Authorizing the Speaker to appoint a committee to notify the President of the assembly of the Congress.

— 64 — Mandate for Leadership: The Conservative Promise Senate, often serves as a presidential emissary to the Senate and thus can be espe- cially helpful in securing passage of the President’s legislative agenda. To the extent that he or she desires, a Vice President can have a direct role in shaping Administration policy. A Vice President who regularly attends meetings and disperses staff across the interagency and policy councils is a Vice President whose voice will be heard. AUTHOR’S NOTE: Special thanks to those who contributed to this chapter: Stephen Billy, Scott Pace, Casey Mulligan, Edie Heipel, Mike Duffey, Vance Ginn, Iain Murray, Laura Cunliffe, Mario Loyola, Anthony Campau, Paige Agostin, Molly Sikes, Paul Ray, Kenneth A. Klukowski, Michael Anton, Robert Greenway, Valerie Huber, James Rockas, Paul Winfree, Aaron Hedlund, Brian McCormack, David Legates, Art Kleinschmidt, Paul Larkin, Kayla Tonnessen, Jeffrey B. Clark, Jonathan Wolfson, and Bob Burkett. — 65 — Executive Office of the President of the United States ENDNOTES 1. U.S. Constitution, Article II, Section 1, https://www.law.cornell.edu/constitution/articleii#section1 (accessed January 30, 2023). 2. James Madison, The Federalist Papers No. 47, January 30, 1788, https://founders.archives.gov/documents/ Madison/01-10-02-0266 (accessed January 30, 2023). 3. 31 U.S.C. §§ 1341(a)(1)(A) and 1341(a)(1)(B), https://www.law.cornell.edu/uscode/text/31/1341 (accessed January 30, 2023); § 1342, https://www.law.cornell.edu/uscode/text/31/1342 (accessed January 30, 2023); and § 1517(a), https://www.law.cornell.edu/uscode/text/31/1517(a) (accessed January 30, 2023). 4. President William J. Clinton, Executive Order 12866, “Regulatory Planning and Review,” September 30, 1993, in Federal Register, Vol. 58, No. 190 (October 4, 1993), pp. 51735–51744, https://www.govinfo.gov/content/pkg/ FR-1993-10-04/pdf/FR-1993-10-04.pdf (accessed March 9, 2023). 5. Brent J. McIntosh, General Counsel, Department of the Treasury, and Neomi Rao, Administrator, Office of Information and Regulatory Affairs, Memorandum of Agreement, “The Department of the Treasury and the Office of Management and Budget Review of Tax Regulations Under Executive Order 12866,” April 11, 2018, https://home.treasury.gov/sites/default/files/2018-04/04-11%20Signed%20Treasury%20OIRA%20MOA.pdf (accessed January 31, 2023). 6. See Steven A. Engel, Assistant Attorney General, Office of Legal Counsel, “Extending Regulatory Review Under Executive Order 12866 to Independent Regulatory Agencies,” 43 Op. O.L.C. __ (Oct. 8, 2019), https:// www.justice.gov/sites/default/files/opinions/attachments/2020/12/30/2019-10-08-extend-reg-review.pdf (accessed January 31, 2023). 7. Office of Management and Budget, Circular A-4, “Regulatory Analysis,” September 17, 2003, https:// www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf (accessed January 31, 2023). 8. President Donald J. Trump, Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents,” October 9, 2019, in Federal Register, Vol. 84, No. 199 (October 15, 2019), pp. 55235– 55238, https://home.treasury.gov/sites/default/files/2018-04/04-11%20Signed%20Treasury%20OIRA%20MOA. pdf (accessed January 31, 2023). 9. President Donald J. Trump, Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” January 30, 2017, in Federal Register, Vol. 82, No. 22 (February 3, 20170, pp. 9339–9341, https://www.govinfo. gov/content/pkg/FR-2017-02-03/pdf/2017-02451.pdf (accessed January 31, 2023). 10. President Donald J. Trump, Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” February 24, 2017, in Federal Register, Vol. 82, No. 39 (March 1, 2017), pp. 12285–12287, https://www.govinfo.gov/content/ pkg/FR-2017-03-01/pdf/2017-04107.pdf (accessed January 31, 2023). 11. See note 8, supra. 12. President Donald J. Trump, Executive Order 13892, “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication,” in Federal Register, Vol. 84, No. 199 (October 15, 2019), pp. 55239–55243, https://www.govinfo.gov/content/pkg/FR-2019-10-15/pdf/2019-22624.pdf (accessed January 31, 2023). 13. President Donald J. Trump, Executive Order 13893, “Increasing Government Accountability for Administrative Actions by Reinvigorating Administrative PAYGO,” October 10, 2019, in Federal Register, Vol. 84, No. 200 (October 16, 2019), pp. 55487–55488, https://www.govinfo.gov/content/pkg/FR-2019-10-16/pdf/2019-22749. pdf (accessed January 31, 2023). 14. President Donald J. Trump, Executive Order 13924, “Regulatory Relief to Support Economic Recovery,” May 19, 2020, in Federal Register, Vol. 85, No. 100 (May 22, 2020), pp. 31353–31356, esp. 31355, https://www.govinfo. gov/content/pkg/FR-2020-05-22/pdf/2020-11301.pdf (accessed January 31, 2023). 15. President Donald J. Trump, Executive Order 13979, “Ensuring Democratic Accountability in Agency Rulemaking,” January 18, 2021, in Federal Register, Vol. 86, No. 13 (January 22, 2021), pp. 6813–6815, https:// www.govinfo.gov/content/pkg/FR-2021-01-22/pdf/2021-01644.pdf (accessed January 31, 2023). 16. President Donald J. Trump, Executive Order 13980, “Protecting Americans from Overcriminalization Through Regulatory Reform,” January 18, 2021, in Federal Register, Vol. 86, No. 13 (January 22, 2021), pp. 6817–6820, https://www.govinfo.gov/content/pkg/FR-2021-01-22/pdf/2021-01645.pdf (accessed January 31, 2023).

