Federal Election Commission: Membership
and Policymaking Quorum, In Brief
Updated June 24, 2020
Congressional Research Service
https://crsreports.congress.gov
R45160

Federal Election Commission: Membership and Policymaking Quorum, In Brief

Summary
The Federal Election Commission (FEC) is the nation’s civil campaign finance regulator. The
agency ensures that campaign fundraising and spending is publicly reported; that those regulated
by the Federal Election Campaign Act (FECA) and by commission regulations comply and have
access to guidance; and that publicly financed presidential campaigns receive funding.
Between August 31, 2019, and June 5, 2020, when only three commissioners remained in office,
the Federal Election Commission operated without a policymaking quorum. FECA requires that
at least four of six commissioners agree to undertake many of the agency’s key policymaking
duties. The Senate confirmed James E. “Trey” Trainor III as a fourth commissioner on May 19,
2020. He was sworn in on June 5, 2020.
Provided that at least four commissioners remain in office, the FEC’s policymaking quorum is
now restored. Two seats remain unfil ed. This report remains available to provide congressional
readers with historical background on scenarios with fewer than four commissioners in office.
This CRS report briefly explains the kinds of actions that FECA precludes when a quorum is not
possible because fewer than four FEC members are in office. The 2019-2020 episode marked the
second quorum loss in the agency’s history—the first occurred for six months in 2008—leaving
the commission unable to hold hearings, issue rules, and enforce campaign finance law and
regulation.
This report wil be updated in the event of substantial changes in the Federal Election
Commission’s policymaking quorum or the status of commission nominations.

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Federal Election Commission: Membership and Policymaking Quorum, In Brief

Introduction
The Federal Election Commission (FEC) is an independent regulatory agency headed by six
commissioners. Congress created the FEC in 1974, after controversial fundraising during 1960s
presidential campaigns and the early 1970s Watergate scandal. The FEC is responsible for
administering federal campaign finance law and for civil enforcement of the Federal Election
Campaign Act (FECA).1 The FEC also discloses campaign finance data to the public, conducts
compliance training, and administers public financing for participating presidential campaigns.
FECA establishes six-year terms for commission members. Commissioners may continue in
“holdover” status after those terms end. Commissioners are appointed by the President and are
subject to Senate confirmation. FECA requires that at least four of the six commissioners vote to
make decisions on substantive actions. This includes deciding on enforcement actions, advisory
opinions, and rulemaking matters. Because FECA also requires commission membership
representing more than one political party, achieving at least four agreeing votes is sometimes
difficult, even with six members present. Vacancies make the task harder by reducing
opportunities for a coalition of at least four votes.
On May 19, 2020, the Senate confirmed James E. “Trey” Trainor III to a seat previously vacated
by Matthew S. Petersen. The Petersen seat had been vacant since August 31, 2019. With only
three of six commissioners remaining in office after Petersen’s departure, the FEC lost its
policymaking quorum. The agency held its first open meeting with a restored policymaking
quorum on June 18, 2020.
The 2019-2020 quorum loss was the second and longest in the agency’s history. In 2008, the FEC
lost its policymaking quorum for six months. As of this writing, two commissioner seats remain
vacant. It is unclear when or whether the President might nominate new Federal Election
Commissioners or such nominations might receive Senate consideration.2
This report provides a brief overview of policymaking implications when fewer than four Federal
Election Commissioners remain in office.3 The topic may be relevant for congressional oversight
of the agency and for Senate consideration of nominees, or if the agency again loses its
policymaking quorum. Other CRS products provide additional information about campaign
finance policy, the FEC, and procedural issues.4 This report does not provide legal analysis.
A Note on Terminology
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 general y reserves commission to

