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Shays, Meehan Suit On Hold Until BCRA Ruling

Two weeks after the Supreme Court issues its decision in McConnell v. FEC, the U.S. District Court for the District of Columbia will resume proceedings in a related lawsuit brought by Members of Congress against the Federal Election Commission.

Last October, Reps. Christopher Shays (R-Conn.) and Marty Meehan (D-Mass.) sued the FEC in federal court arguing that the agency’s new rules implementing the soft-money ban in the new campaign finance reform law were “arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the law.”

The year-old case could get a jump-start by the end of the year, when the Supreme Court is expected to rule on the constitutionality of the Bipartisan Campaign Reform Act.

U.S. District Judge Colleen Kollar-Kotelly — a member of the three-judge panel that rendered a preliminary decision on the new law before it headed to the high court — issued an order this week to stay the Shays case until the Supreme Court issues its decision in McConnell v. FEC.

Kollar-Kotelly stated that within 14 days of the decision, the parties involved in Shays v. FEC must file a joint status report with recommendations on how the court should proceed.

The FEC had asked for a stay until at least 30 days after the Supreme Court decision.

Shays and Meehan had hoped the court would allow them to develop an administrative record in their case, even before the Supreme Court issues an opinion, but their lawyers nonetheless seemed pleased with Kollar-Kotelly’s decision.

“This case is very important in our view because the supporters of BCRA believe that in a number of cases, the FEC regulations are contrary to and misinterpret the law,” said one attorney involved in the case on behalf of Shays and Meehan.

For instance, the lawmakers object to the way the FEC defined the terms “solicit” and “direct” and are arguing that the narrow definition adopted in a 4-2 vote will allow lawmakers ample wiggle room to raise soft money through a “wink and nod” approach.

The Members also object to the FEC’s definition of “agent” as it applies to the soft- money fundraising ban on national party committees, how the rules apply to leadership political action committees and the agency’s definitions of “federal election activity.”

More recent court filings in the case suggest that Shays and Meehan may also decide to challenge rules issued by the FEC in July governing the financing of national party conventions. A footnote on one reply filed by attorneys for Shays and Meehan stated that “plaintiffs are reviewing these new rules.”

The suit was filed after efforts by the lawmakers to use the Congressional Review Act to overturn the FEC regulations did not pan out — a point noted by the FEC in court filings.

“It should be noted that the commission submitted all of these regulations to Congress pursuant to the Congressional Review of Agency Rulemaking Act, and no member of Congress — including the plaintiffs here — even introduced a resolution to disapprove any of the Commission’s BCRA regulations,” FEC General Counsel Lawrence Norton and other lawyers for the agency noted.

“Their failure to pursue that available alternative remedy further undermines their plea for utmost speed in this litigation, and it also indicates that they may not be as confident as their heated rhetoric suggests that a majority of the Congress would accept their view that the regulations contradict Congressional intent,” the FEC lawyers wrote.

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