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FEC Weighs Appeal of Ruling on Nonprofit Groups

The Federal Election Commission on Monday continued to weigh whether it will ask the Supreme Court to intervene in another campaign finance case that may increase financial involvement by outside groups in future elections.

A Washington, D.C., appeals court on Friday agreed that EMILY’s List and other nonprofit groups may use unlimited contributions from individuals to pay for television advertisements and independent expenditures. In the lawsuit, the pro-abortion-rights group that supports Democratic women running for office argued that FEC regulations limiting political spending by outside groups was unconstitutional and an infringement on free speech.

“Nonprofits — like individual citizens — are entitled to spend and raise unlimited money for those activities,” the three-judge panel for the U.S. Court of Appeals for the D.C. Circuit wrote in its majority opinion issued Friday.

The FEC had 90 days from Friday to decide whether it will petition the Supreme Court to hear the EMILY’s List case. The agency also has 45 days to ask the full appellate court to rehear its argument.

“We’re still studying it,” FEC spokeswoman Judith Ingram said Monday.

With the agency still weighing its options, campaign finance lawyers say nonprofit organizations such as EMILY’s List and political action committees should wait it out until the FEC — or the Department of Justice — decides how it will proceed.

Democratic campaign finance lawyer Neil Reiff said that although last week’s ruling stands to directly affect outside groups, they should hold tight until the government plays its hand.

“In the short term, I don’t think any lawyer should advise their client that the law is gone and they need not follow the current regulations,” he said.

Patton Boggs campaign finance lawyer William McGinley, a Republican, called last Friday’s ruling “a very big decision.”

“If allowed to stand, it really has the potential to alter the political landscape next year,” he said.

McGinley, too, said outside groups potentially affected by the decision should follow the current law until the federal government makes its move.

“They need to wait and see what the agency is going to do about the decision,” McGinley said.

Adding to the confusion for outside groups, the Justice Department could choose to pursue the case on its own should the FEC take a pass or simply let the deadlines lapse. That decision, Reiff said, would be made by new Solicitor General Elena Kagan, who took the job earlier this year and made her debut appearance before the Supreme Court on Sept. 9 in oral arguments for Citizens United v. Federal Election Commission.

That case, which the court is currently considering, could significantly loosen spending restrictions in federal elections on corporations, trade associations and unions. Chief Justice John Roberts, who expressed skepticism of spending curbs during oral arguments, is expected to be a deciding factor in the divided Supreme Court.

In the meantime, with so many variables in play following the EMILY’s List case, Reiff said the FEC should provide outside groups with instructions on what they can and cannot do.

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