Posted September 18, 2009 by Tara Malloy
Judicial Overreach from the DC Circuit in Emily's List 
The Emily's List v FEC decision from the D.C. Circuit Court throws aside judicial restraint in a rush to reach preferred policy results by further deregulating the election-related spending of political committees and “527 groups”. Such broad overreach is not the responsibility of the Circuit Court and amounts to nothing more than judicial activism. It is disappointing and unfortunate that the three-judge panel hastened to decide broad constitutional questions – including some not properly before the court – instead of simply deciding the validity of the challenged regulations on statutory grounds.
Judge Brown, who only concurred in the result, provided the sole voice of restraint, pointing out to her colleagues that their actions were not in keeping with their job descriptions: “Our precedent is not wishy-washy: ‘Federal courts should not decide constitutional questions unless it is necessary to do so.’”
The challenged regulations were adopted by the Federal Election Commission (FEC) in order to shut down a new method of circumventing federal contribution limits that was developed after the passage of the Bipartisan Campaign Reform Act of 2002 (BCRA), which barred political parties from spending soft money. During the 2004 election cycle, some federal political committees began manipulating the campaign finance “allocation“ rules in order to fund their federal campaign activities, including partisan voter drives, almost entirely with soft money. Americans Coming Together (ACT), the largest non-party political committee active in 2004, for example utilized 98% soft money to only 2% hard money (i.e. , funds in compliance with federal contribution limits) on its $100-million voter mobilization effort intended to influence the 2004 Presidential election.
In response, the FEC passed a new “allocation” regulation that requires a federal political committee (with a non-federal account) to spend at least fifty percent hard money on “mixed” or “generic” political activities that affect both federal and non-federal elections, such as voter mobilization efforts. Further the FEC clarified that funds raised through solicitations that indicate that the money will be used “to support or oppose” the election of federal candidates will be deemed federal “contributions” subject to federal contribution limits.
The Court not only invalidated these regulations, but also called into question the constitutionality of limits on contributions to independent political committees enacted 35 years ago – limits that were not even challenged in the lawsuit. Although the FEC has had, at best, a spotty record enforcing these limits, the Court’s decision today has the potential to facilitate a return to the massive soft money spending by 527 groups in prior elections.
To read the decision, click here.
