deadlocked votes.12 In
August 2009, citing deadlocks and other issues, Senators Feingold and McCain introduced
legislation (S. 1648) to restructure the agency.13 Deadlocks also reportedly motivated
congressional concern about FEC nominations.14
Although the topic of deadlocked votes arises frequently, empirical analyses of the phenomenon
are rare. Those that exist rely on older data.15 Nonetheless, it is clear that deadlocked votes are
sometimes controversial and are a regular topic of interest among those who monitor the
Commission. What is less clear, however, is whether deadlocks are common or whether
deadlocks fall along party lines. Both points are commonly cited (although often without
quantitative data) in anecdotal accounts.16
This report addresses those questions by exploring deadlocked votes in rulemakings, enforcement
matters, and AOs during the current Commission’s first year in office—from July 2008 through
June 2009.
11 Commissioners Bauerly and Weintraub characterized the deadlock as perhaps “the most inexplicable resolution of a
Matter Under Review” during their tenures and argued that “despite a clear and undisputed violation of the law, the
Commission effectively tore up the [conciliation] agreement and closed the file with no action taken.” Commissioners
Petersen, Hunter, and McGahn countered that the MUR “presents an enforcement action that should have been handled
differently from start to finish” and “highlights a troubling disparity in campaign finance law: rote enforcement of
hyper-technical rules often has an unfair impact on inexperienced political participants.” See Cynthia Bauerly and Ellen
L. Weintraub, Statement of Reasons: Commissioner Cynthia L. Bauerly [and] Commissioner Ellen L. Weintraub,
Federal Election Commission, document 29044242537, Washington, DC, June 2, 2009, pp. 1-2, http://eqs.sdrdc.com/
eqsdocs/29044242536.pdf.; and Matthew S. Petersen, Caroline C. Hunter, and Donald F. McGahn II, Statement of
Reasons: Vice Chairman Matthew S. Petersen and Commissioners Caroline C. Hunter and Donald F. McGahn II,
Federal Election Commission, document 29044243960, accompanying MURs 5957 and 6031, Washington, DC, June
24, 2009, p. 1, http://eqs.sdrdc.com/eqsdocs/29044243959.pdf. On the check being refunded, see Letter from Audra L.
Wassom, Acting Assistant General Counsel, FEC, to Daljit Kaur Sekhon, Treasurer, Committee to Elect Sekhon for
Congress, November 7, 2008, http://eqs.sdrdc.com/eqsdocs/28044220541.pdf.
12 Dan Eggen, “McCain, Feingold Team Up Again Over FEC,” Washington Post, July 3, 2009, p. A2.
13 Senator Russ Feingold, remarks in the Senate, Congressional Record, daily edition, vol. 155 (August 7, 2009), p. S
9083.
14 According to media reports, Senators Feingold and McCain stated that they would place a hold on FEC nominee
John Sullivan, due in part to concern about deadlocks. See, for example, Kenneth P. Vogel and Mainu Raju, “John
McCain, Russ Feingold reunite to block Barack Obama’s FEC pick,” Politico.com, July 1, 2009,
http://www.politico.com/news/stories/0609/24393.html; Dan Eggen, “McCain, Feingold Team Up Again Over FEC,”
Washington Post, July 3, 2009, p. A2; and Greg Vadala, “ McCain and Feingold Use ‘Hold’ to Pressure Obama on
FEC Picks,” CQ Today Online News, July 1, 2009, http://www.cq.com/document/display.do?dockey=/cqonline/prod/
data/docs/html/news/111/news111-000003157755.html@allnews&metapub=CQ-NEWS&searchIndex=0&seqNum=1.
It is unclear, however, whether a hold, which is an informal process, was actually placed on the nomination. On holds
generally, see CRS Report 98-712, “Holds” in the Senate, coordinated by Walter J. Oleszek.
15 See, for example, Michael M. Franz. 2009. “The Devil We Know? Evaluating the Federal Election Commission as
Enforcer.” Election Law Journal 8(3): 167-187; Todd Lochner and Bruce E. Cain, “Equity and Efficacy in the
Enforcement of Campaign Finance Laws,” Texas Law Review, vol. 77, no. 7 (June 1999), pp. 1891-1942; and Robert E.
