Is the Federal Election Commission's voting procedure unlawful?

|The Volokh Conspiracy |

Does the Federal Election Commission utilize an unlawful voting procedure to initiate enforcement actions under the Federal Election Campaign Act? A decision yesterday by the U.S. Court of Appeals for the D.C. Circuit in Combat Veterans for Congress Political Action Committee v. FEC raises (but does not resolve) this question. Here is how Judge Pillard's opinion for the court summarizes the issue and the case:

The basic facts are few and not in dispute. The Federal Election Commission in October of 2011 imposed an $8,690 fine on the Combat Veterans for Congress Political Action Committee and its treasurer, David Wiggs, in his official capacity. Combat Veterans incurred the fine for failing to meet three required reporting deadlines under the Federal Election Campaign Act. Combat Veterans sued the Commission, contesting the fine and charging that the Commission's procedural errors deprived it of the power to act.

Only one of Combat Veterans' claims gives us pause. It emerged during litigation that the Commission's voting procedures may contravene the Campaign Act. The Commission must secure "an affirmative vote of" four of its six Commissioners to initiate an enforcement action against a person who misses a filing deadline under the Act. 52 U.S.C. § 30109(a)(2). In polling its Commissioners to learn how they vote on an enforcement action, the Commission currently uses a voting procedure that counts as "affirmative votes" ballots that it distributes to the Commissioners but that Commissioners do not mark and return. There is a question whether it is lawful for the Commission to treat unmarked, unreturned ballots as affirmative votes.

Disposition of this case does not, however, require that we resolve the precise meaning of "affirmative votes" under the statute, and, in particular, whether the Commissioners' silent acquiescence may be treated as such votes. Combat Veterans has failed to show that the Commission's use of its allegedly flawed voting procedure caused it any prejudice. The challenged votes did not result in an investigation of Combat Veterans because the filings' lateness was readily apparent from information already in the Commission's possession. Moreover, the Commission's ultimate liability determinations on the late filing charges were made by unanimous tally votes on marked ballots. Because we conclude that the Commission's use of its voting procedure was harmless even if it was in error, we affirm the decision of the district court.

The FEC's practice of treating unreturned ballots as "affirmative votes" was of no consequence here, but there is no guarantee this will be always be the case. Even if only for prophylactic reasons, the FEC may wish to revise its procedure so as to insulate future actions from similar attacks. Even if the FEC believes its current practice complies with the FECA, now that a panel of the D.C. Circuit has expressed reservations about the practice, why would the FEC want to take the chance?