Cases: Shays v. FEC II (527 Case): Intervenor / Amicus Filings

Sens. McCain & Feingold File Amici Brief in 527 Lawsuit

On April 3, 2007, 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.

Legal Center Files Memorandum on Behalf of McCain, Feingold Urging Court to Require FEC to Regulate "527 Groups"

On July 15, 2005 , in Shays and Meehan v. FEC, the Campaign Legal Center submitted a Memorandum to the Court on behalf of U.S. Senators John McCain and Russ Feingold, who are participating in the case as amici curiae.

Click here to read the Legal Center's Memorandum.

Senators McCain and Feingold as Amici Curiae

On December 15, 2004, the court entered an order granting Senators John M cCain (R-AZ) and Russ Feingold (D-WI) amici status in the case. On behalf of the Senators, the Legal Center submitted papers to a federal court in Washington , DC seeking to participate in a lawsuit brought by Representatives Marty Meehan (D- M A) and Christopher Shays (R-CT). The Shays/ Meehan suit was filed in September 2004, and seeks to force the Federal Election Commission to promulgate new rules for so-called "527 political groups." The suit filed in federal district court in Washington today argues that the FEC's repeated refusal to promulgate regulations for 527 groups is arbitrary and capricious, and therefore illegal under the Administrative Procedures Act. The suit seeks to have the court compel the agency to "commence proceedings to promulgate, on an expedited basis, appropriate regulations to define the term 'political committee.'" The Campaign Legal Center supports the suit and will serve as counsel to the Senators in the case.

Federal law since 1974 has required groups that have a "prima ry purpose" of influencing federal elections, and which raise or spend more than $1,000 doing so, to register with the FEC as a "political committee" and adhere to the longstanding rules for such committees: they may spend only federally-regulated "hard money" to pursue their activities and must disclose their activities to the FEC. The Campaign Legal Center , along with other reform groups, has filed a number of FEC complaints against both Republican- and Democratic-leaning 527 groups seeking to have their soft-money actions deemed illegal by the agency. The Commission has not yet acted on those complaints.

Senators McCain and Feingold were the principal sponsors of the Bipartisan Campaign Reform Act in the United States Senate. For seven years, they worked to secure passage of meaningful campaign finance reform legislation to rid politics of the corrupting influence of soft money and enhance the public's confidence in the workings of its governing institutions.

They filed the motion to participate in this suit as a friend of the Court because they perceive the FEC's failure to act in this area as denying the American people the full measure of protection from actual and apparent political corruption of the political process that unregulated 527's produce. They will seek to participate in the case to present their views on the importance of this case to the achievement of the purposes of BCRA. (The Senators did not seek to become parties to the suit along with Shays and Meehan because Senate rules do not allow them to accept pro bono legal representation as parties in legal proceedings. Senators, however, are permitted to accept pro bono services for the filing of amicus briefs, and Senators McCain and Feingold have accordingly authorized the Campaign Legal Center to represent them as amici curiae in this case.)

Click here to view the motion for leave to appear amici curiae on behalf of Senators McCain and Feingold.