Mutch. 1988. Campaigns, Congress, and Courts: The Making of Federal Campaign Finance Law (Westport, CT:
Praeger), p. 103.
16 See, for example, ibid and Kenneth P. Doyle, “Increasing Prevalence of Split FEC Votes On Key Issues Could Shape
Next Campaigns,” Daily Report for Executives, April 9, 2009, p. C-1.
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Deadlocked Votes Among Members of the Federal Election Commission
The following analysis is based on data provided by the FEC and on other available FEC
documentation.17 Although certain matters remain outside the public record (e.g., votes on
negotiations over civil-penalty amounts), the data presented here account for all publicly
available deadlocks that occurred during the year under review. The analysis also provides an
overview of the policy or legal issues considered in each of those deadlocks.
The data show that although deadlocked votes occurred throughout the year, they constituted a
minority of the Commission’s votes. Those issues on which deadlocks occurred, however,
featured strong disagreement among Commissioners and reflected apparently unsettled positions
on some major policy questions, such as political committee status, when particular activities
triggered filing requirements or other regulation, and questions related to investigations and other
enforcement matters. In addition, the deadlocks that did occur always fell along partisan lines.
If Congress chooses to examine FEC deadlocked votes, a variety of perspectives and options
could be relevant, as discussed at the end of this report.
What are Substantive Deadlocks?
This report discusses substantive deadlocks (or simply deadlocks).18 As used here, the term means
votes that precluded the Commission from reaching a consensus about how to proceed on a
rulemaking, enforcement action, or advisory opinion (AO). This includes 3-3 tie votes and 2-2, 2-
3, 3-2 split votes that had the same effect as a tie (i.e., cases in which at least one Commissioner
recused or otherwise did not vote). Substantive deadlocks are rarely the final vote on a matter, as
the Commission usually votes to close the file after a substantive deadlock has occurred.19 In the
cases explored here, however, the deadlocked vote essentially halted substantive Commission
action on the matters in question.
No Deadlocked Votes on Rulemakings
During the first year of the current Commission, no substantive deadlocks occurred on
rulemaking issues. During the period, the FEC held votes on four rulemakings: reporting bundled
campaign contributions, extension of the Administrative Fine Program (AFP), repealing increased
contribution limits following the Supreme Court’s invalidation of the so-called Millionaire’s
amendment, and adjusting certain penalties for inflation.20
17 The data do not address issues the Commission has not made public (e.g., votes on proposed civil-penalty amounts).
18 These are terms employed in this report; they are not necessarily terms of art.
19 Despite deadlocks on previous issues, votes to close the file typically include at least a four-vote majority.
20 See Federal Election Commission, “Reporting Contributions Bundled by Lobbyists, Registrants and the PACs of
Lobbyists and Registrants,” 74 Federal Register 7285, February 17, 2009; Federal Election Commission, “Extension of
Administrative Fines Program,” 73 Federal Register 72687, December 1, 2008, Federal Election Commission, “Repeal
of Increased Contribution and Coordinated Party Expenditure Limits for Candidates Opposing Self-Financed
Candidates,” 73 Federal Register 79597, December 30, 2008; and Federal Election Commission, “Civil Monetary
Penalties Inflation Adjustments,” 74 Federal Register 31345, July 1, 2009. For additional discussion on recent
rulemakings and other campaign finance issues, see CRS Report R40091, Campaign Finance: Potential Legislative
and Policy Issues for the 111th Congress, by R. Sam Garrett. On invalidation of the Millionaire’s amendment, which
had permitted additional fundraising in certain cases, see CRS Report RS22920, Campaign Finance Law and the
Constitutionality of the “Millionaire’s Amendment”: An Analysis of Davis v. Federal Election Commission, by L. Paige
(continued...)
