The Keepers
Chapter 21 of The Briefing: Tom Emmer (R-MN-06), Part Six — The Agreement.
The Federal Election Commission has six members. By law, no more than three may belong to the same political party. Enforcement requires four votes. Three commissioners vote yes. Three vote no. Nothing happens.
In one case — a $250,000 contribution to a super PAC from a federal contractor — all six commissioners agreed the money was unlawful. Not disputed. The question was only whether to enforce the law. Three voted yes. Three voted no. The case was dismissed. The money stayed where it was.
The deadlock rate on enforcement votes was 2.9% in 2006. By 2016 it had reached 30%. By the end of that decade it was approaching 40%. In the same period, the annual penalties the Commission collected dropped from $1.4 million to $70,200. Cases open. Timelines stretch. By the time a matter reaches a vote, the election that gave rise to it has long since passed.
In the decade following Citizens United, the Commission did not successfully penalize a single candidate or super PAC for illegal coordination. The one enforcement action that came closest — a $14,500 fine for a reporting violation, not coordination — happened only because a federal court ordered the Commission to reopen the case.
Both parties built these institutions. Both benefit from their weakness.
Congress created a second referee in 2008 — the Office of Congressional Ethics, the only external body authorized to investigate sitting members of Congress. Nine years later, before the 115th Congress was sworn in, the House Republican Conference voted 119 to 74 in a closed session to gut it. Republicans argued the office lacked due process protections and had been used to harass members with anonymous complaints. The vote was secret. A day later, after public backlash, it was reversed. The incoming president tweeted: "With all that Congress has to work on, do they really have to make the weakening of the Independent Ethics Watchdog, as unfair as it may be, their number one act and priority." The timing was wrong. Not the change — the timing.
The Office survived.
Congress also gave itself a trading rule. The STOCK Act, passed in 2012, requires members to report any financial transaction above $1,000 within 45 days. The penalty for missing the deadline: $200. Congress set that number and has not changed it. More than 54 members and 182 senior staffers have violated the requirement since the law passed. The fine costs less than a round-trip flight. The congressman has filed zero stock transaction reports. His sole disclosed investment — a managed IRA — does not require them.
Tom Emmer of Minnesota’s Sixth District sits on this committee. His seat oversees the industries that are his top career donors: securities, insurance, and cryptocurrency. No House rule requires a member to recuse himself from a vote touching the industries that funded his campaign.
Investigating how cryptocurrency companies comply with securities law is not inherently improper. Members of Congress have authority to shape regulatory priorities, including by restricting agency budgets. Republicans have argued for years that the SEC under its recent leadership overstepped its mandate and treated rule-making as prosecution.
An appropriations rider restricted SEC cryptocurrency enforcement while the agency had an active case against one of the congressman’s largest donors. The rider passed through this same structure.
The policy argument and the donor relationship point in the same direction. There is no rule requiring them to be separated, and none was proposed.
Thirty-eight of his bills use titles with words like "protection," "reform," "stability," or "accountability" — bills like the Financial Stability Oversight Council Reform Act, which addressed the oversight of banks, not of Congress. None address the ethics or campaign finance rules that govern his own office.
The case where all six commissioners agreed the money was unlawful ended the same way. They agreed on the facts. Three voted to enforce the law. Three voted not to. The case was dismissed.
Sources
Federal Election Commission Act (52 U.S.C. §30106); FEC enforcement records and MUR case files; STOCK Act (5 U.S.C. App. §103); House Ethics Manual; Ethics in Government Act; Congress.gov BILLSTATUS data; published reporting and analysis (Issue One, Campaign Legal Center, CREW, Brennan Center, Insider).