Contents

• Introduction
• A Note on Terminology
• Recent Vacancies and Nomination Activity
• The Commission, Policymaking, and Appointments
• Original, Invalidated Appointment Structure
• Current Appointment Structure
• Party Balance and Terms
• Expired Terms and Holdover Status
• At Least Four Agreeing Votes Required for Most Policymaking
• Historical Note: Loss of Policymaking Quorum in 2008
• Concluding Comments

Summary

The Federal Election Commission (FEC) is the nation's civil campaign finance regulator. The agency ensures that campaign fundraising and spending is publicly reported; that those covered by the Federal Election Campaign Act (FECA) and by commission regulations comply and have access to guidance; and that publicly financed presidential campaigns receive funding.

Three commission vacancies, one of which has been disputed, occurred during the first four months of 2025. These developments left only three commissioners remaining in office, thus precluding a policymaking quorum; FECA requires at least four agreeing votes from commissioners to take various policymaking, regulatory, and enforcement actions. The quorum loss marked the fourth in the FEC's history. The first lasted six months in 2008. The second lasted for approximately nine months and spanned parts of 2019 and 2020. The third lasted for approximately six months during the second half of 2020.

FEC commissioners are presidential appointees who are subject to Senate advice and consent. Commissioners may remain in office in holdover status beyond the end of their six-year statutory terms. As of this writing, it is unclear when or whether the President might make, or the Senate might consider, new nominations.

This CRS report briefly explains the kinds of actions that FECA precludes when a quorum is not possible because fewer than four FEC members are in office. Among other powers, without a quorum, the commission cannot hold hearings, issue rules, or enforce campaign finance law and regulation. Campaign finance law and regulation remain in effect and may be enforced once a quorum is restored. (An FEC quorum loss does not affect Department of Justice criminal enforcement.) Agency operations continue with remaining commissioners and staff.

This report will be updated in the event of substantial changes in the Federal Election Commission's policymaking quorum or the status of commission nominations.

Introduction

The Federal Election Commission (FEC) is an independent regulatory agency headed by six commissioners. Congress created the FEC in 1974, after controversial fundraising during presidential campaigns in the 1960s and the early 1970s Watergate scandal. The FEC is responsible for administering federal campaign finance law and for civil enforcement of the Federal Election Campaign Act (FECA).¹ The FEC also discloses campaign finance data to the public, conducts compliance training, and administers public financing for participating presidential campaigns.

FECA establishes six-year terms for commission members. Commissioners may continue in "holdover" status after those terms end. Commissioners are appointed by the President and are subject to Senate confirmation. FECA requires that at least four of the six commissioners vote to make decisions on substantive actions. This includes deciding on enforcement actions, advisory opinions, and rulemaking matters. Because FECA also requires commission membership representing more than one political party, achieving at least four agreeing votes is sometimes difficult, even with six members present. Vacancies make the task harder by reducing opportunities for a coalition of at least four votes.

The 2025 loss of the FEC's policymaking quorum marks the fourth such episode in the agency's history, and the first since 2020.

This report provides a brief overview of policymaking implications when fewer than four Federal Election Commissioners remain in office.² An Appendix provides historical information about vacancies and nominations activity that occurred between 2017 and 2020; some of that material was previously contained in the body of this report. Other CRS products provide additional information about campaign finance policy, the FEC, and procedural issues.³ This report does not provide legal analysis.

A Note on Terminology

The terms FEC, commission, and agency often—including in other CRS products—are used interchangeably to refer to the Federal Election Commission. Because this report emphasizes policymaking and enforcement duties specified in statute, it generally reserves commission to denote appointed members of the FEC, as opposed to agency staff. In this report, agency and FEC generally refer to the commission and staff collectively.

Recent Vacancies and Nomination Activity

Table 1 below reflects the latest action on FEC nominations, as of this writing.