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Deadlocked Votes Among Members of the Federal Election Commission
Although the FEC was able to reach agreement in these four issues, the lack of deadlocks does
not necessarily indicate that no conflicts exist on rulemakings. In fact, only one of the four
rulemakings (the bundling regulations) approved during the period was controversial. Other
rulemaking matters remain open—perhaps because consensus has not been reached.21
Deadlocked Votes in Enforcement Matters
As the data in Table 2 and Figure 1 show, evaluating the frequency of substantive deadlocks
depends on what segment of the data is analyzed. FEC enforcement actions are handled through
three mechanisms: the Administrative Fine Program (AFP), alternative dispute resolution (ADR),
and matters under review (MURs). It is perhaps unsurprising that no substantive deadlocks
occurred in AFP cases, which are limited to comparatively simple matters involving late filings.
Similarly, although ADR cases can involve a variety of issues, the program is designed to
facilitate a relatively speedy resolution that emphasizes negotiation between the Commission and
the parties involved.22 Both the administrative fine and ADR programs typically involve cases
that can be closed with little controversy and without the Commission’s full enforcement
resources.
By contrast, MURs involve the Commission’s full enforcement process and may entail substantial
civil penalties or litigation. The cases can be complex and cumbersome. Substantive deadlocks
occurred in approximately 13% of publicly available MURs closed between July 2008 and June
2009. Substantive deadlocks occurred in about 6% of cases during the period if the data are
combined to include action on MURs, AFP, and ADR cases.
(...continued)
Whitaker.
21 For example, rulemakings on hybrid political advertising and federal election activity—both potentially controversial
topics—remain open. The Commission’s list of open and recently completed rulemaking actions is available at
http://www.fec.gov/law/law_rulemakings.shtml.
22 For an overview of the ADR, see Federal Election Commission, Alternative Dispute Resolution Program, brochure,
Washington, DC, December 2002, http://www.fec.gov/pages/brochures/adr_brochure.pdf.
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Deadlocked Votes Among Members of the Federal Election Commission
Table 2. Substantive Deadlocks in Publicly Available FEC Enforcement Matters
Closed July 1, 2008-June 30, 2009
Percentage
Percentage Percentage
of
Substantive Substantive
of Split
of Tie
Substantive
Deadlocks
Deadlocks
All
Total
Votes
Votes
Deadlocks
Resulting
Resulting
Substantive
Number of
Occurring
Occurring
Occurring
Enforcement
from Split
from Tie
Deadlocked Enforcement
in All
in All
in All
Type
Votes
Votes
Votes
Matters
Matters
Matters
Matters
Matters Under
7 17 24 183 3.8%
9.3%
13.1%
Review
Administrative
0 0 0
162 0%
0% 0%
Fines
Alternative
0 0 0 62 0%
0% 0%
Dispute
Resolution
All
7 17 24 407 1.7%
4.2% 5.9%
Enforcement
Matters
Source: CRS analysis of data provided by the Office of Legislative Affairs, FEC. Totals in the Matters Under
Review, Administrative Fines, and Alternative Dispute Resolution rows are taken from the FEC data. CRS calculated all
percentages in the table, data in the Al Enforcement Matters row, and in the Total Number of Enforcement Matters
column.
Note: Al percentages in the table are rounded. The All Substantive Deadlocked Votes and Percentage of Substantive
Deadlocks Occurring in All Matters combine tie and split votes (both of which result in deadlocked votes).
Figure 1. Substantive Deadlocks in Publicly Available Matters Under Review (MURs)
Closed July 1, 2008-June 30, 2009
7
17
159
MURs With Split Deadlocks
MURs With Tie Deadlocks
MURs Without Deadlocks
Source: CRS analysis of data provided by the Office of Legislative Affairs, FEC
Note: The data reflect the total number of MURs considered during the period, not the total number of
individual votes on those MURs.
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Deadlocked Votes Among Members of the Federal Election Commission
Deadlocked Votes on Advisory Opinions
Advisory opinions (AOs) allow requesters to ask the Commission for guidance about how
campaign finance law applies to a specific situation. Typically, requesters use AOs to determine
whether a planned campaign activity is permissible. As Table 3 shows, substantive deadlocks
affected 5 of 29 (17.2%) AOs considered during the period. In three of those cases, however, the
Commission was able to reach sufficient agreement to issue partial guidance.
