The Independent View: The Current Perpetual Stalemate of the FEC

In 1975, Congress created the Federal Election Commission (FEC) to administer and enforce the Federal Election Campaign Act (FECA), the statute that governs the financing of federal elections. The duties of the FEC, which is an independent regulatory agency, are to disclose campaign finance information, to enforce the provisions of the law such as the limits and prohibitions on contributions, and to oversee the public funding of Presidential elections.

The Commission is made up of six members, who are appointed by the President and confirmed by the Senate. Each member serves a six-year term, and two seats are subject to appointment every two years. By law, no more than three Commissioners can be members of the same political party, and at least four votes are required for any official Commission action.

This structure was created to encourage nonpartisan decisions.

The Chairmanship of the Commission rotates among the members each year, with no member serving as Chairman more than once during his or her term.

But the current Chairwoman says she has largely given up hope of reining in abuses in the 2016 presidential campaign, which could generate a record $10 billion in spending.

“The likelihood of the laws being enforced is slim,” Ann M. Ravel said in an interview. “I never want to give up, but I’m not under any illusions. People think the F.E.C. is dysfunctional. It’s worse than dysfunctional.”

Her unusually frank assessment reflects a worsening stalemate among the agency’s six commissioners. They are perpetually locked in 3-to-3 ties along party lines on key votes because of a fundamental disagreement over the mandate of the commission's response to political corruption.

Some commissioners are barely on speaking terms, cross-aisle negotiations are infrequent, and with no consensus on which rules to enforce, the caseload against violators has plummeted.

The F.E.C.’s paralysis comes at a particularly critical time because of the sea change brought about by the Supreme Court’s decision in 2010 in the Citizens United case, which freed corporations and unions to spend unlimited funds in support of political candidates. Billionaire donors and “super PACs” are already gaining an outsize role in the 2016 campaign, and the lines have become increasingly stretched and blurred over what presidential candidates and political groups are allowed to do.

Watchdog groups have gone to the F.E.C. with complaints that probable presidential candidates like Jeb Bush and Martin O’Malley are skirting finance laws by raising millions without officially declaring that they are considering running.

Ms. Ravel, who led California’s state ethics panel before her appointment as a Democratic member of the commission in 2013, said that when she became chairwoman in December, she was determined to “bridge the partisan gap” and see that the F.E.C. confronted such problems. But after five months, she said she had essentially abandoned efforts to work out agreements on what she saw as much-needed enforcement measures.

Now, she said, she plans on concentrating on getting information out publicly, rather than continuing what she sees as a futile attempt to take action against major violations. She said she was resigned to the fact that “there is not going to be any real enforcement” in the coming election.

“The few rules that are left, people feel free to ignore,” said Ellen L. Weintraub, a Democratic commissioner.

Republican members of the commission see no such crisis. They say they are comfortable with how things are working under the structure that gives each party three votes. No action at all, they say, is better than overly aggressive steps that could chill political speech. “Congress set this place up to gridlock,” Lee E. Goodman, a Republican commissioner, said in an interview. “This agency is functioning as Congress intended. The democracy isn’t collapsing around us.”

Experts predict that the 2016 race could produce a record fund-raising haul of as much as $10 billion, with the growth fueled by well-financed outside groups. On their own, the conservative billionaires Charles G. and David H. Koch have promised to spend $889 million through their political network.

With the rise of the super PACs and the loosening of legal restrictions on corporate spending, campaigns and groups are turning to creative new methods of raising money. Writing in March in The Washington Post, Ms. Ravel charged that some candidates, she did not name names, appeared to have been amassing large war chests at fund-raisers this year without acknowledging that they were at least considering a presidential run, which would trigger campaign finance limits and disclosure. She said it was “absurd” to think that such politicians were not at least considering a White House run under federal law.

“It’s the Wild West out there in some ways,” said Kate A. Belinski, a former lawyer at the commission who now works on campaign finance at a law firm. Candidates and political groups are increasingly willing to push the limits, she said, and the F.E.C.’s inaction means that “there’s very little threat of getting caught.”

She said she was particularly frustrated that Republican commissioners would not support cases against four nonprofit groups, including Crossroads GPS, founded by Karl Rove, accused of improperly using their tax-exempt status for massive and well-financed political campaigns.

A surge in this so-called “dark money” in politics, hundreds of millions of dollars raised by nonprofits, trade associations and other groups that can keep their donations secrets, has alarmed campaign-finance reformers who are pushing to make such funding public.

But Mr. Goodman said the problem was exaggerated. He and other Republicans defend their decisions to block many investigations, saying Democrats have pushed cases beyond what the law allows. “We’re not interested in going after people unless the law is fairly clear, and we’re not willing to take the law beyond where it’s written,” said Caroline C. Hunter, a Republican commissioner. Democrats view the law “more broadly,” she said.

These days, the six commissioners hardly ever rule unanimously on major cases, or even on some of the most minor matters. Last month at an event commemorating the Commission’s 40th anniversary, even the ceremony proved controversial. Democrats and Republicans skirmished over where to hold it, whom to include and even whether to serve bagels or doughnuts. In a rare compromise, they ended up serving both.

Standing in front of a montage of photos from the F.E.C.’s history, Ms. Ravel told staff members and guests that there was a “crisis” in public confidence, and she stressed the F.E.C’s mandate for “enforcing the law.” But the ranking Republican, Matthew S. Petersen, made no mention of enforcement in his remarks a few minutes later, focusing instead on defending political speech under the First Amendment.

As guests mingled, Ms. Weintraub, the commission’s longest-serving member at 12 years, lamented to a reporter that the days when the panel could work together on important issues were essentially over. She pointed to a former Republican commissioner standing nearby, Bradley A. Smith, who left the agency in 2005, and said she used to be able to work with commissioners like him even when they disagreed on ideology.

With the commission so often deadlocked, the major fines assessed by the commission dropped precipitously last year to $135,813 from $627,408 in 2013. But like most things at the F.E.C., commissioners differ over how to interpret those numbers.

Republicans say they believe the commission’s efforts to work with political groups on training and compliance have kept campaigns within the legal lines and helped to bring down fines. The drop in fines “could easily be read as a signal that people are following the law,” said Ms. Hunter, the Republican commissioner.

Ms. Ravel scoffed at that explanation. “What’s really going on,” she said, “is that the Republican commissioners don’t want to enforce the law, except in the most obvious cases. The rules aren’t being followed, and that’s destructive to the political process.”