Commission adopts new agency procedure related to certain litigation

On July 13, 2023, the Commission adopted a new agency procedure related to litigation brought pursuant to 52 U.S.C. 30109(a)(8).

Under the Federal Election Campaign Act, complainants may file suit against the Commission upon the Commission’s dismissal or failure to act on such complaint. The new agency procedure provides that the Commission will vote within 45 days of the service of such suit upon the Commission as to whether it will defend the action. Regardless of the outcome of the vote, the vote certification will be published on the Commission’s website, subject to appropriate redactions, as quickly as practicable.

The Office of General Counsel may only file a response to such suit if four or more Commissioners vote to authorize defense of the Commission. If four or more Commissioners do not vote to authorize defense, or the Commission lacks a quorum to act, the Office of General Counsel will:

1. Apprise the court that the Commission has not voted to defend the action;
2. Inform the United States Assistant Attorney General for the Civil Division that the Commission has not voted to defend the action; and
3. File, under seal, a copy of each vote certification, subject to appropriate redactions, concerning the underlying administrative complaint giving rise to the lawsuit. The Office of General Counsel will continue to file each such vote certification until the conclusion of the lawsuit.

Additionally, the Office of General Counsel will notify each respondent to any relevant Matters Under Review that a lawsuit has been filed and provide each respondent with a copy of the notice.

The notice of agency procedure was published in the Federal Register on August 17, 2023 and is effective immediately.

Resources

• Commission consideration of agency procedure
• Federal Register Notice
• Policy and other guidance