Table 3. Substantive Deadlocks in Publicly Available FEC Advisory Opinions
Considered July 1, 2008-June 30, 2009
All
All
All
Substantive
Substantive Substantive
Deadlocks
Deadlocks
Deadlocks
Resulting in
All
Resulting in Resulting in
No or
Substantive
Partial
No Advice
Partial
All
All
Deadlocks
Advice as a
as a
Advice as a
Substantive
Substantive Resulting in
Percentage
Percentage
Percentage
Deadlocks
Deadlocks
No or
Total
of All
of All
of All
Resulting in
Resulting in
Partial
Advisory
Advisory
Advisory
Advisory
Partial Advice
No Advice
Advice
Opinions
Opinions
Opinions
Opinions
Issued
Issued
Issued
Considered
Considered
Considered
Considered
3
2 5 29 10.3%
6.9%
17.2%
Source: CRS analysis of data provided by the Office of Legislative Affairs, FEC, June 4, 2009. CRS calculated all
percentages in the table and the data in the Total Advisory Opinions Considered column.
Notes: All percentages in the table are rounded.
Figure 2. Substantive Deadlocks in Publicly Available FEC Advisory Opinions
Considered July 1, 2008-June 30, 2009
3
2
24
Partial Advice Issued
No Advice Issued
AOs Without Deadlocks
Source: CRS analysis of data provided by the Office of Legislative Affairs, FEC
Note: The data reflect the total number of AOs considered during the period, not the total number of individual
votes on those AOs.
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Party Affiliation and Deadlocked Votes
It is unclear whether substantive deadlocks occurred because of party affiliation, but every
deadlock during the review period involved party-line votes. As noted previously, Commissioners
Bauerly, Walther, and Weintraub are widely regarded as Democratic appointees; Commissioners
Hunter, McGahn, and Petersen are widely regarded as Republican appointees. Notes
accompanying the FEC data and a review of the individual vote certifications make clear that in
every instance in which a deadlock occurred—whether on MURs or AOs—Democratic and
Republican Commissioners voted in partisan blocs (although not every Commissioner voted in
every case). In addition, in each case of a deadlocked vote in a MUR, Democratic votes would
have resulted in additional enforcement action, while Republican votes would not. In most cases,
this meant that Democratic Commissioners “voted to approve” Office of General Counsel (OGC)
enforcement recommendations, while Republican Commissioners voted against those
recommendations. In some cases, however, Democratic Commissioners voted to pursue
additional enforcement despite OGC recommendations to the contrary.23
Cases and Issues Involving Deadlocked Votes:
A Brief Overview
Deadlocked votes typically occurred on motions containing multiple provisions. For example, in
the American Future Fund case (MUR 5988), the Commission deadlocked 3-3 on a motion
containing six elements, including finding “reason to believe”24 that multiple provisions of FECA
and FEC regulations had been violated, approving an OGC factual and legal analysis, and other
issues.25 Deadlocks on AOs were also typically complicated; in some cases, disagreement
occurred over competing drafts or amendments.
Table 4 provides an overview of the 24 MURs in which substantive deadlocks occurred; Table 5
does so for the five AOs.26 (Multiple MURs listed on one line in Table 4 indicate that the
Commission handled those issues as a single matter.) As the tables show, deadlocks occurred
throughout the year and involved a variety of respondents and issues. Deadlocks affected MURs
on a variety of campaign spending issues and political committee status (e.g., whether groups
regulated primarily under Sections 527 or 501(c) of the Internal Revenue Code (IRC) should have
registered with the Commission as political committees), and other issues. The AOs in question
also concerned various issues, particularly questions related to how campaign funds could be
raised or spent.
23 For example, OGC recommended against additional enforcement action in MURs 6047, 6051, 6052, and 6096. In
those cases, Republican Commissioners “voted to approve the General Counsel’s recommendations to dismiss the
matters [while Democratic Commissioners] voted to pursue further enforcement actions.” See Federal Election
Commission, Selected Split Votes in Matters Under Review (MURs) Closed and Made Publicly Available July 1, 2008
through June 30, 2009, p. 1; provided by the Office of Legislative Affairs, FEC, July 2009.
