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Court Orders New Rules

Shays to FEC: Get Me Rewrite of Finance Law

The Federal Election Commission on Thursday is expected to vote on whether the agency will begin rewriting long-awaited rules involving provisions of the Bipartisan Campaign Reform Act of 2002.

A spokesman on Wednesday said the agency’s six commissioners are tentatively scheduled to decide at today’s 2 p.m. meeting whether to restart the rule-making process to comply

with a court order in a case brought by former Rep. Christopher Shays (R-Conn.). Since BCRA’s passage, Shays has taken the agency to court three times to challenge the FEC’s implementation of the seven-year-old law.

Last June, the U.S. Court of Appeals for the District of Columbia Circuit ordered the agency to rewrite its rules involving independent expenditure coordination between federal candidates and party committees.

“The question, then, is this: Does the challenged regulation frustrate Congress’s goal of ‘prohibiting soft money from being used in connection with federal elections’? We think it does,” the court wrote in its June 13, 2008, decision. “The current regulation ‘allows candidates to evade — almost completely — BCRA’s restrictions on the use of soft money.”

The court continued: “Moreover, by allowing soft money a continuing role in the form of coordinated expenditures, the FEC’s proposed rule would lead to the exact perception and possibility of corruption Congress sought to stamp out in BCRA ...”

The campaign finance reform community has been critical of the agency’s delay on rewriting its rules in the “Shays III” case — and is not holding its breath on the agency’s ability to develop rules that will pass judicial muster. Just after the court issued its decision last year, Gerald Hebert of the Campaign Legal Center said in a statement that the “decision is just one in a very long list of reasons why the FEC must be overhauled.”

“There is no justification for an enforcement agency that must be repeatedly sued by the very Members of Congress whose laws it is supposed to enforce,” Hebert said. “Despite the often partisan backgrounds of many of the commissioners, they should still not be deciding which laws they will or will not implement and enforce properly.”

On Wednesday, Democracy 21 President Fred Wertheimer echoed Hebert’s earlier statements.

“For over a year, they’ve been doing absolutely nothing, with no justification, no excuse,” Wertheimer said. “My hope here is that the FEC will end its recalcitrance and comply with court decisions.”

“But based on the performance of the FEC in recent months, we’re just going to have to wait and see,” he added. “To spend more than seven years and fail to issue a legal regulation on a critical campaign question ... is beyond absurd. It’s ludicrous.”

At today’s public meeting, the FEC also is expected to take up issues involving the Democratic Senatorial Campaign Committee, a Sierra Club state affiliate and the Illinois Green Party.

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