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D.C. Circuit questions FEC interpretation of campaign-finance rules

By The Associated Press
05.13.05

WASHINGTON — The Federal Election Commission tried to convince a skeptical federal appeals court yesterday that the agency did not water down rules that are supposed to limit the influence of money in politics.

Two judges on the three-member panel of the U.S. Circuit Court of Appeals for the District of Columbia suggested the FEC had defined terms in the realm of political fund raising too narrowly, making a landmark 2002 law easy to circumvent.

At issue are the FEC rules implementing the Bipartisan Campaign Reform Act, which bans corporate, union and unlimited donations to national political parties. That practice had flooded the political system with big special-interest checks.

Is it a solicitation when a U.S. senator says to donors, "It's important for our state party to receive at least $100,000 from each of you in this election?" Judge David Tatel asked.

That's a gray area, FEC lawyer David Kolker replied.

Tatel disagreed.

"You have the same concerns I do," Appeals Court Judge Harry Edwards said, turning to Tatel.

The law, the most significant rewriting of the Federal Election Campaign Act in more than a quarter-century, resulted from a seven-year effort by congressional sponsors to impose more stringent requirements on federal campaigns in the wake of a fund-raising scandal in the 1996 presidential campaign.

The FEC rules define the word "solicit" as meaning "to ask," a definition a lower court judge said was so narrow that it would render the campaign-finance law "largely meaningless."

The FEC "has tried to obscure and muddy what 'solicit' means," attorney Charles Curtis said. Curtis represents the two congressmen who sued the FEC, Reps. Christopher Shays, R-Conn., and Martin Meehan, D-Mass.

Tatel took issue with Kolker's contention that Shays and Meehan lacked standing to bring the lawsuit. The FEC argued that they failed to show what personal harm they would suffer under the rules.

If members of Congress are not entitled to go to court in the case, "who would have standing? The answer is nobody, right?" Tatel said.

Shays attended the hearing and was optimistic afterward. "The judges understand the case," he said.

Kolker said the courts should give the commission rules time to work because they might prove to be more stringent than the judges think.

"You're saying, 'Leave it alone' — except that's not our job," Edwards said. "I don't think it's a viable argument to say, 'Let's wait.'"

The law prohibits coordinated expenditures between a campaign and outside groups able to raise unlimited amounts of money. The FEC rules allow the practice as long as it doesn't take place within 120 days of an election.

"The commission is allowing a lot of activity Congress did not want," Tatel said.

Kolker disagreed, saying the commission "is taking its cue from Congress" and the Supreme Court ruling that upheld the law. The high court in 2003 upheld broad restrictions on campaign donations, including the solicitation and spending of soft money by federal candidates and incumbents.

Edwards is a Carter administration appointee; Tatel is a Clinton appointee; and the third member of the panel, Karen LeCraft Henderson, is an appointee of President George H.W. Bush.


Update
D.C. Circuit: FEC wrongly opened loopholes in campaign-finance law
Three-judge panel upholds lower court ruling that ordered regulators to write tougher rules interpreting Bipartisan Campaign Reform Act. 07.15.05

Previous
Court ruling may force FEC to regulate Web political activity
Exemptions allowing for online ads, fund raising viewed by federal judge as undermining campaign-finance law. 10.13.04

Related

Supreme Court backs key parts of campaign-finance law

Sharply divided justices rule that reality or appearance of corruption in politics outweighs free-speech concerns. 12.10.03

McCain gains ally in drive to block big campaign money
Sen. Trent Lott, R-Miss., opposed the McCain-Feingold law but now supports further legislation to stop groups from circumventing rules. 02.03.05

House, Senate split on dealing with 527s
Divergent strategies — from restoring some financial muscle to political parties to restricting what outside groups can do — add up to general dissatisfaction with way 2002 campaign-finance law has worked. 04.24.05

High court asked to review Vermont campaign-finance law
Case is being watched closely by advocates for stricter contribution, expenditure limits, and by those who argue that such restrictions violate First Amendment. 05.14.05

FEC stands by allowing federal officials at 'soft money' events
Election agency, resisting court's demand to scrap rule or rewrite it, says it shouldn't be barring national leaders from state fundraisers. 06.25.05

Campaign finance overview


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