As of Wednesday, one of our nation’s leading anti-corruption agencies, the Federal Election Commission, is without a quorum to operate. Nominating new commissioners is the responsibility of the president, but with the departure of one commissioner at the start of President Trump’s term, and his unlawful termination of another Democratic commissioner, without named successors, Wednesday’s departure of a third commissioner leaves the FEC without the four votes it needs to operate. Notwithstanding President Trump’s claimed interest in enforcing campaign finance laws, neutering the agency follows a pattern from his first term, where the Commission lacked a quorum for more than a year over two periods. But if Trump’s goal is to hamstring enforcement, the law provides its own salve: a paralyzed FEC effectively fast-tracks the kind of private litigation to compel compliance with our campaign finance laws that has proven more effective than the perpetually gridlocked agency. 

Given its role in policing campaign finance—and the risk that a government agency could abuse its authority to target political opponents—the FEC has a bipartisan six-member commission, with commissioners from one party holding no more than three seats. The law requires four commissioners to approve enforcement and issue fines, effectively requiring bipartisan agreement and preventing any president from directing meritless investigations. But that also means the Commission must have four commissioners to operate. A three-member Commission cannot open an investigation even if there is unanimous and bipartisan agreement among the three.

That means a president seeking to undermine enforcement can simply deprive the Commission of its needed staffing. And that is what President Trump did during his first term, leaving the Commission with fewer than four commissioners for more than a quarter of his time in office, hamstringing FEC enforcement. For example, during the impacted fiscal year, the FEC opened only a single investigation—compared to thirty-one the year before—and the fines it imposed for violations fell by 97% from the prior year. The FEC also issued only a small handful of advisory opinions clarifying the law in the year it lost its quorum—a significant departure from the seventeen it issued the year before. 

As he was also a party with cases before the agency, mothballing the FEC personally benefited Trump. For example, before it led to his criminal conviction in New York, the payments by President Trump’s then-fixer, Michael Cohen, to Stormy Daniels for her silence in the lead up to the 2016 election was an issue before the FEC. Despite having been first brought to the FEC in 2018, the related FEC complaint was still pending when the FEC lost its quorum for most of 2020. The Republican Commissioners then cited the “extensive enforcement backlog” created by the loss of quorum as one reason to prevent enforcement. President Trump’s alleged benefit from Russian interference in the 2016 election was another matter pending before the Commission when it lost quorum. The Republican Commissioners then used the lag created in addressing the proceedings and the statute of limitations problems created as reason to dismiss the claims.

Understaffing the FEC impacts far more than just cases against Trump, however. It even impacts those where there’s unanimous agreement a violation is worth pursuing. For example, before losing quorum in September 2019, the FEC unanimously agreed to investigate a dark money group identified in a complaint brought by CREW. Once the Commission lost its quorum, however, the dark money group hampered the investigation, and there were not enough votes to force cooperation. Only after quorum was restored and the Commission could authorize a deposition subpoena did the agency obtain the information it sought. Nevertheless, the Republican Commissioners cited the time lost to justify terminating proceedings, meaning voters still do not know who funded that dark money group. 

“When Congress set up the FEC in the wake of Watergate, it was not naive to a president’s potential malfeasance, and so did not leave enforcement solely to the agency. Rather, Congress empowered individuals to bring lawsuits and seek justice against the corrupt where the agency proved unwilling or unable to protect them.”

It is no wonder then that news of the FEC’s most recent loss of quorum is raising alarms. Yet there is a silver lining. When Congress set up the FEC in the wake of Watergate, it was not naive to a president’s potential malfeasance, and so did not leave enforcement solely to the agency. Rather, Congress empowered individuals to bring lawsuits and seek justice against the corrupt where the agency proved unwilling or unable to protect them.

As a bulwark against abuse, Congress requires private plaintiffs to first exhaust their claims with the FEC before they can seek their own relief in court. As part of that exhaustion, complainants must obtain a court order declaring the FEC is either failing to act on a complaint or, if it does act, that it acted “contrary to law.” This is often no small feat, and even a successful challenge can take years of litigation against a well-defended government agency. Yet when it is successful, private lawsuits can result in far more effective enforcement than can be expected from the bipartisan Commission. For example, private litigation has revealed the sources of millions in dollars of dark money—the type of relief the agency generally avoids. 

Notably, when Congress created this exhaustion mechanism, it also created a safeguard against understaffing. The same law that requires four votes from the Commission to investigate a complaint also requires four votes of the Commission to defend itself in court. That means that the same understaffed Commission that cannot authorize an investigation also cannot defend against a lawsuit challenging its failure to act.

For example, when the FEC lost quorum in 2019, a complaint by CREW had been pending before the Commission for over a year without any action. CREW therefore brought a legal challenge to the FEC’s inaction, which was bound to continue due to the lack of quorum to act on the complaint. That suit could permit CREW to bypass the paralyzed agency and authorize CREW to bring its own lawsuit directly against the violators. The FEC’s lack of quorum not only proved that the FEC could not reasonably act on CREW’s complaint, it also meant the FEC defaulted in the suit. CREW was able to secure a relatively quick judgment in far shorter time than the years it typically takes to litigate against and beat the FEC in court.

Although President Trump can refuse to name additional commissioners to the FEC, he cannot prevent all enforcement of our anti-corruption laws. Congress wisely dispersed that power and included individual Americans in the fight. An understaffed FEC may not be able to investigate Trump or his allies, but is also a catalyst for Americans seeking their day in court.