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Donald Trump waves as he departs a campaign event at Central Wisconsin Airport, Saturday, Sept. 7, 2024, in Mosinee, Wis. (AP Photo/Morry Gash).
President Donald Trump is attempting to exert something not entirely unlike full control over Federal Election Commission (FEC) decision-making, a lawsuit filed Friday in Washington, D.C., federal court alleges.
On Feb. 18, the 45th and 47th president issued Executive Order 14215, titled: “Ensuring Accountability For All Agencies.” The order, among other things, provides that “the President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties” and says no executive branch employee “may advance an interpretation of the law as the position of the United States that contravenes the President.”
The plaintiffs, led by the Democratic National Committee in their 23-page lawsuit, say the executive order is an “unprecedented assertion of presidential power.” And this effort, the lawsuit claims, violates well-trodden Supreme Court precedent regarding administrative agencies “led by a multimember, bipartisan board that performs quasi-judicial and quasi-legislative functions.” Here, the plaintiffs specifically mean the FEC.
“As the Supreme Court has held for 90 years, it ‘cannot well be doubted’ that Congress possesses the authority to insulate from presidential micromanagement [such] agencies,” the lawsuit reads. “Congress’s authority is especially true in this context, where the credibility of the entire regulatory enterprise would be fatally undermined if the party controlling the White House can unilaterally structure campaign rules and adjudicate disputes to disadvantage its electoral competitors.”
The lawsuit seeks a limited injunction barring the White House and the U.S. Department of Justice from applying the executive order to the FEC as well as a declaration that the order is unlawful with regard to the FEC.
Additionally, the collective Democratic Party plaintiffs are seeking an explicit order from the court that several sections of the FEC’s originating statute — the Federal Election Campaign Act — are, in fact, constitutional, “notwithstanding the proclamations” of Trump’s order.
The lawsuit, in several sections, offers a history lesson on the origin of the FEC and how the agency was constructed, with bipartisan approval, in the aftermath of the Watergate scandal that brought down the presidency of Richard Nixon. The structure of the agency — six members are appointed; a maximum of three can be members of either major political party — requires a majority vote with at least one member from an opposite party, the lawsuit explains.
This baked-in bipartisan rule means regulated parties “can be certain that the outcome will not reflect the raw pursuit of electoral advantage by political opponents,” according to the lawsuit.
“For over fifty years, that certainty held,” the lawsuit reads.
Trump’s order could bring things crashing down, the plaintiffs allege.
“As applied to the Commission, Executive Order 14215 would eliminate FECA’s requirement that the executive branch’s legal interpretations of FECA’s provisions reflect the bipartisan consensus of an expert multimember board and replace that bipartisan consensus with the judgment of a single partisan political figure — the President of the United States,” according to the lawsuit.
In other words, the plaintiffs say the order could effectively render the FEC little more than a rubber-stamp for the White House.
The lawsuit is seeking an expedited schedule under the “speedy hearing” rule because of an extant action against the Democratic Senatorial Campaign Committee (DSCC) which accuses the adjunct group of improperly classifying some of their 2024 campaign ads.
“According to FECA’s plain terms, the FEC can find that DSCC violated the Act only if at least one non-Republican Commissioner agrees with that finding,” the lawsuit reads. “Under Executive Order 14215’s terms, however, President Trump — the head of the Republican Party — could dictate to the Commission a legal interpretation of FECA’s provisions that would be dispositive to the complaint against DSCC.”
This would amount to a sea change that would prove both disastrous in the immediate case, and in the long run, according to the Democratic Party.
From the filing, at length:
Plaintiffs’ core activities rely on the fundamental premise that the FEC’s decisions will be rendered by a bipartisan Commission that is made up of members of multiple political parties, each exercising independent judgment to determine — consistent with the statutory language and any applicable judicial opinions — what the law requires…
Executive Order 14215 obliterates this understanding. By providing that no employee of the executive branch may advance an interpretation that contravenes the President or the Attorney General’s opinion on a matter of law, the Executive Order purports to provide President Trump — the leader of the Republican Party — with the ability to order the FEC to take particular positions on any question of law arising in the Commission’s performance of any of its duties.
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While the plaintiffs are not seeking a nationwide injunction that would apply to similarly-situated plaintiffs — or which might, plausibly, even extend to other agencies — the lawsuit warns against Trump’s executive order in broad strokes.
The order, the lawsuit claims, “purports to monopolize authority” to interpret federal law, asserts that agency officers should be “controlled” by the president, and aims to “extinguish the independence that Congress vested in these agencies.”
Still, the plaintiffs are focused on the order’s specific application to the FEC. The lawsuit suggests the government is itching for a constitutional battle — the kind of legal fight that would ultimately have to be decided by the U.S. Supreme Court.
“Executive Order 14215 purports to preclude the Commissioners and other FEC employees from advancing any legal positions other than those of the President and Attorney General in the course of their enforcement of FECA, on the ground that Article II requires the President to control legal interpretations for the entire executive branch,” the lawsuit goes on. “In other words, the Executive Order is grounded in the assertion that the provisions of FECA granting the Commissioners the power and duty to exercise independent legal judgment are unconstitutional infringements of the President’s executive power.”
Late Friday afternoon, the case was assigned to U.S. District Judge Judge Amir H. Ali, a Joe Biden appointee.
