This file contains archived live captions of the open meeting of the Federal Election Commission held on July 13, 2023. This file is not a transcript of the meeting, and it has not been reviewed for accuracy or approved by the Federal Election Commission. The open meeting for this Thursday, July 17th, 2023, will now come to order. There are no special motions today. We will jump right into it. We have a full complement of commissioners in person. We have some guests in the audience. Wonderful to see you. And we love visitors. So, with that, first off on our agenda is draft advisory opinion 2023-04 . Agenda document number 23-16 a. Draft a regarding guy for Congress. Presenting is Mr. Tony Buckley. Whenever you are ready. And we have Mr. Vance, counsel for the requester, appearing virtually. Thank you, Madam chair. Good morning, commissioners. Document 23-16-eight is a draft response to devised opinion request for guy for Congress. Request asks whether considering certain threats made against the congressman may pay for installation of a special security film on the winners of Congress home. Because the window film is a removable security measure designed to mitigate potential threats arising from the congressman's duties as a federal officer, this film is permissible. The commission did not receive any comments on request or on the draft. I'm happy to answer any questions you may have. Thank you. Colleagues, any questions? Discussion? Vice chair. Thanks, Madam chair. For Mr. Vance, there weren't any comments or any written responses to either the request or the draft. I wanted to give you an opportunity to say or tell us anything you think we should know about the draft or any other points you want to raise. I think that the draft hits all the important points. I don't think there is anything additional that I would need to raise. I'm happy to answer any questions you may have . But I think the draft does a nice job. Thanks. Any further discussion? Also a question for Mr. Vance. It is always dangerous to preview anything around here, but I think the likelihood of the draft opinion being proved is quite high. But my question is , what ambiguity do you see in the law that led you to ask for an advisory opinion? I guess it is two fold. A, I think it is not always clear what is a reasonable measure -- a reasonable security measure. And I think the other aspect with it is the fact that it is a personal residence. And obviously as a public official, you live in your personal residence, but still it is a personal residence. I think that was the other piece of it. And we just wanted to be 100% sure that we were doing everything by the book. And would you agree that this draft if approved would resolve those ambiguities? Yes. Appreciate that. Any motions? Mr. vice chair. Thanks, Madam chair. With respect to draft advisory opinion 2023-zero-four. Draft a. Any discussion on the motion? All those in favor? Aye. Motion passes unanimously. And the second item on our agenda is the proposed agency procedure regarding litigation brought pursuant to 52 USC 30109(a)(8) agenda document number 23-13 a . Mr. Dickerson. Thank you very much, Madam chair. I have a little to add beyond my cover memorandum, which explains the need for a process to manage an unusual circumstance. The subject of current litigation. This is a narrow policy. It applies only to lawsuits against the commission for failing to take action. It does not authorize the office of General Counsel to defend such lawsuits without commission approval. And it takes the minimal steps necessary when we determined not to defend the agency. The policy was fully embedded by the office of the General Counsel. I want to especially thank them and the litigation staff for their help in preparing the policy, which I hope will be uncontroversial. Thank you, Madam chair. I will not be supporting the policy. This will not likely come as a surprise to much of anyone. Spoiler alert, my view is not going to prevail today. I don't intend to belabor this. I just want to explain. In my view, why I can't support this. Congress in its infinite wisdom gave us an unusual statute that requires four votes for it to proceed on any enforcement matter. But also requires four votes to defend any litigation that might arise if we don't proceed on enforcement. That can create some interesting situations for commissioners. The instances of the commission not defending litigation have been very few. I do not anticipate any in the foreseeable future . Possibly it will never happen again. So while I'm not supporting this proposal, I'm not going to lose a lot of sleep over it either. I think these decisions on whether to defend litigation and what to do when we make those choices are necessarily based on the fact of the litigation in front of the commission at the time. I don't begrudge any of my colleagues for making different choices than I do. That is what they pay us the big bucks for. To exercise the discretion and make those choices as individual matters. So I think this policy is seeking to preclude future commissioners from making some of those choices that are inherent in their positions and in their right to make that decision about whether to defend litigation and how to handle it. So I don't plan to support this because I think we ought to leave future commissioners to make their own decisions. As I said, that is a minority viewpoint, so I will not belabor the point. Further discussion? Thank you, Madam chair. I've struggled very much with this one. And I want to thank Commissioner Dickerson because we have had a chance to talk about it. And thank you, office of the Council, because your staff has been very helpful as always in helping me come through this. I agree with point one and two. I understand the need to apprise the court when the commission