The Propriety of Public Comments by FEC Commissioners

In my post here, I noted that “Certainly no judge would make such statements about a matter that is pending, or might soon be pending, before him or her. But apparently the rules for FEC commissioners’ public statements are considerably more lax.” J.J. Gass had responded here with some thoughts, and now Roy Schotland responds here, defending public comments by FEC commissioners. See also Mike Dimino’s comments.
UPDATE: FEC Commissioner Mason responds:

    Thanks to Roy Schotland for setting the record straight on FEC Commissioner comments on pending rulemakings. These are proceedings that require public comment, it would be odd if Commissioners could not also comment in public as well. For comparison purposes check the web sites of other federal administrative agencies to see commissioners’ speeches on pending rulemakings and policy issues before their commissions on prominent topics such as media ownership restrictions and the do not call list.
    Regarding documents on the FEC web site, they are actually posted quickly, though I admit you have to know where to look (we’re working on making it easier to find things). Open meeting documents are posted at http://www.fec.gov/agendas.html.
    Regarding challenging Advisory Opinions, there is support for the proposition that AOs themselves are not reviewable. For instance, US Defense Committee v. FEC, 861 F.2nd 765 (2nd Cir. 1988) held that AOs were not reviewable. NCPAC v. FEC 2 Fed. Elec. Camp. Fin. Guide (CCH) 9057 (DDC 1978), aff’d 626 F.2nd 953 (DC Cir 1980) holds likewise. Plaintiffs may, however, bring challenges to the underlying regulations or law based on interpretations thereof in advisory opinions Sierra Club v. FEC, 593 F. Supp. 166 (DDC), rev’d mem. (DC Cir 1984), on remand (DDC Nov 5, 1984)(unpublished). Courts have held that failure to request an advisory opinion can represent a failure to exhaust administrative remedies. Anderson v. FEC, 634 F.2nd 3 (1st Cir 1980) (en banc), Faucher v. FEC, 708 F.Supp. 9 (D. Me. 1989). Generally, courts have given Chevron-type
    deference to FEC interpretations of the statute and its regulations expressed in advisory opinions, Sierra Club, FEC v. Haley 852 F.2nd 1111 (9th Cir. 1988).

This last paragraph responds to these queries I sent to the Election law listserv.

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