Feb 28, 2005 -- Court Rejects EMILY's List Attempt to Enjoin FEC Allocation Rules

FOR IMMEDIATE RELEASE: February 28, 2005
Press Contact: Mark Glaze, 202-271-0982

A federal district court judge on Friday rejected a bid by EMILY's List to bar enforcement of new Federal Election Commission rules that require political committees, including so-called "527 groups", to spend at least 50 percent hard money on political activities that affect both federal and non-federal elections.

"This decision is a victory for the basic campaign finance principle that groups working to influence federal elections will not be allowed to manipulate the system by primarily using soft money to do so," said Gerry Hebert , litigation director at the Campaign Legal Center.

"What happened in 2004", Hebert said , "is that ma ny 527 organizations abused the campaign finance system by manipulating FEC rules so that they could fund activities that were clearly designed to influence federal elections, such as voter mobilization efforts, with nearly all soft money." Hebert cited one such group, ACT (Americans Coming Together) as one example, noting that ACT had spent around 98% soft money and 2% hard money on voter mobilization efforts aimed at influencing the 2004 Presidential election.

Hebert added: "The Supreme Court has held that the FEC can promulgate regulations to close loopholes in federal election law, including the ban on unlimited, unregulated 'soft money' expenditures, and Judge Kollar-Kotelly recognized that the tightened allocation rules serve that purpose."

The Campaign Legal Center is involved in the case as a friend of the Court, or amicus, and had filed a brief opposing EMILY's List's request for a preliminary injunction. The Legal Center was joined in the brief by Democracy 21, the Center for Responsive Politics, Sen. John McCain (R-AZ), Sen. Russ Feingold (D-WI), Rep. Christopher Shays (R-CT) and Rep. Marty Meehan (D-MA).

Under campaign finance law, "allocation rules" govern the kind of funds that a federal political committee may spend on activities that affect both federal and non-federal elections. Activities to influence a federal election must be funded exclusively by "hard money" - limited contributions from individuals and PACs. Activities aimed at non-federal races, however, are not subject to federal source and contribution limits, and so they can often be funded through use of unlimited "soft money" contributions. Allocation rules are designed to provide a formula for which kinds of funds can be used to fund activities that affect both federal and non-federal races, such as generic voter registration drives.

The case brought by EMILY's List challenges a new rule adopted by the FEC late last summer that requires a federal committee to use at least 50 percent federal funds to pay for generic voter mobilization drives and other activities that affect both federal and nonfederal elections, along with a rule that clarified the definition of the term "contribution." The new rule was designed to guarantee that when federal political committees engage in activities that are pri ma rily aimed at influencing federal elections, a reasonable amount of the funds spent on those activities will come from "hard money" accounts.

EMILY's List had asked the court for a preliminary injunction barring enforcement of the new rules until the judge could rule on the merits on the case.

Judge Colleen Kollar-Kotelly's February 25 decision rejects the request, noting that the group "has not demonstrated any right, statutory or otherwise, to the former system of allocation rules" and concluding that EMILY's List "is not entitled to the previous arrangement simply because Plaintiff prefers it."

The judge also dismissed the assertion that the group was harmed by the new rules, saying she found it "difficult to agree that Plaintiff can be injured by a regulation that requires no change from Plaintiff's current practices." Court filings had indicated that EMILY's List has long adhered to the 50% hard money formula the new FEC rules require.

Finally, Judge Kollar-Kotelly concluded that the new rules do not impair the First Amendment rights of independent political groups. "While under the new allocation rule, committees such as EMILY's List are required to fund certain types of communications using at least 50 percent federal funds, this does not limit their right to undertake their desired political expression. . . . Plaintiff is free to undertake the same political speech as before, but ma y be required to raise money from a greater number of donors."

Given the Court's decision that EMILY's List is unlikely to prevail on the merits of its case, it re ma ins to be seen whether EMILY's List will continue to press the litigation.

To view the decision, please click here.

To view the Campaign Legal Center's amicus brief opposing EMILY's List and supporting the new allocation rules, please click here.

To view the FEC's Opposition To Plaintiff's Application For A Preliminary Injunction, please click here.