Commission membership dropped from six to three between January and April 2025, resulting in a policymaking-quorum loss. Those vacancies developed, in chronological order, as follows:

• Commissioner Sean J. Cooksey resigned effective January 20, 2025, to serve as counsel to Vice President Vance.⁴ The Cooksey resignation did not affect the policymaking quorum, as five commissioners remained in office.
• Effective January 31, 2025, President Trump reportedly removed Commissioner Ellen L. Weintraub, who was serving as the commission chairperson.⁵ By February 7, 2025, the FEC website was updated to reflect two vacancies (for the Cooksey and Weintraub seats) on the commission, and four of six commissioners remaining in office.⁶ Commissioner Weintraub and some Members of Congress have argued that her dismissal is impermissible.⁷ Legal analysis of the dismissal dispute is beyond the scope of this report. Open commission meetings were canceled on February 13 and 27, 2025, and on March 13, 2025. Weintraub did not participate in subsequent open meetings, which began on March 27, 2025.⁸
• Commissioner Allen Dickerson resigned effective April 30, 2025, at the end of his term.⁹ Dickerson's resignation marked the departure of a third commissioner. With only three commissioners remaining in office (Shana M. Broussard, Dara Lindenbaum, and James E. "Trey" Trainor), the commission lost its policymaking quorum.

The current policymaking quorum loss is the fourth in the FEC's history. As discussed in the "Historical Note: Loss of Policymaking Quorum in 2008" section of this report, the first occurred in 2008. The Appendix discusses events surrounding the second and third quorum losses, which occurred in 2019 and 2020, respectively.

The Commission, Policymaking, and Appointments

Original, Invalidated Appointment Structure

Congress originally designed eight positions for the FEC: six commissioners and two nonvoting ex officio members (the Clerk of the House and Secretary of the Senate). Under that structure, two commissioners were appointed by the President, two by the President pro tempore of the Senate, and two by the Speaker of the House.

Two federal court decisions altered the FEC's original design. First and most significantly, in Buckley v. Valeo (1976) the Supreme Court of the United States invalidated the original appointments method, holding that congressional appointments violated the Constitution's Appointments Clause.¹⁰ Almost 20 years later, a federal court again found fault with the FEC's appointment structure. In 1993, the U.S. Court of Appeals for the District of Columbia held in FEC v. NRA Political Victory Fund that the presence of the two congressional ex officio members violated constitutional separation of powers.¹¹ Congress did not amend FECA responding to this decision, although the ex officio members are no longer appointed.

Current Appointment Structure

In a broad revision of FECA in 1976, undertaken in response to the Buckley decision, Congress adopted the current appointment method. Today, all commissioners are presidentially appointed subject to Senate advice and consent.¹² Members of the congressional leadership or committees of jurisdiction (the House Committee on House Administration and Senate Rules and Administration Committee) apparently continue to influence the appointment process.¹³

FECA specifies few qualifications for FEC commissioners, noting simply that they "shall be chosen on the basis of their experience, integrity, impartiality, and good judgment."¹⁴ As one former general counsel notes, although many commissioners are lawyers, "a commissioner does not have to be a lawyer and the commission has a long history of having non-lawyers serve as members."¹⁵ Commissioners typically have had experience as congressional staffers, political professionals, election lawyers, or some combination thereof.

Party Balance and Terms

No more than three commissioners may be affiliated with the same political party.¹⁶ In practice, the commission has been divided equally among Democrats and Republicans, although former Commissioner Steven Walther identified as an independent.¹⁷ FECA staggers commissioner terms so that two expire every other April 30 during odd-numbered years (e.g., 2023, 2025, etc.).¹⁸ This arrangement means that, at least as designed, two new commissioners would assume office biennially. However, the President is under no obligation to make biennial nominations.

