FEC Challenges Reform Leaders’ Standing in Suit

Posted March 1, 2004 at 5:54pm

House sponsors of the 2002 Bipartisan Campaign Reform Act argued in court documents last week that the Federal Election Commission’s interpretation of key parts of the law threatens to “repeat history” and reopen soft-money loopholes.

FEC lawyers, meanwhile, asked a federal judge to dismiss the lawsuit.

The watchdog agency argued that the lawmakers “lack standing” to bring their claims “because their speculation about the possible activities of unidentified third parties does not demonstrate an imminent harm to the plaintiff’s from the Commission’s regulations.”

Moreover, the agency’s attorney said, FEC regulations are “not ripe for judicial review” because Reps. Christopher Shays (R-Conn.) and Marty Meehan (D-Mass.) did not claim that the regulations improperly restrict their own primary activity.

Shays and Meehan originally filed suit in October 2002 challenging regulations adopted by the FEC, but the U.S. District Court suspended any action in the suit until the Supreme Court had completed its deliberations on BCRA.

Judge Colleen Kollar-Kotelly, a member of the three-judge panel that heard the first challenge to BCRA before it went to the high court, is presiding over the Shays-Meehan suit in U.S. District Court for the District of Columbia.

Among the two lawmakers’ major objections are the FEC’s definitions of “solicit,” “direct” and “agent,” which Shays and Meehan argue “sharply diverge from dictionaries, the common law, common sense and the Commission’s own long-standing interpretations” and will create a wink-and-nod approach to fundraising, thus creating a loophole to evade the soft-money ban.

“Under the Commission’s new definitions, ‘solicit’ means only to ‘ask’ explicitly, ‘direct’ is subsumed within ‘solicit’ (thus rendering it superfluous), and ‘agent’ is narrowed to a rigid formalism not followed under any other major federal statute,” the Shays-Meehan brief argued.

The lawmakers’ other complaints included the FEC’s definitions of “get-out-the-vote,” “voter identification” and “voter registration” activity, thereby narrowing the meaning of “Federal election activity” to include “only a fraction of those state and party activities that Congress determined both affect Federal elections and pose the greatest risk of corruption.”

Shays and Meehan are also challenging certain regulations pertaining to the electioneering communications provisions in the law. In particular, they feel the FEC “improperly” exempted all broadcast ads aired by 501(c)(3) corporations and that the agency also erred in excluding all unpaid broadcast communications from the definition of “electioneering communications.”

The motion for summary judgment filed last week by FEC General Counsel Larry Norton and other staff attorneys argues that beyond that, “even if this suit were properly before the Court” — which they contend it was not — it would fail on its merits because the FEC’s regulations “are not arbitrary and capricious.”

Lawyers for Shays and Meehan rejected claims that their clients didn’t have the standing to challenge the FEC’s actions, arguing that just as they had a “concrete and particularized” personal interest in defending the law from a broad constitutional attack, “so too do they have a strong personal stake in seeking to overturn unlawful agency rules that threaten to subvert, erode, and circumvent the reforms enacted by BCRA.”

The legal team representing Shays and Meehan is being headed by Charles Curtis and his law firm, Heller Ehrman White and McAuliffe LLP. Assisting with the matter are Roger Witten and Randy Moss, with Wilmer Cutler and Pickering LLP, as well as Democracy 21 President Fred Wertheimer, Democracy 21 General Counsel Don Simon and Democracy 21 Legal Consultant Lexa Edsall.

Trevor Potter and Glen Shor of the Campaign Legal Center filed an amicus brief in the case on behalf of Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.), BCRA’s Senate sponsors.

Responsive briefs are due March 31.