[EL] HuffPost: FEC enforcement "gag" order

[David Mason]

Having operated under the strictures of Directive 10 when there were only 2
Commissioners, I'd suggest that one question is whether the Commission has
the authority to alter vote requirements specified in the statute.

If the statute says simple majority for actions other than those enumerated
in 437c, does the Commission have the authority to require a unanimous
vote, or 5 votes, or 4 instead?

And if a prior Commission has engaged in an ultra vires act to attempt to
impose such a requirement, would a current group of Commissioners be
justified in invoke the "nuclear option" to prevent a minority from
obstructing business?

Dave Mason


On Wed, Jul 24, 2013 at 8:30 AM, Steve Kolbert <steve.kolbert at gmail.com>wrote:

> 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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