The FEC has been without a quorum for most of the last 14 months, preventing it from holding meetings and enforcing laws throughout nearly the entire presidential campaign. The commission faces a backlog of more than 350 matters, according to Ellen Weintraub, the lone Democratic commissioner.
Shortly ahead of the election, the Senate Rules Committee announced plans to take up the nominations of two Republicans and an independent next week, which a watchdog group warned would stack the panel with "biased" commissioners and result in "gridlock" that would leave key cases undecided.
"For the sake of fair and functional oversight of our campaign finance system, the Senate simply cannot indulge the soon-to-be-ex-President Trump's scheme to quietly pack the FEC with partisans and let bad actors off the hook indefinitely," Kyle Herrig, the president of the progressive watchdog group Accountable.US, told Salon in a statement.
Herrig wrote a letter to Rules Committee Chairman Roy Blunt, R-Mo., and ranking member Amy Klobuchar, D-Minn., warning of the "growing threat of harmful politicization" of the FEC by the Trump administration. In it, he called for the committee to block the "ideologically-driven" nominations.
"The Trump administration's early and continuous undoing of the FEC has only changed course in recent weeks, in the closing days of an election cycle," Herrig warned in the letter, which was shared exclusively with Salon.
The commission is designed to be evenly bipartisan with three Republicans and three Democrats. It currently has one Republican, one Democrat and one independent. The president typically nominates one Republican and one Democrat to fill vacant slots at the same time. But Trump, shortly ahead of the election, nominated two Republicans and one Democratic-backed independent after pushing through the confirmation of another lone Republican last year.
"In addition to the timing of FEC commissioner nominations and confirmation hearings, the administration's disregard for creating a fair and equitable makeup of commissioners for the FEC is cause for grave concern," Herrig wrote to the senators. "The traditional standard has been that two ideologically contrasting nominees are presented for a vote to the FEC at the same time. And yet, earlier this year, the Trump administration and Senate Republicans pushed through the nomination of James Trainor — a former attorney for the Trump campaign itself."
Moving forward with the nominations of another Republican without a Democratic counterpart and a previously-negotiated Republican-Independent pairing would "undoubtedly create gridlock amongst FEC commissioners, essentially leaving the FEC in the same place it is today," Herrig wrote, "unable to issue clear, decisive opinions on the critically important issues that come before the commission."
The refusal of Senate Majority Leader Mitch McConnell, R-Ky., to fill the three vacant seats left the commission toothless during the presidential campaign. Brendan Fischer, the director of federal reform at the nonpartisan Campaign Legal Center, alleged earlier this year that McConnell was trying to "neuter the FEC" in hopes that he could get "three ideological opponents of campaign finance on the FEC" so he "can basically undermine the law from within."
The commission has not even been able to meet to discuss complaints, including one from the Campaign Legal Center accusing the Trump campaign of disguising $170 million in campaign spending by "laundering" the money through companies run by former campaign manager Brad Parscale or formed by Trump campaign attorneys.
The nonpartisan watchdog also called on the FEC to impose more limits on leadership PACs, which are used to fund expenses that cannot be legally funded by campaign committees and are often used to fund other candidates, after the Trump team solicited donations for what it claimed was a "recount" effort but will largely go toward a new Trump leadership PAC instead.
Another complaint by Rep. Bill Parscale, D-N.J., called on the FEC to investigate whether the Trump campaign had violated campaign finance rules by failing to report unpaid debts stemming from his campaign rallies.
Trump, who spent months ahead of the election laying the groundwork to sow doubt in the results before ultimately losing to President-elect Joe Biden, has announced a flurry of legal moves to try to reverse the popular vote in multiple states based on unfounded allegations of fraud and irregularities.
Though numerous election officials from both parties have said there is zero evidence of widespread fraud or irregularities, the president's claims have been echoed by Trainor, the Republican head of the commission who was confirmed without a Democratic counterpart last year.
"I do believe that there is voter fraud taking place in these places," Trainor told the right-wing Newsmax TV last week, describing the president's legal challenges as "very valid allegations." But most legal scholars have said the claims are "meritless" and "frivolous."
Trump waited until shortly before the election to nominate new commissioners.
In September, the president nominated Republican Allen Dickerson without a Democratic counterpart. Dickerson, who has long defended the Supreme Court's Citizens United decision which injected hundreds of millions in dark money into elections, currently serves as the legal director of the Institute for Free Speech, a group funded by Charles Koch and other prominent conservative billionaires.
Dickerson has argued that "corporations have long had First Amendment rights, and for good reason" in defending corporate money in elections. He also once joined a lawsuit against then-California Attorney General Kamala Harris for requesting a Koch-backed group reveal its donors.
In October, Trump nominated Republican Sean Cooksey, the general counsel to Sen. Josh Hawley, R-Mo. Trump did not nominate a Democratic counterpart. Instead, he tapped independent Shana Broussard, whose selection was pushed by Klobuchar.
Though the panel would have three Republicans, two independents and one Democrat if the three nominees are confirmed, Weintraub and independent Commissioner Steven Walther have long since exceeded their six-year terms and could be replaced if another appointment is made for their seats.
If the confirmations move forward, the makeup of the FEC would likely result in similar gridlock as when the commission still had its quorum.
Last year, Weintraub warned in response to questions from House Democrats that the panel blocking enforcement of election laws had sapped staff morale.
"This is a morale-killing problem that will persist as long as the Federal Election Commission lacks a majority of members who are committed to robust law enforcement and effective policymaking," she said.
And campaign finance watchdogs agree.
"The Federal Election Commission was already broken, but now it is in shambles and can't even perform the most basic law-enforcement functions," Meredith McGehee, the head of the campaign finance nonprofit Issue One, said in a statement.
"After nearly 80 million Americans voted to elect former Vice President Joe Biden to serve as the next president of the United States and with just 68 days until Inauguration Day," Herrig said in his letter, "it is distressing to see that President Donald Trump and his allies could seat additional biased commissioners to the FEC in just a few short weeks."