24 As noted previously, finding reason to believe (RTB) does not necessarily mean that a violation has occurred.
25 See Federal Election Commission, Amended Certification, in the Matter of MUR 5988, document 29044232281,
March 17, 2009 (certification date), p. 1, http://eqs.nictusa.com/eqsdocs/29044232280.pdf.
26 Some cases, which are listed on the same line in the table, were handled together.
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Because most cases involved multiple elements, the information in the tables is provided for
illustrative purposes, but is not intended to provide a detailed overview of each case.27 In
addition, in some cases, deadlocks appear to have had more to do with whether an investigation
should proceed or whether a penalty should be levied than with the substance of the policy or
legal issue in the MUR or AO.
Table 4. Overview of Substantive Deadlocks in Publicly Available Matters Under
Review (MURs) Closed July 1, 2008-June 30, 2009
Major Issue in
MUR numbers
MUR Namea Vote
Date Vote
Outcome MUR
5541
The November Fund
10/21/2008
3-3
Political committee
status
5572
David W. Rogers
02/10/2009
3-3
Permissible use of
mailing list
5642 George
Soros
11/18/2008 3-3 Reporting
requirements
5694 and 5910
Americans for Job
02/25/2009 3-3
Political
committee
Security, Inc.
status
5878 Arizona
State
11/18/2008 3-3
Permissible
Democratic Central
contributions
Committee
5898
Ryan Pennington
09/10/2008
3-3
Permissible use of
campaign funds
5937 Romney
for
01/28/2009 3-3
Permissible
President
contributions
5945 Kiernan
Michael
02/03/2009 3-3
Reporting
Lalor
requirements
5957 Committee
to
Elect 09/11/2008,
3-3 Reporting
Sekhon for Congress
10/21/2008
requirements
5971 Lindsey
Graham
for 09/10/2008
3-3
Permissible use of
Senate
campaign funds
5988 American
Future 02/25/2009 3-3
Political
committee
Fund
status
5993 Ed
Fal on
03/10/2009 3-3 Permissible
contributions
6056 Protect
Colorado 03/11/2009 3-3
Permissible
Jobs, Inc.
contributions
6047
Vernon Jones for
04/21/2009 3-3
Required
disclaimers
Georgia
6096 Americans
for
04/21/2009
3-3
Permissible use of
Limited Government
contribution
Research Foundation
information
27 For example, cases involving political committee status typically involve not only whether an entity meets the FECA
definition of political committee, but also whether filing requirements or limitations on restrictions on sources or
contribution amounts were violated.
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Major Issue in
MUR numbers
MUR Namea Vote
Date Vote
Outcome MUR
6051 and 6052
Wal-Mart Stores,
04/15/2009 3-3
Permissible
Inc.
expenditures
6082 Majority
Action
04/15/2009 2-2 Political
committee
status
5724 Jim
Feldkamp
for 10/07/2008 3-2
Permissible
Congress
contributions
5835 Democratic
02/10/2009 2-3
Required
disclaimers
Congressional
Campaign
Committee
5842 Economic
Freedom 04/14/2009 3-2
Political
committee
Fund
status
5935 Rep.
Kirsten
E.
03/18/2009 2-3
Permissible
Gillibrand
contributions;
required disclaimers
5977 and 6005
American Leadership
02/25/2009 2-3
Political
committee
Project
status
6062
Harry Truman Fund
04/21/2009
2-3
Political committee
status
6094 American
Leadership
05/12/2009 2-3
Political
committee
Project
status
Source: Data provided by the Office of Legislative Affairs, FEC; and MUR documentation obtained via the
Enforcement Query System (see notes below).
Notes: Al entries in the table are taken from the FEC data except the Major Issue in MUR column, which is
based on CRS analysis of publicly available documents obtained through the Commission’s Enforcement Query
System or other public sources. In particular, CRS relied on Commissioners’ statements of reasons and Office of
General Counsel reports to ascertain the major issue addressed in each MUR. However, the entries in the Major
Issue column are not intended to describe every policy issue related to each case.
a. MUR names are taken verbatim from the data supplied by the FEC Office of Legislative Affairs.
