In the latest in a series of executive actions that aim to reshape much of government, President Trump signed an executive order on February 18 expanding the President’s authority over so-called independent agencies within the executive branch. The impact of this executive order will be felt across the federal government, and it remains to be seen how exactly the White House will seek to exercise its asserted authority. In particular, the order could have important effects on future rulemakings and advisory opinions from the Federal Election Commission (“FEC” or “Commission”).
Although many of the provisions included in the Trump order do not appear to apply to the FEC, the order amends a Clinton-era executive order that established the modern process by which the Office of Management and Budget (“OMB”) oversees and coordinates the regulatory activities of executive branch agencies. The existing order specifically excluded so-called “independent regulatory agencies” from the definition of an “agency” subject to the order. President Trump’s order would revise that definition to mean “any authority of the United States that is an ‘agency’ under 44 U.S.C. 3502(1),” which includes any “independent regulatory agency.” While the FEC is expressly excluded from the statutory definition cited in the order, President Trump’s order specifies that the Commission will be included in the OMB review process. As a result, the FEC will be required to submit any “significant regulatory action” for review by OMB, with the White House having effective veto authority over any such actions.
Though the order would alter the relationship between the White House and the FEC, the full impact of the order will not be seen until the FEC starts the long process of evaluating and proposing new regulations under this new process.
In addition, the order would appear to require the FEC—like cabinet agencies—to begin submitting an annual regulatory agenda to OMB, which would identify “all regulations under development or review” and prepare a regulatory plan of the most significant regulatory actions that the FEC reasonably expects to issue in the fiscal year or thereafter. Such plans are generally publicly available and will provide some insight into any regulatory efforts the FEC intends to pursue in the coming years. President Trump’s order separately provides that only the President and Attorney General may give “authoritative interpretations of law for the executive branch.” While it is unclear how this provision will play out in practice, this provision could in some ways affect the FEC’s ability to issue binding advisory opinions on questions of law under the agency’s jurisdiction. Even in times when the Commission lacks sufficient bipartisan support for major enforcement actions, the FEC generally has had enough votes to issue advisory opinions, which provide authoritative guidance to parties seeking to comply with federal election laws. It is unclear whether the order means that the White House and Attorney General could effectively overrule an FEC advisory opinion if the White House or Attorney General interpret the law differently.
If you have any questions concerning the material discussed in this client alert, please contact the members of our Election and Political Law practice.
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