Court Strikes Down BCRA Regulations

Posted June 13, 2008 at 5:51pm

Rep. Christopher Shays (R-Conn.) won a court battle with the Federal Election Commission on Friday, a decision that requires the agency to revisit its interpretation of key sections of the Bipartisan Campaign Reform Act of 2002.

A three-judge appellate court panel unanimously threw out the agency’s rules involving certain coordinated campaign communications, how the FEC defines get-out-the-vote and voter registration activities, and a loophole allowing Members of Congress to raise soft money for state party committees.

The court did uphold one obscure regulation drawn up by the agency, which Shays also had challenged.

“We reject the balance of the regulations as either contrary to [BCRA] or arbitrary and capricious,” Judge David Tatel wrote in his opinion. “We remand these regulations in the hope that, as the nation enters the thick of the fourth election cycle since BCRA’s passage, the commission will issue regulations consistent with [BCRA’s] text and purpose.”

Shays, an original House sponsor of the campaign finance reform law, praised the court ruling.

“Today’s decision confirms what supporters of this law have been saying all along: The FEC is evading its responsibility to implement the Bipartisan Campaign Reform Act as it was enacted,” Shays said in a statement. “The FEC’s job is not to split the difference between supporters and opponents of the law.”

“I hope that in light of another court decision confirming its rulemakings run contrary to the intent of the law, BCRA will finally be implemented fully and fairly,” added Shays, who was a key architect of the law along with Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) and former Rep. Marty Meehan (D-Mass.).

The decision on Friday was praised within the campaign finance reform community. Fred Wertheimer, president of Democracy 21, called the decision “a very important victory for the Bipartisan Campaign Reform Act and for the efforts of Rep. Shays.”

Wertheimer also said in a statement that the decision is emblematic of the agency’s ineffectiveness in policing political activities.

“Today’s ruling is yet another sharp repudiation of the FEC’s continued failure to properly implement BCRA,” Wertheimer said. “The fact that it has taken more than six years and four court victories to make clear to the FEC that it cannot issue a coordination regulation contrary to law shows why we must have fundamental FEC reform.”

Wertheimer added: “The FEC should conduct expeditious rulemaking proceedings and promptly issue new rules that fully and effectively implement the soft money ban in BCRA.”

The Campaign Legal Center’s Gerry Hebert wrote on his blog Friday afternoon that “yet again a federal court has found the FEC’s implementation of the Bipartisan Campaign Reform Act (BCRA) to be unreasonable and to undermine the purposes of the law.”

“Today’s unanimous ruling from the U.S. Court of Appeals for the D.C. Circuit in Shays v. FEC … criticizes FEC’s grossly strained interpretation of a number of BCRA provisions,” Hebert wrote. “As we have maintained from the outset, the court found that the Commission simply chose to ignore both the word and the spirit of significant portions of the law when it implemented BCRA.”

FEC spokesman Bob Biersack said it’s too early to know whether FEC lawyers will begin drawing up new regulations or petition the Supreme Court to take up the case.

“We have to look at it,” Biersack said. “The commission will have to decide how they want to proceed.”

The commission as a policymaking body has been effectively out of business since the beginning of the year, following a dispute between the Democratic-led Senate and the White House over FEC nominees. But President Bush recently submitted a new list of nominees to the Senate, and it appears that the impasse may soon be over.

Senate Majority Leader Harry Reid’s (D-Nev.) office confirmed Friday that a vote on a five-nominee slate could be held before the July Fourth recess, a deal that could determine the agency’s fate — and the decision on how to proceed with the court case — in a matter of weeks.

And while the campaign finance reform community welcomed Friday’s decision, the Center for Competitive Politics, a group that favors fewer campaign finance restrictions, said the court’s ruling restricted First Amendment rights.

“The court’s rejection of these standards makes it less likely that citizens will enjoy any such clarity in the future, and that lack of clarity is likely to discourage citizens from participating in the political process,” spokesman Stephen Hoersting said in a statement. “We fear too many citizens will learn it is better not to run ads at all.”