Federal Election Commission: Membership and Policymaking Quorum, In Brief

April 12, 2018 – January 13, 2023 R45160

Federal Election Commission: Membership and January 13, 2023
Policymaking Quorum, In Brief
R. Sam Garrett
The Federal Election Commission (FEC) is the nation’s civil campaign finance
Specialist in American
regulator. The agency ensures that campaign fundraising and spending is publicly
National Government
reported; that those covered 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.

Senate confirmations of three commissioners on December 9, 2020, restored the FEC to a policymaking quorum.
Previously, the commission lacked a policymaking quorum because only three commissioners remained in office.
At least four agreeing votes are required to take policymaking or enforcement actions. The Senate most recently
confirmed a new commissioner on May 24, 2022, although that action did not affect the FEC’s policymaking
quorum.
The most recent quorum loss marked the third in the FEC’s history. The second occurred between August 31,
2019, and June 5, 2020, when a confirmation briefly restored a fourth commissioner to office. In addition, the
FEC lacked a policymaking quorum for six months in 2008.
If, in the future, fewer than four commissioners remained in office, the agency would again be unable to reach a
policymaking quorum. This CRS report, which remains available for historical reference, briefly explains the
kinds of actions that FECA precludes when a quorum is not possible because fewer than four FEC members are in
office. Among other powers, without a quorum, the commission cannot hold hearings, issue rules, or enforce
campaign finance law and regulation. Campaign finance law and regulation remain in effect and may be enforced
once a quorum is restored. Agency operations continue with remaining commissioners and staff.
This report will 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.
The Senate most recently confirmed a new commissioner, Dara Lindenbaum, on May 24, 2022.
Because Lindenbaum was replacing retiring Commissioner Steven Walther, the confirmation did
not affect the FEC’s policymaking quorum. As discussed below, nominations activity in 2020
most recently affected the agency’s policymaking quorum.
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.
Trainor’s confirmation marked the end of the longest quorum loss in the FEC’s history, but the
agency was only briefly restored to its full policymaking capacity. Effective July 3, 2020,
Republican Commissioner Caroline C. Hunter resigned,2 which again reduced the commission’s
membership to three and eliminated the possibility of a policymaking quorum. On June 26, the
same day that Hunter announced her intention to resign, the White House announced the
President’s intention to nominate Allen Dickerson, a Republican election lawyer, to the FEC.3
The Senate received the Dickerson nomination on September 16, 2020.4 Two other
nominations—those of FEC staffer Shana M. Broussard and Senate staffer Sean J. Cooksey—
followed on October 30, 2020. The Senate Rules and Administration Committee held a hearing
on the nominees on November 18. In separate votes, the committee ordered all three nominations
reported favorably on December 3. The Senate confirmed Broussard, Cooksey, and Dickerson on

1 52 U.S.C. §§30101-30146.
2 Federal Election Commission, “Caroline C. Hunter to Depart Federal Election Commission,” press release, June 26,
2020, https://www.fec.gov/updates/caroline-c-hunter-depart-federal-election-commission/.
3 The White House, “President Donald J. Trump Announces Intent to Nominate and Appoint Individuals to Key
Administration Posts,” press release, June 26, 2020, https://www.whitehouse.gov/presidential-actions/president-donald-
j-trump-announces-intent-nominate-appoint-individuals-key-administration-posts-43/.
4 See Presidential Nomination (PN) 2237. It is unclear why there was a delay between the announced intention to
nominate and the nomination itself. On reported recent 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.
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December 9, 2020, thereby restoring the FEC’s policymaking quorum. The confirmations also
marked the first time since 2017 that a full slate of six FEC commissioners was in office.
The 2020 quorum loss was the third in the agency’s history. Before that episode, the FEC also
lacked a policymaking quorum between August 2019 and May 2020. In 2008, the FEC lost its
policymaking quorum for six months.
This report provides a brief overview of policymaking implications when fewer than four Federal
Election Commissioners remain in office.5 It remains available for historical reference in the
event that the FEC again loses a policymaking quorum. Other CRS products provide additional
information about campaign finance policy, the FEC, and procedural issues.6 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 generally reserves commission to
denote appointed members of the FEC, as opposed to agency staff. In this report, agency and
FEC generally refer to the commission and staff collectively.
Recent Vacancies and Nomination Activity
Table 1 below reflects the latest Senate action on FEC nominations, as of this writing.
Table 1. Current Federal Election Commissioners and Recent Vacancies
Recent Vacancy
Commissioner
Term Expiration
Date Confirmed
Party Affiliation
Notes
Dara Lindenbaum
04/30/2027
05/24/2022
Democrat
Previous occupant
Steven T. Walther (I);
retirement effective
08/01/2022*
Shana M.
04/30/2023
12/09/2020
Democrat
Previous occupant Ann
Broussard
M. Ravel (D); resignation
effective 02/28/2017
Sean J. Cooksey
04/30/2021
12/09/2020
Republican
Previous occupant Lee E.
Goodman (R);
resignation effective
02/16/2018
Allen Dickerson
04/30/2025
12/09/2020
Republican
Previous occupant
Caroline C. Hunter (R);
resignation effective
07/03/2020

