It is uncontroversial that the Federal Election Commission fails to enforce campaign finance law adequately. This Note contributes to this discussion by analyzing more than four thousand summaries of standard enforcement proceedings to demonstrate the distribution of enforcement at the Federal Election Commission. This analysis indicates that the percentage of internally generated standard enforcement proceedings has declined precipitously, while the number of standard enforcement proceedings initiated each year has remained relatively constant. At present, the agency initiates very few standard enforcement proceedings.
Instead, third-party enforcers fill the enforcement void. Third-party enforcers are members of the public that monitor political actors to detect and subsequently enforce campaign finance violations informally and formally. Often, these third-party enforcers are political actors themselves motivated by the pursuit of partisan political gain. Third-party enforcers can enforce serious campaign finance violations because of robust disclosure law and recent technological advancements that have rendered campaign finance information readily accessible to the public for the first time.
In light of these changes, this Note evaluates the literature on third-party enforcement of campaign finance violations. This Note finds that the highly critical literature overlooks many of the benefits of third-party enforcement. While the practice has drawbacks, third-party enforcement is a much more forceful deterrent to potential violators than internally generated enforcement. Consequently, this Note argues that third-party enforcement advances fair federal elections, and the Federal Election Commission should alter its Enforcement Priority System to capitalize on third-party enforcement and improve enforcement at the agency overall.
Chelsea Cooper, The Unlikely Heroes of Fair Elections: Contemporary Third-Party Enforcement of Campaign Finance Violations, 71 Duke L.J. 167-207 (2021)
Available at: https://scholarship.law.duke.edu/dlj/vol71/iss1/8