Among the alphabet soup of federal agencies are many whose existence is never much considered—until they are needed.
No one thinks about the Federal Emergency Management Agency until there’s a hurricane.
Right now, we’re in the middle of a political hurricane. And it may be up to the usually obscure Federal Election Commission to see us safely through.
The hurricane is the unprecedented interference in our democratic election by the Russian government.
It’s not controversial that Russia sought to influence our presidential election: seventeen federal intelligence agencies have already confirmed it. Among other things, over the summer of 2016, the FBI and state election agencies detected Russian cyber-intrusion into voter registration systems.
That same summer, a Kremlin-linked hacking operation gained unauthorized access to Democratic Party email accounts, and distributed them to WikiLeaks.
It’s quite possibly the most effective foreign “active measures” operation ever conducted against the United States. What remains to be determined is whether, and how deeply, members of the Trump campaign were involved in the scheme.
Perhaps counterintuitively, the best way to investigate that question may not lie in counterintelligence or criminal conspiracy law. Just as Al Capone was done in by income taxes, the key to this puzzle may lie in the mundane obligations of campaign finance laws.
That’s where the Federal Election Commission comes in. Created by Congress in 1975, the FEC is an independent commission charged with investigating and enforcing violations of our nation’s campaign finance laws. It has broad investigative powers, including the ability to subpoena witnesses and documents and to compel testimony.
Notably, it is both bipartisan (by law, no more than three of its six members may be from the same political party) and independent (its members do not report to the President nor Congressional leaders).
Federal campaign finance law prohibits a “foreign national” (such as the Russian government) from spending money to influence U.S. elections. And it also provides that if a political campaign “coordinates” with anyone outside the campaign who is spending money to influence the election, then the campaign would have to treat the outside money as in-kind contributions (which, from a foreign government, are illegal), and report them on federal disclosure forms.
In this case, it would violate at least three different campaign finance laws if Trump campaign advisors coordinated with the Russian government.
The issue for the FEC is not whether Trump's campaign made promises in exchange for Russian assistance, nor whether Russian activity swayed the election. The questions for the FEC are much narrower:
(1) Were Russian-funded campaign communications made at the request or suggestion of the campaign, or (2) did campaign advisors fail to observe a strict 120-day waiting period between working for the Trump campaign and the Russian government?
Either would constitute “ coordination ” of campaign communications under campaign finance law.
Now, two non-partisan watchdog organizations, Free Speech For People and Campaign for Accountability, have filed a complaint with the FEC against the Trump campaign and the Russian government raising exactly these questions. This filing creates a legal obligation for the FEC to analyze whether there is “reason to believe” that there was a violation of federal campaign finance law.
The challenge for the FEC is that while the nature of the violation is simple, the extent and nature of the investigation is on a scale far beyond what it has handled in the past. And unfortunately, the FEC has itself been the victim of neglect: it is short by one member (a Democrat), and the other five are serving on a temporary basis, years after their original terms expired.
(Four, including both Democrats, were appointed by President George W. Bush; the fifth, a Republican, was appointed by President Obama.) And in recent years it has acquired a reputation for delay, dysfunction and deadlock.
The alternatives, however, are less than ideal. Although the FBI recently confirmed that its investigation is ongoing, that inquiry is complicated—some would say compromised—in multiple ways, not least by the recusal of the Attorney General himself.
In theory, Congress has the resources and credibility to run an independent investigation. But so far it has not had the will. House efforts have fizzled or devolved into partisanship, and the Senate investigation does not even have permanent staff assigned.
The allegations of Russian interference in the 2016 election, with the potential coordination of Trump campaign advisors, represents the greatest threat to the integrity of our elections that the nation has ever seen.
So if the FEC can rise to the challenge, this could be its finest hour. For what may be the most explosive investigation in American history, the FEC may not be the bipartisan investigative body that America deserves. But it may be the one we need right now.