5 This report supersedes CRS Report RS22780, The Federal Election Commission (FEC) With Fewer than Four
Members: Overview of Policy Implications, by R. Sam Garrett.
6 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 Commission: Overview and Selected Issues
for Congress, by R. Sam Garrett; CRS Report R44319, The Federal Election Commission: Enforcement Process and
Selected Issues for Congress, by R. Sam Garrett; and CRS Report RL31980, Senate Consideration of Presidential
Nominations: Committee and Floor Procedure, by Elizabeth Rybicki.
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Recent Vacancy
Commissioner
Term Expiration
Date Confirmed
Party Affiliation
Notes
James E. “Trey”
04/30/2023
05/19/2020
Republican
—
Trainor III
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)
Source: Legislative Information System/Congress.gov nominations database. CRS added party affiliation based
on FEC publications and press accounts.
Note: * The table relies on the “retirement” terminology included in a commission press release. See Federal
Election Commission, “Steven T. Walther Retires from the Commission,” press release, August 1, 2022,
https://www.fec.gov/updates/steven-t-walther-retires-from-the-commission/. Despite being confirmed on May 24,
2022, Lindenbaum was not sworn in at the commission until August 2, 2022, after Commissioner Walther’s
August 1, 2022, departure. See Federal Election Commission, “Dara Lindenbaum Sworn In as Commissioner,”
press release, August 2, 2022, https://www.fec.gov/updates/dara-lindenbaum-sworn-in-as-commissioner/; and
Federal Election Commission, “Steven T. Walther Retires from the Commission,” press release, August 1, 2022,
https://www.fec.gov/updates/steven-t-walther-retires-from-the-commission/. The table and this report do not
otherwise address periods between confirmation and assuming office.
Vacancies that precipitated the 2019 and 2020 quorum losses developed, in chronological order,
as follows. As noted elsewhere in this report, if confirmed, new nominees could continue in office
in holdover status beyond the expiration of their listed terms.
 Effective February 28, 2017, Democratic Commissioner Ann M. Ravel resigned,
leaving the commission with five members.7 Ravel’s term would have expired on
April 30, 2017. On October 30, 2020, President Trump nominated Shana M.
Broussard to the Ravel seat. The Senate confirmed Broussard on December 9,
2020, to a term expiring on April 30, 2023.8
 On February 7, 2018, Republican Commissioner Lee Goodman announced his
intention to resign, effective February 16, 2018.9 Once Goodman left the FEC,
the commission had four remaining members. On October 30, 2020, President
Trump nominated Sean J. Cooksey to the Goodman seat.10 The Senate confirmed
Cooksey on December 9, 2020, to a term expiring on April 30, 2021.11
 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 initially remained in office, and resigned
effective August 31, 2019.12 The commission dropped to three members, thus

7 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/.
8 See Presidential Nomination (PN) 2302, https://www.congress.gov/. The Senate confirmed Broussard with a 92-4
vote (record vote 259).
9 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/.
10 See Presidential Nomination (PN) 2303, https://www.congress.gov/.
11 The Senate confirmed Cooksey with a 50-46 vote (record vote 260).
12 Federal Election Commission, “Matthew Petersen to Depart Federal Election Commission,” press release, August 26,
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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.13
 Also as discussed below, the commission again lost its policymaking quorum
effective July 3, 2020, when Republican Commissioner Caroline C. Hunter
resigned. The President nominated Allen Dickerson for the Hunter seat on
September 16, 2020.14 The Senate confirmed Dickerson on December 9, 2020, to
a term expiring on April 30, 2025.15
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.16 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.”17
Petersen remained on the commission in holdover status until his August 31,
2019, resignation.
 After Petersen was nominated18 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.19 The White House resubmitted the nomination on January 8,
2018, at the start of the second session of the 115th Congress, and the nomination