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Table 5. Overview of Substantive Deadlocks in Publicly Available Advisory Opinions
Considered July 1, 2008-June 30, 2009
AO numbers
AO Namea
Vote Date
Vote Outcome
Major Issue in AO
2008-07
Vitter
08/21/2008
3-3 on unanswered
Permissible
question; partial
expenditure
advice issued
2008-15
National Right to Life
10/23/2008
3-3 on unanswered
Electioneering
Committee, Inc.
question; partial
communications
advice issued
2009-03
ICE, Inc.
04/21/2009
3-3; no advice issued
Charitable matching
program
2009-04
Franken/DSCC
03/19/2009
2-3 and 2-1 split on
Recount fund
unanswered
question; partial
advice issued
2009-11
Kerry
06/25/2009
No advice issuedb Permissible
expenditure
Source: Al entries in the table are taken from the FEC data except the Major Issue in AO column, which is based
on CRS analysis of publicly available documents obtained through the Commission’s AO database or other public
sources, including the summary entry accompanying each AO on the FEC website. However, the entries in the
Major Policy Issue column are not intended to describe every policy issue related to each case.
a. AO names are taken verbatim from the data supplied by the FEC Office of Legislative Affairs.
b. This AO is included in the data provided to CRS by the FEC and is, therefore, considered a deadlock for
the purposes of this report. At the June 25, 2009, meeting, the Commission determined that none of the
proposed draft AOs could obtain the support of at least four Commissioners and, as it has occasional y
done in the past, voted (5-0) to instruct the Office of General Counsel to issue a letter explaining that
agreement could not be reached. In this case, a deadlock arguably did not occur because no vote leading to
a deadlock was held, even though it was obvious that a deadlock would have occurred if such a vote had
been held. Some of this information comes from CRS analysis of an audio recording of the June 25 meeting.
The audio is available via the FEC website at http://www.fec.gov/audio/2009/20090625_01.mp3.
Considerations for Congress
Perspectives on Deadlocked Votes
As Congress determines whether oversight or other action regarding deadlocked votes is
necessary, a threshold issue may be to consider whether deadlocks represent a public policy
concern and if so, how. On one hand, occasional deadlocks could be expected given the
complexity (and sometimes controversy) embodied in federal campaign finance law and
regulation. Also, Congress appears to have anticipated that the Commission might be unable to
reach consensus in some controversial cases, and perhaps even intended for deadlocks to occur.
According to one analysis, “In order to ensure that the Commission would not become a vehicle
for partisan purposes, the Congress created an unusual conflict within the FEC.” 28 Commenting
on the four-vote requirement, former Commissioner Scott E. Thomas and his executive assistant,
28 Scott E. Thomas and Jeffrey H. Bowman. 2000. “Obstacles to Effective Enforcement of the Federal Election
Campaign Act.” Administrative Law Review 52(2): 575-608.
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Thomas H. Bowman, continued, “These provisions were specifically designed to ensure that
formal action on a matter before the Commission could go forward only on the affirmative vote
of a mixed majority of Commission members.”29 In addition, deadlocks might even be viewed as
positive, particularly if enforcement actions being considered are perceived as unwarranted or
excessive.
On the other hand, substantive deadlocks mean that the Commission has been unable to reach
consensus about some element of law or regulation. As a result, at least in specific circumstances,
substantive deadlocks prevent campaign finance law from being enforced or preclude those
seeking guidance from clearly knowing whether their planned activities will run afoul of the law.
Indeed, in the cases discussed above, the Commission was unable to reach consensus on major
questions of campaign finance law and policy, such as political committee status, determining
civil penalties, and whether particular activities trigger reporting or other requirements under
FECA.
In addition, there is some evidence that deadlocks may be on the rise. For example, although
external examinations of deadlocks are rare, a recent scholarly study found that between 1996 and
2004, deadlocks on MURs occurred in less than 4% of cases—well below the 13% figure
reported here for 2008-2009.30 If deadlocks are, in fact, on the rise over time (a question that
would require additional data to assess), Congress may wish to examine the Commission’s long-
term ability to reach consensus and to consider whether that ability enhances or inhibits campaign
finance regulation.
