At the April 22, 2021 open meeting of the Federal Election Commission (FEC), the agency’s six commissioners discussed a proposed policy to close the file at the initial stage in the enforcement process. The proposal was contained in a memorandum from Vice Chair Allen Dickerson, Commissioner Sean J. Cooksey, and Commissioner James E. “Trey” Trainor III dated April 1, 2021.
For additional background on the crucial importance of this proposed policy to protect speakers, public interest in the Commission’s actions, and due process rights, the Institute’s Vice President for Litigation, Alan Gura, submitted comments to the FEC in support of the proposal. In addition, IFS Chairman and former Federal Election Commission Chairman Bradley A. Smith authored an op-ed in Real Clear Politics discussing how the failure to close the file following tie votes harms speech rights, abdicates the Commission’s responsibility for civil interpretation and enforcement of campaign finance law to private, partisan actors, and amounts to “bad government.”
The commissioners’ late April discussion can be viewed online here. To aid public understanding of this important issue, we transcribed a portion of the meeting where substantive discussion occurred on the proposed policy. This transcript has been lightly edited for clarity and to remove verbal fillers, such as “uh” and “um,” and to remove unnecessary repetition of words. Portions of the conversation were inaudible, and such portions were noted in the transcript.
Vice Chair Allen Dickerson: Outstanding. I’m dealing with multiple devices, so I’m glad it’s working. As I recall, the acting General Counsel indicated that because this was a commissioner submission that there would not be a presentation from the Office of General Counsel. And so, with the Commission’s indulgence, I prepared a short presentation, which may not be as eloquent as we’re accustomed to, but is my best effort.
To sort of set the stage for why I and my Republican colleagues felt that this was an important action for the Commission to take, as I and all of my colleagues are acutely aware, this Commission is charged with the unique mission of regulating political speech, which the Supreme Court has long viewed as lying at the core of the First Amendment. In creating our agency, Congress recognized the importance of nonpartisan decision making when regulating this type of speech, and so, by law, no more than three commissioners can represent the same political party, and at least four affirmative votes are required to exercise some of our most important duties and powers, including whether we decide at the initial stage in the enforcement process to find reason to believe that a violation has occurred.
A vote to find reason to believe, however, even by at least four commissioners does not end the matter; it simply allows our Office of General Counsel to proceed with further evaluation and to make additional recommendations to the Commission. On the other hand, if we decline to find reason to believe by a vote of four commissioners, the matter ends because we lack authority under the statute to take any further action. Complainants are entitled to challenge that decision in court, and commissioners who do not see a sufficient basis to find reason to believe are obligated by law to provide their rationale to the public by drafting what we call a statement of reasons, for judicial review, and in such cases the reviewing court makes the final call. But until a case is resolved and the file is closed, the Commission is bound by strict confidentiality provisions that are designed to protect the interests of those involved in enforcement matters. The fact the Commission has taken a vote on a given matter as well as any corresponding statement of reasons cannot be released to the parties or to the public until the file for that matter is closed.
For roughly the first quarter century of our existence we made public all internal documentation of an enforcement matter once it was resolved, but in 2001, in a case called AFL-CIO against the FEC, the D.C. Circuit warned that in releasing enforcement information to the public, the Commission must, and I’m quoting here, “attempt to avoid unnecessarily infringing on personal interests,” end quote; namely, the interests and privacy of association and belief, and balance the Commission’s interests in deterring future violations and promoting its own accountability with these First Amendment liberties. The purpose of this exercise and ensuring that we properly balance these competing interests is at the heart of this proposed policy statement on closing the file.
It hasn’t escaped our notice that there’s significant gamesmanship in terms of how the confidentiality provisions, which ostensibly exist to protect respondents, are in practice weaponized and used against them. It’s a familiar scenario: an individual or an organization files a complaint with the Commission; it then immediately posts that complaint on its website or airs an ad describing the allegations or provides the complaint to a friendly media outlet, so they can shout from the rooftops that the respondent is allegedly violating federal election law. The complainants get the benefit of indignant media coverage, but the respondents are met with silence from us and end up injured at least in the court of public opinion by the very statute intended to protect them. Often, a respondent’s only recourse is to wait until the Commission reaches a resolution of their matter and provides them with public notice that we’ve closed the file and will not be taking further action. If we fail to close the file, however, the respondents are effectively left to twist in the wind. Additionally, in the context of judicial review, the possible consequences for failing to close the file are especially troubling.
