Congress designed the Federal Election Commission and the Election Assistance Commission to be “independent agencies” in various respects. See, e.g., S. Rep. No. 93689, at 16 (1974) (emphasizing that the 1974 FECA amendments aimed to “establish[] an independent [FEC] within the executive branch to enforce . . . reporting and disclosure requirements”). But the recent Supreme Court decision in Kennedy v. Braidwood Management is going to make more difficult defending against the President’s claim that he has the right to remove at will the FEC and EAC Commissioners.

One major aspect of an independent agency is that the President cannot remove the heads of the agency simply at his pleasure, but only for good cause. But neither the statute creating the FEC or the EAC expressly states that the commissioners can only be removed for “good cause.” In a 1993 decision, the D.C. Circuit held that at a for-cause removal restriction was implied in the statute creating the FEC, given Congress’ strong commitment to ensuring the independence of the FEC.

But in the Braidwood decision, Justice Kavanaugh for the Court staked out a very strong position against courts implying for-cause removal restrictions into statutes that do not expressly provide for that. There are still arguments that the FEC and the EAC should be carved out from this general principle, but that battle has become much more uphill after Braidwood.

Before I quote at length from Braidwood, I should note that even if it’s now more likely the Court would permit the President to remove commissioners at will, that would not mean the President would necessarily be able to assert other powers he claims over these agencies, such as the power to direct their decisions in areas in which they have discretion. I will write in more detail about the Executive Orders concerning the FEC and the ECA later. But for now, here are the passages from Braidwood that the FEC and ECA will have to confront:

In essence, Braidwood invites the Court to read a for-cause removal restriction into a statute that does not explicitly provide for one. We decline to do so. The Court has said that to “take away” the power of at-will removal from an appointing officer, Congress must use “very clear and explicit language.” Shurtleff v. United States, 189 U. S. 311, 315 (1903); see Hennen, 13 Pet., at 259–260. “[M]ere inference or implication” does not suffice. Shurtleff, 189 U. S., at 315.

When Congress wants to depart from the default of at-will removability and instead furnish for-cause protection, it knows how to do so. In many statutes, Congress has specified that officers shall be removed only for good cause, often using a formulation like “inefficiency, neglect of duty, or malfeasance in office.” 15 U. S. C. §41 (Federal Trade Commissioners); 42 U. S. C. §7171(b)(1) (Federal Energy Regulatory Commission members); 49 U. S. C. §1301(b)(3) (Surface Transportation Board members); see also Arthrex, 594 U. S., at 17 (Patent judges may be removed only “‘for such cause as will promote the efficiency of the service’” (quoting 5 U. S. C. §7513(a))).

In fact, Congress has done so with respect to members of other bodies that, like the Task Force, are within the Public Health Service of HHS: Ethics board members who review research involving human subjects may be removed only“for neglect of duty or malfeasance or for other good cause shown.” 42 U. S. C. §289a–1(b)(5)(E). Notably, however,Congress did not employ that kind of language in the statute governing the Task Force.

Braidwood nonetheless suggests that the term “independent” in this statute suffices to displace the default of at-will removal. But this Court already rejected that move in Collins v. Yellen. There, the challengers argued that the Acting Director of the Federal Housing Finance Agency must have been removable only for cause because Congress described the agency as “‘independent.’” 594 U. S. 220, 248 (2021) (quoting 12 U. S. C. §4511(a);emphasis deleted). The Court disagreed, concluding that the challengers read “far too much into the term ‘independent.’” 594 U. S., at 248. The Court explained that“Congress has described many agencies as ‘independent’ without imposing any restriction on the President’s power to remove the agency’s leadership.” Id., at 249.
Given Collins, Braidwood’s argument based on the term“independent” falls short. The word “independent” alone in a statute does not make an officer removable only for cause.Rather, Congress must speak clearly if it wishes to insulate officers from at-will removal. It has not done so here.

Trump’s motion to dismiss the case can be found here.

Congratulations (I think) to John. Story here.

