FEC Loses Campaign Finance Appeal Regarding Non-Profit Election Communication

by Guest Blogger, 7/25/2005

On July 15 the U.S. Court of Appeals for the D.C. Circuit rejected a Federal Election Commission's (FEC) appeal, upholding a lower court decision that invalidated many FEC regulations that were implemented under the Bipartisan Campaign Reform Act of 2002 (BCRA). The FEC must now decide whether to appeal the ruling or write new rules in line with the court's decision. Among the regulations invalidated in the suit are exemptions to the ban on "electioneering communications" for unpaid broadcasts and for 501(c)(3) organizations. The 501(c)(3) exemption is on the FEC's rulemaking calendar for consideration, but no date has been set. In the meantime, the exemptions remain in effect as the result of a stay.The district court invalidated fifteen FEC regulations implementing BCRA in September 2004, finding some inconsistent with BCRA and others arbitrary and capricious. The FEC appealed the district court decision with regard to five of the rules: standards for "coordinated communication," definitions of the terms "solicit" and "direct," the interpretation of "electioneering communication," allocation rules for state party employee salaries, and a de minimis exemption from allocation rules governing the mix of regulated and unregulated funding for get-out-the-vote, voter identification, and voter registration that does not mention a Federal candidate.

The appeals court found that the electioneering communications exemption for unpaid broadcasts was unwarranted under BCRA, as the legislation does not require electioneering communications to be purchased. In addition, the court found that the exemption falls outside the FEC's power to create exemptions, since an unpaid broadcast could promote, support, attack or oppose a federal candidate. This means that all electioneering communications 30 days before a primary and 60 days before an election could be restricted, except announcements of candidate debates and forums.

The FEC could request review by the entire Circuit Court panel or appeal directly to the Supreme Court. If it decides not to appeal, it must re-write the rule to conform to the court's opinion.