DOJ must defend FEC when commissioners refuse; consider stripping FEC litigating authority
When Democrat commissioners refuse the fourth vote to defend the agency, President should direct AG to defend FEC in all such litigation; legislatively, seriously consider removing FEC’s independent litigating authority so DOJ handles all FEC litigation.
Mandate
Mandate Ch. 29 (FEC) — Litigation: President should direct the attorney general to defend the FEC in all litigation when commissioners fail to authorize the general counsel to defend it (DOJ has general authority; no legislation needed); as a legislative matter, President should seriously consider recommending Congress amend FECA to remove the agency’s independent litigating authority and rely on DOJ for all FEC litigation.
Undo plan
1) Keep FEC independent litigating authority for civil FECA expertise; require four-vote defense authorizations with public statements of reasons.
2) Limit DOJ takeover to true default emergencies, not routine substitution that politicizes election law.
3) Codify that refusal to defend after dismissal for lack of four votes cannot create backdoor enforcement.
4) If DOJ defends, wall off White House political staff from case strategy.
5) Verify: default judgments avoided; defense-authorization vote records.