1 52 U.S.C. §§30101-30146.
2 On reported disagreements about whether to fill single or multiple commission vacancies, see, Kenneth P. Doyle,
“Congressional Standoff Could Delay Federal Election Oversight,” September 4, 2019, Bloomberg Government,
accessed via CRS subscription.
3 T his report supersedes CRS Report RS22780, The Federal Election Commission (FEC) With Fewer than Four
Mem bers: Overview of Policy Im plications, by R. Sam Garrett .
4 See, respectively, CRS Report R41542, The State of Campaign Finance Policy: Recent Developments and Issues for
Congress, by R. Sam Garrett ; CRS Report R44318, The Federal Election Com m ission: Overview and Selected Issues
for Congress, by R. Sam Garrett ; CRS Report R44319, The Federal Election Com m ission: Enforcem ent Process and
Selected Issues for Congress, by R. Sam Garrett ; and CRS Report RL31980, Senate Consideration of Presidential
Nom inations: Com m ittee and Floor Procedure, by Elizabeth Rybicki.
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denote appointed members of the FEC, as opposed to agency staff. In this report, agency and
FEC general y refer to the commission and staff collectively.
Recent Vacancies and Nomination Activity
As of this writing, four of six FEC commissioners currently are in office, as shown in Table 1
below.
Table 1. Current Federal Election Commissioners and Vacancies
Commissioner
Term Expiration
Date Confirmed
Party Affiliation
Vacancy Notes
Caroline C.
04/30/2013
06/24/2008
Republican
—
Hunter
(remains in holdover
status)
Steven T.
04/30/2009
06/24/2008
Independent
—
Walther
(remains in holdover
status)
El en L.
04/30/2007
03/18/2003
Democrat
—
Weintraub
(remains in holdover
status)

James E. “Tray”
04/30/2023
05/19/2020
Republican

Trainor III
Vacancy
—
—
—
Previous occupant Ann
M. Ravel (D); resignation
effective 02/28/2017
Vacancy
—
—
—
Previous occupant Lee E.
Goodman (R);
resignation effective
02/16/2018
Source: Legislative Information System/Congress.gov nominations database. CRS added party affiliation based
on FEC publications and press accounts.
Current and recent vacancies developed as follows:
 Effective February 28, 2017, Democratic Commissioner Ann M. Ravel resigned,
leaving the commission with five members.5 Ravel’s term would have expired on
April 30, 2017. No nominee for the Ravel seat has been announced.
 On February 7, 2018, Republican Commissioner Lee Goodman announced his
intention to resign, effective February 16, 2018.6 Once Goodman left the FEC,
the commission had four remaining members. No nominee for the Goodman seat
has been announced.

5 Federal Election Commission, “Ann Ravel Departs Federal Election Commission,” press release, February 28, 2017,
https://www.fec.gov/updates/ann-ravel-departs-federal-election-commission/.
6 Federal Election Commission, “Lee Goodman to Depart Federal Election Commission,” press release, February 7,
2018, https://www.fec.gov/updates/lee-goodman-depart -federal-election-commission/.
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Federal Election Commission: Membership and Policymaking Quorum, In Brief

 As discussed in more detail below, President Trump nominated James E. “Trey”
Trainor III to Republican Commissioner Matthew S. Petersen’s seat during the
115th and 116th Congresses. Petersen initial y remained in office, and resigned
effective August 31, 2019.7 The commission dropped to three members, thus
losing its policymaking quorum. The Senate confirmed Trainor to the seat on
May 19, 2020. He was sworn in on June 5, 2020, thus restoring the agency’s
policymaking quorum.8
It is unclear whether any other commissioners currently plan to leave. For several years, periodic
reports have suggested that one or more other commissioners also plan to depart.9
Background on Circumstances Surrounding the Petersen Vacancy
Commissioner Petersen’s departure from the FEC, which preceded the Trainor confirmation,
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.10 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.”11
Petersen remained on the commission in holdover status until his August 31,
2019, resignation.
 After Petersen was nominated12 to the federal judgeship, 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.13 The White House resubmitted the nomination on January 8,

7 Federal Election Commission, “Matthew Petersen to Depart Federal Election Commission,” press release, August 26,
2019, https://www.fec.gov/updates/matthew-petersen-depart-federal-election-commission/.
8 On the swearing-in date, see Federal Election Commission, “James E. T rainor III Sworn In As Commissioner,” press
release, June 5, 2020, https://www.fec.gov/updates/james-e-trainor-iii-sworn-commissioner/.
9 See, for example, 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.
10 See Presidential Nomination (PN) 1017, https://www.congress.gov/, selecting the “nominations” filter.
11 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, obtained via CRS electronic subscription . T he circumstances surrounding the judicial nomination
and withdrawal are beyond the scope of this report.
12 See Presidential Nomination (PN) 1017, https://www.congress.gov/.
13 See “Nominations Returned to the Senate,” Congressional Record, daily edition, vol. 163, no. 216 (January 3, 2018),
pp. S25-S26. T he September 2017 T rainor 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
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2018, at the start of the second session of the 115th Congress, and the nomination
was returned to the President at the end of the Congress.14 The White House
resubmitted the Trainor nomination at the beginning of the 116th Congress, and
again early in the second session of the 116th Congress.15 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, 2020.16
The Commission, Policymaking, and Appointments
Original, Invalidated Appointment Structure
Congress original y 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.
Two federal court decisions altered the FEC’s original design. First and most significantly, in
Buckley v. Valeo (1976) the Supreme Court of the United States invalidated the original
appointments method, holding that congressional appointments violated the Constitution’s
Appointments Clause.17 Almost 20 years later, a federal court again found fault with the FEC’s
appointment structure. In 1993, the U.S. Court of Appeals for the District of Columbia held in
FEC v. NRA Political Victory Fund that the presence of the two congressional ex officio members
violated constitutional separation of powers.18 Congress did not amend FECA responding to this
decision, although the ex officio members are no longer appointed.
Current Appointment Structure
In a broad revision of FECA in 1976, undertaken in response to the Buckley decision, Congress
adopted the current appointment method. Today, al commissioners are presidential y appointed
subject to Senate advice and consent.19 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.20

