Barring some kind of miraculous last-minute reprieve, Friday will be the last business day that the Federal Election Commission will be able to function for quite a while, leaving the enforcement of federal campaign finance laws unattended ahead of the 2020 election.
The commission's vice chairman, Matthew Petersen, announced his resignation earlier this week, to take effect at the end of the month. With Petersen gone, the FEC will be down to three members and won't have a quorum.
In addition to collecting campaign finance data, the FEC investigates potential campaign finance violations, issues fines and gives guidance to campaigns about following election law — but not without a working quorum of at least four commissioners.
"To not have the FEC able to take action right now is deeply concerning," says Daniel Weiner, a former senior counsel at the FEC, who's now with the Brennan Center for Justice at New York University law school.
In particular, Weiner is concerned about another attempt by Russia or other actors to interfere in the 2020 election.
"After 2016, it's become very clear that it is almost certain that the Russian government and potentially other U.S. rivals will seek to interfere in the U.S. election, including through online propaganda, cybersecurity incursions and other tactics," Weiner told NPR. As the regulator for campaign spending, he describes the FEC as one of the "front-line" agencies combating foreign interference.
The FEC has been in the midst of strengthening disclosure and transparency requirements for online political ads of the sort that Russian operatives used to manipulate voters in 2016.
The lack of a quorum, Weiner says, "will make that impossible until that seat is filled."
It's not clear how long the FEC will be effectively shut down. President Trump nominated Republican Trey Trainor to serve on the commission, but the Senate has not yet acted on the nomination. In the past, nominees have been paired, with one from each party. Congressional Democrats have yet to announce any nominees from their party.
Former FEC chair Michael Toner says he fears there is a "real possibility" the FEC could lack a quorum through the 2020 election.
But that doesn't mean the agency will completely go dark. "Public disclosure reports will continue to be due and will need to be filed by campaigns and PACs and committees, and those reports will be reviewed by the FEC staff just as they always are. So that's important," said Toner. Similarly, the agency's popular website will continue to operate, allowing people to get information on campaign fundraising and spending.
Toner argues the agency's inability to act without four commissioners won't mean that campaign finance will become a "legal free zone." There's a five-year statute of limitations on campaign finance violations, and FEC complaints can still be filed with the agency.
"At some point, presumably, the agency will regain a quorum," said Toner, "and will be able take action on enforcement cases. So campaigns and committees still have to follow the law."
But Meredith McGehee, executive director of Issue One, a campaign reform group, isn't so sure they will.
"It's kind of like saying there's a law against robbing banks," she said. "Ninety-nine point nine percent of the population will still not rob a bank if there wasn't a policeman. But there's always that element there that's going to be looking for an opportunity to get away with it.
"And I think what's really different about politics is that there's both so much gray area and there is political disagreement about the laws anyway."
The FEC is not the only government agency unable to act because of a lack of a quorum. The Merit Systems Protection Board, which investigates allegations of violations of federal personnel practices, including the Hatch Act, hasn't had one for over two years.
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