[EL] FEC votes, 437c(c) -- "majority vote" vs "affirmative vote of four members of the Commission"

[Steve Kolbert]

This NYTimes editorial, "Sabotage at the Election Commission," claims that
the three GOP commissioners have been planning to pass some of their
proposals on a 3-2 vote.
http://www.nytimes.com/2013/07/06/opinion/sabotage-at-the-election-commission.html

I haven't been following the substance of the proposals, but I'm curious
about the procedure: when there are only five members  of the FEC (as now),
what, if anything, can three commissioners pass over the objections of the
other two?

It had always been my understanding that any vote the Commission held could
not carry unless supported by four votes (i.e. a "majority" 3-2 vote in
favor still fails, for failure to attract a 4th vote) -- but I hadn't
really given it much thought. Then I read the first sentence of 2 USC
437c(c): "All decisions of the Commission with respect to the exercise of
its duties and powers under the provisions of this Act shall be made by a
majority vote of the members of the Commission." That language would seem
to authorize at least some action on a 3-2 vote, when there are only five
sitting commissioners.

That said, 437c(c) goes on to explicitly require four affirmative votes to
exercise the Commission powers listed in 437d(6)-(9). Those powers include,
for instance, the power to issue advisory opinions, engage in civil
litigation, or conduct APA rulemaking. Other provisions of FECA also
require compliance with this four-affirmative-votes standard. See, e.g., 2
USC 437g, 438.

But there are plenty of Commission powers (comparatively minor powers) for
which the statute does NOT (at least explicitly) require four votes. For
instance, it appears that the statute permits the chair or vice-chair to
issue a subpoena without reaching the four-vote threshold, see 2 USC
437d(a)(3). Similarly, there appears to be no statutory "four votes"
requirement for the Commission's power to "prepare written rules for the
conduct of its activities," 2 USC 437c(e).

Can anyone shed some light on the editorial's claim? Can a
three-commissioner majority pass any of the upcoming proposals (or anything
else)?

Steve Kolbert
(202) 422-2588
steve.kolbert at gmail.com
@Pronounce_the_T
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