information.
14 See PNs 1024 and 1425, https://www.congress.gov/.
15 See PNs 197 and 1600, https://www.congress.gov/.
16 T he Senate confirmed T rainor with a 49-43 vote. See record vote no. 96.
17 Buckley is 424 U.S. 1 (1976). For a brief discussion of the ruling’s implications for congressional appointments, see
Congressional Research Service, Constitution of the United States of Am erica: Analysis and Interpretation , “ Article II-
Executive Department,” https://constitution.congress.gov/search/constitutionannotated.
18 6 F.3d 821 (D.C. Cir. 1993); cert. denied (513 U.S. 88 (1994)). For legal analysis for Buckley and campaign finance
issues, see CRS Report R43719, Cam paign Finance: Constitutionality of Lim its on Contributions and Expenditures, by
L. Paige Whitaker.
19 52 U.S.C. §30106(a)(1).
20 Members of the congressional leadership reportedly suggest nominees, although documentation of the practice is
sparse. In one example, from 2005, Sen. Reid stated that he was “very pleased that the president acted today upon my
two recommendations for Commissioners.” See Sen. Harry Reid, “ Reid Statement on Nominations to the Federal
Election Commission,” press release, December 16, 2005. On congressional influence on presidential appointments
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FECA specifies few qualifications for FEC commissioners, noting simply that they “shal be
chosen on the basis of their experience, integrity, impartiality, and good judgment.”21 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.”22 Commissioners typical y have experience as congressional staffers, political
professionals, election lawyers, or some combination thereof.
Party Balance and Terms
No more than three commissioners may be affiliated with the same political party.23 In practice,
the commission has been divided equal y among Democrats and Republicans, although one
current commissioner identifies as an independent.24 FECA staggers commissioner terms so that
two expire every other April 30 during odd-numbered years (e.g., 2019, 2021, etc.).25 This
arrangement means that, at least as designed, two new commissioners would assume office
biennial y. However, the President is under no obligation to make biennial nominations.
Expired Terms and Holdover Status
Currently, FEC commissioners may serve a single six-year term.26 As another CRS report
explains, for some federal boards and commissions, including the FEC, “[a]n individual may be
nominated and confirmed for a seat for the remainder of an unexpired term in order to replace an
appointee who has resigned (or died). Alternatively, an individual might be nominated for an
upcoming term with the expectation that the new term wil be underway by the time of
confirmation.”27 Some FEC commissioners have assumed office when the term for which they
were nominated was wel underway. For example, on June 24, 2008, the Senate confirmed
Donald F. McGahn and Steven T. Walther to terms that expired just 10 months later, on April 30,
2009.28 Both continued serving in their seats past the expiration of their terms, although they
could have been replaced through subsequent appointments.
These and other commissioners could remain in office because FECA permits FEC members to
serve in “holdover” status, exercising full powers of the office, after their terms expire “until his
or her successor has taken office as a Commissioner.”29

