The Federal Election Commission was created by Congress in 1974 to administer and enforce federal campaign finance law following the Watergate scandal. Fifty years later, watchdog groups, academic researchers, and even some former commissioners describe it in terms ranging from “dysfunctional” to, in the language of one federal court opinion, “worse than dysfunctional.” Understanding why the FEC operates as it does — and what it would take to change that — requires looking at how the agency was structured, how that structure interacts with partisan polarization, and what the enforcement record actually shows.
Structure and Legal Mandate
The FEC is composed of six commissioners, appointed by the president and confirmed by the Senate. By statute, no more than three commissioners can be affiliated with the same political party. In practice, this has meant three Democratic appointees and three Republican appointees, with the chair rotating annually between the parties.
The agency’s core functions are: administering campaign finance disclosure requirements, issuing advisory opinions to candidates and organizations seeking guidance on what the law permits, promulgating regulations under the Federal Election Campaign Act, and enforcing the law against alleged violations through a process called Matters Under Review (MURs).
Every substantive action the FEC takes requires at least four votes. By statute, the agency cannot investigate an alleged violation, issue an advisory opinion, or take any other significant action without bipartisan agreement among at least four of its six commissioners. The design was deliberate. Congress, in the wake of the Nixon administration’s weaponization of regulatory power against political opponents, wanted to ensure that the commission enforcing campaign finance law could not be used as a partisan instrument. The requirement for bipartisan consensus was meant to guarantee that enforcement would be principled rather than tactical.
What Congress did not fully reckon with was the possibility that bipartisanship itself would become difficult to achieve — that the structure designed to prevent one party from weaponizing the agency would instead allow either party to neutralize it.
The Enforcement Record
The FEC’s enforcement process has four stages: receipt of complaint, a “reason to believe” determination, a “probable cause” determination, and conciliation. The commission can close a case at any stage. If the commission cannot reach agreement at the reason-to-believe stage — which requires four votes — the case is dismissed without investigation. This is the point at which deadlocks most often occur.
The available data on the FEC’s enforcement trajectory are consistent across multiple sources and show a clear pattern of deterioration.
According to a review of FEC advisory opinion requests by the Brennan Center, covering all 1,996 requests between 1975 and 2018, the commission deadlocked — failing to respond to at least one question in a request — on an average of 4.9 percent of requests per year in its first 32 years of existence (1975–2007). Since 2008, the annual deadlock rate has jumped to an average of 24.1 percent. The number and value of fines collected fell over the same period, even as the amount of money in federal elections rose dramatically.
On enforcement specifically, then-Commissioner Ann Ravel reported in 2017 findings that the annual percentage of enforcement cases in which the commissioners deadlocked on at least one alleged violation increased to 37.5 percent in 2016 from 4.2 percent in 2006. A 2021 report by the Campaign Legal Center found that the FEC deadlocked in approximately 40 percent of substantive enforcement votes between 2017 and 2020.
The practical consequence of deadlock is dismissal. When three commissioners vote against finding reason to believe a violation occurred, the case closes. No investigation is conducted, no fine is assessed, and the alleged violation is never publicly adjudicated. Courts have largely declined to review deadlock dismissals that are framed as exercises of prosecutorial discretion, leaving the three-commissioner bloc that wants to close a case with near-unilateral authority to do so.
Specific Enforcement Failures
The abstract enforcement statistics become more concrete when examined through specific cases.
The Trump-Cohen hush money matter. Michael Cohen pleaded guilty in 2018 to federal campaign finance violations related to hush money payments made before the 2016 election, directly implicating the Trump campaign. When the FEC considered whether to pursue the campaign itself, the commission deadlocked in 2021 along party lines. Republican commissioners voted against pursuing the case; Democratic commissioners dissented. No enforcement action was taken against the campaign.
Super PAC coordination. Following the Supreme Court’s 2010 decision in Citizens United v. FEC, the growth of super PACs raised persistent questions about coordination between candidates and the nominally independent outside groups supporting them. Complaints involving alleged coordination by the campaigns of Jeb Bush, Hillary Clinton, Scott Walker, and others were repeatedly dismissed due to partisan deadlocks. More than nine years after Citizens United, the FEC had not amended its regulations to account for super PACs — leaving the rules governing coordination between candidates and super PACs operating under pre-Citizens United frameworks that courts have repeatedly found inadequate.
Dark money and LLC contributions. A 2019 Issue One report documented multiple cases in which large contributions from LLCs and trusts — often used to obscure the true source of funds — were contested before the commission. In at least three separate instances involving significant contributions to outside groups, the commission gridlocked. Republican commissioners argued that the rules regarding how LLCs and trusts should be treated had not been sufficiently communicated; Democratic commissioners disagreed. The cases were dismissed without investigation.
