[Federal Register Volume 63, Number 19 (Thursday, January 29, 1998)]
[Proposed Rules]
[Page 4404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2098]
[[Page 4404]]
=======================================================================
-----------------------------------------------------------------------
FEDERAL ELECTION COMMISSION
11 CFR Chapter I
[Notice 1998--4]
Composition of the Commission
AGENCY: Federal Election Commission.
ACTION: Notice of disposition of petition for rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Commission announces its disposition of a Petition for
Rulemaking filed on December 4, 1997, by John J. Wheeling, Treasurer of
the National Reform Party Organizing Committee. The petition asked the
Commission to amend its rules to require either that two members of the
current six-member Commission be affiliated with minor political
parties, or to expand the Commission from six to nine members, with the
three new members required to be affiliated with minor political
parties. Further information is provided in the supplementary
information that follows.
DATES: March 2, 1998.
FOR FURTHER INFORMATION CONTACT: Ms. Susan E. Propper, Assistant
General Counsel, or Ms. Rita A. Reimer, Attorney, 999 E Street, N.W.,
Washington, D.C. 20463, (202) 219-3690 or (800) 424-9530.
SUPPLEMENTARY INFORMATION: On December 4, 1997, the Commission received
a Petition for Rulemaking from John J. Wheeling, Treasurer of the
National Reform Party Organizing Committee. The Petition asked the
Commission to amend its rules to require either that two members of the
current six-member Commission be affiliated with minor political
parties; or to expand the Commission from six to nine members, with the
three new members required to be affiliated with minor political
parties. The Petition states that this action is necessary to protect
the rights of minor political parties which, it argues, are infringed
by what it claims is a statutory requirement at 2 U.S.C. 437c(a)(1)
that the six-member Commission be composed of three Commissioners
affiliated with the Democratic Party, and three affiliated with the
Republican Party.
The Petition does not identify the specific section(s) of the
regulations to be affected by these changes, as required by the
Commission's rules governing rulemaking petitions at 11 CFR
200.2(b)(3), because the Commission's rules do not address this
situation. Nor could they, because the requested actions are outside
the scope of the Commission's rulemaking authority. For this reason the
Commission did not publish a Notice of Availability in the Federal
Register seeking comments on the Petition's merits, which action is
normally taken pursuant to 11 CFR 200.3(a)(1) for petitions that meet
the requirements of paragraph 200.2(b).
The Constitution at Art. II, section 2, cl. 2 provides that the
President ``shall nominate, and by and with the Advice and Consent of
the Senate, shall appoint * * * [all] Officers of the United States,
whose Appointments are not herein otherwise provided for, and which
shall be established by Law.'' Congress has by law established a six-
member Federal Election Commission, 2 U.S.C. 437c(a)(1); and Congress,
not the Commission, has the sole authority to alter its size, either by
adding three additional Commissioners or in any other way.
Under the Appointments Clause, the President is entitled to choose
the individuals to nominate as Commissioners. However, it has been long
recognized that ``it is entirely proper for Congress to specify the
qualifications for an office that it has created.'' Bowsher v. Synar,
478 U.S. 714, 740 (1986) (Stevens, J., concurring). The provision in
section 437c(a)(1) that ``no more than 3 [of the six] members of the
Commission'' appointed by the President ``may be affiliated with the
same political party'' simply sets the necessary qualifications for the
members of the Commission. Again, it is for Congress, and not the
Commission, to determine how, if at all, these qualifications should be
changed.
The Commission notes that there is nothing in the text of the law
to require that the Commission be made up of three Democrats and three
Republicans. The President can comply with this provision by choosing
from among millions of persons affiliated with political parties, and
millions more not affiliated with any party. The fact that Presidents
to date have appointed only Democrats and Republicans as Commissioners
does not mean that this will continue in the future, when they may
choose to appoint a member of another political party, or an
independent affiliated with no political party.
Moreover, contrary to the petitioner's claim, the statutory
requirement that no more than three Commissioners be affiliated with
the same political party does not discriminate against minor parties.
In fact, the reverse is true: By ensuring that no more than three
Commissioners be affiliated with the same political party, and at the
same time requiring an absolute majority of four votes for the
Commission to take formal action, 2 U.S.C. 437c(c), Congress has acted
to insure that no political party will be able to single-handedly
dictate Commission action. These considerations, however, are secondary
to the Constitutional and statutory provisions, discussed above, under
which the Commission is powerless to take the requested action.
The Commission's rules governing rulemaking petitions state 11 CFR
200.5 (a) and (d) that the Commission's decision on whether to initiate
a rulemaking in response to a rulemaking petition may include, inter
alia, consideration of the Commission's statutory authority and the
necessity of statutory revision to accomplish the requested result. The
Commission believe these factors are controlling and, therefore, at its
open meeting of January 22, 1998, voted not a initiate a rulemaking to
reconstitute the Commission as requested in this Petition.
Dated: January 23, 1998.
Joan D. Aikens,
Chairman, Federal Election Commission.
[FR Doc. 98-2098 Filed 1-28-98; 8:45 am]
BILLING CODE 6715-01-P