For example, say a complainant files a lawsuit against the Commission with respect to a matter where the Commission has already taken a vote and has declined to find reason to believe by the requisite four votes, but has neglected for whatever reason to close the file and send the appropriate letters. Because we have not made our vote or our reasoning public, the complainant can reasonably assume that we have not acted at all. If the Commission fails to explain the situation to the court or even show up in court, the judge could enter a default judgment against us, and if we fail to respond to that default judgment, a federal judge deprived of the facts could declare the Commission has failed to discharge its duties under the Federal Election Campaign Act. Meanwhile, the existence of the vote itself and any associated statements of reasons languish internally and never see the light of day outside the Commission. That’s not the way the statute was intended to work, it’s not the way the courts or the public have long assumed it works, and is not a process that is in any way fair to the interests of the parties before us, respondents or complainants.
For these reasons, we feel it’s important to put in place a process that would automatically close the file at the initial stage of enforcement proceedings where there are not at least four affirmative votes on the disposition of the matter at that stage, absent an affirmative vote to keep the matter open for further consideration. By closing the file and making the complaint response and certain of our internal documents public, we ensure the credibility of our enforcement by providing complainants, respondents, and the public with transparency regarding the Commission’s actions and reasoning, and we provide for the orderly development of the law as courts consider our arguments and litigation raised from one of the matters we consider. Accounting for these considerations is, in my view, part and parcel of the faithful execution of our mission. Ultimately, a Commission that fails to provide the public with an accounting of its decisions and reasoning makes itself a party to a farce or a tragedy or perhaps, in some cases, both. For these reasons, I sincerely hope my colleagues will join me in approving this document and ensuring that the Commission operates openly, so that our actions can be reviewed by the parties before us, the public, and the courts. Thank you very much, Madam Chair.
Chair Shana M. Broussard: Thank you, Vice Chair. Are there any further discussion or comments? Commissioner Weintraub.
Commissioner Ellen L. Weintraub: Thank you, Madam Chair. I will not be able to support the proposal, which basically takes the decision to dismiss a case out of the hands of a bipartisan group of commissioners – at least we all agree that decisions are supposed to be made on a bipartisan basis – and would vest it with a partisan minority of the Commission and that is indeed the point. That’s really what’s going on here. And to understand how this really works and what’s behind it, one has to look a little bit at the history of the Commission because this all comes down to what happens when we can’t agree – what happens in split vote cases.
For most of the Commission’s history actually, split votes were fairly rare. The commissioners worked pretty hard to find common ground to reach a consensus to find some place where four commissioners could land, but things started to change back in 2008 when we had substantial turnover on the Commission. That was after the first time we lost [a] quorum, and when the quorum was regained, there was turnover and there was a new way of doing business around here, and split votes started to rise and penalties started to decline and a lot of people, myself included, think that enforcement of the law suffered.
Now, in virtually every split vote case in the last 12 years, now it’s early days with this group of commissioners, so I’m talking mostly historically, but with a couple of exceptions in virtually every case where the Commission split, regardless of who was the respondent, the vote count was the same; the Republican commissioners voted against taking any step to enforce the law against opening an investigation, against trying to find out what happened, against trying to conciliate, trying to settle the case; and the Democratic and Independent commissioners voted in favor of taking some step to enforce the law. And this was really a sea change in the way that the Commission had functioned in the past because, as I said, it didn’t matter who the respondent was in any of these cases – it could have been a Democrat, it could have been a Republican, it happened when the respondent was Hillary Clinton, it happened when the respondent was Donald Trump, it happened when the respondent was the pro-Russian Party of Regions – 3-3 votes or 2-2 votes, depending on how many commissioners we had on board at the time. Democratic and Independent commissioners voting to move forward and Republican commissioners voting to block enforcement.
