This case is about what happens when a federal agency goes rogue and decides it no longer must follow its own organizing statute or respond to the authority of the federal courts.

The Federal Election Commission is an independent regulatory agency led by six Commissioners. By law, no more than three Commissioners can be from any one political party. Moreover, by law, the Commission cannot investigate or sanction political actors without the approval of four or more Commissioners. The benefit of this structure is obvious: requiring four votes on a Commission divided three-three between Republicans and Democrats guarantees that there is some minimal level of bipartisan or nonpartisan support before embarking on enforcement proceedings against political speakers.

This structure can and does make it more difficult for the Federal Election Commission to pursue enforcement actions. This is a feature, not a bug, of the system. Unfortunately, not everyone sees it that way. Some, including some Commissioners at the Federal Election Commission, would prefer a more partisan agency. These activist Commissioners have resorted to unprecedented procedural shenanigans to try to get their way. That is not the agency that Congress created.

Specifically, they refused to allow the agency’s Office of the General Counsel to inform speakers or the public that complaints had been resolved. When challenged in court regarding their apparent inaction in these cases, these same Commissioners flouted the authority of the court, refused to allow the agency to appear, and hid from the court the fact that these matters had not only been acted upon but resolved. One of these matters involved Heritage Action for America and is before this Court.

Read the full amicus brief here.

Institute for Free Speech Amicus Brief, District Court for the District of Columbia (November 7, 2022)

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