Posted on 10/24/2005 10:57:41 PM PDT by Jim Robinson
The full District of Columbia Court of Appeals has declined the Federal Election Commission's (FEC's) final appeal to save major campaign-finance regulations it wrote after the reform law was enacted in 2002.
This leaves the agency little choice but to rewrite the rules governing political activity.
The FEC had delayed implementing its new rules in the hope that the full circuit court of appeals would reverse two decisions striking them down. Now those rulings will stand unless the case unexpectedly goes to the Supreme Court.
The FEC is expected to implement at least eight new sets of regulations during this winter and coming spring. They would govern such things as how closely lawmakers and federal candidates would be allowed to work with outside groups and what they could say at political events and to political donors.
The court ruling and rule rewrite raises the stakes in White House and congressional maneuvering to seat at least three new commissioners on the FEC.
There is one vacancy on the six-member commission, and the terms of three commissioners, including Chairman Scott Thomas, have expired.
"I'm very disappointed in the circuit court's decision," said Michael Toner, FEC vice chairman. "The courts have clearly spoken, and I accept and respect the court's decision. Looking ahead, there's a lot of core regulations that are now going to be reconsidered, including rules for coordination, rules for online politics and rules for solicitation.
"It's very important that final rules be in place in all of these areas as soon as possible. Federal candidates and officeholders have to know what the rules are for the 2006 midterms and the 2008 elections."
In December, D.C. District Court Judge Eileen Kollar-Kotelly struck down 15 rules after Reps. Christopher Shays (R-Conn.) and Martin Meehan (D-Mass.) filed a challenge to them for opening loopholes in the Bipartisan Campaign Reform Act of 2002.
The FEC appealed Kollar-Kotelly's decision on five of the rules, but a three-judge panel of the District of Columbia Court of Appeals ruled against the commission in July.
Nevertheless, the FEC postponed issuing final rules on core activities such as political coordination and the solicitation of political money pending its final appeal. The solicitor general of the United States may ask the Supreme Court to review the decision, but such a review is considered unlikely.
"We pursued our litigation options, and we have closure on that," said Ellen Weintraub, whose term, like Toner's, has not expired. " I expect us to move forward expeditiously on final rules."
Weintraub said she didn't know of anyone at the agency who is advocating for pressing the solicitor general to go to the Supreme Court.
Commissioner David Mason said the court's decision, dated Friday, "will mean a substantial amount of work for the agency and a substantial amount of change in regulations for campaigns and members of Congress."
"Coordination is going to be a big one because first of all, in terms of your constituency, it affects members more directly than some of the other [regulations]."
Lawmakers and candidates cannot now coordinate their activities with outside groups that air ads in their districts within 120 days of Election Day. That period could be extended by as much as or more than 240 days.
Larry Noble, a former FEC general counsel who now is the executive director of the Center for Responsive Politics, said regulation needs to be strengthened.
Noble said the current regulation would allow a "candidate to write the [political] ad and the so-called independent party to pay for it" 130 days before the election. The FEC has yet to initiate a new rulemaking process to regulate coordination.
The agency will also have to revisit regulations governing solicitation, electioneering communications and Internet activity.
The courts have ruled that the agency's definition for solicitation was too narrow. Currently, lawmakers must specifically ask donors to make unlimited donations to third-party groups in order to be found in violation of the law's ban on soft-money fundraising by federal lawmakers.
So the FEC must now wrestle with what types of suggestions should be considered illegal solicitations by lawmakers. For example, should lawmakers be allowed to speak at a Sierra Club or a National Right to Life Committee event if the backdrop for their speech is a banner urging support for the organization?
"The question is: How do you deal with statements that praise organizations?" he said.
Internet activity may also become more regulated. Commissioners will debate whether political bloggers such as the authors of DailyKos.com or RedState.org should be regulated if they speak with members of Congress or party strategists, not an unusual activity for online journalists.
Another rule that will be revisited is the so-called electioneering-communication rule, which exempts charities organized under section 501(c)3 of the tax code. These organizations could become subject to regulations governing overtly political groups.
FR is NOT a Glob,, We should be OK.
Great, this just unkinked my colon...
I think it's well past time for the congress to revisit this unconstitutional nightmare.
Sorry, Jim. But what does this mean? Late night, complex story.
Washington, Paine, Madison, Adams, Jefferson, et al, must be spinning in their graves.
King George couldn't have done any better than our very own government.
Mark
"They would govern such things as how closely lawmakers and federal candidates would be allowed to work with outside groups and what they could say at political events"
Do what?
They're going to regulate what candidates can say at political events?