Expired Terms and Holdover Status

Currently, FEC commissioners may be appointed to a single six-year term.¹⁹ As another CRS report explains, for some federal boards and commissions, including the FEC, "[a]n individual may be nominated and confirmed for a seat for the remainder of an unexpired term in order to replace an appointee who has resigned (or died). Alternatively, an individual might be nominated for an upcoming term with the expectation that the new term will be underway by the time of confirmation."²⁰ Some FEC commissioners have assumed office when the term to which they were appointed was well underway. For example, on June 24, 2008, the Senate confirmed Donald F. McGahn and Steven T. Walther to terms that expired just 10 months later, on April 30, 2009.²¹ Both continued serving in their seats past the expiration of their terms, although they could have been replaced through subsequent appointments.

These and other commissioners could remain in office because FECA provides that an FEC member may serve in "holdover" status, exercising full powers of the office, after his or her term expires "until his or her successor has taken office as a Commissioner."²²

At Least Four Agreeing Votes Required for Most Policymaking

FECA requires affirmative votes from at least four commissioners to authorize most policymaking or enforcement activity. In particular, this includes

• holding hearings;
• making, amending, or repealing rules;
• initiating litigation or defending the agency in litigation, including appeals;
• issuing advisory opinions;
• conducting investigations, and making referrals to other enforcement agencies;
• approving enforcement actions and audits; and
• issuing and amending forms (e.g., those used in the disclosure process).²³

Matters without at least four votes for or against an action can have the effect of leaving questions of law, regulation, or enforcement unresolved, as some view the issues in question as having been neither approved nor rejected.²⁴

When fewer than four commissioners remain in office, existing campaign law and regulation remain in effect. Agency staff and remaining commissioners may continue to provide general information, and to prepare for a repopulated commission. In addition, as explained below, the commission revised its internal procedures in 2007 to clarify functions during a quorum loss.

Historical Note: Loss of Policymaking Quorum in 2008

The FEC first lost its policymaking quorum in 2008. The 2008 episode arguably remains noteworthy because it provided the impetus for amending internal commission procedures concerning operations during a quorum loss. As in 2025, the 2008 quorum loss resulted from three commissioners departing in brief succession. Unlike in 2025, the 2008 instance involved expiring recess appointments. This section provides a brief historical overview.

Following expired recess appointments and amid ongoing Senate consideration of FEC nominations, the agency had just two commissioners for the first six months of 2008. In late 2007, in anticipation of only two commissioners remaining in office in 2008, commissioners amended the FEC's rules of internal procedure to permit executing some duties if the commission lost its four-member policymaking quorum. These revisions to the FEC's Directive 10 permit the commission to continue meeting with fewer than four members to approve general public information, such as educational guides; appoint certain staff; and approve other basic administrative and employment matters.²⁵

During the loss of the commission's policymaking quorum in 2008, the two remaining commissioners (David Mason (R) and Ellen Weintraub (D)) met publicly to discuss advisory opinions, but could not vote to approve or disapprove those opinions. At the time, the commissioners explained that although they recognized that the commission lacked a quorum, they were attempting to provide general feedback, particularly given the ongoing 2008 election cycle. That practice generated some controversy, however, as some practitioners contended that remaining commissioners did not have the authority to meet and provide guidance.²⁶ (The commission did not hold public discussions such as these during later quorum losses.)

After the Senate confirmed nominees in June 2008, the new commissioners faced a backlog of enforcement matters, litigation, advisory opinions, and rulemakings to implement portions of the Honest Leadership and Open Government Act of 2007 (HLOGA).²⁷ The commission returned to normal operations during the rest of 2008 and throughout 2009.

