If the FEC won’t protect voters, the courts should — but it might be up to Congress

I was a Republican commissioner on the Federal Election Commission (FEC) from 1991 to 1995. During that time, for the most part, at least, the FEC functioned as designed: the commission of three Democrats and three Republicans worked collaboratively to ensure agency operation and even-handed enforcement of campaign laws. My bipartisan team led what was then, and still is, the only government agency whose sole responsibility is overseeing the integrity of political campaigns. We administered and enforced the law to prevent corruption and fulfill voters’ right to know who is spending to influence their vote — to ensure that the voices of everyday Americans were not drowned out by those of the wealthy.

But recent years have brought about a dramatic deterioration of the FEC, and the agency no longer functions as intended.

The FEC’s structure requires four of the six commissioners to agree before an investigation of an alleged campaign finance violation can be opened. This means that three commissioners can paralyze the agency if they so choose. Unfortunately, that has happened consistently in recent years.

Congress foresaw the risk of gridlock — though probably not at this scale — when it created the FEC, addressing it by including a provision in the Federal Election Campaign Act (FECA) that allows private parties to challenge in court FEC dismissals of alleged campaign finance violations. As the agency’s deadlock has become endemic, several private parties have sued under this provision to force the FEC to do its job as Congress intended. But a series of recent judicial decisions has threatened to nullify this core statutory protection.

The wrinkle is that when the commission deadlocks on a vote and closes a case, some commissioners have sought to avoid scrutiny from the courts by simply claiming they were “exercising prosecutorial discretion.” (The term here refers to the ability of a prosecutor or other law enforcement authority to decide not to pursue allegations that someone broke the law.)

Federal courts repeatedly have deferred to purported exercises of “prosecutorial discretion” by a minority of the commissioners, treating almost any utterance of the phrase as a barrier to judicial review — as if it is a talisman that wards off judicial oversight. This undermines Congress’s decision to allow such judicial review in FECA and enables the FEC to get away with shirking its duties.

Let me give you an example. In 2019, the Campaign Legal Center, where I am founding president, and End Citizens United (ECU) filed a complaint with the FEC alleging that then-President Donald Trump’s campaign violated federal law by endorsing a super PAC. He issued a White House statement saying it was “run by allies of the President.” The complaint argued that by endorsing the super PAC, Trump was urging support of the group — in effect, unlawfully soliciting unlimited soft money (money not subject to FECA’s limitations and thus illegal for a candidate to solicit).

But despite a recommendation by the FEC’s general counsel that the agency should investigate the complaint, the commissioners deadlocked on proceeding and closed the case without action.

ECU, with Campaign Legal Center Action as counsel, sued the FEC to challenge the dismissal, but the court ruled against ECU on the reasoning that the FEC’s dismissal was non-reviewable because three commissioners had invoked the agency’s “prosecutorial discretion” in written explanations of their votes. This ruling — which ECU is appealing — frustrates Congress’s decision to guarantee judicial review of FEC dismissals.

Most, if not all, of the FEC’s recent 3-3 deadlocks have stemmed from the ideological considerations of three commissioners who oppose regulation of money in politics. These deadlocks, which prevent enforcement of the law, for too long have allowed laws to be broken without consequence. That a minority of the commissioners dresses up their reasoning with the phrase “prosecutorial discretion” should not shield the FEC’s failures from judicial review.

To emphasize, the courts’ deference to the words, to block review of FEC dismissals, is contrary to law. When Congress provided for judicial review of the agency, it did not include a “prosecutorial discretion” exception — and with good reason, because that would block the very substantive review that Congress authorized. The courts’ acceptance of “prosecutorial discretion” as a “get-out-of-jail-free card” subverts the structure of review of FEC dismissals that Congress designed and enables the practice to continue uncorrected.

Even if “prosecutorial discretion” is to be written into the law by the courts as a loophole to the right to judicial review, it would be appropriate only when that was invoked by vote of four commissioners, which is required by law for any agency “action.” When a minority of FEC commissioners creates a deadlock and prevents the FEC from taking action, that invocation of “prosecutorial discretion” does not constitute an agency “decision” worthy of judicial deference.

I have discussed previously how Congress can solve this issue and many others stemming from the FEC. For example, Congress could make it harder for the agency to gridlock by requiring a majority — rather than half — of the commissioners to agree before blocking the opening of an investigation. This reform last appeared as part of the large-scale legislation that failed to pass the Senate in January. Such legislation shows that some on Capitol Hill want to protect voters, even if the FEC doesn’t.

As concerns of potential election corruption abound and more secret spending pours into U.S. elections, strong enforcement of campaign finance laws is more important than ever. If the FEC doesn’t protect voters, the judicial system must step up and enforce the law — but Congress must pass legislation that will compel the FEC to do its job.

Trevor Potter is the president of the nonprofit, nonpartisan Campaign Legal Center, who has served as chairman of the Federal Election Commission. Follow him on Twitter @TheTrevorPotter.