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S. 2639: Restoring Integrity to America’s Elections Act


The text of the bill below is as of Oct 17, 2019 (Introduced).


II

116th CONGRESS

1st Session

S. 2639

IN THE SENATE OF THE UNITED STATES

October 17, 2019

(for himself, Mr. Van Hollen, Ms. Baldwin, Mr. Bennet, Mr. Blumenthal, Mr. Booker, Ms. Hirono, Mr. Merkley, Mr. Markey, Mr. Whitehouse, and Mr. Sanders) introduced the following bill; which was read twice and referred to the Committee on Rules and Administration

A BILL

To restore integrity to America's Elections.

1.

Short title

This Act may be cited as the Restoring Integrity to America’s Elections Act.

2.

Membership of Federal Election Commission

(a)

Reduction in Number of Members; Removal of Secretary of Senate and Clerk of House as Ex Officio Members

(1)

In general; quorum

Section 306(a)(1) of the Federal Election Campaign Act of 1971 (52 U.S.C. 30106(a)(1)) is amended by striking the second and third sentences and inserting the following: The Commission is composed of 5 members appointed by the President by and with the advice and consent of the Senate, of whom no more than 2 may be affiliated with the same political party. A member shall be treated as affiliated with a political party if the member was affiliated, including as a registered voter, employee, consultant, donor, officer, or attorney, with such political party or any of its candidates or elected public officials at any time during the 5-year period ending on the date on which such individual is nominated to be a member of the Commission. A majority of the number of members of the Commission who are serving at the time shall constitute a quorum, except that 3 members shall constitute a quorum if there are 4 members serving at the time..

(2)

Conforming amendments relating to reduction in number of members

(A)

The second sentence of section 306(c) of such Act (52 U.S.C. 30106(c)) is amended by striking affirmative vote of 4 members of the Commission and inserting affirmative vote of a majority of the members of the Commission who are serving at the time.

(B)

Such Act is further amended by striking affirmative vote of 4 of its members and inserting affirmative vote of a majority of the members of the Commission who are serving at the time each place it appears in the following sections:

(i)

Section 309(a)(2) (52 U.S.C. 30109(a)(2)).

(ii)

Section 309(a)(4)(A)(i) (52 U.S.C. 30109(a)(4)(A)(i)).

(iii)

Section 309(a)(5)(C) (52 U.S.C. 30109(a)(5)(C)).

(iv)

Section 309(a)(6)(A) (52 U.S.C. 30109(a)(6)(A)).

(v)

Section 311(b) (52 U.S.C. 30111(b)).

(3)

Conforming amendment relating to removal of ex officio members

Section 306(a) of such Act (52 U.S.C. 30106(a)) is amended by striking (other than the Secretary of the Senate and the Clerk of the House of Representatives) each place it appears in paragraphs (4) and (5).

(b)

Terms of Service

Section 306(a)(2) of such Act (52 U.S.C. 30106(a)(2)) is amended to read as follows:

(2)

Terms of service

(A)

In general

Each member of the Commission shall serve for a single term of 6 years.

(B)

Special rule for initial appointments

Of the members first appointed to serve terms that begin in January 2022, the President shall designate 2 to serve for a 3-year term.

(C)

No reappointment permitted

An individual who served a term as a member of the Commission may not serve for an additional term, except that—

(i)

an individual who served a 3-year term under subparagraph (B) may also be appointed to serve a 6-year term under subparagraph (A); and

(ii)

for purposes of this subparagraph, an individual who is appointed to fill a vacancy under subparagraph (D) shall not be considered to have served a term if the portion of the unexpired term the individual fills is less than 50 percent of the period of the term.

(D)

Vacancies

Any vacancy occurring in the membership of the Commission shall be filled in the same manner as in the case of the original appointment. Except as provided in subparagraph (C), an individual appointed to fill a vacancy occurring other than by the expiration of a term of office shall be appointed only for the unexpired term of the member he or she succeeds.