So, the one small power that is left to those of us who want to see the law enforced is that decision whether or not to dismiss the case, or whether there is some path forward – whether we could continue to work on it – and this policy would take that decision away from us. We would be ceding control to our Republican colleagues. They would get to decide when a case got to be dismissed and when it didn’t because as soon as we have a motion on the table, if there aren’t four votes to do anything, then the case would automatically close. We wouldn’t have that vote to close the file and dismiss the case, and this is in addition to being contrary to the law that says, let’s see if I can find the law, “all decisions of the Commission with respect to the exercise of its duties and powers under the provisions of this act shall be made by a majority vote of the members of the Commission.” And as my colleague said, many of the most important decisions are made on a four-vote decision. We have a directive that says that even more decisions should be made on a four-vote basis to make sure that we have bipartisanship.
I think most complainants and respondents would agree that it’s a pretty substantive decision when we decide whether or not to dismiss the case, and there have been many cases where there have been long discussions, multiple discussions over multiple meetings. We’ve had cases that have stretched on for months and cases that have stretched on for years, while commissioners went back and forth and tried to decide what to do with the matter and, you know, I’m not going to say that having a case drag on that long is the ideal situation, but commissioners were exercising their role under the statute and trying to decide what to do. We’ve had many cases where there were votes on a matter in one meeting and then the case would be held over and we would discuss it in a further meeting. Sometimes, it would get delayed through any number of meetings and none of that would be possible, and sometimes at the end of the day we came to some resolution after all that time. None of that would be possible under this provision unless, of course, we had the permission of our Republican colleagues to hold the case over longer.
Once there was one motion made under this policy, it would automatically close the file unless there were four votes to hold it open. And to just give a sense of how nonsensical this policy would be in practice, there could be a motion to dismiss that failed, let’s say 3-3, but the vote count could be anything. The motion to dismiss fails; therefore, the case should not be dismissed, but no. Under this magical policy, after the motion to dismiss fails, the case is dismissed anyway, so it just doesn’t make any sense at all. It’s, you know, heads you win, tails I lose, and I don’t need your permission to exercise my authority as a commissioner.
This is not the way the Commission has ever done business. We don’t delegate and can’t under the statute delegate our authority to any other person, including another commissioner. So, I think this policy would be bad for enforcement, and it would diminish the role of the Democratic and Independent commissioners, who have a stronger interest apparently in enforcing the law, and I don’t know why I would agree to such a policy. It was ironically announced on April 1st, April Fool’s Day, and I think I would be a fool to support this policy because I would be giving up the authority and the power that I have under the statute to my Republican colleagues and leave them solely in charge of when cases get dismissed. So, for all of those reasons, I cannot support this policy. Thank you, Madam Chair.
Chair Broussard: Thank you Commissioner Weintraub. Yes, Vice Chair please.
Vice Chair Dickerson: Thank you. Commissioner Weintraub is always eminently quotable, but a few sort of thoughts that I think have been left out of the analysis. I would add one fairly important variable to Commissioner Weintraub’s timeline. Her statement was that, in 2008, things changed due to a change in personnel on the Commission. I think she ignores the fairly obvious fact that the constitutional law governing this agency shifted dramatically in 2007 and 2008. She quoted the “heads I win, tails you lose” language, which of course comes from Wisconsin Right to Life decided in 2008, and so I think that she ignores the fact that the job got a lot harder in that time. And I understand she disagrees with binding decisions of the Supreme Court and that’s her privilege, but of course they do bind us, and one of the powers and duties of the Commission is not the privilege of ignoring the interpretations of the Supreme Court on matters of First Amendment law. So, I would take issue with that part of the narrative.
I think what developed is that, as the law has shifted, as the volume of complaints has risen, there have been more hard cases, there have been more cases with those sorts of constitutional dimensions, and so yes, it has been harder to reach consensus and compromise. I just want to add one point for myself on this because I work very hard for compromise in this role, and I respectfully think that I accomplish it with summary clarity, but the compromise is not symmetrical in the context of enforcement. If you sincerely believe there’s reason to believe a violation has occurred, then you as a commissioner – and I’m speaking here generally, not specifically of Commissioner Weintraub – any of us have the discretion at that point to adjust the remedy, to exercise leniency – you know, engage in mercy. The range of compromise available if you believe a violation has occurred is quite large, and I think there were more clear violations before 2008 and so more opportunities for those sorts of conversations.