Concluding Comments

When the FEC loses its policymaking quorum, agency operations do not cease. The agency remains open for business with remaining commissioners and its regular staff. Previously authorized work requiring commission approval may continue. Although new enforcement or policy matters cannot advance until a quorum is reconstituted, a repopulated commission could, unless statutorily prohibited from doing so, consider older matters.²⁸ In addition, the Justice Department may pursue criminal enforcement on its own authority, regardless of the FEC's operating capacity for civil matters.²⁹

Appendix. Background on Circumstances Surrounding Vacancies and Nominations Between 2017 and 2020

As discussed in the body of this report, Federal Election Commission (FEC) membership fell below the level required for a quorum for the first time in 2008. In addition, several resignation and nomination events affecting the FEC occurred between 2017 and 2020, some of which affected eventual losses in the commission's policymaking quorum in 2019 and 2020. The FEC lost its policymaking quorum twice during this latter period: once, for approximately nine months, between August 2019 and June 2020, and a second time, for approximately six months, between July 2020 and December 2020. By December 2020, the commission's policymaking quorum was restored.

For historical reference, this Appendix contains information about how the 2017-2020 nominations activity led to or resolved quorum losses. Versions of this content were previously included in the body of this report. Previous versions of the report also contain additional historical discussion.³⁰

At the beginning of February 2017, the commission was at full membership. As discussed below, commission membership fell gradually throughout 2017 and 2019, which eventually resulted in the commission's second quorum loss. A quorum was briefly restored but then again lost. A quorum was restored in 2020 and held until the 2025 loss discussed in the body of this report.

• Effective February 28, 2017, Democratic Commissioner Ann M. Ravel resigned, leaving the commission with five members and thus maintaining its policymaking quorum.³¹
• On February 7, 2018, Republican Commissioner Lee Goodman announced his intention to resign, effective February 16, 2018.³² Once Goodman left the FEC, the commission had four remaining members and thus maintained its policymaking quorum.
• As discussed in more detail below, President Trump nominated James E. "Trey" Trainor III to Republican Commissioner Matthew S. Petersen's seat during the 115^th and 116^th Congresses. Petersen initially remained in office and resigned effective August 31, 2019.³³ With the Ravel, Goodman, and Petersen vacancies, the commission then dropped to three members, thus losing its policymaking quorum for the second time in the agency's history. The Senate confirmed Trainor to the Petersen seat on May 19, 2020. Trainor was sworn in on June 5, 2020, thus restoring the agency's policymaking quorum.³⁴
• Also as discussed below, the commission again lost its policymaking quorum effective July 3, 2020—the third such instance in FEC history—when Republican Commissioner Caroline C. Hunter resigned. As noted in the body of this report, the Senate subsequently confirmed Shana M. Broussard, Sean J. Cooksey, and Allen Dickerson in 2020, thus restoring the commission's policymaking quorum.³⁵

Background on Circumstances Surrounding the Petersen Vacancy

Commissioner Petersen's 2019 departure from the FEC ended a two-year period of uncertainty about when a vacancy in his seat might occur. A brief description appears below for historical reference.

• On September 11, 2017, President Trump nominated Petersen for a federal judgeship.³⁶ Petersen subsequently withdrew from consideration for the judgeship, reportedly writing, "until the time is otherwise appropriate, I look forward to returning to my duties at the Federal Election Commission."³⁷ Petersen remained on the commission in holdover status until his August 31, 2019, resignation.
• After Petersen was nominated to the federal judgeship,³⁸ but before he withdrew from consideration for that position, President Trump nominated a replacement for Petersen at the FEC. On September 14, 2017, President Trump nominated James E. "Trey" Trainor III to the Petersen seat. Petersen continued serving at the commission, and the Trainor nomination was returned to the President at the end of the first session of the 115^th Congress.³⁹ The White House resubmitted the nomination on January 8, 2018, at the start of the second session of the 115^th Congress, and the nomination was returned to the President at the end of the Congress.⁴⁰ The White House resubmitted the Trainor nomination at the beginning of the 116^th Congress and again early in the second session of the 116^th Congress.⁴¹ The Senate Rules and Administration Committee held a hearing on the Trainor nomination on March 10, 2020. It ordered the nomination reported favorably on May 7, 2020. The Senate confirmed Trainor to the seat on May 19, 2020.⁴²

Footnotes