(E)

Limitation on service after expiration of term

A member of the Commission may continue to serve on the Commission after the expiration of the member’s term for an additional period, but only until the earlier of—

(i)

the date on which the member’s successor has taken office as a member of the Commission; or

(ii)

the expiration of the 1-year period that begins on the last day of the member’s term.

.

(c)

Qualifications

Section 306(a)(3) of such Act (52 U.S.C. 30106(a)(3)) is amended to read as follows:

(3)

Qualifications

(A)

In general

The President may select an individual for service as a member of the Commission if the individual has experience in election law and has a demonstrated record of integrity, impartiality, and good judgment.

(B)

Assistance of Blue Ribbon Advisory Panel

(i)

In general

Prior to the regularly scheduled expiration of the term of a member of the Commission and upon the occurrence of a vacancy in the membership of the Commission prior to the expiration of a term, the President shall convene a Blue Ribbon Advisory Panel, that includes individuals representing each major political party and individuals who are independent of a political party and that consists of an odd number of individuals selected by the President from retired Federal judges, former law enforcement officials, or individuals with experience in election law, except that the President may not select any individual to serve on the panel who holds any public office at the time of selection. The President shall also make reasonable efforts to encourage racial, ethnic, and gender diversity on the panel.

(ii)

Recommendations

With respect to each member of the Commission whose term is expiring or each vacancy in the membership of the Commission (as the case may be), the Blue Ribbon Advisory Panel shall recommend to the President at least one but not more than 3 individuals for nomination for appointment as a member of the Commission.

(iii)

Publication

At the time the President submits to the Senate the nominations for individuals to be appointed as members of the Commission, the President shall publish the Blue Ribbon Advisory Panel’s recommendations for such nominations.

(iv)

Exemption from Federal Advisory Committee Act

The Federal Advisory Committee Act (5 U.S.C. App.) does not apply to a Blue Ribbon Advisory Panel convened under this subparagraph.

(C)

Prohibiting engagement with other business or employment during service

A member of the Commission shall not engage in any other business, vocation, or employment. Any individual who is engaging in any other business, vocation, or employment at the time of his or her appointment to the Commission shall terminate or liquidate such activity no later than 90 days after such appointment.

.

3.

Assignment of powers to Chair of Federal Election Commission

(a)

Appointment of Chair by President

(1)

In general

Section 306(a)(5) of the Federal Election Campaign Act of 1971 (52 U.S.C. 30106(a)(5)) is amended to read as follows:

(5)

Chair

(A)

Initial appointment

Of the members first appointed to serve terms that begin in January 2022, one such member (as designated by the President at the time the President submits nominations to the Senate) shall serve as Chair of the Commission.

(B)

Subsequent appointments

Any individual who is appointed to succeed the member who serves as Chair of the Commission for the term beginning in January 2022 (as well as any individual who is appointed to fill a vacancy if such member does not serve a full term as Chair) shall serve as Chair of the Commission.

(C)

Vice Chair

The Commission shall select, by majority vote of its members, one of its members to serve as Vice Chair, who shall act as Chair in the absence or disability of the Chair or in the event of a vacancy in the position of Chair.

.

(2)

Conforming amendment

Section 309(a)(2) of such Act (52 U.S.C. 30109(a)(2)) is amended by striking through its chairman or vice chairman and inserting through the Chair.

(b)

Powers

(1)

Assignment of certain powers to Chair

Section 307(a) of such Act (52 U.S.C. 30107(a)) is amended to read as follows:

(a)

Distribution of Powers Between Chair and Commission

(1)

Powers assigned to Chair

(A)

Administrative powers

The Chair of the Commission shall be the chief administrative officer of the Commission and shall have the authority to administer the Commission and its staff, and (in consultation with the other members of the Commission) shall have the power—

(i)

to appoint and remove the staff director of the Commission;

(ii)

to request the assistance (including personnel and facilities) of other agencies and departments of the United States, whose heads may make such assistance available to the Commission with or without reimbursement; and

(iii)

to prepare and establish the budget of the Commission and to make budget requests to the President, the Director of the Office of Management and Budget, and Congress.

