Does the Federal Election Commission utilize an unlawful voting procedure to initiate enforcement actions under the Federal Election Campaign Act? A decision yesterday by the U.S. Court of Appeals for the D.C. Circuit in Combat Veterans for Congress Political Action Committee v. FEC raises (but does not resolve) this question. Here is how Judge Pillard’s opinion for the court summarizes the issue and the case: The basic facts are few and not in dispute. The Federal Election Commission in October of 2011 imposed an $8,690 fine on the Combat Veterans for Congress Political Action Committee and its treasurer, David Wiggs, in his official capacity. Combat Veterans incurred the fine for failing to meet three required reporting deadlines under the Federal Election Campaign Act. Combat Veterans sued the Commission, contesting the fine and charging that the Commission’s procedural errors deprived it of the power to act.
… The FEC’s practice of treating unreturned ballots as “affirmative votes” was of no consequence here, but there is no guarantee this will be always be the case. Even if only for prophylactic reasons, the FEC may wish to revise its procedure so as to insulate future actions from similar attacks. Even if the FEC believes its current practice complies with the FECA, now that a panel of the D.C. Circuit has expressed reservations about the practice, why would the FEC want to take the chance?