Will Biden Destroy the FEC?

It's no secret that the Biden Administration and Democrat members of Congress are trying to radically change the Federal Election Commission and campaign finance law through the so-called "For the People Act" (see prior blogs here, here, and here), but the Biden Administration is making plans to change the dynamic of the FEC in the likely event that the legislation doesn't pass the Senate. In a memo obtained by Axios, the Biden Administration lays out its plan to sidestep Republican input on nominees to the body and make the FEC more "pro-enforcement." 

Republican Sean Cooksey's term as commissioner expires next month. Why is it so concerning that the Biden Administration would replace him with someone who is "pro-enforcement?" We want the law to be enforced, right? Unfortunately, the Democrat idea of "enforcement" would likely result in infringing on Americans' freedom of speech by increasing regulation of "political money." 

As former FEC Chairman Brad Smith wrote in 2019 in response to the original proposal to make the FEC a partisan tool:

 If you’re a Democrat, do you think Donald Trump should be able to appoint a campaign speech czar to determine and enforce the rules on political campaigns? And if you’re a Republican, would you have wanted those rules enforced by a partisan selected by Barack Obama?

Of course not. That’s why for over 40 years, Republicans and Democrats have agreed that campaign regulations should be enforced by an independent, bipartisan agency. The Watergate scandal that forced Richard Nixon to resign the presidency showed the dangers of allowing one party to use the power of government against the other.

The memo made it very clear that the Biden Administration will avoid consulting with Republicans on Cooksey's replacement at all costs. It may seem strange for the President to consult with the opposing party, but as Axios notes, this is in line with current protocol for FEC nominations:

The protocol establishes that presidents consult with the Senate leaders of both parties and nominate FEC commissioners based on their recommendations. Enacting a proposal such as this would blow up that precedent.

The memo laid out three options to achieve the Administration's objective of sidestepping Republican input: 

President appoints a Democrat and a pro-enforcement Republican to the Commission without consulting Senate GOP leadership. . . 

President appoints a Democrat and a pro­ enforcement independent - or two pro­enforcement independents - to the Commission after consulting independent Sens. King & Sanders on the independent(s). . .

President appoints a Democrat and a pro-enforcement independent to the Commission without opposing-party consults.

All seats on the Commission were filled late last year for the first time since 2017 and now Biden may forever break the FEC.