The Freedom Vote case. A detailed CREW investigation traced an FEC inquiry into Freedom Vote Inc., a dark money group that CREW alleged acted as a political committee while failing to register and disclose as one. The FEC’s investigation was paralyzed when the agency lost quorum in 2019-2020, a period during which it lacked the four members necessary to authorize new investigative actions or go to court to enforce its subpoenas. Freedom Vote stonewalled and delayed; the statute of limitations expired on most of the group’s electoral activity. After CREW sued and a federal judge found the FEC’s dismissal “contrary to law,” the commission was returned the case — and again failed to take action.
Quorum Failures
The deadlock problem is compounded by the FEC’s recurring inability to maintain a quorum. The commission has lost its minimum four-member quorum three times in recent history. Between 2019 and 2020, the FEC lacked a quorum for more than a year, reportedly stalling more than 300 active cases. In 2025, the FEC again fell below quorum for more than 280 days before the White House announced Republican nominees whose potential confirmation would restore minimum functionality.
During periods without a quorum, the FEC cannot authorize new investigations, issue advisory opinions, or go to court to enforce subpoenas. As of fiscal year 2025, the FEC had two active investigations and 46 matters on its enforcement docket labeled “statute of limitations sensitive” — meaning the claims would become legally unpursuable if the agency remained unable to act.
The Role of Advisory Opinions
Beyond formal enforcement, the FEC issues advisory opinions that tell candidates, committees, and political organizations how the agency interprets the law in specific circumstances. These opinions function as safe harbors: an entity that acts in reliance on a favorable advisory opinion is shielded from enforcement action even if the commission later changes its interpretation.
The advisory opinion process has been as affected by deadlock as the enforcement process. The Brennan Center found that deadlocked advisory opinion requests increasingly involve the most contested questions in modern campaign finance — whether candidates can appear in super PAC advertisements, how political committees can use social media platforms for in-kind contribution purposes, what activities by outside groups constitute prohibited coordination with campaigns. These are not theoretical questions; they arise in every election cycle, and campaigns and outside groups need answers before acting.
The practical result of advisory opinion deadlock is that sophisticated actors operate in a legal vacuum. Experienced election law practitioners routinely advise clients that the FEC is unlikely to act on any given novel activity — and because the agency has established a pattern of non-response to contested questions, that advice is generally accurate. Well-resourced campaigns and organizations with access to specialized counsel can take calculated risks with relative impunity. Smaller campaigns and advocacy groups that cannot retain that counsel face genuine uncertainty about what the law requires and may constrain legitimate activity out of caution.
What a Functional Agency Would Look Like
Reform proposals for the FEC generally fall into two categories: structural changes to the commission’s composition and procedural changes to its enforcement process.
The Brennan Center’s 2019 reform agenda recommended changing the commission to an odd number of commissioners with at least one political independent, redesigning the chair’s role to provide genuine administrative accountability, and overhauling the enforcement process to make it more timely and to provide legal remedies when the commission fails to act within a specified period. The Campaign Legal Center’s 2025 report recommended giving the nonpartisan Office of General Counsel more autonomy to investigate apparent violations before the full commission votes.
A more recent and arguably more alarming development came after 2022, when a new four-commissioner majority began using the agency’s powers not merely to block enforcement but to actively roll back longstanding regulations. The Campaign Legal Center documented more than 30 deregulatory decisions in roughly two years, including votes to weaken rules against unlawful coordination between candidates and super PACs, permit soft money in new contexts, and reduce transparency around the true sources of political contributions. The shift from a deadlocked commission to one with an affirmative deregulatory majority represents a qualitative change in the agency’s dysfunction: rather than failing to enforce rules that exist, it is now moving to eliminate them.
The core problem any reform must address is that the current structure allows a minority of three commissioners — which in practice means three commissioners of the same party — to prevent any enforcement action. A commission of five, or seven, with an independent tiebreaker, would change this calculus. So would a structural change that required affirmative votes to close a case (rather than allowing three no-votes to constitute a dismissal) or that gave the general counsel independent investigative authority subject to commissioner override.
What the FEC has become, in the assessment of both the academic literature and multiple federal court opinions, is an agency capable of administering paperwork but not of exercising the enforcement function that Congress created it to perform. Whether that outcome reflects the intentions of commissioners who oppose aggressive enforcement, the structural logic of a partisan commission in a polarized era, or some combination is debated. The output — a sustained decline in enforcement activity while campaign spending and alleged violations have grown — is documented.
America’s Plan covers campaign finance and governance reform. Related articles address campaign money and lobbying, whether money influences policy outcomes, and who actually funds American campaigns.
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