Policy Options
Maintain the Status Quo
As the data show, during the current Commission’s first year, substantive deadlocks occurred in
about 13% of votes in MURs and less than 6% of all enforcement actions when combining MURs
with ADR and AFP cases. By extension, the Commission did not deadlock in almost 87% of
MURs and 94% of enforcement actions overall. Therefore, if Congress determined that action
were warranted only if deadlocks occupied a sizable portion of Commission business (e.g., a
large plurality or majority), the quantitative data could be interpreted to suggest that
congressional action is not needed—at least based on the time frame examined here. In addition,
despite some deadlocks on key issues, during the same period the Commission was able to reach
consensus on a wide variety of other cases—including some that were also potentially
controversial.31
29 Ibid.
30 Michael M. Franz. 2009. “The Devil We Know? Evaluating the Federal Election Commission as Enforcer.” Election
Law Journal 8(3): 167-187.
31 For example, the Commission reached majority agreement on controversial bundling regulations and on Sen.
McCain’s decision to withdraw from the presidential public financing program in 2008. On the bundling regulations,
see Federal Election Commission, “Reporting Contributions Bundled by Lobbyists, Registrants and the PACs of
Lobbyists and Registrants,” 74 Federal Register 7285, February 17, 2009; and CRS Report R40091, Campaign
Finance: Potential Legislative and Policy Issues for the 111th Congress, by R. Sam Garrett. On presidential public
financing, see CRS Report RL34534, Public Financing of Presidential Campaigns: Overview and Analysis, by R. Sam
Garrett.
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Conduct Oversight
Congress may wish to explore FEC deadlocks through oversight—either with or without other
legislative action. On a related note, the Senate could also choose to examine deadlocks as part of
its advice and consent responsibilities surrounding FEC nominees. Oversight would provide an
opportunity for learn more about how and why deadlocks occur, and to assess whether additional
congressional action or internal reform is needed. Oversight has the potential advantage of
addressing deadlocks without necessarily inviting the stalemate that often accompanies campaign
finance legislation.
Oversight would also permit Congress to determine whether a recent procedural change at the
Commission has any affect on deadlocked votes. Specifically, in July 2009, the Commission
announced a pilot program to permit AO requesters to appear before the Commission to answer
questions about the requests.32 This initiative is designed to address the “frustrat[ing]” situation in
which requesters or their attorneys were in the audience during open meetings at which AOs were
considered, but were not permitted to answer questions Commissioners raised.33 If the pilot
program provides greater clarity about specific facts surrounding AOs, the potential for deadlocks
might be reduced—at least in cases in which deadlocks occur because of uncertainty or
misimpression. Oversight alone, however, would not necessarily reduce the number of
deadlocked votes or otherwise change agency practices or behavior.
Pursue Legislative Change
At least two broad legislative options are open to Congress. First, Congress could restructure the
Commission in an effort to avoid deadlocks. In August 2009, Senators Feingold and McCain
introduced S. 1648, a bill that would replace the six-member FEC with a three-member Federal
Election Administration (FEA). Similar legislation has been introduced since 2003.34
Restructuring the FEC in any form that eliminated an even number of Commissioners could
reduce or eliminate the potential for deadlocks.35 Revamping the agency, however, would entail
reforms well beyond addressing the comparatively narrow topic of deadlocked votes. In addition,
a legislative overhaul of the agency is likely to be controversial. Particularly in recent Congresses,
even arguably modest efforts to change campaign finance law have typically been seen as
potential legislative vehicles for those wishing to pursue broad policy reform.36 No major
campaign finance legislation has been enacted since the 2002 Bipartisan Campaign Reform Act
32 The Commission is also considering procedural changes that could affect enforcement matters. For an overview, see
Steven T. Walther, Agency Procedures Recommendations, Federal Election Commission, Memorandum from the
Chairman to the Commission, Washington, DC, June 23, 2009, http://www.fec.gov/law/policy/enforcement/2009/
recommendationsummary.pdf.