does not have the requisite number of votes to defend an action. And while I would not have drafted and included number two in this, I can also see the reason why my colleague chose to include it. So there are two thirds of this I am comfortable supporting, but when we get to number three, if the ultimate intention is to advise the court of what is happening, we can accomplish this with one and two. And I do not -- there is no intention of putting anyone on the spot or anything, but what is the ultimate need for number three? We are attempting to merely let the court know. I want to say, I'm 50-50 on this one. But I need my colleagues -- one more time, if you could give me some answer in regards to that, I would appreciate it. Madam Chair ? I want to be careful how I respond because it has been the subject of very substantial discussions behind closed doors. And I have tried to be consistent in my positions. For me, there are two substantial answers. I think one is a basic conception to me of fundamental fairness in litigation. The fact that when we are sued, it is one thing to choose not to defend the agency. I take her point. A reasonable understanding of that statutory term is a rule procedure 12. I have never seen a substantial defense of that view of the statute . And I do think that when we take action on underlying, that is something that courts and parties should know. Again, I have tried to write this as narrowly as possible . This was not my first, second, third, or even fourth draft. There is a lot I would put in here that is not in this draft. But the intention is to allow the courts following their procedures to determine who needs to know what. The other part of this is that I was moved by Judge's opinion in campaign legal Center against the FEC . The counsel for that case. Number 22-1115. Judge was forced -- he called it a vexing position to reverse that decision in District Court because -- I'm going to quote here -- only because the FEC's dysfunction for CLC 45 committee under the misimpression that the agency had not acted. I think the certifications of the underlying have been very important to judges appointed by both parties in reviewing our actions here. And I think that giving them that information under seal does not violate our confidentiality rules and does provide them with the minimal information necessary to manage their dockets. So that is my view. I think it is the view of every judge to look at this. Okay. Thank you for that. I appreciate it. But when you say , giving them, you're giving all parties. Not just the court. No, I'm starting General Counsel to follow these documents and then it is up to the judge what the judge does with them. Again, I'm not trying to micromanage this process. I'm trying to ensure that if the commission is ever again is deeply broken as it was in some points of its past that we don't find ourselves in a position where federal judges feel misled. Thank you for that. All of that is very helpful. Thank you very much. But you touch on a point that they be Commissioner Broussard is micromanaging. There are some points we need to flesh out. I think you got me there, but is there a willingness to approve this but delay the implementation of this for a certain time period while we work out some of the logistics with the office of General Counsel? I guess it depends. If this is approved today, fine. Again, we are being actively sued on this situation. And I don't want to go any further than that. We have all had conversations about how I think that might play out. So I think it is important that this be adopted today. In terms of OGC's implementation and how they might respond to this, I'm happy to have those conversations informally. But I'm not even sure what it means to delay implementation since I don't think there is currently a matter that this would govern. So if there were a motion to delay implementation for 30 days to work out the details, I would support that. But I'm not sure I understand the stakes on that question. >> This does go into the level of conversations that have been had on this. There are some outstanding points to me that are unclear how the office of General Counsel would act upon, one, particularly number three. I would like to make sure the commission as a whole is aware of how we intend to do this before. So what I'm saying is that there will be a motion to approve this, but if there is a willingness in that motion to include or allow a 30-day implementation of this, then my vote would be there. Madam Chair? I'm happy to make a boat -- new child. I'm trying here. I'm happy to make a motion along those lines. I will also say -- obviously it is the chair's discretion, but I'm happy to ask for this to be put on the next executive session. With that inclusion in the motion and with the agreement to put that agenda, I am prepared to vote. I just need to make sure I understand. Are we voting on this for a 30-day delay? Okay. Wonderful. Any further discussion? >> Madam Chair, thank you. This turned out to be much more interesting than I was expecting. In this matter, I move --. I try. It was a compliment. Subject to a 30-second. -- A 30-minute. I would like to take this back. Start over. I would take a moment of personal privilege to apologize to the public and warn them what happens when you have more than two children. I would like to restart by moving with the approval of agenda document 23-13-a, subject to a 30-day delay in its implementation and to an understanding that this matter will be discussed in the next executive session. All those in favor. Aye. All opposed? No. Motion passage. [ Indiscernible ] with that, acting staff director. [ Indiscernible ] Madam Chair, there are no such matters. That concludes our agenda. Thank you, all. This meeting is adjourned. Stand by. [ Event concluded ]