Posted August 30, 2007 by J. Gerald Hebert 527s and the FEC: An Uncertain FutureToday’s ruling from U.S. District Judge Emmet Sullivan in Shays & Meehan v. FEC (Shays II) is hardly a victory for the FEC. While the ultimate result is disappointing, the repeated reprimands by the court during the course of this case spurred the FEC to take enforcement action against a number of 527 groups. In addition, the lawsuit forced the agency to explain and justify its approach to dealing with 527 organizations. Today’s court decision also observes that the FEC has “misinterpreted” the Supreme Court’s decision in Buckley v. Valeo, and how explanations offered by the Commission for its handling of 527 issues on a case-by-case basis were “irrelevant or insufficient”. Despite all this, the court was unable to grant further relief, concluding that it was legally required to show strong deference to the agency because the matter of regulating 527 groups fell largely within the agency’s discretion. FEC conciliation agreements with 527 organizations active in the 2004 elections, like the one announced just yesterday with America Coming Together (ACT), after pending for nearly three years, clearly show that the FEC is incapable of dealing with these complaints in a timely manner and does not have the fortitude to issue prohibitive fines. Yesterday’s agreement, for example, fined ACT less than one percent of the $100 million dollars of soft money that the group illegally funneled into the 2004 elections. Continued weak enforcement by the FEC will likely fail to deter illegal fundraising and spending by 527 groups in the coming election. The ball is now in Congress’ court to pass meaningful 527 reform legislation. The FEC has proven too politically freighted to be given unbridled discretion to formulate its own regulations. We stand ready to work with Members of Congress to pass legislation that will reform this broken agency and regulate 527 groups. In the meantime the FEC should take this decision to heart and correct what the court today characterized as the Commission’s “misinterpretation” of federal law, in order to more effectively regulate 527 groups that attempt to influence federal elections. The Campaign Legal Center served as counsel to Senators John McCain (R-AZ) and Russell Feingold (D-WI), who participated as amici curiae (friends of the court) throughout the course of the litigation (Shays & Meehan v. FEC [Shays II]).
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