2023-17685. Agency Procedure Regarding Litigation

AGENCY:

Federal Election Commission.

ACTION:

Agency procedure.

SUMMARY:

The Federal Election Commission is adopting a procedure governing its actions in litigation.

DATES:

Applicable on August 17, 2023.

SUPPLEMENTARY INFORMATION:

The Federal Election Campaign Act provides a cause of action for “any party aggrieved by an order of the Commission dismissing a complaint filed by such party . . . or by a failure of the Commission to act on such complaint.” 52 U.S.C. 30109(a)(8). The procedure in this notice applies to actions to be taken by the Commission and its Office of General Counsel in such cases.

Whenever a suit is commenced against the Commission pursuant to 52 U.S.C. 30109(a)(8), the Commission will, within forty-five (45) days of the service of such suit upon the Commission, vote in executive session, or by tally, as to whether it will defend the action. The certification of such vote, regardless of outcome, will be published on the Commission's public website. Publication of the vote certification, subject to appropriate redactions, will be accomplished as quickly as practicable. The Office of General Counsel may not file any responsive pleading except upon the affirmative votes of four or more commissioners authorizing defense of the Commission pursuant to 52 U.S.C. 30107(a)(6).

Notwithstanding the foregoing, in any case where the Commission does not agree, by four or more affirmative votes, to defend an action under 52 U.S.C. 30109(a)(8) alleging a failure of the Commission to act, or where the lack of a quorum prevents Commission action, the Office of General Counsel will:

1. Apprise the court that the Commission has not voted to defend the action;

2. Inform the United States Assistant Attorney General for the Civil Division that the Commission has not voted to defend the action; and

3. File, under seal, a copy of each vote certification, subject to appropriate redactions, concerning the underlying administrative complaint giving rise to the lawsuit. The Office of General Counsel will continue to file each such vote certification until the conclusion of the lawsuit.

In addition to the foregoing, the Office of General Counsel will notify each respondent to any relevant Matters Under Review that a lawsuit has been filed and provide each such respondent with a copy of this notice.

This notice represents a general statement announcing the general course of action that the Commission intends to follow. This agency procedure does not constitute an agency regulation requiring notice of proposed rulemaking, opportunities for public participation, prior publication, and delay in effective date under 5 U.S.C. 553 of the Administrative Procedures Act (“APA”). The provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), which apply when notice and comment are required by the APA or another statute, are not applicable.

Dated: August 14, 2023.

On behalf of the Commission,

Dara S. Lindenbaum,

Chair, Federal Election Commission.