(B)

Other powers

The Chair of the Commission shall have the power—

(i)

to appoint and remove the general counsel of the Commission with the concurrence of at least 2 other members of the Commission;

(ii)

to require by special or general orders, any person to submit, under oath, such written reports and answers to questions as the Chair may prescribe;

(iii)

to administer oaths or affirmations;

(iv)

to require by subpoena, signed by the Chair, the attendance and testimony of witnesses and the production of all documentary evidence relating to the execution of its duties;

(v)

in any proceeding or investigation, to order testimony to be taken by deposition before any person who is designated by the Chair, and shall have the power to administer oaths and, in such instances, to compel testimony and the production of evidence in the same manner as authorized under clause (iv); and

(vi)

to pay witnesses the same fees and mileage as are paid in like circumstances in the courts of the United States.

(2)

Powers assigned to Commission

The Commission shall have the power—

(A)

to initiate (through civil actions for injunctive, declaratory, or other appropriate relief), defend (in the case of any civil action brought under section 309(a)(8) of this Act) or appeal (including a proceeding before the Supreme Court on certiorari) any civil action in the name of the Commission to enforce the provisions of this Act and chapter 95 and chapter 96 of the Internal Revenue Code of 1986, through its general counsel;

(B)

to render advisory opinions under section 308 of this Act;

(C)

to develop such prescribed forms and to make, amend, and repeal such rules, pursuant to the provisions of chapter 5 of title 5, United States Code, as are necessary to carry out the provisions of this Act and chapter 95 and chapter 96 of the Internal Revenue Code of 1986;

(D)

to conduct investigations and hearings expeditiously, to encourage voluntary compliance, and to report apparent violations to the appropriate law enforcement authorities; and

(E)

to transmit to the President and Congress not later than June 1 of each year a report which states in detail the activities of the Commission in carrying out its duties under this Act, and which includes any recommendations for any legislative or other action the Commission considers appropriate.

(3)

Permitting Commission to exercise other powers of Chair

With respect to any investigation, action, or proceeding, the Commission, by an affirmative vote of a majority of the members who are serving at the time, may exercise any of the powers of the Chair described in paragraph (1)(B).

.

(2)

Conforming amendments relating to personnel authority

Section 306(f) of such Act (52 U.S.C. 30106(f)) is amended—

(A)

by amending the first sentence of paragraph (1) to read as follows: The Commission shall have a staff director who shall be appointed by the Chair of the Commission in consultation with the other members and a general counsel who shall be appointed by the Chair with the concurrence of at least two other members.;

(B)

in paragraph (2), by striking With the approval of the Commission and inserting With the approval of the Chair of the Commission; and

(C)

by striking paragraph (3).

(3)

Conforming amendment relating to budget submission

Section 307(d)(1) of such Act (52 U.S.C. 30107(d)(1)) is amended by striking the Commission submits any budget and inserting the Chair (or, pursuant to subsection (a)(3), the Commission) submits any budget.

(4)

Other conforming amendments

Section 306(c) of such Act (52 U.S.C. 30106(c)) is amended by striking All decisions and inserting Subject to section 307(a), all decisions.

(5)

Technical amendment

The heading of section 307 of such Act (52 U.S.C. 30107) is amended by striking the commission and inserting the chair and the commission.

4.

Revision to enforcement process

(a)

Standard for initiating investigations and determining whether violations have occurred

(1)

Revision of standards

Section 309(a) of the Federal Election Campaign Act of 1971 (52 U.S.C. 30109(a)) is amended by striking paragraphs (2) and (3) and inserting the following:

(2)
(A)

The general counsel, upon receiving a complaint filed with the Commission under paragraph (1) or upon the basis of information ascertained by the Commission in the normal course of carrying out its supervisory responsibilities, shall make a determination as to whether or not there is reason to believe that a person has committed, or is about to commit, a violation of this Act or chapter 95 or chapter 96 of the Internal Revenue Code of 1986, and as to whether or not the Commission should either initiate an investigation of the matter or that the complaint should be dismissed. The general counsel shall promptly provide notification to the Commission of such determination and the reasons therefore, together with any written response submitted under paragraph (1) by the person alleged to have committed the violation. Upon the expiration of the 30-day period which begins on the date the general counsel provides such notification, the general counsel’s determination shall take effect, unless during such 30-day period the Commission, by vote of a majority of the members of the Commission who are serving at the time, overrules the general counsel’s determination. If the determination by the general counsel that the Commission should investigate the matter takes effect, or if the determination by the general counsel that the complaint should be dismissed is overruled as provided under the previous sentence, the general counsel shall initiate an investigation of the matter on behalf of the Commission.

