Federal Election Commission Nomination Background

INSIGHTi

Federal Election Commission Nomination
Background
April 5, 2022
The Senate is considering President Biden’s nomination of Dara Lindenbaum to the Federal Election
Commission (FEC). The FEC currently has a full slate of six serving commissioners. The Senate most
recently confirmed FEC nominees in December 2020. This CRS Insight provides background information
that may be relevant as the Senate considers the nomination and as Congress oversees the agency.
Context for the Latest FEC Nomination
On January 21, 2022, the White House announced President Biden’s intention to nominate Lindenbaum.
If confirmed, her term would expire on April 30, 2027.
Lindenbaum is an attorney with the Sandler Reiff law firm. She previously provided legal counsel to
Democratic political campaigns and at the Lawyers’ Committee for Civil Rights Under Law. Lindenbaum
served as a law clerk for FEC Commissioner (2008-2013) Cynthia Bauerly.
If confirmed, Lindenbaum would occupy the seat currently held by Commissioner Steven Walther.
President George W. Bush initially recess-appointed Walther in 2006. The Senate confirmed him in 2008.
Walther has stated that he plans to remain in office until a successor is confirmed.
What the FEC Does
Unlike other federal agencies involved in elections, the FEC focuses on political campaigns. The FEC
administers the Federal Election Campaign Act (FECA) and promulgates regulations concerning
fundraising, spending, and disclosure surrounding campaigns for federal office. It also administers the
presidential public financing program. Six presidentially appointed commissioners, subject to Senate
advice and consent, oversee the agency. A staff director, a general counsel, and several offices support
commissioners in carrying out the FEC’s mission to enforce campaign finance law and administer
disclosure designed to limit quid pro quo corruption. Since FY2020, the FEC has had a full-time staff of
approximately 300 employees.
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Recent Legislative Background
Congress has not enacted major changes to campaign finance law since 2014, when it permitted
additional contributions to parties. During the 116th Congress, the Committee on House Administration
received written testimony for a scheduled FEC oversight hearing, and the Senate Rules and
Administration Committee held hearings on FEC nominees.
During the 117th Congress, the House has passed legislation, largely devoted to election administration or
voting, that also would affect the FEC’s organization or enforcement processes (in addition to campaign
finance policy issues not discussed here). The House passed H.R. 1, the For the People Act, in March
2021. Most substantially for the FEC, the bill would restructure the agency to include five commissioners
rather than six. Also during the first session of the 117th Congress, the Senate did not invoke cloture on the
motion to proceed to versions of the For the People Act (S. 2093; see also S. 1). The Senate also did not
invoke cloture on the motion to proceed on the Freedom to Vote Act (S. 2747). S. 2747 would amend the
FEC enforcement process to include expanded authority for the general counsel, among other provisions.
FEC appropriations currently are included in annual Financial Services and General Government (FSGG)
appropriations bills. The FY2022 FSGG Appropriations Act (Div. E, H.R. 2471; P.L. 117-103, the
FY2022 Consolidated Appropriations Act) provides $74.5 million for the FEC. The agency received
$71.5 million in FY2021. Report language accompanying the FY2022 FSGG bill (H.R. 4345) noted that,
despite progress in processing disclosure data, “growth in workload has outpaced the FEC’s resources and
personnel.” The House Appropriations Committee directed the FEC to provide a briefing on personnel
planning to respond to those developments. In addition, the committee highlighted the FEC’s actions
regarding “dormant” or “zombie” campaign committees, including prohibited personal use of campaign
funds. In addition, in the explanatory statement regarding the FSGG FY2022 Act, the FEC “is directed to
brief the Committees on the agency’s management challenges.”
Selected Recent Commission Background
Changes in commission membership can affect relations among members and disposition of enforcement
or policy issues. If confirmed, Lindenbaum is not expected to alter the agency’s partisan balance, as
Walther, despite his independent status, generally has voted with Democratic commissioners. Any new
member would join an agency that has experienced substantial membership change recently. Four of six
commissioners assumed their offices in 2020. The newly reconstituted commission could face traditional
and new policy challenges, some of which are highlighted below.
 Much of the debate over FEC effectiveness focuses on commissioners’ ability to reach
consensus. FECA requires affirmative votes from at least four commissioners to authorize
most policymaking or enforcement activity. Attention to “deadlocked” votes, which lack
a four-vote consensus, is a recurring oversight theme. Measures of deadlocked votes vary
based on methodology, time period, and actions examined. One recent scholarly analysis
examined conflict in matter under review (MUR) and advisory opinion (AO) votes
between 1990 and 2018. Consistent with some previous research, the analysis found that
commissioners reach consensus in most votes. It also found that deadlocks have
increased since 2009, often occurring in partisan blocs. Agency critics argue that
deadlocks show the FEC’s alleged dysfunction and warrant structural change or even
commission elimination. Others respond that focusing on deadlocks overstates the
agency’s alleged dysfunction because they represent only one measure of performance,
that methodological differences can affect deadlock statistics, that deadlocks are to be
expected in some complex or novel cases due to differing policy or legal interpretations,
or that the commission’s structure is designed to require consensus. Overall, deadlocked
votes provide a quantitative measure of agency activity, but, without additional

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 information, do not provide qualitative information about how or why the commission
deadlocked.
 The FEC appears to continue to work through a backlog of enforcement matters from the
2020 election cycle, some of which accumulated during two separate losses of the
agency’s policymaking quorum. It also remains a party to ongoing litigation. Additional
rulemakings also are possible.
 The FEC has requested additional funding to support sharp increases in the number of
filings it receives, which require review and disclosure. According to the agency, during
the 2020 election cycle, more than 16,000 political committees and other filers reported
more than 600 million financial transactions—an increase of almost 400% compared to
2016.
 The FEC’s latest legislative recommendations generally request additional statutory
authority regarding disclosure and enforcement issues.


Author Information

R. Sam Garrett

Specialist in American National Government




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