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McChesney v. FEC


On April 15, 2016, Bart McLeay for U.S. Senate, Inc., and Robert McChesney, in his official capacity as Treasurer ("Plaintiffs") filed suit against the Commission, Matthew Petersen, in his official capacity as FEC Chairman, and the United States in the U.S. District Court for the District of Nebraska. Plaintiffs allege that a final determination and civil money penalty assessed against them under the Commission's Administrative Fine Program (AFP) are invalid.

On December 22, 2016, the District Court granted the Commission’s motion to dismiss.


Bart McLeay was a candidate for the United States Senate in the 2014 primary election. In June 2015, the Commission notified plaintiffs that it intended to assess a civil penalty against them for late filing of reports of contributions received prior to the 2014 primary election (48-hour notices). The final determination and penalty assessment occurred in March 2016.

Plaintiffs allege that the Commission did not follow proper procedures to extend the AFP penalties schedule that expired on December 31, 2013. Plaintiffs allege that the schedule extension occurred without proper notice or consideration at a public meeting. Because of the alleged unlawful nature of the Commission's AFP extension, Plaintiffs ask that the Commission's final determination be set aside and the penalty be voided. Plaintiffs also seek an order that the Commission pay plaintiffs’ court costs and attorney's fees.

Court decision

On December 22, 2016, the United States District Court for the District of Nebraska granted the Commission’s motion to dismiss. The Court found that there had been "good cause" for the Commission to bypass ordinary notice and comment procedures when extending the AFP regulation, because notice and comment "are unnecessary when the amendments are minor or merely technical," and the AFP regulatory extension "did not make any substantive changes." Instead, the changes made "were mere technical changes and were not an exercise of substantive agency decision-making." It also found that pre-adoption notice and comment procedures would have been contrary to the public interest, because such procedures would have delayed the Commission’s extension of its AFP regulation and required prolonged use of the "more extensive" regular enforcement process for routine reporting violations. Further delay in implementing the extension of the AFP would contravene Congress’s purpose of establishing streamlined procedures for efficiently imposing fines for certain routine filing and recordkeeping violations, "such as the late filings at issue here." Finally, the Court reviewed the record and found no evidence that the Commission violated the tally vote procedure or the Sunshine Act that would invalidate the AFP extension. And it explained that, in any event, the remedy for such alleged procedural violations would be "increased transparency, not invalidation of agency action."

Source:   FEC RecordJanuary 2017; May 2016