If conversely you do not believe, any of us as commissioners do not believe, there is reason to believe a violation occurred, to trade our votes as part of a compromise would be deeply unethical and a violation of our oaths. So, I understand commissioner Weintraub’s and maybe others’ desire to get back to a place where there’s more consensus, but I think the lack of consensus stems not from the personnel on the commission, but from fundamental changes in the constitutional law governing this agency, which we do not control. And the fact that, again speaking for myself, if I don’t believe that we have grounds under the law to move forward, I do not consider myself at liberty to compromise on that finding. I think that’d be a fairly obvious and fundamental violation of due process that is not in keeping with our traditions of the country. So, with that, with those brief comments, I’d be curious if anyone else has thoughts. Thank you, Madam Chair.
Chair Broussard: Thank you, Vice Chair. Let me ask to our fellow colleagues, is there any desire to join in this discussion? Commissioner Cooksey. Commissioner Cooksey, please go ahead.
Commissioner Sean J. Cooksey: Thank you very much, Madam Chair. I’ll try to be brief. I wanted to explain why I’ll be supporting the proposal, and I wanted to emphasize a few points that have already been made by the Vice Chair, but I think are worthy of emphasis and repeating about why I think this proposal is important, why I don’t agree with Commissioner Weintraub’s objections to the proposal. And I think some of them are based on incorrect understandings of the law and our practice, and then also sort of what some of the risks are if we don’t adopt this policy and continue with this, a practice or a possibility of having unclosed files that have been adjudicated on the merits.
So, I think this policy is critical for several reasons. The first is it’s important because it acknowledges the reality of the action of closing the file, which is that it is a ministerial act. It is separate and apart from the Commission’s conclusion on the merits of an underlying matter; it’s just an acknowledgement of our deliberation on the matter. Congress said that we need four votes to proceed to take a substantive action on a case. If we fail to get four votes, that means we’ve failed to proceed; we should acknowledge that the case is over and let the public and more importantly, the respondents and the complainant, know that. I think this proposal would thereby remove the perverse incentive to deceive, mislead, and hide information from the parties and subsequently from federal courts if, hypothetically, a block of commissioners were strategically voting to refuse to close files that have been adjudicated and that might be subject to outside litigation. And I don’t think it prejudices us to adopt this policy if there is desire among commissioners to continue a deliberative process because, as the policy contemplates, the case can be left open if four commissioners feel there is something left to discuss, or something left to be decided, or if there is room for consensus. And, of course, because it takes four commissioners to reach any merits decision, it makes sense that it would take four commissioners to continue that discussion. If three commissioners have decided, “I’ve made up my mind. There’s nothing left to do in this case,” then it doesn’t make sense to keep the file open indefinitely because obviously there’s not going to be a merits decision on that.
So, that sort of brings me to my second point, which is, at this moment, I really can’t think of any reason why any commissioner would oppose this policy, with respect to Commissioner Weintraub, unless it was because of a desire to engage in gamesmanship and to engage in procedural hijinks to have this Commission hide cases being adjudicated. It’s no answer, as I just said, that we need time for additional discussion, deliberation. This policy addresses that, so that’s just not, in my opinion, a fair reason to vote against it. And I think anyone watching this and seeing this policy fail, I think they would be justified in concluding that it’s because of a desire to keep these cases closed indefinitely to hide our deliberation and the outcomes from the respondents and to keep people in administrative limbo and to keep federal courts in the dark.
I also don’t think it’s right to say that this policy would be illegal. As I said earlier, closing the file is a ministerial act. I have to disagree with Commissioner Weintraub. Voting to close the file is not a vote to dismiss. Voting to dismiss is a vote to dismiss; voting to close the file is an acknowledgment that we have adjudicated the case and that it’s over. And to that point, it’s evidence of the fact that it’s a ministerial act. We have closed files – or it is possible to close files – with fewer than four votes, which is evidence that it is not a substantive action under the statute. So, it’s simply wrong to say that closing in the file is a subject of action under the statute. It’s incorrect. But this really just also leads to my third point, which I think this point may be the most important of them all.
