As we highlighted in a prior post, in February, President Trump signed an executive order that expanded the President’s authority over independent agencies within the executive branch that could have important effects on future rulemakings and advisory opinions from the Federal Election Commission (FEC or “Commission”).  In particular, we observed that the order provides that only the President and Attorney General may give “authoritative interpretations of law for the executive branch,” which could affect the FEC’s ability to issue binding advisory opinions on questions of law under the agency’s jurisdiction. 

In the days following the February order, the Democratic national party committees challenged the order, seeking a declaratory judgment that the provision authorizing the President and Attorney General to issue controlling interpretations of federal law undermine the independence of the FEC in contravention of the Federal Election Campaign Act.  Earlier this week, the U.S. District Court for the District of Columbia dismissed the committees’ challenge on both standing and ripeness grounds. 

Though the Court found that the present challenge was premature, the litigation elicited noteworthy representations from the government defendants regarding the application of the order with respect to federal election law.  In particular, counsel for the President and Attorney General “offer[ed] affirmative representations to the Court that they have not attempted to apply—and they are aware of no indication there ever will be an attempt to apply—the executive order to dictate or influence the FEC’s interpretations of FECA.”  Likewise, counsel for the FEC represented that “the agency and its Commissioners would not understand directives received from the President or Attorney General to interfere with the Commissioners’ independent judgment or how they vote.” 

Relying on these representations, and absent any allegations to the contrary, the Court rejected the committees’ request for declaratory relief.  Importantly, however, counsel for the President and Attorney General “acknowledged that if they were to issue an opinion that purported to control an interpretation of FECA that conflicts with the FEC’s interpretation,” this would be sufficient to support Article III standing.  Indeed, even “the announcement of a specific intent to issue such an opinion” would be sufficient to allow for litigation to proceed.  To be clear, the government did not concede that any dispute between the President or Attorney General and the FEC regarding an interpretation of federal election law must be resolved in favor of the FEC.  Nonetheless, these representations provide some assurance that challenges arising out of any such dispute will be permitted to proceed.