(B)

If the Commission initiates an investigation pursuant to subparagraph (A), the Commission, through the Chair, shall notify the subject of the investigation of the alleged violation. Such notification shall set forth the factual basis for such alleged violation. The Commission shall make an investigation of such alleged violation, which may include a field investigation or audit, in accordance with the provisions of this section. The general counsel shall provide notification to the Commission of any intent to issue a subpoena or conduct any other form of discovery pursuant to the investigation. Upon the expiration of the 15-day period which begins on the date the general counsel provides such notification, the general counsel may issue the subpoena or conduct the discovery, unless during such 15-day period the Commission, by vote of a majority of the members of the Commission who are serving at the time, prohibits the general counsel from issuing the subpoena or conducting the discovery.

(3)
(A)

Upon completion of an investigation under paragraph (2), the general counsel shall promptly submit to the Commission the general counsel’s recommendation that the Commission find either that there is probable cause or that there is not probable cause to believe that a person has committed, or is about to commit, a violation of this Act or chapter 95 or chapter 96 of the Internal Revenue Code of 1986, and shall include with the recommendation a brief stating the position of the general counsel on the legal and factual issues of the case.

(B)

At the time the general counsel submits to the Commission the recommendation under subparagraph (A), the general counsel shall simultaneously notify the respondent of such recommendation and the reasons therefore, shall provide the respondent with an opportunity to submit a brief within 30 days stating the position of the respondent on the legal and factual issues of the case and replying to the brief of the general counsel. The general counsel shall promptly submit such brief to the Commission upon receipt.

(C)

Not later than 30 days after the general counsel submits the recommendation to the Commission under subparagraph (A) (or, if the respondent submits a brief under subparagraph (B), not later than 30 days after the general counsel submits the respondent’s brief to the Commission under such subparagraph), the Commission shall approve or disapprove the recommendation by vote of a majority of the members of the Commission who are serving at the time.

.

(2)

Conforming amendment relating to Initial response to filing of complaint

Section 309(a)(1) of such Act (52 U.S.C. 30109(a)(1)) is amended—

(A)

in the third sentence, by striking the Commission and inserting the general counsel; and

(B)

by amending the fourth sentence to read as follows: Not later than 15 days after receiving notice from the general counsel under the previous sentence, the person may provide the general counsel with a written response that no action should be taken against such person on the basis of the complaint..

(b)

Revision of standard for review of dismissal of complaints

(1)

In general

Section 309(a)(8) of such Act (52 U.S.C. 30109(a)(8)) is amended to read as follows:

(8)
(A)
(i)

Any party aggrieved by an order of the Commission dismissing a complaint filed by such party after finding either no reason to believe a violation has occurred or no probable cause a violation has occurred may file a petition with the United States District Court for the District of Columbia. Any petition under this subparagraph shall be filed within 60 days after the date on which the party received notice of the dismissal of the complaint.

(ii)

In any proceeding under this subparagraph, the court shall determine by de novo review whether the agency’s dismissal of the complaint is contrary to law. In any matter in which the penalty for the alleged violation is greater than $50,000, the court should disregard any claim or defense by the Commission of prosecutorial discretion as a basis for dismissing the complaint.

(B)
(i)

Any party who has filed a complaint with the Commission and who is aggrieved by a failure of the Commission, within one year after the filing of the complaint, to either dismiss the complaint or to find reason to believe a violation has occurred or is about to occur, may file a petition with the United States District Court for the District of Columbia.

(ii)

In any proceeding under this subparagraph, the court shall treat the failure to act on the complaint as a dismissal of the complaint, and shall determine by de novo review whether the agency’s failure to act on the complaint is contrary to law.

