HLS’s Election Law Clinic filed this amicus brief yesterday on behalf of FEC Commissioner Ellen Weintraub (whom President Trump purported to fire without cause last month) in DNC v. Trump, the case challenging the application of Executive Order 14215 to the FEC. The brief focuses on the importance of the FEC’s independence. Here are a few excerpts from the introduction:
If there is any agency that partisan elected officials—including the President—must not be allowed to bend to their will, it is the body that regulates them when they run for office: the Federal Election Commission . . . .
To perform this role properly, the FEC must be—and, since its inception, has been— independent and bipartisan. The FEC’s independence is crucial to its ability to implement campaign finance laws fairly, neutrally, and without seeking to benefit or handicap any individual or party. The FEC’s bipartisanship is no less important, ensuring that neither major party can dominate the body and that both parties’ views are heard on matters vital to their operations. . . .
Congress unquestionably wanted the FEC to be independent and bipartisan when it created the agency. According to the Senate report that accompanied the 1974 amendments to the Federal Election Campaign Act (“FECA”), to “prevent[] discriminatory [policies] in favor of any candidate or party,” federal campaign finance “would be overseen by the Independent Elections Commission, which itself is subject to judicial review of alleged discrimination.” S. Rep. No. 93-689, at 10 (1974). Congress had the same aim when it amended the FECA in 1976 to respond to the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1 (1976). Per the relevant House report, one of the “basic principles” underpinning these amendments was that the FEC would possess “independence” so that it “does not provide room for partisan misuse.” H.R. Rep. No. 94-917, at 2–3 (1976). . . .
[A]s illustrated by Commissioner Weintraub’s own experience, Executive Order 14215 is only part of a broader attack on the FEC’s independence and bipartisanship. Earlier this year, President Trump fired Commissioner Weintraub from her position without cause. This removal was unprecedented, with no Commissioner having previously been fired for any reason. The removal subverted the FEC’s independence and bipartisanship. It targeted a specific Democratic Commissioner. The removal was unlawful. . . .
[E]ffective election administrators around the world are characterized by their separation from the executive. In fact, this separation (or its absence) is the key criterion used to categorize election administrators, who can be independent, controlled by the executive, or mixed. . . . In this typology, most Western democracies rely on independent election administrators. And for good reason: Elections are run impartially—and, equally critically, in a manner perceived to be impartial—only if election administrators (including those implementing campaign finance laws) are independent of the executive. Consequently, Executive Order 14215 diverges from the global consensus on the proper administration of elections. It compromises the independence of the one body in the complex American electoral system that, until now, has been insulated from the executive.