FEC Chair: Trump Can’t Fire Me 23 Years Into My 6-Year Term!

How long has Ellen Weintraub served on the Federal Elections Commission? Her five-year term began when Jason Bourne first discovered his identity was false, and Harry Potter discovered a chamber of secrets in Hogwarts. The term should have ended when Juno wisecracked through a pregnancy and Jason Bourne delivered an ultimatum.

Mahmoud Abbas has had more elections than Weintraub in the past 20 years. 

Late yesterday, Donald Trump decided to remove Weintraub, 17 years after her term expired and now the FEC chair by rotation. Can he do it? The New York Times doesn’t think so:

Ms. Weintraub, who has served as a Democratic commissioner on the bipartisan panel since 2002, posted a short letter signed by Mr. Trump on social media that said she was “hereby removed” from the commission effective immediately. She said in an interview that she did not see the president’s move as legally valid, and that she was considering her options on how to respond.

“There’s a perfectly legal way for him to replace me,” Ms. Weintraub said on Thursday evening. “But just flat-out firing me, that is not it.” …

A commissioner is removed only after a replacement is nominated by the president and confirmed by the Senate, and Ms. Weintraub said that the president did not have the power to force her off the commission before that. Mr. Trump did not name a successor to Ms. Weintraub in his letter, and it would take weeks at least for his choice for commissioner to be approved by the Senate.

Yes, but … there is some important context here as well:

Ms. Weintraub’s term as commissioner expired in 2007, but she has continued to serve on the board. The position of chair rotates every year. Ms. Weintraub took up the post again in January.

Technically, Weintraub appears to be correct — to a degree. The enabling statute for the FEC can be found at 52 USC 30106, which lays out the structure and membership of the commission. In subsection (a)(2)(B), the language supports Weintraub and former FEC commissioner Trevor Potter, quoted by the NYT in denouncing the move. (George H.W. Bush appointed Potter.) It does state that commissioners can work past their term expiration until a replacement is appointed and confirmed:

(B)A member of the Commission may serve on the Commission after the expiration of his or her term until his or her successor has taken office as a member of the Commission.

And here’s where it gets sticky for Weintraub. When this goes to court, a federal judge may look at (a)(2)(A) and notice that Congress explicitly limited an FEC term to “a single term of 6 years,” and consider that when looking at the following language of (a)(2)(B). That single-term limit of a specific period of time is seventeen years less than Weintraub’s presence on the commission; in essence, Weintraub is now serving a fourth consecutive term by the definition created by Congress in the statute, even though (A) expressly limits commissioners to “a single term.” 

The language in 52 USC 30106 (a)(2)(A) makes it pretty clear that Congress intended for membership to change on a regular basis. The language that follows in (B) on which Weintraub relies intended to allow for proper operation of the commission if and when interregna in membership occurs. In other words, (B) looks like a temporary patch provided by Congress, not a loophole for a lifetime sinecure. 

Is that how a district court will read it? Perhaps, perhaps not, but this will likely go to the DC Circuit on the emergency docket either way, and after that to the Supreme Court. Trump could moot this by appointing a replacement and asking John Thune to expedite the confirmation in the Senate, but like the upcoming fights at USAID and Department of Education, Trump and his team may want to have this out in court first. He clearly intends to establish full control over the executive branch and root out the lifetime-sinecure bureaucrats to the greatest extent possible. That’s key to his ability to “drain the swamp,” and it’s also key to instilling new accountability to the duly elected president in the executive branch. 

Some may scoff at Weintraub as a target, the same way some scoff at USAID as a battleground because of its relatively small impact on federal spending. That misses the point of both. Weintraub is an example of entrenched bureaucracy but representative of a vast class in that regard, while USAID funding propped up the bureaucratic state’s opacity and defiance of elected officials and their preferred policies and agendas for decades. They are the test cases for a truly effective reform sweep through the federal government and an end to the bureaucratic state as an unchecked fourth branch of government.