— 858 — Mandate for Leadership: The Conservative Promise ENDNOTES 1. 47 U.S.C. § 151, https://www.law.cornell.edu/uscode/text/47/151 (accessed January 23, 2023). 2. 47 U.S.C. § 154, https://www.law.cornell.edu/uscode/text/47/154 (accessed January 23, 2023). 3. Ibid. 4. 47 U.S.C. § 154(c). 5. 47 U.S.C. § 154(b)(5). 6. 47 U.S.C. § 155(a), https://www.law.cornell.edu/uscode/text/47/155 (accessed January 23, 2023). 7. Ibid. 8. Ibid. There are no limits on the President’s authority to designate a different Chairperson from among the existing Commissioners. Further, though it is an open question, it is generally believed that the judiciary would impose limits on the power of the President to remove a Commissioner during his or her five-year term. The question is not settled because Congress did not include an express “for cause” or similar protection against removal in the Communications Act itself. Scholars assume this is because Congress passed the Communications Act in the years between the Supreme Court’s decision in Myers v. United States, 272 U.S. 52 (1926) and Humphrey’s Executor v. United States, 295 U.S. 602 (1935), when it was not entirely clear that Congress could impose a limit on the President’s removal power. However, the Communications Act was significantly amended in 1996, and Congress did not add “just cause” or other protections from removal at that time. Considering the high-profile contemporary debates about the appointment and removal of independent counsels under the Independent Counsel Act, one could reasonably assume that Congress was aware of removal powers and protections for presidentially appointed and Senate-confirmed officials. 9. Chart, “FTEs—Historical and Estimated, Fiscal Years 1986–2023,” in U.S. Federal Communications Commission, 2023 Budget Estimates to Congress, March 2022, p. 17, https://docs.fcc.gov/public/attachments/DOC-381693A1. pdf (accessed January 23, 2023). 10. U.S. Federal Communications Commission, 2023 Budget Estimates to Congress, p. 7. 11. Roslyn Layton, “Spectrum Auctions Have Raised $230 Billion; The FCC’s Authority to Conduct Them Will Lapse Soon If Congress Doesn’t Act,” Forbes, April 29, 2022, https://www.forbes.com/sites/ roslynlayton/2022/04/29/spectrum-auctions-have-raised-230-billion-the-fccs-authority-to-conduct-them- will-lapse-soon-if-congress-doesnt-act/?sh=4d32066908eb (accessed January 23, 2023). 12. For a full listing of the FCC’s Bureaus and Offices, along with their functions and an organization chart, see U.S. Federal Communications Commission, “Organizational Charts of the FCC,” https://www.fcc.gov/about-fcc/ organizational-charts-fcc (accessed January 23, 2023). 13. 47 U.S.C. § 230, https://www.law.cornell.edu/uscode/text/47/230 (accessed January 23, 2023). 14. Thomas M. Johnson Jr., “The FCC’s Authority to Interpret Section 230 of the Communications Act,” October 21, 2020, https://www.fcc.gov/news-events/blog/2020/10/21/fccs-authority-interpret-section-230- communications-act (accessed January 23, 2023). 15. This chapter does not purport to set forth a comprehensive agenda for the FCC. Rather, it focuses on a selected handful of issue areas that may quickly rise to the attention of a new Administration. Similarly, not every contributor to this chapter agrees with every policy idea included here; this document attempts to reflect a range of views and perspectives. 16. Johnson, “The FCC’s Authority to Interpret Section 230 of the Communications Act.” 17. U.S. Department of Commerce, National Telecommunications and Information Administration, “NTIA Petition for Rulemaking to Clarify Provisions of Section 230 of the Communications Act,” July 27, 2020, https:// ntia.gov/fcc-filing/ntia-petition-rulemaking-clarify-provisions-section-230-communications-act (accessed January 23, 2023). 18. Malwarebytes, Inc. v. Enigma Software, 592 U.S. ___ (2020) (Thomas, J., statement respecting the denial of certiorari), https://www.supremecourt.gov/opinions/20pdf/19-1284_869d.pdf (accessed January 23, 2023). 19. See 47 U.S.C. § 230; see also Ray Baum’s Act of 2018, Division P, Title IV, § 401 (codifying the Consolidated Reporting Act), in H.R. 1625, Consolidated Appropriations Act, 2018, Public Law No. 115-141, 115th Congress, March 23, 2018, https://www.congress.gov/115/plaws/publ141/PLAW-115publ141.pdf (accessed January 23, 2023). 20. NetChoice, L.L.C. v. Paxton, 49 F.4th 439 (5th Cir. 2022), https://fingfx.thomsonreuters.com/gfx/legaldocs/ gdpzqyobyvw/alisonn%201.pdf (accessed January 23, 2023).

