No influence over either the sword or the purse (Federalist 78)

Both National Public Radio and the Wall Street Journal report on a District Court ruling that takes the Federal Elections Commission (FEC) to task for overstepping its powers.  In Chris Van Hollen, Jr v. FEC (Civil Action No. 11-0766(ABJ)), Judge Amy Berman Jackson says, “In other words, the agency did not purport to be responding to a direct delegation of rule-making authority or addressing an ambiguity inherent in the statutory scheme: it specifically undertook to modify existing law to fit the changed circumstances.”  It matters not that the agency promulgated its new rules to reflect a Supreme Court decision[1]; the law is clear and the agency does not have the power to alter it via bureaucratic regulation.  This opinion makes clear that the FEC violated a federal statute[2] and the rule is no longer valid.

A loss for a federal agency in federal court may not be earth-shattering news—after all there is a great deal of litigation involving challenges to various federal regulations.  The agency now has two choices.  It could appeal the loss to the Court of Appeals for the District of Columbia or it could comply with Judge Jackson’s order and rescind its rule.  And here is the tricky part, as noted by both NPR and WSJ, either action requires a majority vote (4 of 6) of the commissioners on the FEC.  By statute, the six commissioners are bipartisan.  As the FEC website notes, “The six Commissioners, no more than three of whom may represent the same political party, are appointed by the President and confirmed by the Senate.”[3]  Controversy at the FEC, notes NPR’s Peter Overby, “…often end in a 3-to-3 deadlock.”[4]

If this decision results in a stalemate, there is little the courts can do.  The District Court has issued an order, but it cannot enforce that order without the help of the commissioners.  If the commissioners do not agree or half of the commission does not agree with the decision, the order is without affect.  Similarly, if half the commission rejects the idea of an appeal, the Court of Appeals, or even the Supreme Court, cannot review the decision.  The rule will remain in effect–a decision of the judiciary notwithstanding.  This situation, among others, provides a very clear example of how the structure of the judiciary and the laws designed by Congress, at times, do make the courts a less dangerous branch.


[1] FEC v. Wisconsin Right to Life, Inc 551 US 449 (2007)

[2] The statute is the Bipartisan Campaign Reform Act (McCain-Feingold).

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Filed under The Judiciary, The Legislature, The Separation of Powers System in Action

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