McChesney v. FEC (District court)

On December 22, 2016, the United States District Court for the District of Nebraska granted the Commission’s motion to dismiss in the matter of McChesney v. FEC. Bart McLeay for U.S. Senate, Inc., and Robert McChesney, in his official capacity as Treasurer, had filed suit alleging that a final determination and civil money penalty assessed against them under the Commission''s Administrative Fine Program (AFP) were invalid. They alleged that the Commission did not follow proper procedures to extend the AFP penalties schedule that expired on December 31, 2013.

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."

Resources

• McChesney v FEC litigation page