FEC Will Not Appeal Ruling In Campaign Finance Suit Brought By EMILY's List

Main Category: Abortion
Also Included In: Litigation / Medical Malpractice
Article Date: 26 Oct 2009 - 0:00 PDT

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On Thursday, the Federal Election Commission announced it would not appeal a federal appeals court ruling that blocked enforcement of three campaign finance regulations the court said violated the First Amendment by prohibiting political speech, The Hill reports. Commissioners deadlocked 3-3 on whether to appeal to an en banc panel of the U.S. Court of Appeals; the tie means FEC will not pursue the appeal.

The regulations were challenged in a lawsuit originally filed by EMILY's List, a political organization that backs Democratic candidates who support abortion rights. The regulations limited how independent political groups can raise and spend their own money to advocate for candidates. The restrictions required the groups to use federal funds, which are severely limited, to pay for many of their campaign activities.

FEC's decision not to appeal means that independent political organizations will be able to raise and spend their own money on voter registration drives, administrative expenses and advertisements that refer to political parties or candidates but do not mention voting for a certain candidate. FEC said that rather than appealing, it would attempt to develop a new guidance (Wilson, The Hill, 10/22).

FEC's Republican commissioners say that, despite the fact that the lawsuit originated with a liberal group, the ruling should be supported because it represents a fundamental free speech issue. However, Democratic commissioners and the campaign finance reform community believe the appeals court incorrectly loosened the restrictions.

Following the deadlocked FEC vote, Democratic-nominated commissioners Cynthia Bauerly and Ellen Weintraub faulted the Republican commissioners for not reaching a consensus on how to continue with the case. They wrote in a statement, "Although we do not believe it appropriate to appeal every adverse decision from a court, in cases where a divided opinion reaches significant constitutional questions not briefed by either party, we believe it is imperative to seek guidance from the full Circuit on behalf of [FEC] and all who must comply" with the Federal Election Campaign Act. The three GOP-nominated commissioners -- Caroline Hunter, Don McGahn and Vice Chair Matthew Petersen -- released a nine-page statement that explained why they sided unanimously with EMILY's List. "The court followed Supreme Court precedent in applying constitutionally sound reasoning," they wrote (Murray/Knott, Roll Call, 10/22).

Solicitor General Elena Kagan has the option to appeal the decision, which she currently is studying, according a spokesperson. However, many election law experts believe Kagan will not make an appeal (The Hill, 10/22).

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