Sep 20, 2004 -- Press Release: Three Strikes for the FEC

Three Strikes for the FEC: In Three Unrelated Cases, Three Different Courts Sharply Criticize a Deeply Troubled Agency

Contact: Mark Glaze
202.271.0982

Washington, D.C. -- A federal judge on Friday ordered the Federal Election Commission to scrap most of the regulations it adopted to implement the Bipartisan Campaign Reform Act of 2002. A judicial decision to overturn an administrative agency's rules - which requires the judge to find the regulations so arbitrary and capricious that they are actually contrary to law - is quite rare. But the decision was just the latest in a series of rulings in which three separate courts, in three unrelated cases, have sharply criticized the FEC.

Trevor Potter, general counsel of the Campaign Legal Center and a former FEC Commissioner and Chairman, said these decisions highlight the emerging realization that the FEC itself is actively undermining campaign finance law. "Taken together, these cases are a compelling indictment of the agency," Potter said . "The decisions show that over the past generation, the Commission has often been the agent of the law's undoing, actually causing some of the nation's most notable campaign finance disasters, including the soft money system and the current attempts to recreate that scheme through the improper use of so-called 527 organizations."

Two decisions in the past week have sharply criticized the FEC's conduct:

Bush-Cheney '04 v. FEC, September 15, 2004: Last Wednesday, Judge James Robertson of federal district court in Washington , D.C. declined to grant the Bush-Cheney '04 campaign a preliminary injunction ordering the FEC to take action on the campaign's complaints against a number of Democratic-leaning 527 groups. The campaign alleged that its complaint had languished at the Commission for more than 120 days, after which federal law authorizes complainants to file a suit against the Commission for their failure to act. The judge, citing a controlling appellate court decision, said he could not grant the preliminary injunction. But he also made his view of the agency clear:

The Federal Election Commission is notoriously slow and unable to act, and has been throughout the entire period of its existence. The other case that's pending before me [an eight-year old enforcement matter] is proof, if we need that, that the FEC moves with glacial speed. But . . . that's the way Congress set it up, and apparently that's the way Congress likes it, because that's the way it has been now for at least the 20 years since the Rose decision. The unwillingness or inability of the FEC to act quickly is a serious problem.


Shays v. FEC, September 17, 2004: In a 157-page decision, Judge Colleen Kollar-Kotelly of federal district court in Washington, D.C. held last Friday that many of the regulations the FEC passed to implement BCRA were arbitrary and capricious and therefore contrary to law. The court characterized one provision as having "no rational basis;" said another would "render the statute largely meaningless" and noted that another "severely undermines FECA" and would "foster corruption." Another, the Commission said, "runs completely afoul" of campaign finance law.

The United States Supreme Court fired the opening volley less than a year ago:

McConnell v. FEC, December 10, 2003: When the Supreme Court upheld the soft money ban in BCRA late last year, the Court majority laid the blame for the soft money system squarely at the doors of the FEC, saying it was clear that years of bad rulings and rulemakings, calculated to promote either one political party or both at various moments in time, had systematically eroded the longstanding prohibitions on corporate and union money in federal elections. The Court said the Commission had "subverted" the law by issuing regulations that "permitted more than Congress . . . had ever intended" in this area, and with its allocation rules, had "invited widespread circumvention of FECA's limits on contributions."

The Campaign Legal Center served on the legal team defending BCRA in McConnell v. FEC and represented Senators John McCain (R-AZ) and Russ Feingold (D-WI) as amici in the two district court cases.

Potter said the decisions provide compelling evidence that the FEC should be restructured to correct problems that undermine the agency's capacity to enforce the law. "These decisions show as clearly as possible that we simply need to do something different to enforce campaign finance law. The FEC isn't up to the job. We need an enforcement agency that is, or history will simply keep repeating itself."

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Click here to view the opinion.

Click here to read a six-page analysis produced by Democracy 21.

Click here to view Reps. Shays and Meehan press release on the court decision.