generally, see CRS Report R44083, Appointment and Confirm ation of Executive Branch Leadership: An Overview, by
Henry B. Hogue and Maeve P. Carey.
21 52 U.S.C. §30106(a)(3).
22 Larry Noble, “In Search of Qualified FEC Commissioners,” Campaign Legal Center blog posting, June 30, 2015,
http://www.campaignlegalcenter.org/news/blog/clc-blog-search-qualified-fec-commissioners. David Mason (1998-
2008) was the most recent non-lawyer, at the time of service, appointed to the commission.
23 52 U.S.C. §30106(a)(1).
24 Steven T . Walther identifies himself as an independent. Sen. Reid recommended Walther to the commission and
Walther reportedly worked for Democratic clients before joining the FEC. Walther often votes with Democrats on the
FEC, although he has emphasized his independence since early in his commission tenure. See, for example, Matthew
Murray, “Walther T akes on Washington,” Roll Call online, January 13, 2009, http://www.rollcall.com/news/-31322-
1.html.
25 52 U.S.C. §30106(a)(2)(A).
26 52 U.S.C. §30106(a)(2)(A).
27 CRS Report R44083, Appointment and Confirmation of Executive Branch Leadership: An Overview, by Henry B.
Hogue and Maeve P. Carey, p. 11.
28 “Confirmations,” Congressional Record, vol. 154, part 10 (June 24, 2008), p. 13696.
29 A commissioner may remain in office after the expiration of his or her term unless or until (1) the President
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At Least Four Agreeing Votes Required for Most Policymaking
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).30
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.31
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 before it last lost a policymaking quorum to clarify
functions during a quorum loss.
Historical Note: Loss of Policymaking Quorum in 2008
The significance of the four-vote threshold first became evident in 2008. Following expired
recess appointments and amid ongoing Senate consideration of FEC nominations, the agency had
just two commissioners for the first six months of the year. 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

nominates, and the Senate confirms, a replacement; or (2) the President, as conditions permit, makes a recess
appointment to the position. For additional discussion of recess appointments generally, see CRS Report RS21308,
Recess Appointm ents: Frequently Asked Questions, by Henry B. Hogue. On ability to remain in office until a successor
takes office, see 52 U.S.C. §30106(a)(2)(B). 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.
30 See 52 U.S.C. §30106(c); 52 U.S.C. §30107(a)(6)-52 U.S.C. §30107(a)(9); and 52 U.S.C. §30109(a).
31 Campaign lawyers and some former commissioners have different interpretations of deadlocked votes. In
enforcement matters, for example, some practitioners 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. For
additional discussion, see CRS Report R44319, The Federal Election Com m ission: Enforcem ent Process and Selected
Issues for Congress, by R. Sam Garrett . See also 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; Nicholas Confessore,
“Election Panel Enacts Policies by Not Acting,” The New York Times, August 26, 2014, p. A1; Brad Smith, What does
it mean when the Federal Election Commission “Deadlocks”, Center for Competitive Politics blog posting, April 14,
2009, http://www.campaignfreedom.org/2009/04/14/what -does-it-mean-when-the-federal-election-commission-
deadlocks/; and Bob Bauer, ‘Desperate’ at the FEC, Part II: The Risks of Unintended Consequences, More Soft Money
Hard Law blog posting, June 11, 2015, http://www.moresoftmoneyhardlaw.com/2015/06/desperate-fec-part -ii-risks-
unintended-consequences/.
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educational guides; appoint certain staff; and approve other basic administrative and employment
matters.32
During the loss of the commission’s policymaking quorum in 2008, the two remaining
commissioners (David Mason (R) and El en 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.33 (The
commission did not hold public discussions such as these during the 2019-2020 quorum loss.)
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 (HLOGA).34 The commission returned to normal
operations during the rest of 2008 and throughout 2009.
Concluding Comments
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
consider older matters.35 In addition, the Justice Department may pursue criminal enforcement on
its own authority, regardless of the FEC’s operating capacity for civil matters.36

Author Information

R. Sam Garrett

Specialist in American National Government

32 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.
33 See, for example, Letter from Donald F. McGahn II, Counsel, People for Pete Domenici, to T homesenia P. Duncan,
Office of General Counsel, Federal Election Commission, January 23, 2008, withdrawing advisory opinion request
2007-36, https://www.fec.gov/data/legal/advisory-opinions/2007-36/. (McGahn was later appointed to the
commission.) See also, for example, CBS News, “FEC Fight Leaves Candidates Hanging,” April 23, 2008,
https://www.cbsnews.com/news/fec-fight-leaves-candidates-hanging/. T he FEC’s obligations under the Administrative
Procedure Act (APA) are beyond the scope of this report .
34 For historical background, see archived CRS Report RL34324, Campaign Finance: Legislative Developments and
Policy Issues in the 110th Congress, by R. Sam Garrett ; and CRS Report RS22780, The Federal Election Com m ission
(FEC) With Fewer than Four Mem bers: Overview of Policy Im plications, by R. Sam Garrett .
35 T he statute of limitations for civil and criminal violations is five years. See 28 U.S.C. §2 462 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.
36 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. Cam paigns and Elections: An Overview, by R. Sam Garrett .
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