Subject: FEC Commissioner Mason responds to some listserv comments
From: Rick Hasen
Date: 1/30/2004, 1:17 PM
To: election-law
CC: dmason@fec.gov

-------- Original Message --------
Subject: post if/as you wish
Date: Fri, 30 Jan 2004 16:06:04 -0500
From: dmason@fec.gov
To: rick.hasen@lls.edu




Thanks to Roy Schotland for setting the record straight on FEC Commissioner
comments on pending rulemakings.  These are proceedings that require public
comment, it would be odd if Commissioners could not also comment in public
as well.  For comparison purposes check the web sites of other federal
administrative agencies to see commissioners' speeches on pending
rulemakings and policy issues before their commissions on prominent topics
such as media ownership restrictions and the do not call list.

Regarding documents on the FEC web site, they are actually posted quickly,
though I admit you have to know where to look (we're working on making it
easier to find things).  Open meeting documents are posted at
http://www.fec.gov/agendas.html.

Regarding challenging Advisory Opinions, there is support for the
proposition that AOs themselves are not reviewable.  For instance, US
Defense Committee v. FEC, 861 F.2nd 765 (2nd Cir. 1988) held that AOs were
not reviewable.  NCPAC v. FEC 2 Fed. Elec. Camp. Fin. Guide (CCH) 9057 (DDC
1978), aff'd 626 F.2nd 953 (DC Cir 1980) holds likewise.  Plaintiffs may,
however, bring challenges to the underlying regulations or law based on
interpretations thereof in advisory opinions Sierra Club v. FEC, 593 F.
Supp. 166 (DDC), rev'd mem. (DC Cir 1984), on remand (DDC Nov 5,
1984)(unpublished).  Courts have held that failure to request an advisory
opinion can represent a failure to exhaust administrative remedies.
Anderson v. FEC, 634 F.2nd 3 (1st Cir 1980) (en banc), Faucher v. FEC, 708
F.Supp. 9 (D. Me. 1989).  Generally, courts have given Chevron-type
deference to FEC interpretations of the statute and its regulations
expressed in advisory opinions, Sierra Club, FEC v. Haley 852 F.2nd 1111
(9th Cir. 1988).