If the Commission gets into a situation where a block of commissioners are strategically refusing to close case files that have been adjudicated and we have respondents out there who are being left in the dark about the status of those cases, the Commission and those respondents, you know, if they also subsequently become embroiled in litigation over those cases where these respondents have to intervene to defend themselves where the agency refuses, I think that situation would lead this agency down a very, very dark road. It is not a stable status quo. It is not a center that can hold, both within the agency and outside of it. And I think among other things that would happen within the Commission, I think we would become increasingly liable to litigation from respondents whose cases have not been made public and who are dragged into litigation over the FEC’s failure to acknowledge that we’ve adjudicated their cases. And then when those respondents are subject to litigation, some of those respondents might begin to write to us to waive their confidentiality and ask for their case files. Some of those respondents might seek discovery against the Commission to get their case files. Some respondents might even get the idea to sue the FEC under the Administrative Procedure Act, arguing that our refusal to close the file is arbitrary and capricious. And if the Commission were able to appear and defend itself in an administrative procedure in that case, I’m really not sure what we would say or how we would defend our refusal to close the file, and I really want to avoid that situation. So, I hope that we can adopt a policy like this where we can start to adjudicate these files and acknowledge those adjudications to the public because I think that represents the reality of what we’re doing, so I’ll be supporting this policy, and I hope other commissioners will as well.
Chair Broussard: Before I turn to you Commissioner Weintraub, let me make sure that I’ve made that offer to other commissioners that have not had the opportunity to join the discussion. So, Commissioner Walther, Commissioner Trainor, not asking you to speak if you choose not to, but just want to make sure that I recognize. Thank you, Commissioner Weintraub. Oh yes, Commissioner Walther.
Commissioner Steven T. Walther: I didn’t know if I was still, the way we set up, whether I was able to be heard or not. I would like to comment support for Commissioner Weintraub’s approach. I’ve been under it for a number of years. I don’t think it’s really an issue of the composition of the commissioners because we all have our ups and downs in some ways, but day in and day out, we get the job done. It’s not always pretty, but Congress made a deliberate decision to, I think, make us come to a matter even though we know it’d be a lot more sleek if we could decide something on a basis where you have a clear majority. But what if, when we’re set up in this way, the parties are forced to come out to collaborate with each other and communicate with each other, and if it’s positive to do that or, you know, we make a lot of decisions by thinking through things and maybe narrowing the issue to the point where we can find agreement, I think this is all to the better. And I’ve seen it’s really very frustrating and believe it or very frustrating sometimes to see, you know, that those with whom I disagree to proceed and prevail, but that’s the way it works here.
We aren’t built to have a disagreement or a lopsided view. It’s one to, you know, come together, and try and make the best we can of all the issues. And sometimes we do, I think, a great job, and sometimes it could be better, and sometimes maybe it’s not so great. But democracy isn’t perfect, and the way we proceed isn’t perfect. But in a case like this, I think, if we were to, what I perceive to be, would be more of a political ball in some ways to do otherwise, but I think we’re in a time right now where [inaudible]. There may be a way, and I can think of some that might work or not some, but, you know, possible approaches. But when it comes right down to it, I don’t think that it behooves us to create the situation by changing it.
In the situation here that’s being talked about where you don’t close the file and it sits there forever, okay that’s fine. But if you have to, but one side or the other would be the one that would, I guess, prevail. And I’m not sure that by just not leaving it where it is, rather than trying to get, you know, doesn’t get the job done if we can’t, you know, move any farther. So, I’m not sure we will improve on our system of justice if we do a flip and say, “okay, now this side is always going to prevail in this because there was a vote to dismiss, but not a vote to close the file.” So, I’m going to continue my support for that position. I’m not saying that there may not be some ways which we can moderate the consequences of it, but I think at this point it’s not pretty, but it’s more in keeping than what Congress wanted than to make a new kind of 50/50 that isn’t consistent with the way it got done in the original part of the proceeding. So, that’s my thinking on the point, at this point. I’m not saying that we can’t talk further about how to unplug it on occasion, but until we can do that, I like the status quo.
Chair Broussard: Thank you, Commissioner Walther. Let me just check with my colleagues. Anyone else like to join?
