Federal Election Commission

Executive Order 14215 of February 18, 2025 acts on exactly the question the proposal raises, whose reading of the law governs, and settles it the other way. It amends Executive Order 12866 so that the definition of agency expressly includes the Federal Election Commission, bringing the commission's significant regulatory actions under review by the Office of Information and Regulatory Affairs, and section 7 makes the opinions of the President and the Attorney General controlling on all executive branch employees, barring any employee from advancing an interpretation of law as the position of the United States that contravenes them, including in regulations, guidance and litigation positions, unless authorized. The proposal asks the President to direct the Justice Department not to prosecute under a reading the commission rejects. Where they part: the order says nothing about prosecutions or about the Federal Election Campaign Act, and it does not forbid such a directive, so it reverses the direction of deference without addressing the charging decision the chapter is about.

Executive Order 14294 of May 9, 2025 sets as the policy of the United States that criminal enforcement of criminal regulatory offenses is disfavored, that prosecutions should focus on matters where a putative defendant is alleged to have known his conduct was unlawful, and that strict liability offenses are disfavored. It directs each agency, in consultation with the Attorney General, to publish every criminal regulatory offense it enforces together with the applicable mens rea standard, and it strongly discourages criminal enforcement of any offense left off that list. That is a presidential direction against prosecuting people who cannot tell that they are breaking the law, which is the reason the passage gives for its request. The fit breaks down because the order reaches criminal regulatory offenses, which it defines as federal regulations enforceable by a criminal penalty, rather than violations of the Federal Election Campaign Act itself, because it names neither the Justice Department's election crimes work, the Federal Election Commission, nor the First Amendment concern the passage raises, and because it governs when a regulatory offense should be charged rather than setting any standard of clarity for election law.

Section 7 of Executive Order 14215 of February 18, 2025 provides that the President and the Attorney General supply authoritative interpretations of law for the executive branch, that their opinions on questions of law are controlling on all employees in the conduct of their official duties, and that no employee acting in an official capacity may advance an interpretation of the law as the position of the United States that contravenes them, naming positions advanced in litigation, unless authorized by the President or in writing by the Attorney General. The same order amends the definition of agency in Executive Order 12866 to include the Federal Election Commission by name. That subordinates the legal positions the commission may take to the Attorney General's, which is the independence the passage asks the President to consider ending. The fit breaks down because the passage asks for an amendment to the Federal Election Campaign Act and the order asks Congress for nothing, because nothing in the order removes or mentions the commission's authority to appear in court in its own name, because section 7 governs which interpretation of law may be advanced rather than who may sue, and because section 7 speaks of employees of the executive branch without stating whether the commissioners are covered.