[EL] HuffPost: FEC enforcement "gag" order

[Steve Kolbert]

Curiously absent from this discussion is any mention of the FEC's the
agency's internal parliamentary procedures adopted pursuant to 2 U.S.C. §
437c(e), known as "Directive 10." See Rules of Procedure, 73 Fed. Reg. 5568
(Jan. 30, 2008).

Directive 10 does, in fact, explicitly impose a four-member quorum
requirement on the Commission. See Directive 10(B), (D)(2); see also New
Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010) (holding, in
possibly-distinguishable circumstances, that an agency may not act absent a
quorum). Accordingly, the boycott-tomorrow's-meeting proposal would
certainly succeed at blocking any Commission action tomorrow by leaving the
Commission short of the four-member minimum under Directive 10. (Unless
there's a realistic counter-argument I'm not seeing?)

Perhaps even more interesting, though, is that Directive 10 also explicitly
imposes a FOUR-VOTE majority requirement on "any principal or secondary
motion that exercises a duty or power of the Commission under the Act." See
Directive 10(E)(3). Directive 10 imposes the four-vote requirement on votes
even if they are not enumerated in the § 437c(c) list of four-votes-only
powers. For instance, the authority to "prepare written rules for the
conduct of [the Commission's] activities" under § 437c(e) is not so
enumerated as requiring four votes, but Directive 10 would still apply a
four-vote threshold. Accordingly, it's possible that a boycott might not
even be necessary: a vote to adopt the proposed enforcement procedure
changes would be an exercise the Commission's § 437c(e) power; if that vote
result was 3-2 in favor, the vote could FAIL for lack of a fourth vote as
required by Directive 10.

That said, I'm sure list members can think of a few arguments why Directive
10 should not or can not apply to tomorrow's vote on the enforcement
procedures. I can think of a couple potential arguments already -- and
potential responses. Of course, as the Commission's current Chair,
Commissioner Weintraub (D) makes the procedural rulings on such arguments.
But the GOP commissioners can always appeal from the Chair's ruling;
appeals from procedural rulings are subject only to a three-vote majority
threshold. See Directive 10(I), (K).

Bottom line: Unless I'm missing something, the quorum issue seems rather
clear, but the vote threshold matter seems more murky. Hope this was
helpful or interesting.

Steve Kolbert
(202) 422-2588
steve.kolbert at gmail.com
@Pronounce_the_T
 On Tue, Jul 23, 2013 at 10:44 PM, Smith, Brad <BSmith at law.capital.edu>wrote:

>  That's because the statute requires "the affirmative votes of 4
> commissioners" to approve advisory opinions. But that is not relevant to a
> quorum question. Again, the statute specifically says that the votes of a
> majority of the commission are sufficient for actions other than those
> under 437d(a) (6)-(9), which require 4 votes. Thus it would appear that a
> 3-2 vote (or 3-0 vote) suffices for the administrative matters on
> Thursday's agenda.
>
>  In other words, when their were just two commissioners, and both
> attended, they would constitute a majority of the Commission and could take
> certain actions. They could not issue advisory opinions or make RTB
> findings, authorize an investigation, or refer matters to law enforcement
> agencies and such because those tasks specifically require 4 votes (not a
> "majority', but "4").
>
>  *Bradley A. Smith*
>
> *Josiah H. Blackmore II/Shirley M. Nault*
>
> *   Professor of Law*
>
> *Capital University Law School*
>
> *303 E. Broad St.*
>
> *Columbus, OH 43215*
>
> *614.236.6317*
>
> *http://law.capital.edu/faculty/bios/bsmith.aspx*
>
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