On December 20, 2007, the Commission amended its written rules for conducting its meetings to provide for circumstances when the Commission has fewer than four members. The Commission published the entire document, entitled “Directive 10,” in the Federal Register on January 30, 2008.
The Federal Election Campaign Act (the Act) requires the Commission to prepare written rules for the conduct of its activities, including how it runs its meetings. The Commission first published these rules, set forth in Directive 10, in 1978. The Act additionally requires the affirmative vote of at least four Commissioners to undertake many agency actions, including various actions related to regulations, advisory opinions, enforcement matters and public financing.
The Commission currently has only two members. The 2007 revisions to Directive 10 add a new section “L,” which addresses the Commission’s rules of procedure when the Commission has less than four sitting members and is applicable only when the Commission is operating under these circumstances. Thus, the new section L is now in effect. Other than the new section L, Directive 10 is unchanged.
Additions to Directive 10
When it is in effect, Section L of Directive 10 defines a “meeting” as the “collegiate deliberation” of two or more Commissioners and states that all Commissioners must be present to have a quorum. Approval of a proper motion before the Commission while section L is in effect will require the affirmative vote of a majority of the Commissioners. If the majority is composed only of Commissioners from the same political party, the motion will not be considered approved. Section H of Directive 10 (recording votes of Commissioners absent when a vote is taken) will not apply when the Commission is operating under these circumstances.
Additionally, when the special rules are in effect, the Commissioners may discuss any matter but may not act on any matter except:
- Approval of documents such as campaign guides, brochures and other public education materials customarily voted on by the Commission;
- Notices of filing dates, including special elections;
- Actions related to FEC conferences and other invitations for public appearances;
- Election of the Chairman and Vice Chair for the period when the Commission has less than four members, as long as there is a member eligible to hold the position;
- Appointment of an acting general counsel, acting staff director, acting chief financial officer or acting inspector general, approval of temporary personnel actions at the GS-15 level and above and other personnel actions;
- Budget estimates or requests for concurrent submission to the President and Congress, or other budget-related matters requiring Commission approval;
- Minutes of previous Commission meetings;
- Non-filer notices (see 2 U.S.C. §438(a)(7));
- Debt settlement plans under 11 CFR 116;
- Administrative terminations pursuant to 11 CFR 102.4 and Commission Directive 45;
- Systems of Records Notices pursuant to the Privacy Act;
- Policies, procedures and directives pursuant to the Privacy Act or Section 522 of the Consolidated Appropriations Act, 2005;
- Agency head review of labor management agreements;
- Any other action where a statute imposes a duty of “agency head review” on the Commission;
- Appeals under the Freedom of Information and Privacy Acts; • Sunshine Act recommendations for agenda items;
- The FEC Management Plan, pursuant to the OMB Circular A-123 and the Federal Managers’ Financial Integrity Act;
- Corrective action plans prepared in response to audits, both financial and non-financial, pursuant to the FEC Directive 50 and/or the Accountability of Tax Dollars Act; or
- EEO-related Federal Register notices.
The complete text of Directive 10 was published in the Federal Register on January 30, 2008 (73 FR 5569), and is available on the FEC web site at https://transition.fec.gov/law/cfr/ej_compilation/2008/notice_2008-01.pdf