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Comparative Assessment of Central Electoral Agencies

Appendix C – Dynamics of Decision-Making in the Federal Election Commission

Michael M. Franz's article (2009) is one example of careful empirical analysis of decision-making in the FEC from 1996 to 2006. His analysis focuses on how the FEC processes complaints and imposes fines. His principal interest is whether the FEC has exhibited a "respondent bias," which refers to being unduly influenced by the interests of incumbents in the presidency, Congress and leadership of the national parties who select the members of the FEC and control its fate. He codes the data on a variety of dimensions, including the focus of the complaint, the backgrounds of the complainant and the respondent, the final penalty levied by the FEC and a breakdown of the votes by partisan background of each commissioner. A couple of his conclusions will be presented here – those relevant to the issue of partisan deadlock.

Over this decade, which included a period when the FEC was short one commissioner, there were 1,500 votes on Matters Under Review (MURs, also known as enforcement matters); 55 percent of the time, the six commissioners were unanimous, and 54 percent of the time, there was unanimity among the five commissioners. Deadlocks were relatively rare – in only 2.4 percent of the cases when the FEC was at its full complement of six commissioners. However, the 3–3 deadlocks occurred on the high-profile complaints raised by national party committees, alleged wrongdoing by federal candidates and violations by presidential campaigns. It is also noted that the severity of fines levied against violators rose during the decade (Franz 2009, 177).

A second study of FEC deadlocks was conducted by the Congressional Research Service for the years 2008–2009 (Garrett 2009). It examined deadlock votes in rule-makings, MURs and advisory opinions (AOs). It found that deadlocked votes occurred in about 13 percent of the MURs and in about 17 percent of the AOs. No deadlocks occurred on rule-makings. When there were deadlocks, issues involved staunch policy disagreements, and votes were strictly along party lines (Garrett 2009, 8).

These earlier studies would not convince critics like journalist Christopher Rowland (2013), who claims that since 2008, the FEC has become nearly impotent. In that year, the new Republican appointees were allegedly united in the belief that the FEC had been guilty of exceeding its mandate by intruding too much into the political process. The Republican contingent has allegedly moved consistently to block new rules and soften enforcement. Rowland reports, "The commission is taking up fewer enforcement cases – down to 135 in 2012 from 612 in 2007. And the cases it does consider often go nowhere. The cases of deadlocked votes have shot up to nineteen percent from less that one percent." The Democratic chairwoman is quoted as saying that the FEC is "dysfunctional" because it is "mired" in deep partisan disagreements. This is happening at a time when the Supreme Court's Citizens United ruling of 2010 opened elections to unlimited third party fundraising and spending.