2019, https://www.fec.gov/updates/matthew-petersen-depart-federal-election-commission/.
13 On the swearing-in date, see Federal Election Commission, “James E. Trainor III Sworn In As Commissioner,” press
release, June 5, 2020, https://www.fec.gov/updates/james-e-trainor-iii-sworn-commissioner/.
14 See Presidential Nomination (PN) 2237, https://www.congress.gov/.
15 The Senate confirmed Dickerson with a 49-47 vote (record vote 258).
16 See Presidential Nomination (PN) 1017, https://www.congress.gov/.
17 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. The circumstances surrounding the judicial nomination
and withdrawal are beyond the scope of this report.
18 See Presidential Nomination (PN) 1017, https://www.congress.gov/.
19 See “Nominations Returned to the Senate,” Congressional Record, daily edition, vol. 163, no. 216 (January 3, 2018),
pp. S25-S26. The September 2017 Trainor nomination was one of a large group returned to the President at the end of
the first session under Senate Rule XXXI. However, this rule was waived for another group of nominations, and these
were kept in status quo into the second session. See Sen. Mitch McConnell, “Nominations Remaining in Status Quo,”
remarks in the Senate, Congressional Record, daily edition, vol. 163, no. 209 (December 21, 2017), p. S8241; and Sen.
Mitch McConnell, “Nominations Remaining in Status Quo,” remarks in the Senate, Congressional Record, daily
edition, vol. 163, no. 215 (January 2, 2018), p. S8289. CRS Specialist Henry Hogue provided consultations on this
information.
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was returned to the President at the end of the Congress.20 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.21 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, 2020.22
Background on Circumstances Surrounding the Hunter Vacancy
and Other Nominations Activity
Effective July 3, 2020, Republican Commissioner Caroline C. Hunter resigned,23 which again
reduced the commission’s membership to three and eliminated the possibility of a policymaking
quorum.
 On June 26, the same day that Hunter announced her intention to resign, the
White House announced the President’s intention to nominate Allen Dickerson, a
Republican election lawyer, to the FEC.24 On September 16, 2020, the President
nominated Dickerson to the Hunter seat.25
 On October 28, 2020, the White House announced the President’s intent to
nominate two people to the commission: Broussard, then an FEC Commissioner
Walther staffer; and Cooksey, then a Senator Hawley staffer.26 The Senate
received both nominations on October 30. Broussard was nominated to the Ravel
seat; Cooksey was nominated to the Goodman seat.27
The Commission, Policymaking, and Appointments
Original, Invalidated Appointment Structure
Congress originally designed eight positions for the FEC: six commissioners and two nonvoting
ex officio members (the Clerk of the House and Secretary of the Senate). Under that structure, two
commissioners were appointed by the President, two by the President pro tempore of the Senate,
and two by the Speaker of the House.
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

20 See PNs 1024 and 1425, https://www.congress.gov/.
21 See PNs 197 and 1600, https://www.congress.gov/.
22 The Senate confirmed Trainor with a 49-43 vote. See record vote no. 96.
23 Federal Election Commission, “Caroline C. Hunter to Depart Federal Election Commission,” press release, June 26,
2020, https://www.fec.gov/updates/caroline-c-hunter-depart-federal-election-commission/.
24 The White House, “President Donald J. Trump Announces Intent to Nominate and Appoint Individuals to Key
Administration Posts,” press release, June 26, 2020, https://www.whitehouse.gov/presidential-actions/president-donald-
j-trump-announces-intent-nominate-appoint-individuals-key-administration-posts-43/.
25 See Presidential Nomination (PN) 2237, https://www.congress.gov/.
26 The White House, “President Donald J. Trump Announces Intent to Nominate Individuals to Key Administration
Posts,” press release, October 28, 2020, https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-
announces-intent-nominate-individuals-key-administration-posts-102820/.
27 See Presidential Nominations (PNs) 2302 and 2303, https://www.congress.gov/.
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appointments method, holding that congressional appointments violated the Constitution’s
Appointments Clause.28 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.29 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, all commissioners are presidentially appointed
subject to Senate advice and consent.30 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.31
FECA specifies few qualifications for FEC commissioners, noting simply that they “shall be
chosen on the basis of their experience, integrity, impartiality, and good judgment.”32 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.”33 Commissioners typically 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.34 In practice,
the commission has been divided equally among Democrats and Republicans, although former
Commissioner Steven Walther identified as an independent.35 FECA staggers commissioner terms

