The Office of the Law Revision Counsel, the keepers of the official U.S. Code, recently announced that voting and election provisions currently located in titles 2 and 42 (including FECA) will soon be transferred to a new title 52. The official conversion table can be found here. The Office has this to say about the move:
The transfers are necessary and desirable to create a well organized, coherent structure for this body of law and to improve the overall organization of the United States Code. No statutory text is altered. The provisions are merely being relocated from one place to another in the Code.
The decision to transfer provisions in the United States Code is taken very seriously. After careful study, the Office of the Law Revision Counsel has concluded that certain organizational deficiencies in the Code must be corrected. The short-term inconvenience of adjusting to new Code citations is greatly outweighed by the benefit of making much needed long-term improvements in the organizational structure of the Code.
It is not clear what went into the Office’s “careful study.” In 2009, the Office recommended that Congress pass title 52—containing a similar collection of voting and election provisions—as positive law. Read more about positive law codification here. This recommendation never went very far—the Office’s website states that the bill was delivered to the Committee on the Judiciary on February 7, 2009, but did not get introduced. The Office accepted questions and comments about the title 52 codification project at that time.
The current effort to move FECA and other provisions to title 52 is an “editorial reclassification,” which is a less involved process than positive law codification. Code provisions are merely transported to a different location in the Code without any change in statutory text. Though the Office’s website states that the public can send the Office comments and questions on the editorial reclassification that will move FECA to title 52, there is no indication that this move is up for debate. The website simply states that the move will happen on September 1 and does not make this conditional on any other event.
The description of this move as a “short-term inconvenience” might be a bit short-sighted. For example, the need to update current references to title 2 in FEC regulations and guidance documents alone would appear to be a potentially costly and time consuming endeavor. And the need to translate title 2 references when citing pre-2014 court opinions or FEC advisory opinions will certainly be a long-term chore.
We will keep an eye on the process to move FECA to its new location. In the meantime, start preparing to update your 441b talking points to 52 U.S.C. § 30118.