— 865 — Federal Election Commission l As a legislative matter and given this abuse, the President should seriously consider recommending that Congress amend FECA to remove the agency’s independent litigating authority and rely on the Department of Justice to handle all litigation involving the FEC. There are also multiple instances of existing statutory provisions of FECA and the accompanying FEC regulations having been found unlawful or unconstitu- tional by federal court decisions, yet those statutory provisions remain in the U.S. Code and the implementing regulations remain in the Code of Federal Regula- tions.12 In such instances, those regulated by the law, from candidates to the public, have no way of knowing (without engaging in extensive legal research) whether particular statutory provisions and regulations are still applicable to their actions in the political arena. l The President should request that the commissioners on the FEC prepare such guidance. l In the event that the FEC fails to act, the President should direct the attorney general to prepare a guidance document from the Department of Justice for the public that outlines all of the FECA statutory provisions and FEC regulations that have been changed, amended, or voided by specific court decisions. Legislative Changes. While a President’s ability to make any changes at an independent agency like the FEC is limited,13 the President has the ability to make legislative recommendations to Congress. One of the most obvious changes that is needed is to end the current practice of allowing commissioners to remain as serving commissioners long after their term has expired, defying the clear intent of Congress in specifying that a commissioner can only serve a single term of six years. l The President should prioritize nominations to the FEC once commissioners reach the end of their terms and should be assisted by legislative language either eliminating or limiting overstays to a reasonable period of time to permit the vetting, nomination, and confirmation of successors. l The President should vigorously oppose all efforts, as proposed, for example, in Section 6002 of the “For the People Act of 2021,”14 to change the structure of the FEC to reduce the number of commissioners from six to five or another odd number. The current requirement of four votes to authorize an enforcement action, provide — 866 — Mandate for Leadership: The Conservative Promise an advisory opinion, or issue regulations, ensures that there is bipartisan agreement before any action is taken and protects against the FEC being used as a political weapon. With only five commissioners, three members of the same political party could control the enforcement process of the agency, raising the potential of a powerful federal agency enforcing the law on a partisan basis against the members of the opposition political party. Efforts to impose a “nonpartisan” or so-called “inde- pendent” chair are impractical; the chair will inevitably be aligned with his or her appointing party, at least as a matter of perception. There are numerous other changes that should be considered in FECA and the FEC’s regulations. The overly restrictive limits on the ability of party com- mittees to coordinate with their candidates, for example, violates associational rights and unjustifiably interferes with the very purpose of political parties: to elect their candidates. l Raise contribution limits and index reporting requirements to inflation. Contribution limits should generally be much higher, as they hamstring candidates and parties while serving no practical anticorruption purpose. And a wide range of reporting requirements have not been indexed to inflation, clogging the public record and the FEC’s internal processes with small-dollar information of little use to the public. CONCLUSION When taking any action related to the FEC, the President should keep in mind that, as former FEC Chairman Bradley Smith says, the “greater problem at the FEC has been overenforcement,” not underenforcement as some critics falsely allege.15 As he correctly concludes, the FEC’s enforcement efforts “place a substan- tial burden on small committees and campaigns, and are having a chilling effect on some political speech…squeezing the life out of low level, volunteer politi- cal activity.”16 Commissioners have a duty to enforce FECA in a fair, nonpartisan, objective manner. But they must do so in a way that protects the First Amendment rights of the public, political parties, and candidates to fully participate in the political process. The President has the same duty to ensure that the Department of Justice enforces the law in a similar manner.