Immobilized by political gridlock, the Federal Election Commission (FEC) has allowed its enforcement actions to nosedive in recent years. Now outgoing commission Vice Chairman Donald F. McGahn II, a former general counsel to the National Republican Congressional Committee, could be seeking to take advantage of a temporary 3-to-2 Republican majority on the FEC to write Republican stall tactics into agency rules. Mr. McGahn and other Republican commissioners have proposed a version of the FEC enforcement manual that would prevent the agency’s general counsel from consulting, without commission approval, publicly available information when considering an enforcement matter. It would also severely restrict information-sharing between the FEC and the Justice Department.
Commissioner Cynthia L. Bauerly, a Democrat, departed the FEC in February, leaving Democrats on the commission outnumbered. It’s not as if it had been operating smoothly prior to Ms. Bauerly’s departure. With the FEC at full strength, its debates have tended to be unproductive: Repeatedly, when agency staff have recommended enforcement in a case, the three Democratic commissioners have voted in favor of action and the three Republicans against, citing First Amendment rights. Without a majority, nothing happens, regardless of the party of the candidate under scrutiny. Fundamentally, the Republican commissioners seem not to believe in the campaign finance laws that Congress has passed and that they are bound to enforce.