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Appeals Court Upholds Decision Throwing Out FEC Regulations

An appellate court today upheld a lower court’s ruling that threw out most of the regulations adopted by the Federal Election Commission to implement the 2002 Bipartisan Campaign Reform Act.

The suit, brought by Reps. Christopher Shays (R-Conn.) and Marty Meehan (D-Ma.), challenged the FEC regulations as “arbitrary,” “capricious” and in conflict with the law they helped write. Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.), the principal Senate co-sponsors of BCRA, joined the case in “friend of the court” briefs.

The U.S. Court of Appeals for the D.C. Circuit affirmed the lower court’s ruling in all respects, finding that the plaintiffs had standing to bring the challenge and that the district court correctly struck down the five rules the FEC defended in the appeal.

Last September, D.C. District Court Judge Colleen Kollar-Kotelly threw out 15 of 19 regulations the plaintiffs challenged, ruling that the agency had repeatedly misread the law. Kollar-Kotelly determined that one regulation ran “completely afoul” of the law, while another would “foster corruption” and yet another “would render the statute largely meaningless.”

“The D.C. Circuit Court decision confirms that the FEC seriously failed to properly implement BCRA, enacted in 2002 to overcome the massive soft money problem that the FEC itself had created,” said Fred Wertheimer, president of Democracy 21. Wertheimer is a member of the legal team representing Shays and Meehan, which is headed by Charles Curtis of Heller Ehrman White and McAuliffe.

The FEC appealed only five of the 15 rules thrown out, while at the same time challenging the standing of the plaintiffs to bring the case in the first place.

The D.C. Circuit rejected both of the FEC’s arguments. In the majority opinion written by Judge David Tatel and signed by Judge Harry Edwards, the court commented that “if regulatory safe harbors permit what BCRA bans, we have no doubt that savvy campaign operators will exploit them to the hilt, reopening the very soft money floodgates BCRA aimed to close.”

“Because the rules at issue in this appeal either fall short of Congress’ mandate or lack record support showing otherwise, we affirm their invalidation by the district court,” Tatel’s opinion continued.

Judge Karen LeCraft Henderson filed a dissenting opinion on the issue of standing.

Republican Commissioner Michael Toner said he was disappointed in the ruling.

“I think the decision jeopardizes the ability of the commission to establish bright-line rules so that people involved in politics have clear notice of what their legal obligations are,” Toner said. “Providing clear notice does not undermine the law, it is the commission civic duty.”

Toner said he would consider whether to urge the commission to appeal the ruling. Four of six commissioners would have to agree in order for the agency to appeal.

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