Okay, this is entirely out of control.
We need to take the politics out of politics. Don't you understand?
It means the congress passed a bad law that is so convoluted that the regulators and courts can't figure out how to apply it and they are fighting it out amongst themselves and even against the congress that wrote the damn thing. All they know is that Congress made a law abridging the freedom of speech, and of the press; and the right of the people peaceably to assemble, and to petition the Government for a redress of grievances, and apprently they don't know that this is expressly prohibited by the first amendment to the US Constitution, but they're bound and determined to find a way to screw us anyway. This thing needs to be repealed!
FR will be unaffected? I wouldn't count on it. Dems love agencies with unchecked powers and conservatives won't control the show forever.
I see a BAD moon rising.
What a mess, indeed.
"FR will be unaffected?"
That was NormsRevenge in #2.
"I see a BAD moon rising."
Yah, me too. And that song always reminds me of "American Werewolf in London."
"We need to take the politics out of politics. Don't you understand?"
I understand that the left always drives for a one-party state, and that, per Hayek, their policies always lead to tyranny.
Such is the harvest that results from the core concept that justified the Court's ruling: the idea that need (referred to by the code phrase "compelling state interest") can ever be the sole justification for whatever the State wants to do.
The truth is that no need, no matter how compelling, can ever justify anything. In the case of an individual, the only justification of one's actions is that one had the right to perform them. In the case of a Constitutional Republic, the only justification for any government action is the enumerated grant of the requisite power, explicitly stated in the Constitution. All else is immoral usurpuation.
The moral of the story: Need does not justify violation of the rights of others. Not in the case of an individual, and not in the case of a government. It matters not how compellingly necessary or urgent an individual or government may claim it is that something be done (or prohibited.) Without the right (or Constitutionally-enumerated power) to act, need is irrelevant. A fact most judges explicitly or implicitly tell criminals, every time they convict or sentence them for violating the rights of others to satisfy their own needs. Why aren't judges willing to say the same to the government when it attempts to do that which its Constitution does not explicitly grant it it the power to do (let alone those things which its Constitution explicitly prohibits it from doing)?
I made a 'globular' statement not fully realizing the gravity of the initial posting, my error.
The following is from the October 2005 FEC The Record newletter re:
http://www.fec.gov/pdf/record/2005/oct05.pdf
Shays v. FEC
On August 29, 2005, the Commission led with the U.S. Court of Appeals for the District of Columbia Circuit a petition for rehearing en banc of the court’s July 15, 2005,
ruling in this case. In that ruling,
a three-judge panel of the appeals
court affirmed the appealed portions
of the district court's decision invalidating
several Commission regulations
that implement provisions of
the Bipartisan Campaign Reform
Act of 2002 (BCRA). See the September
2005 Record, page 1.
In its petition for rehearing, the
Commission argues that consideration
by the full appeals court is
necessary because the decision by
the three-judge panel with respect
to whether Representatives Christopher
Shays and Martin Meehan have
standing to bring this suit conflicts
with the Supreme Court's findings
in McConnell v. FEC and with the
DC circuit’s own decisions in prior
cases.
The Commission also argues that
rehearing is warranted because the
three-judge panel’s decision involves
exceptionally important issues. First,
the appeals court decision regarding
standing effectively allows any
candidate to challenge nearly all
Commission regulations without
demonstrating any personal harm
from a particular regulation. This
interpretation of the court’s standing
requirements creates uncertainty
and instability in the law affecting
constitutionally protected advocacy
during the relatively short congressional
election cycles. Second, the
decision failed to give the required
deference to the Commission’s
exercise of its judgment in balancing
the conflicting policies and First
Amendment interests underlying this
complex statute. The Commission
thus requests that the court grant its
petition for rehearing.
U.S. Court of Appeals for the
District of Columbia Circuit,
CV04-5352.
sorry for weird format in post #16, pulled it from a pdf, too tired to clean it up.
Thanks.
"Second, the decision failed to give the required deference to the Commission’s exercise of its judgment..."
Yeah, I got your "deference" right here, ya bureaucrat slugs.
"The moral of the story: Need does not justify violation of the rights of others."
Good post; good summary.
This sort of thing always reminds me of the Simpsons episode where the gangster takes Bart step by step from justification of stealing a loaf of bread to feed a starving family to justification of highjacking a truckload of cigarettes.
In the good ole days politicians didn't go to jail for fund raising, hickory stumping, gladhanding, or speechifying on the fourth of July. Now we are improved and everything is regulated and licensed. Next thing you know they put you in jail for talking about somebodies wife.
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