DNC Files First Challenge to Executive Order Seizing Power From Independent Regulatory Agencies, but With a Twist That May Limit Its Reach

We recently covered executive order 14215, titled “Ensuring Accountability for All Agencies,” the second Trump administration’s most straightforward attack on the discretion of what it called “so-called independent regulatory agencies.” The executive order requires that all agency rulemaking be preapproved by the president and that the legal positions offered by any executive department on behalf of the United States be consistent with the legal position held by the president or, by delegation, the attorney general. We explained that this move was part of a long-running skirmish between Congress and the executive branch and that litigation challenging it could ultimately upend 90 years of Supreme Court precedent.

The Democratic National Committee (DNC) has filed such a challenge, but with a twist. In Democratic National Committee v. Trump, the DNC asserts that this executive order conflicts with core provisions of the Federal Election Campaign Act (FECA), a Watergate-era set of reforms that ultimately created the agency that enforces federal election law, adjudicates enforcement actions, and issues rules interpreting and implementing FECA. The FECA provisions implicated include, for example, those establishing the Federal Election Commission’s (FEC) structure: six commissioners, but no more than three from the same political party, and a requirement that the commission’s legal interpretations, enforcement actions, and rulemaking require the approval of at least four commissioners, none of whom may hold elected office.

The executive order is incompatible with FECA’s requirement, in the DNC’s words, “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.” That’s the twist. The FEC would not exist as anything other than a nonpartisan (or at least bipartisan) independent agency. Its freedom from direct presidential control, following the Nixon scandals, was fundamental to its purpose and a key selling point for congressional approval.

 The structure and nature of the FEC make it distinct from every other major independent federal agency (like the Securities and Exchange Commission, Federal Trade Commission, or National Labor Relations Board), which are each subject to control by the party that controls the White House, via provisions that require bipartisan membership but permit a bare majority of commissioners or board members from one political party. Construction of the executive order as it applies to the FEC, consequently, may not apply the same way to agencies that do not (necessarily) require independence from White House control to function in harmony with congressional design.

FECA is also unique in that it authorizes “the national committee of any political party” to ask a federal court “to construe the constitutionality of any provision of this Act.” The DNC checks that box. It also regularly seeks guidance from the FEC through a channel set up for that purpose, and has pending enforcement actions against it. Because the DNC’s claims require a court to construe the constitutionality of FECA’s independence-vesting provisions — because if they are constitutional, they control over the executive order — and because DNC appears to have standing to bring them, its action is likely to avoid procedural hurdles that have befallen other challengers, who may struggle to establish a concrete, particularized injury required to get out of the starting gate.

The factors that make this case likely to proceed to resolution on the merits are what may ultimately limit its reach. The FEC is an atypical regulatory agency, and the DNC, under FECA, is an atypical, legislatively authorized challenger. Dispositions applicable to the FEC, it follows, will not necessarily apply to other agencies. And while other challenges sure to come are likely to present more generally applicable disputes, standing and “case or controversy” requirements could just as likely hinder those challenges from reaching judgment on the merits.