FEC Will Not Appeal Emily’s List Decision

Much of the recent discussion concerning campaign finance legal issues has focused on the September reargument of Citizens United v. FEC (AKA: The Case about Hillary the Movie) at the Supreme Court. Citizens United was notable for several reasons. First, it was Sonia Sotomayor's first case as a Supreme Court Justice. Apparently, it was also Solicitor General Elena Kagan's first ever appearance arguing before any court. Finally, a victory for Citizens United would, as the New York Times says, "sweep away restrictions on political speech by corporations" and overturn two prior Supreme Court decisions (Austin v. Michigan Chamber of Commerce, a 1990 decision that Congress relied on when drafting McCain-Feingold; and McConnell v. FEC, a 2003 decision that upheld the "electioneering communications" ban in BCRA). We are still waiting for the Supreme Court's decision in the case.

However, another significant decision was handed down soon after the Citizens United reargument. In Emily's List v. FEC, the D.C. Circuit Court of Appeals ruled that regulations limiting the amount of money 527 organizations could raise and spend violate the First Amendment. Specifically, the FEC regulations required non-profits to pay for a large percentage of election-related activities out of their hard-money accounts ("hard" as in contributions for these accounts were capped at $5,000 annually for individuals, as opposed to unlimited amounts of contributions by unions, corporations, and individuals to their soft-money accounts). These restrictions were put in place largely due to activities in the 2004 General Election by 527 organizations such as MoveOn.org and Swift Boat Veterans for Truth. These organizations became funnels for huge amounts of contributions in the wake of restrictions put in place by McCain-Feingold (BCRA). Rick Hasen notes in the Washington Post, that these groups "are now free to accept unlimited contributions, to spend unlimited funds independently supporting or opposing federal candidates." This significance of this decision became more apparent yesterday with news that the DC Circuit Court will likely have the final word in the case.

It was the FEC's decision to appeal the decision, and as Politico reported, the Commission deadlocked yesterday on whether to do so:

The vote, a 3 – 3 partisan split that had the effect of rejecting a recommendation by commission staff to appeal the ruling to the full court of appeals, spotlighted the commission's increasing partisan divide, and also put pressure on President Barack Obama to override the commission's decision. The commission's three Democratic members voted to appeal, while its Republican members, who have increasingly adopted stances seen as hostile to campaign finance rules, voted against appealing.

Former FEC Chair Brad Smith discusses the possibility of the Obama administration appealing the ruling itself:

The Solicitor General represents the FEC in the Supreme Court, and can appeal statutory and constitutional questions even if the FEC does not ask her to do so. However, such action by the SG is extremely rare.  Moreover, it is not entirely clear that she can appeal a regulation without the agency's acceptance — her authority is to defend "statutes" of the United States.  No statute is at issue in Emily's List.   It would be strange indeed for the Solicitor General to seek certiorari in the Supreme Court in order to defend the validity of a regulation that the agency itself does not believe is constitutional, and it would seem a waste of the Supreme Court's time to hear such an odd appeal.

The FEC "will issue guidance to political committees in the near future" that will reflect the effects of the decision.