Supporting the Agency “Designed to Do Nothing”: Creating a Regulatory Safety Net for the FEC

To say the Federal Election Commission (“FEC”) is in crisis would be a remarkable understatement. The agency created to limit corruption and enforce campaign finance compliance lacks a quorum and is unable to investigate or prosecute campaign finance violations. Amidst what is likely to be the most expensive election in history, and one subject to foreign interference, the FEC’s challenges represent a near-existential crisis for our democracy.

This Essay posits that the FEC is suffering from regulatory failure, evidenced by three things: (1) its inability to protect our elections through enforcement and regulation; (2) its failure to adapt to technology and regulate political advertisements on the internet effectively; and (3) its failure to foresee and prevent Russian interference in the 2016 election. It will assess these challenges in the context of the agency’s design along three dimensions, proposed by Professors Camacho and Glicksman: (1) the centralization dimension, (2) the authority dimension, and (3) the coordination dimension.

Following this analysis, the Essay will propose a blueprint for reform that includes shared substantive authority to create a “regulatory safety net” and deeper coordination with other agencies. Though other actions, like simply appointing enough commissioners for a quorum, will have greater short-term impact, addressing the long-term structural deficiencies inherent in the FEC is crucial to protecting the integrity of our elections.