Hypocrisy is so commonplace in politics that it takes a truly brazen example to be noteworthy. Enter Trevor Potter and Adav Noti, two campaign finance crusaders who spent years demanding a more “decisive” Federal Election Commission — right up until the moment President Donald Trump won his second term. Now, these so-called “reformers” have suddenly discovered the virtues of bipartisan enforcement.

What makes this paralysis possible, and why have Potter and Noti suddenly embraced it after decades of criticism? To explain, let’s examine the origins of the FEC.

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Since its creation in 1975, the FEC has consisted of six members, evenly split between the Republican and Democratic parties. Four votes, that is to say, some measure of bipartisan agreement, are necessary for the commission to undertake enforcement actions.

The result of this structure is that the commission will deadlock 3-3 on a small number of matters. And it is a small number — typically less than 5% of substantive votes, although on rare occasions in the agency’s 50-year history, the percentage of tie votes has risen to the 20 to 30% range. Even when these deadlocks are along party lines, the primary motivation for the tie is disagreement over the meaning of the law, rather than partisan favoritism.

That’s an important distinction. It has not been uncommon to see three Republican commissioners adopt a less regulatory interpretation that lets a Democratic politician or organization off the hook, while the Democratic commissioners, committed to a more regulatory interpretation of the law, vote for further action by the commission in the same case.

A perpetual demand from so-called campaign finance reformers — really speech censors, as their fundamental aim is to limit and control campaign speech — has been for Congress to end these deadlocks. What solution do they offer to combat this alleged problem? Junk the current setup and replace it with a five-member commission, effectively placing the agency under the partisan control of the appointing president.  

Among the leaders of this effort have been Potter and Noti, currently the president and executive director of the pro-“reform” Campaign Legal Center. In 2021, for example, Potter, a former FEC commissioner, wrote to Congress to endorse HR 1 and S1, the For the People Act that the Democratic Party had made its top legislative priority. Potter specifically endorsed “changing the number of FEC Commissioners to an odd number, and allowing the President to nominate one of those Commissioners as a chair with broad powers to manage the agency.” Similarly, in 2020, Noti, then working for the Brennan Center for Justice, wrote, “To reduce gridlock and allow for decisive policymaking, Congress should change the Commission’s structure to give it an odd number of five commissioners.”

This is a terrible idea for obvious reasons: A president should not be allowed to place election enforcement under effective partisan control by appointing a majority to the panel. As the late Sen. Alan Cranston (D-CA) warned during debate on legislation creating the agency, “We must not allow the FEC to become a tool for harassment by future imperial Presidents. … The FEC has such a potential for abuse in our democratic society that the President should not be given power over the Commission.”

Thus, we were intrigued by a revealing piece that Potter and Noti recently published in the Fulcrum. Titled “The FEC Can’t Do Anything. Congress Should Leave It That Way,” the op-ed notes that the resignation of Republican Commissioner Allen Dickerson at the end of April, following departures earlier this year by Commissioners Sean Cooksey and Ellen Weintraub, left the agency only three members, less than a quorum.

Without that quorum, the commission cannot hold hearings, issue rules, or enforce campaign finance laws and regulations. But this temporary loss of a quorum is not unprecedented, nor particularly problematic. The laws remain in effect and may be enforced once a quorum is restored. Moreover, lack of quorum does not affect Department of Justice criminal enforcement, so this is hardly a green light to ignore the law.

But rather than restore a quorum, Potter and Noti now want the FEC seats left open, preventing the FEC from doing anything for an indefinite period. They write, “America faces an unfortunate choice: We can have an FEC that does nothing, or an FEC that President Trump wields as a partisan weapon against his political opponents.” At no point during their fearmongering, however, do Potter and Noti explain how Trump could “weaponize” the FEC. Since no more than three Republicans can serve on the agency, where would Trump get a fourth vote to punish Democrats?

MOST FEC WORK ON PAUSE WITHOUT A QUORUM

But the mere fact that Potter and Noti fear an FEC dominated by Trump appointees illustrates why proposals to give the commission an odd number of commissioners, effectively putting it under the control of whoever is the president at the time, is a huge mistake. Potter and Noti were fine with the idea when it looked like a Joe Biden or another Democratic president would do the appointing. Not so much if Trump is president. The lack of authenticity is palpable, and the hackery is on full display. 

Those who want to put a stop to “lawfare” — using the law in a partisan fashion to harass one’s opponents — should remember this episode the next time the “campaign finance reform community” goes on the warpath for “decisive” policy and “robust” enforcement.

Bradley Smith is the chairman of the Institute for Free Speech and a former chairman of the Federal Election Commission. David Keating is the president of the Institute for Free Speech.