28 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 America: Analysis and Interpretation, “Article II-
Executive Department,” https://constitution.congress.gov/search/constitutionannotated.
29 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, Campaign Finance: Constitutionality of Limits on Contributions and Expenditures, by
L. Paige Whitaker.
30 52 U.S.C. §30106(a)(1).
31 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
generally, see CRS Report R44083, Appointment and Confirmation of Executive Branch Leadership: An Overview, by
Henry B. Hogue and Maeve P. Carey.
32 52 U.S.C. §30106(a)(3).
33 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.
34 52 U.S.C. §30106(a)(1).
35 Steven T. Walther identified himself as an independent. Sen. Reid recommended Walther to the commission and
Walther reportedly worked for Democratic clients before joining the FEC. Walther often voted with Democrats on the
FEC, although he emphasized his independence throughout his commission tenure. See, for example, Matthew Murray,
“Walther Takes on Washington,” Roll Call online, January 13, 2009, http://www.rollcall.com/news/-31322-1.html. On
announcing his departure, Walther noted that he had “served as a politically independent Commissioner, and my
departure affords the President the opportunity to fill that vacancy and reestablish the historic composition of the
Commission to three Democrats and three Republicans.” See Federal Election Commission, untitled statement issued
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so that two expire every other April 30 during odd-numbered years (e.g., 2023, 2025, etc.).36 This
arrangement means that, at least as designed, two new commissioners would assume office
biennially. However, the President is under no obligation to make biennial nominations.
Expired Terms and Holdover Status
Currently, FEC commissioners may serve a single six-year term.37 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 will be underway by the time of
confirmation.”38 Some FEC commissioners have assumed office when the term for which they
were nominated was well 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,
2009.39 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.”40
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).41

by Vice Chair Steven T. Walther, January 21, 2022, https://www.fec.gov/resources/cms-content/documents/
January_21_2022_Press_Release_Steven_T_Walther.pdf.
36 52 U.S.C. §30106(a)(2)(A).
37 52 U.S.C. §30106(a)(2)(A).
38 CRS Report R44083, Appointment and Confirmation of Executive Branch Leadership: An Overview, by Henry B.
Hogue and Maeve P. Carey, p. 11.
39 “Confirmations,” Congressional Record, vol. 154, part 10 (June 24, 2008), p. 13696.
40 A commissioner may remain in office after the expiration of his or her term unless or until (1) the President
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 Appointments: 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.
41 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).
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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.42
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
educational guides; appoint certain staff; and approve other basic administrative and employment
matters.43
During the loss of the commission’s policymaking quorum in 2008, the two remaining
commissioners (David Mason (R) and Ellen Weintraub (D)) met publicly to discuss advisory
opinions, but could not vote to approve or disapprove those opinions. At the time, the
commissioners explained that although they recognized that the commission lacked a quorum,
they were attempting to provide general feedback, particularly given the ongoing 2008 election
cycle. That practice generated some controversy, however, as some practitioners contended that
remaining commissioners did not have the authority to meet and provide guidance.44 (The
commission did not hold public discussions such as these during later quorum losses.)

42 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 Commission: Enforcement 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/.
43 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.
44 See, for example, Letter from Donald F. McGahn II, Counsel, People for Pete Domenici, to Thomesenia 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/. The FEC’s obligations under the Administrative
Procedure Act (APA) are beyond the scope of this report.
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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).45 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.46 In addition, the Justice Department may pursue criminal enforcement on
its own authority, regardless of the FEC’s operating capacity for civil matters.47

Author Information

R. Sam Garrett

Specialist in American National Government

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
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45 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 Commission
(FEC) With Fewer than Four Members: Overview of Policy Implications, by R. Sam Garrett.
46 The statute of limitations for civil and criminal violations is five years. See 28 U.S.C. §2462 and 52 U.S.C. §30145,
respectively. Other actions, such as rulemaking activities that are already under way, may continue indefinitely.
However, as noted above, new rulemakings could not be initiated or finalized without a quorum.
47 For an overview of various civil versus criminal provisions and administration/enforcement in campaigns and
elections, see CRS Report R45302, Federal Role in U.S. Campaigns and Elections: An Overview, by R. Sam Garrett.
Congressional Research Service
R45160 · VERSION 16 · UPDATED
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American Law

Report Type: CRS Report

Source: CRSReports.Congress.gov, EveryCRSReport.com

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