Project 2025 Tracker / What’s done, what’s next

29. Federal Election Commission · Notable

Direct the Attorney General to defend the FEC when commissioners deadlock

Not started

864 29. Federal Election Commission

“The President should direct the attorney general to defend the FEC in all litigation when there is a failure of the commissioners to authorize the general counsel of the agency to defend it. No legislation would be needed to accomplish this; the DOJ has the general authority to defend the government and its agencies in all litigation.”

What has happened

  1. Not started

    No presidential direction to the Attorney General to defend the FEC was found: the only presidential document in the window that names the FEC at all is Executive Order 14215. The condition the ask contemplates has arisen repeatedly — with no quorum since October 2025 the Commission cannot vote to authorize its General Counsel to defend anything — and the answer has been the Commission filing Notices of Lack of Quorum in the district court rather than the Department appearing for it, three in one week in January 2026 and another in August 2026. Read entry by entry, the docket says something sharper than "no direction was given": in *Bernegger v. FEC*, No. 1:25-cv-04072 (D.D.C., Walton, J.), the only filings by any defendant are the Commission's own Notice of Lack of Quorum (ECF 7, 2026-01-29) and its certificate of service (ECF 8, 2026-02-06), both by Michael Contino of the FEC's Office of General Counsel; summonses issued to the FEC, the U.S. Attorney **and the Attorney General** on 2026-01-16 and were returned executed (ECF 10, 2026-02-20), so the Department was served and on notice; **no appearance was ever entered by the Department of Justice**; and after the plaintiff moved for entry of default (ECF 12, 2026-03-24) and for default judgment (ECF 14, 2026-05-05), **default was entered on 2026-07-10** (ECF 16). The United States has allowed default to be entered against the Federal Election Commission rather than defend it.

Research log

What was searched, and what didn’t count as evidence

Research notes

  • The Commission already has a procedure for exactly this situation, and it predates the window, so it is not Evidence here: the agency procedure adopted 2023-07-13 provides that where four Commissioners do not vote to authorize a defense, or the Commission lacks a quorum, the Office of General Counsel must apprise the court and inform the Assistant Attorney General for the Civil Division (https://www.fec.gov/updates/commission-adopts-new-agency-procedure-related-to-certain-litigation/, read 2026-09-01). The Mandate asks the President to complete that loop by directing the Attorney General to defend; nothing shows that being done.
  • Negative search: grep -i 'federal election commission' over fr-presdocu.ndjson and presidential-actions.ndjson (only EO 14215); Federal Register API conditions[term]="Federal Election Commission", PRESDOCU, since 2025-01-20 → 1 document (EO 14215). The same term unquoted returns 4, three of them unrelated — the quoting rule.
  • The dockets were opened on 2026-09-03 (read-queue ticket 04). CourtListener docket pages are readable to a browser User-Agent, and its search API is live-indexed, so the earlier note’s “unreadable this round” no longer holds. Bernegger v. FEC, No. 1:25-cv-04072 (D.D.C.) was read entry by entry: complaint 2025-11-20; summonses to the FEC, the U.S. Attorney and the Attorney General issued 2026-01-16 and returned executed 2026-02-20; the Commission’s Notice of Lack of Quorum at ECF 7 (2026-01-29) and certificate of service at ECF 8 (2026-02-06), both filed by Michael Contino of the FEC’s Office of General Counsel; motions for entry of default (ECF 12, 2026-03-24) and default judgment (ECF 14, 2026-05-05); and entry of default at ECF 16 on 2026-07-10. The newest entry is a notice of 2026-09-02. No appearance by the Department of Justice appears anywhere on it.
  • What the negative reaches, stated precisely. The claim above is about the Bernegger dockets the FEC’s own weekly digests name, read on CourtListener. It is not a claim that the Civil Division has never appeared for the Commission in any 52 U.S.C. § 30109(a)(8) suit anywhere: four of the six Bernegger matters (1:25-cv-04559, 1:25-cv-04563, 1:26-cv-00106, 1:26-cv-00213) were checked only through the search index, and no exhaustive search of every § 30109(a)(8) case was run.
  • Why the Status does not move. The ask is that the President direct the Attorney General to defend. The record shows the opposite outcome — a default entered because nobody defended — not a direction given. Under §3b’s rule that action on the ask’s object which does not satisfy it carries its Evidence in the frontmatter, the docket is attached to the not started event as the record moving the other way. Recording it as an event in its own right was considered and rejected: an entry of default is something that happened to the FEC, not a step this administration took on this ask.
Action
other
Object
DOJ defense of the FEC in litigation
ID
2224