This is an excerpt from Rick Hasen’s contribution to the Balkinization Symposium on  Free Speech in Crisis and the Limits of the First Amendment:

The rise of the nine-figure donor raises two fundamental questions: Why is this happening now? And how will this new spending affect American elections and public policy?…

Billionaires no longer need to worry that they will break the law by spending previously obscene funds supporting or opposing candidates for office. These days, anyone with sophistication can spend whatever they want in federal elections, so long as they structure the giving properly. And some of the ultrawealthy (like others in society) are passionate about politics during our polarized times. They increasingly see no reason to resist leveraging their economic clout in the political arena.

And it’s not just the nine-figure donors who are worrisome. OpenSecrets data show that the top 100 donors gave almost 70 percent of total money to outside groups like super PACs. The top 1 percent of donors gave 98 percent of the outside money. And thanks to changes in technology, such as the rise in social media, the ultrawealthy have new ways to transform their economic heft into political might without risking legal trouble.

Today we have a mostly deregulated campaign finance system, except when it comes to some activities of political parties—rules the Supreme Court will likely soon strike down too. What remains is campaign finance disclosure, but much current political activity is not covered by disclosure rules because laws have not been updated to deal with the movement of campaigns to the online space. And new First Amendment attacks on the constitutionality of disclosure could soon bear fruit at an increasingly deregulatory SCOTUS. So we can expect a day when we may not even know how many nine-figure donors are out there seeking to influence our elections and our elected officials.

From NYT:

As he looks back at the defeat of former Vice President Kamala Harris last fall, the thing that keeps bothering Andrei Cherny, a onetime Democratic speechwriter and state party leader, is that he didn’t know what Ms. Harris would have done as president if she had won.

The way he saw it, President Trump ran on his own ideas, but Ms. Harris only ran against Mr. Trump’s. “The oldest truism in politics is you can’t beat something with nothing,” Mr. Cherny said.

Now Mr. Cherny, the co-founder of a nearly two-decade-old liberal policy journal, is organizing a group of Democratic thinkers to recreate what Mr. Trump’s allies did when he was voted out of office: draft a ready-made agenda for the next Democratic presidential nominee.

They’re calling it Project 2029.

The title is an unsubtle play on Project 2025, the independently produced right-wing agenda that Mr. Trump spent much of last year’s campaign distancing himself from, and much of his first few months back in power executing.

This is from a piece at The Bulwark on developments at the DNC:

DEMOCRATIC LEADERS ARE CONFIDENT they can retake the House in the 2026 midterms. But that optimism is increasingly clouded by fear thata blitz of legal challenges from Republicans could complicate or even upend their wins.

In conversations with leading campaign operatives and Democratic-allied lawyers, there is a growing concern that the party is not effectively focused on—and resourced-up for—the legal fights ahead around voting rights, election laws, and election certifications.

Such legal warfare has popped up in every recent election cycle….

The DNC also recently created a new litigation department, hiring Dan Freeman, a veteran of the Justice Department’s civil rights division, to lead a team of three lawyers. Freeman, who started in his role last week, told The Bulwark he plans to hire more lawyers in the coming months—describing it asa significant investment compared to just a few years ago, when the DNC did not employ any lawyers in-house.

“The law requires free and fair elections. I think we are well positioned to successfully protect them, but it’s going to require a lot of work—and that’s exactly why we are staffing up inside the DNC in a way that we have not done for at least thirty years,” Freeman said….

In private conversations among Democrats about the need to invest more in legal operations have grown more urgent as Trump has ramped up his targeting of his perceived political opponents, including big law firms, universities, and Democratic campaign groups like the fundraising platform ActBlue.

The Supreme Court granted cert. today in National Republican Senatorial Committee v. FEC. The Court also granted the motion of the DNC to intervene in the case. Last week, Bob Bauer and I posted on this blog about the legal issues in the case and the way the campaign finance system has changed in practice since the Court addressed a version of this issue back in 2001.

I should note that the 2001 case was a facial challenge, which argued that any limitation on party coordinated spending with candidates violates the First Amendment. The Court rejected that facial challenge in a 5-4 decision. The case the Court granted today is an as-applied challenge specifically to limitations on coordination on campaign communications, though the petition does raise broader issues as well.

Thanks to Justin for blogging last week. I’ll be doing that this week, so send any suggestions you might have to me. We should have important cert. decisions and orders from the Supreme Court coming down this week.