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The FEC’s Third Strike

The federal courts have now decisively struck down — three times — the Federal Election Commission’s rewrite of the 2002 Bipartisan Campaign Reform Act. It’s now time for the FEC to stop fighting the law and start trying to enforce it. The third strike came Friday, when the full D.C. Circuit Court of Appeals declined to review a three-judge panel’s refusal to overturn District Judge Colleen Kollar-Kotelly’s October 2004 decision that declared invalid no fewer than 15 FEC regulations that she said “would render the statute largely meaningless.”

At the time of her ruling, Kollar-Kotelly ordered the FEC to immediately begin a redrafting process so that new regulations could be in place for the 2006 elections, in the event the appeals courts upheld her ruling.

Instead of doing so, the FEC has slow-walked the process, so that only one of the 15 regulations has been rewritten. There’s now serious doubt about whether the FEC has the time, or inclination, to meet the deadline. If FEC commissioners have any respect for the law — not just for BCRA, but for the U.S. legal system — they will do their utmost to carry out the job they’ve shirked so far.

One of the FEC’s particularly outrageous stances was the legal strategy of questioning the standing of the co-authors of BCRA, Reps. Christopher Shays (R-Conn.) and Marty Meehan (D-Mass.) and Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.), to sue at all. The four Members brought action against the FEC in the belief that the panel had undercut the law they wrote. But they also are federal candidates who are covered by the law, which clearly gives them standing. And the courts decisively rejected the FEC’s challenge to their status.

The issues that the FEC’s resistance have left open are contentious and difficult — how campaigns can coordinate with outside groups, what constitutes “soliciting” campaign contributions, who is a fundraising “agent” and how much, if at all, the FEC should regulate Internet campaigning and fundraising.

The six-member commission is now down to five members, and three of those are serving even though their terms have expired. Congress and President Bush should have appointed replacements by now, but history tells us they probably will wait until Congress is in recess to do so. This gives the three holdover commissioners little incentive to work hard to undo the damage they’ve done. It also means that new commissioners, when appointed, will spend some time getting up to speed on the issues.

But it’s important that the FEC get moving on the tasks ahead. In some cases, regulations may have to be phased in so that 2006 candidates aren’t punished for activities they’ve already undertaken. And rulemaking needs to be prioritized to address the most urgent issues first.