If I may just share a few words, Commissioner Weintraub, then I’m happy to turn back to you. I will not be supporting the Vice Chair and Commissioner Cooksey and Commissioner Trainor’s Statement of Policy. I believe that the intention of the statute is to work in a bipartisan nature for this action as well and do not consider it a ministerial action. And I think Commissioner Cooksey might have been quoting a little bit from the comment that we received today, the comment that the proposal is an assertion that it’s not illegal.
But I want to ask if anyone has any discussion? Or do we want to bring the comment that we’ve received into the discussion that we’re having today? Because I felt that that comment that we received was very on point and addressed a lot of the concerns that I had of how this Statement of Policy would change something to an affirmative as opposed to having to have the four votes. I truly believe that the intention of this statute in this agency is to work together across the board to find compromise, and having a short period of time been a commissioner here, it is not always going to happen. But I do see diligent efforts across all sides to try to find that when it is available, and I think it is supposed to happen in this instance as well. So, I appreciate the comments that all have said, but I agree with Commissioner Weintraub and Commissioner Walther, and I will not be voting in support of this motion. But I do see that there’s continued discussion and I’m open to having that discussion with the Vice Chair and Commissioner Cooksey and Trainor, so Commissioner Weintraub, would you like to join in?
Commissioner Weintraub: Thank you, Madam Chair. I don’t want to unduly prolong this because I can count, and I just want to say that I strongly disagree with Commissioner Cooksey that the close the file vote is ministerial. The statute plainly contemplates that dismissals will be by votes; it speaks about votes to dismiss in the statute, and, at a minimum, those substantive decisions have to be by majority vote not on a split vote. There, to my knowledge, has never been a case that was not ultimately dismissed on a vote to close the file. Sometimes we have a formal dismissal motion and then a vote to close the file, but the close the file is not ministerial, and we know this because there are consequences for dismissing a case. It allows for someone to sue under certain circumstances, under (a)8, and there’s a 60-day clock that starts running from the time we dismiss the case. We have had cases where, as I said, we’ve had multiple votes on it and then closed the file at some later point, and that 60-day clock has never started to run until we actually closed the file. That’s the trigger for dismissal, for those dismissal suits.
I think my colleagues’ position is pretty clear. When they say, when they’ve made up their mind, the case is adjudicated. Our votes don’t matter. They’ve decided we’re done. So apparently, you know, right now there’s a big debate around Washington as to what is the ideal number of commissioners. My colleagues seem to think the ideal number of commissioners is three – all Republican – and that the Republican commissioners get to control the outcome. And then there might be three other chairs at the table, but, you know, we wouldn’t have full rights because once they’ve decided what to do with the case, the case is over.
Under this policy, for example, a Republican chair could set up an executive agenda and just stack dozens of cases. Right now, of course, we have hundreds of cases, but, you know, stack one case after another. Recognize a colleague for a motion to dismiss. The motion would fail, but it wouldn’t matter because at the end of the day, the cases would all be dismissed anyway, and we could just have motion to dismiss, motion fails, move on. Motion to dismiss, motion fails, move on. And then magically at the end of the day, under this policy, all of those cases would be dismissed. The files would be closed, and they would be done and there would be nothing that we could do to stop that under this policy. And, you know, as I said it would just be giving up the authority of the commissioners who have a more pro-enforcement point of view. We can all disagree on – and we will, and we have, and we will again – on the meaning of various Supreme Court decisions. And we’re not alone in that. Lawyers all over town and all over the country disagree on the meanings of Supreme Court decisions. But at the end of the day, we get to decide together what to do with the case, and I am not going to cede my authority as would happen under this policy.
Commissioner James E. Trainor III: So, coming up in two months, I will have been on the Commission for a year. And as Commissioner Weintraub said, up until 2018, I believe she said, this really was not an issue. But in my time on the Commission, where we’ve had this split between commissioners and this willingness to work to come to some resolution, I have yet to once have anyone reach out to change my mind with regard to a position that I’ve taken where we’ve had a 3-3 split in a particular case. Now, I have myself reached out to other commissioners to try to get them to move towards my position in a particular matter. And what I find most disturbing about this discussion, about whether or not we could continue to work on these cases, is that, for my almost entire year that we’ve been here, I have not seen one of these cases where there has been an initial split and then a refusal to close the file put back on an agenda for the Commission to consider. It hasn’t happened one time, and so I think it’s very disingenuous to say that we’re going to work towards compromise and then not see these same matters again, and in fact have no one reach out to you and say, “hey I need you to move towards my position, or what do we need to do to get to a compromised position.” So, I think it’s very disingenuous. I think it’s very misleading to the public to say that these things are going on behind closed doors and we’re trying to get to some sort of compromise.
