Note To FEC: Don’t Be Sore Losers

Dear FEC: losing court cases is not an invitation to regulation.

As we’ve discussed before, CCP – co-counseled with Dan Backer, Ben Barr, and Steve Hoersting – recently won a case in federal court. That case, Carey v. FEC, allowed our client, the National Defense PAC (NDPAC), to accept both hard- and soft- money contributions, so long as it kept those funds in separate accounts.

But there has been an open question: would the FEC interpret that settlement as applying only to NDPAC, or would it universally cease enforcement of regulations it has conceded are unconsitutitional?

We received an answer yesterday. The FEC has announced that all PACs may benefit from the ruling in Carey. But the Commission’s press release suggests more work ahead.

For one thing, political committees must inform the FEC of their plans to avail themselves of Carey. And they must report their new financial activities. Of course, no form exists to do so, doubtless a source of consternation to any federal agency.

More importantly, the Commission announced its intention to “initiate a rulemaking, and to amend its reporting forms accordingly, to address the Carey opinion and stipulated judgment, as well as related court rulings in SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) and EMILY’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009).”

Let’s leave aside that EMILY’s List is two years old and the Commission still has not re-written its rules and conformed to that decision.

The last time the Commission attempted to grapple with a question of constitutional law, presented by the Citizens United ruling, the FEC’s staff drafted hundreds of pages of potential new regulations, new disclosure regimes, and new reporting requirements. (Click on “2010” for the full history). None of those drafts was supported by a majority of the commissioners. Of course, CCP and others argued that the FEC should simply repeal clearly-unconstitutional regulations – many of which remain on the books more than a year later.

The Carey decision gets the law right, and it is reassuring to see the FEC taking that decision seriously. But that Commission should simply follow the First Amendment, and not use every adverse judicial decision as an excuse to burden political speech with even more unnecessary regulations.