Imagine we’re in the middle of a presidential election with candidates and outside groups raising and spending billions of dollars, all vying for the White House and control of Congress. Now imagine that the government agency charged with ensuring that they all follow the law ceases to function. It cannot answer critical questions for candidates or effectively oversee the dark money groups that are spending hundreds of millions of dollars to anonymously attack them. The agency cannot enforce any new laws on the books or even investigate potential criminal conduct by political parties, outside groups, or scam PACs.
This isn’t a fantasy. This actually happened in 2007 and 2008, when the Federal Election Commission lost its quorum and Senate leaders Harry Reid and Mitch McConnell deadlocked over potential new nominees to the FEC for six months.
Now imagine a foreign actor wants to interfere in our elections. They want to stop the public disclosure of how our elections are funded, and throw our government into a panic. They wait for the opportunity to infiltrate the systems helping govern our elections, further reducing trust in government at the worst moment.
This also happened — in 2013, during the government shutdown. Chinese hackers penetrated the FEC’s networks and “crashed computer systems that publicly disclose how billions of dollars are raised and spent” each election cycle, according to news reports. The federal government had to declare an emergency and return furloughed staff to bring systems back online. Even then, commissioners disagreed whether the FEC should have funds to stay open during government shutdowns. “The FEC is not essential to the operation of the republic in the same way, say, the Department of Defense is,” one commissioner opined.
That may be true. But in the run-up to the 2020 elections, as foreign actors continue to test America’s election infrastructure and administration officials warn of more attacks, the FEC remains vital to how our democracy elects its leaders.
We know that foreign actors will be hiding just outside of view, ready to intervene at the most inopportune moment and sow discord in the country again. They will count on the fact that our leaders have not learned any lessons from the past few years, or taken necessary steps to prevent foreign interference again.
Now go one step further, and imagine if the FEC again fails amid all this turmoil. Imagine it is further understaffed, underfunded, and unfortunately loses one individual from its four sitting commissioners (out of a possible six). The agency would then lack the bipartisan quorum required for it to take official actions. It would literally be unable to do its job. As the country tries to decide who its leaders should be for the next two, four, or six years, there would be no referee calling balls and strikes.
In a potential future where the agency lacks at least four commissioners, no investigations could officially begin. Serious rule breakers already gamble that outright violations of campaign or anti-corruption laws may not bring swift and bipartisan action. But in this future, no new rules could be made, amended or repealed. The FEC could not issue advisory opinions, go to court to defend itself (or initiate any cases), conduct hearings, or even refer cases of potential criminal conduct to law enforcement.
This also happened before, and the FEC is perilously close to repeating history. The agency’s budget has stagnated while its oversight responsibilities have exploded. The agency’s enforcement division has shrunk to just 41 employees (down from 59 in 2010), while the base backlog tripled (from 100 cases in 2010 to 329 in 2018). Fines fell from $4 million in 2003 to just $898,000 recently—while the cost of elections has gone up more than $2 billion and the number of super PACs and dark money groups has multiplied dramatically.
It all raises one frightening question: What if super PACs, dark money groups, and foreign actors would not have to worry about an election watchdog eyeballing their activities for months?
As we face another moment where power could change hands peacefully and free from foreign interference, it is more important than ever that Congress and the president start treating the FEC as a critical piece of infrastructure in America’s fight against anonymous and foreign actors seeking to disrupt our elections.