33 Federal Election Commission, “Advisory Opinion Procedure,” 74 Federal Register 32160, July 7, 2009.
34 See H.R. 421 (Meehan) and S. 478 (McCain) from the 110th Congress; H.R. 5676 (Shays) and S. 3560 (McCain)
from the 109th Congress; and H.R. 2709 (Shays) and S. 1388 (McCain) from the 108th Congress. None of these bills
advanced beyond referral.
35 It is also possible that restructuring would eliminate the evenly divided partisan structure of the current Commission.
As proposed in S. 1648, the three members of the FEA could not be of the same political party. See proposed Sec. 352
of the bill.
36 See, for example, CRS Report R40091, Campaign Finance: Potential Legislative and Policy Issues for the 111th
Congress, by R. Sam Garrett.
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(BCRA).37 This context suggests that efforts to revamp the FEC may be difficult. On the other
hand, the cyclical nature of support for campaign finance reform legislation suggests that
changing the Commission—or pursuing other major policy goals—could be accomplished
provided sufficient demand exists within Congress or perhaps the broader public sphere.
Second, Congress could pursue legislation to clarify those issues on which deadlocks have
occurred. Overall, deadlocked votes appear to supersede individual policy or legal issues. Some
issues, however, were recurring themes in deadlocked votes. The political committee issue
provides a prominent example. By providing clearer guidance to the Commission, legislation to
clarify when 527s38 and 501(c)39 organizations must register as political committees might reduce
the potential for deadlocked enforcement. Nonetheless, pursuing legislative clarity on
controversial issues might not be practically attainable in all circumstances. For example,
partially because of the controversy surrounding the political committee issue, legislation
concerning 527s has not been enacted in recent Congresses.40 In addition, legislating individual
policy issues would not necessarily address the fact that the Commission deadlocked on a variety
of issues, which suggests that structural reform could be more expedient route to curtailing
deadlocked votes.
Conclusion
The data presented above suggest that substantive deadlocks occurred throughout the current
Commission’s first year in office, but Commissioners reached consensus far more frequently than
not. Between July 2008 and June 2009, substantive deadlocks occurred in about 13% of MURs
and about 17% of AOs. No deadlocks occurred on rulemakings. Nonetheless, substantial
disagreement occurred on some issues. Deadlocks always occurred in partisan blocs, and the tone
of debate surrounding deadlocks received prominent attention in Congress and the media. A
variety of options are available to Congress if it chooses to address the deadlocks issue, ranging
from maintaining the status quo to clarifying those areas of the law on which deadlocks occur or
restructuring the agency.
37 P.L. 107-155; 116 Stat. 81. BCRA amended FECA.
38 As noted previously, 527 refers to groups registered with the Internal Revenue Service (IRS) as political
organizations. Although 527s influence federal elections in some cases, their activities generally fall outside the
confines of federal election law and FEC regulation. By contrast, political committees (which include candidate
committees, party committees, and political action committees) are regulated by the FEC and federal election law.
Although political committees are 527s for tax purposes, not all 527s are political committees. For additional
discussion, see, for example, CRS Report RS22895, 527 Groups and Campaign Activity: Analysis Under Campaign
Finance and Tax Laws, by L. Paige Whitaker and Erika K. Lunder; and CRS Report R40091, Campaign Finance:
Potential Legislative and Policy Issues for the 111th Congress, by R. Sam Garrett.
39 On 501(c) organizations generally, see, for example, CRS Report RL33377, Tax-Exempt Organizations: Political
Activity Restrictions and Disclosure Requirements, by Erika K. Lunder .
40 A detailed discussion of political committee status, 527s, and 501(c)s is beyond the scope of this report. See, for
example, CRS Report RS22895, 527 Groups and Campaign Activity: Analysis Under Campaign Finance and Tax
Laws, by L. Paige Whitaker and Erika K. Lunder; and CRS Report R40091, Campaign Finance: Potential Legislative
and Policy Issues for the 111th Congress, by R. Sam Garrett.
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Author Contact Information
R. Sam Garrett
Analyst in American National Government
rgarrett@crs.loc.gov, 7-6443
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