Posted April 4, 2007 by Paul S. Ryan

Sens. McCain & Feingold File Amici Brief in 527 Lawsuit

Yesterday, Reps. Christopher Shays (R-CT) and Martin Meehan (D-MA) filed a motion and memorandum in the D.C. federal district court in Shays & Meehan v. FEC (Shays II), asking the court to order the FEC to promulgate a regulation making clear when 527 groups must register as federal “political committees.”  Senators John McCain (R-AZ) and Russ Feingold (D-WI), represented by the Campaign Legal Center, filed an amici curiae brief in the case supporting plaintiffs Shays and Meehan.

In March 2006, the D.C. federal district court held that the FEC had violated the Administrative Procedures Act (APA), reasoning that the FEC “failed to present a reasoned explanation and justification for its decision that 527 organizations will be more effectively regulated through case-by-case adjudication rather than general rule.”  The court ordered the FEC to “explain its decision [not to promulgate a rule] or institute a new rulemaking.”  More than ten months later, the Commission published a Supplemental Explanation and Justification (“Supplemental E&J”) for its decision not to promulgate a rule regarding the political committee status of 527 groups.

Sens. McCain and Feingold now urge the court, in an amici brief filed yesterday, to once again find that the FEC has violated the APA by failing to provide the public with an adequate explanation and justification for its decision not to promulgate a rule which makes clear when 527 groups must register as federal “political committees” and abide by applicable requirements and restrictions.

Sens. McCain and Feingold argue that the problem with the Commission’s Supplemental E&J “is not only that the Commission’s approach is inconsistent with campaign finance law, but also that the Commission’s case-by-case approach simply is not working.”  Sens. McCain and Feingold further argue that: “For the past three years, spanning three election cycles (2004, 2006, 2008), amici and plaintiffs have urged the FEC to effectively regulate 527 groups—to no avail.  Instead, as this Court previously observed, ‘[c]ases arising from the 2004 campaign have languished on the Commission’s enforcement docket’ for as long as 38 months, with no end in sight.  The Court’s observation rang true last year and unfortunately, still rings true today.  Under such circumstances, it is no surprise that 527 groups again raised and spent millions of dollars of illegal soft money during the 2006 election cycle, and the FEC is likely to take several years to resolve complaints filed against such groups.  With the 2008 federal election cycle already underway, 527 groups are gearing up to again raise and spend illegal soft money.”

Under such compelling circumstances, Sens. McCain and Feingold argue, the Commission should now be ordered by the court to adopt such a rule consistent with the legal framework set forth in the amici brief and in plaintiffs’ Shays and Meehan’s brief.