(C)

In any proceeding under this paragraph the court may declare that the dismissal of the complaint or the failure to act is contrary to law, and may direct the Commission to conform with such declaration within 30 days, failing which the complainant may bring, in the name of such complainant, a civil action to remedy the violation involved in the original complaint.

.

(2)

Effective date

The amendments made by paragraph (1) shall apply—

(A)

in the case of complaints which are dismissed by the Federal Election Commission, with respect to complaints which are dismissed on or after the date of the enactment of this Act; and

(B)

in the case of complaints upon which the Federal Election Commission failed to act, with respect to complaints which were filed on or after the date of the enactment of this Act.

5.

Permitting appearance at hearings on requests for advisory opinions by persons opposing the requests

(a)

In general

Section 308 of such Act (52 U.S.C. 30108) is amended by adding at the end the following new subsection:

(e)

To the extent that the Commission provides an opportunity for a person requesting an advisory opinion under this section (or counsel for such person) to appear before the Commission to present testimony in support of the request, and the person (or counsel) accepts such opportunity, the Commission shall provide a reasonable opportunity for an interested party who submitted written comments under subsection (d) in response to the request (or counsel for such interested party) to appear before the Commission to present testimony in response to the request.

.

(b)

Effective date

The amendment made by subsection (a) shall apply with respect to requests for advisory opinions under section 308 of the Federal Election Campaign Act of 1971 which are made on or after the date of the enactment of this Act.

6.

Permanent extension of administrative penalty authority

(a)

Extension of authority

Section 309(a)(4)(C)(v) of the Federal Election Campaign Act of 1971 (52 U.S.C. 30109(a)(4)(C)(v)), as amended by Public Law 115–386, is amended by striking , and that end on or before December 31, 2023.

(b)

Effective date

The amendment made by subsection (a) shall take effect on December 31, 2018.

7.

Requiring forms to permit use of accent marks

(a)

Requirement

Section 311(a)(1) of the Federal Election Campaign Act of 1971 (52 U.S.C. 30111(a)(1)) is amended by striking the semicolon at the end and inserting the following: , and shall ensure that all such forms (including forms in an electronic format) permit the person using the form to include an accent mark as part of the person’s identification;.

(b)

Effective date

The amendment made by subsection (a) shall take effect upon the expiration of the 90-day period which begins on the date of the enactment of this Act.

8.

Restrictions on ex parte communications

Section 306(e) of the Federal Election Campaign Act of 1971 (52 U.S.C. 30106(e)) is amended—

(1)

by striking (e) The Commission and inserting (e)(1) The Commission; and

(2)

by adding at the end the following new paragraph:

(2)

Members and employees of the Commission shall be subject to limitations on ex parte communications, as provided in the regulations promulgated by the Commission regarding such communications which are in effect on the date of the enactment of this paragraph.

.

9.

Clarifying Authority of FEC Attorneys to Represent FEC in Supreme Court

(a)

Clarifying authority

Section 306(f)(4) of the Federal Election Campaign Act of 1971 (52 U.S.C. 30106(f)(4)) is amended by striking any action instituted under this Act, either (A) by attorneys and inserting any action instituted under this Act, including an action before the Supreme Court of the United States, either (A) by the General Counsel of the Commission and other attorneys.

(b)

Effective date

The amendment made by subsection (a) shall apply with respect to actions instituted before, on, or after the date of the enactment of this Act.

10.

Effective date; transition

(a)

In General

Except as otherwise provided, the amendments made by this Act shall apply beginning January 1, 2022.

(b)

Transition

(1)

Termination of service of current members

Notwithstanding any provision of the Federal Election Campaign Act of 1971, the term of any individual serving as a member of the Federal Election Commission as of December 31, 2021, shall expire on that date.

(2)

No effect on existing cases or proceedings

Nothing in this Act or in any amendment made by this Act shall affect any of the powers exercised by the Federal Election Commission prior to December 31, 2021, including any investigation initiated by the Commission prior to such date or any proceeding (including any enforcement action) pending as of such date.