[Federal Register: January 29, 1998 (Volume 63, Number 19)]
[Proposed Rules]               
[Page 4404]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ja98-30]


[[Page 4404]]

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FEDERAL ELECTION COMMISSION

11 CFR Chapter I

[Notice 1998--4]

 
Composition of the Commission

AGENCY: Federal Election Commission.

ACTION: Notice of disposition of petition for rulemaking.

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SUMMARY: The Commission announces its disposition of a Petition for 
Rulemaking filed on December 4, 1997, by John J. Wheeling, Treasurer of 
the National Reform Party Organizing Committee. The petition asked the 
Commission to amend its rules to require either that two members of the 
current six-member Commission be affiliated with minor political 
parties, or to expand the Commission from six to nine members, with the 
three new members required to be affiliated with minor political 
parties. Further information is provided in the supplementary 
information that follows.

DATES: March 2, 1998.

FOR FURTHER INFORMATION CONTACT: Ms. Susan E. Propper, Assistant 
General Counsel, or Ms. Rita A. Reimer, Attorney, 999 E Street, N.W., 
Washington, D.C. 20463, (202) 219-3690 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: On December 4, 1997, the Commission received 
a Petition for Rulemaking from John J. Wheeling, Treasurer of the 
National Reform Party Organizing Committee. The Petition asked the 
Commission to amend its rules to require either that two members of the 
current six-member Commission be affiliated with minor political 
parties; or to expand the Commission from six to nine members, with the 
three new members required to be affiliated with minor political 
parties. The Petition states that this action is necessary to protect 
the rights of minor political parties which, it argues, are infringed 
by what it claims is a statutory requirement at 2 U.S.C. 437c(a)(1) 
that the six-member Commission be composed of three Commissioners 
affiliated with the Democratic Party, and three affiliated with the 
Republican Party.
    The Petition does not identify the specific section(s) of the 
regulations to be affected by these changes, as required by the 
Commission's rules governing rulemaking petitions at 11 CFR 
200.2(b)(3), because the Commission's rules do not address this 
situation. Nor could they, because the requested actions are outside 
the scope of the Commission's rulemaking authority. For this reason the 
Commission did not publish a Notice of Availability in the Federal 
Register seeking comments on the Petition's merits, which action is 
normally taken pursuant to 11 CFR 200.3(a)(1) for petitions that meet 
the requirements of paragraph 200.2(b).
    The Constitution at Art. II, section 2, cl. 2 provides that the 
President ``shall nominate, and by and with the Advice and Consent of 
the Senate, shall appoint * * * [all] Officers of the United States, 
whose Appointments are not herein otherwise provided for, and which 
shall be established by Law.'' Congress has by law established a six-
member Federal Election Commission, 2 U.S.C. 437c(a)(1); and Congress, 
not the Commission, has the sole authority to alter its size, either by 
adding three additional Commissioners or in any other way.
    Under the Appointments Clause, the President is entitled to choose 
the individuals to nominate as Commissioners. However, it has been long 
recognized that ``it is entirely proper for Congress to specify the 
qualifications for an office that it has created.'' Bowsher v. Synar, 
478 U.S. 714, 740 (1986) (Stevens, J., concurring). The provision in 
section 437c(a)(1) that ``no more than 3 [of the six] members of the 
Commission'' appointed by the President ``may be affiliated with the 
same political party'' simply sets the necessary qualifications for the 
members of the Commission. Again, it is for Congress, and not the 
Commission, to determine how, if at all, these qualifications should be 
changed.
    The Commission notes that there is nothing in the text of the law 
to require that the Commission be made up of three Democrats and three 
Republicans. The President can comply with this provision by choosing 
from among millions of persons affiliated with political parties, and 
millions more not affiliated with any party. The fact that Presidents 
to date have appointed only Democrats and Republicans as Commissioners 
does not mean that this will continue in the future, when they may 
choose to appoint a member of another political party, or an 
independent affiliated with no political party.
    Moreover, contrary to the petitioner's claim, the statutory 
requirement that no more than three Commissioners be affiliated with 
the same political party does not discriminate against minor parties. 
In fact, the reverse is true: By ensuring that no more than three 
Commissioners be affiliated with the same political party, and at the 
same time requiring an absolute majority of four votes for the 
Commission to take formal action, 2 U.S.C. 437c(c), Congress has acted 
to insure that no political party will be able to single-handedly 
dictate Commission action. These considerations, however, are secondary 
to the Constitutional and statutory provisions, discussed above, under 
which the Commission is powerless to take the requested action.
    The Commission's rules governing rulemaking petitions state 11 CFR 
200.5 (a) and (d) that the Commission's decision on whether to initiate 
a rulemaking in response to a rulemaking petition may include, inter 
alia, consideration of the Commission's statutory authority and the 
necessity of statutory revision to accomplish the requested result. The 
Commission believe these factors are controlling and, therefore, at its 
open meeting of January 22, 1998, voted not a initiate a rulemaking to 
reconstitute the Commission as requested in this Petition.

    Dated: January 23, 1998.
Joan D. Aikens,
Chairman, Federal Election Commission.
[FR Doc. 98-2098 Filed 1-28-98; 8:45 am]
BILLING CODE 6715-01-P