Over the past 10 days, the FEC has been quietly exercising authority reserved for when at least four Commissioners vote in favor of an action.  Since July 3, however, the FEC has only had three Commissioners.  This activity raises consequential questions about the FEC’s ability to act without a quorum, and presents important concerns about the Commission’s use of its investigatory and enforcement powers.

On May 19, Trey Trainor was confirmed by the Senate as an FEC Commissioner, restoring a quorum to the agency for the first time since the previous summer.  As a result, the Commission regained the ability to promulgate rules and vote on enforcement matters, among other actions, which require the affirmative vote of four Commissioners.  Then, on June 26, Commissioner Caroline Hunter announced her resignation, effective July 3.  The Commission has been without a quorum since that date.

On August 14, however, the Commission released ten closed enforcement matters; closing an enforcement matter is an act that requires the vote of four Commissioners.  On August 21, the Commission released eight more closed enforcement matters.  In each, former Commissioner Hunter was one of the four authorizing votes.  Among the 18 matters, all but three were reported as having been voted on after her resignation on July 3.

Without a quorum, the Commission appears to be exercising its powers under a dubious legal theory.  To exercise many of its powers, the FEC requires an affirmative vote of at least four Commissioners.  The regulations, however, do not explicitly require those votes to be cast at the same time, and the Commission has a past practice of circulating matters among the Commissioners for a written vote.  In other words, Commissioners Walther, Hunter, and Weintraub could have voted unanimously in a matter before Trainor’s appointment.  If Commissioner Trainor now votes in line with the other three, the FEC seems to be taking the position that this constitutes the requisite fourth vote to exercise any number of the Commission’s powers, even though Hunter is no longer a Commissioner.  Similarly, the FEC may be relying on votes taken during the few weeks between Commissioner Trainor’s confirmation and Commissioner Hunter’s resignation, but formally certified after her departure to take action reserved for when the Commission has four votes.  In the recently released MURs, the FEC appears to be acting under one or both scenarios.

In each of the 18 closed MURs, Commissioners Hunter, Trainor, Walther, and Weintraub voted in favor of closing the matter.  In three—MUR #7011 (HC4President), MUR #7092 (Social Responsible Government), and MUR #7673 (Raul Campillo for City Council District 7 2020)—the Commission voted before Commissioner Hunter’s resignation, when all four voting Commissioners were actually serving as Commissioners.  The certification letter for MUR #7673 was signed on July 1, 2020, when Hunter was still a Commissioner.  As a result, that act appears to be valid.  The certification letter for MUR #7011 and MUR #7092, however, was not signed by the FEC’s Acting Secretary until July 20, seventeen days after Commissioner Hunter had resigned.  In the remaining 15 MURs, the Commission voted between July 15 and July 24, 2020, after Commissioner Hunter had resigned.

Other than MUR #7673, the Commission’s actions are likely unlawful.  In 2019, the Supreme Court heard a challenge to the decision of the Ninth Circuit to issue an en banc majority opinion authored by Judge Reinhardt eleven days after his death.  The Ninth Circuit justified release of the opinion by noting that “the majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.”  Rizo v. Yovino, 887 F.3d, 453, 455 (9th Cir. 2018).  The Supreme Court, however, vacated the opinion, finding that a judge cannot exercise “the judicial power of the United States after [] death.”  Yovino v. Rizo, 139 S.Ct. 706, 710 (2019).  To emphasize the point, the Court observed that “federal judges are appointed for life, not for eternity.”  Id.

Any distinction to be made between federal judges and FEC Commissioners only serves to strengthen the argument against the ongoing validity of Commissioner Hunter’s vote after she left the agency in order to establish the necessary four votes.  Unlike federal judges, Commissioners are not appointed for life but for a comparatively diminutive single, six-year term.  The term of appointments for FEC Commissioners suggests that individual Commissioners are not intended to have a lasting impact on the affairs of the agency.  If the efficacy of the vote of a lifetime appointed judge only persists so long as the judge is alive, so too must the vitality of a Commissioner’s vote be limited to the Commissioner’s time at the FEC.

The Yovino analysis suggests that the 15 MURs that were voted on and certified after Commissioner Hunter’s resignation are invalid.  There is a compelling argument that Yovino’s analysis applies with equal force to MURs #7011 and #7092.  While the Commission voted on the two MURs on June 26th, the certification letter was not signed until July 20, after Commissioner Hunter’s resignation.  Executing the certification letter after Commissioner Hunter had left the FEC puts the decision in a situation similar to Judge Reinhardt having cast a vote and authored a majority opinion while alive and serving as a judge, but having the decision vacated because the opinion was filed after he died.

The legal justification for releasing MURs #7011 and #7092 after Commissioner Hunter’s resignation is analogous to the Ninth Circuit’s reasoning in Yovino: “The justification suggested [] is that the votes and opinions in the en banc case were inalterably fixed at least 12 days prior to the date on which the decision was ‘filed,’ entered on the docket, and released to the public.”  Id. at 708.  The Supreme Court, however, rejected this justification as “inconsistent with well-established judicial practice, federal statutory law, and judicial precedent.”  Id.

The FEC’s actions may have implications beyond these MURs.  In May, the Commission reported a backlog of more than three-hundred cases awaiting enforcement decisions.  Among those, nearly one hundred are approaching the five-year statute of limitations. Because on-going enforcement actions are confidential, it is not clear if the FEC is taking the position that Commissioner Hunter’s votes to begin an investigation or proceed in enforcement actions also have a life beyond her tenure at the agency.  Were this to be true, individuals and companies subject to FEC scrutiny should be aware of Yovino’s implications on any adverse action that the Commission exercises without a quorum.