FEC Continues to Abdicate Duties with EMILY's List Decision: Statement of the CLC

CLC Staff
Oct 22, 2009
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Three Commissioners have announced their refusal to seek higher judicial review of a court decision declaring FEC regulations unconstitutional. This is a sad dereliction of their duties, though not a surprising one given their history of placing their own personal views and philosophy ahead of the statute and regulations they are obliged to enforce by virtue of holding office as Commissioners.

The regulations at issue were validly enacted by the Commission--though not by these three Commissioners, who clearly would not have voted for them. However, having been approved by a majority of the then-serving Commissioners, and duly published, they become legally binding and the Commissioner's obligation is to defend the agency's regulations, and to seek en banc and/or Supreme Court review, so that the highest-possible definitive judicial decision can be obtained.

Even in cases where Commissioners personally believe the regulations are unconstitutional, the issues are important and deserve full consideration by the entire court of appeals. That is especially true in case like this, where the panel decision decided issues not before the court and not fully briefed and argued by the parties to the case. Ultimately, any appeal to the Supreme Court in this case would be more fully developed if such an en banc review had taken place.

We are deeply disappointed that the three Republican Commissioners have rejected their own General Counsel's recommendation and have voted to block further review of a decision by the panel that declared important FEC regulations unconstitutional. It appears these Commissioners are under the false impression that they have been appointed to the federal bench, and given the power to rule on the constitutionality of federal laws and regulations, rather than being paid by a government agency to represent its interests. This placement of their personal views ahead of their responsibilities to their agency, and the resulting creation of yet another 3-3 deadlock at the FEC, only points up their failure to properly carry out their official duties.

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