What it is, is that each side appears to have dug in, and we’re going to just continue with a rule change that took place, or a procedural change that took place, by a vote of a bloc of commissioners to keep these files as these zombie files that just continue to hang around the Commission for years on end. In fact, you know, I would venture to guess that there are probably cases where the statute of limitations has even expired, where procedural votes have been taken and they haven’t even been put back onto the agenda to be considered. So clearly, I think this is a procedure that we need to have in place to avoid the perception that the Commission is not taking action. And I think it is absolutely abhorrent that we refuse to allow the judiciary to have access to these files and access to this information when the Commission has taken definitive action, and both sides have made very clear what their position is, and the judiciary could benefit from both sides having given their information to the courts in these delay suits.
I also find it odd that the commenters that the Chair brought up, you know, are concerned about the Commission being able to do its job and, yet they’re some of the first people to run to the courthouse when we don’t get through a case in the statutory period of time. This procedure would make that time frame be much quicker and would allow them to have an adjudication of cases that they file that they could then make a determination on the law as opposed to procedural aspects of whether or not the Commission had delayed their actions. Thank you very much.
Chair Broussard: Thank you, Commissioner Trainor. Any further discussion?
Vice Chair Dickerson: Madam Chair.
Chair Broussard: Yes, Vice Chair.
Vice Chair Dickerson: Just one quick, I guess, thought. You know, Commissioner Weintraub spoke in very strong terms about her authority as a commissioner. You know, the ceding of power that would be going on here. I think that that is wrong as a factual matter. For the vast majority of Commissioner Weintraub’s time here, this was recognized as ministerial, more or less explicitly, was the practice. So, really this is a request to return to the status quo as was practiced up until at least, by my records, 2018. So, I think suggesting this is an attempt to undo a nearly half-century old statute when really, it’s an attempt to go to turn back the clock a few years is heated rhetoric, but I’m not sure it quite matches up with the facts.
One just sort of statement of this general legal theory – I guess, it is not – I’m really struggling to understand why it is so curious to people that when there’s a split – there’s not a majority to move forward with enforcement – that the presumption is you don’t enforce. I mean this is fundamental to law enforcement. It’s fundamental to how we adjudicate rights in this country; not just this country, the entire legal history of every system I have familiarity with going back centuries. The presumption is in favor of the defense, in the favor of the respondent. And that to overcome that presumption, the government needs to bear a burden; it needs to get to a majority of whatever the decision body is.
So, I think it’s very odd to me to hear such heated rhetoric around the very basic concept that, where a body is evenly divided on whether to move forward with enforcement, you don’t move forward with enforcement. That’s not a new concept. It applies all sorts of places outside this agency that don’t implicate the First Amendment, and I think it’s part of why I, at least, I’m so frankly confused by the opposition here. I don’t think that recognizing an evenly divided Commission can’t enforce is anything more than recognizing that no equally divided organization can enforce anywhere and that, you know, that’s what the statute says. So, I take some issue with the strength of Commissioner Weintraub’s rhetoric, given that I think there’s a really basic principle of due process at stake here. And so, I hope maybe we can dial that back in future discussions, even if this does not move forward. Thank you.
Chair Broussard: Thank you, Vice Chair. Any further discussion? Is there a motion?
Vice Chair Dickerson: I move the adoption of agenda document number 21-21-A.
Chair Broussard: Thank you. The Vice Chair is so moved. Is there a discussion on this motion? Seeing none, I will call the question. All those in favor please say “aye.” All opposed please say “no.” The motion fails with three voting in favor – the Vice Chair, Commissioner Trainor, Commissioner Cooksey – and three voting against the motion – Commissioner Weintraub, Walther, and myself. Thank you. Madam Secretary, that motion fails.