Monday, October 24, 2005

Democracy 21 President Wertheimer on Full D.C Circuit Court Upholding Lower Court Ruling Striking Down 15 FEC Regulations

WASHINGTON, Oct. 24 / -- Following is a statement of Democracy 21 President Fred Wertheimer on full D.C Circuit Court upholding lower court ruling striking down 15 FEC regulations:


On October 21, 2005, the full D.C Circuit Court of Appeals rejected an effort by the Federal Election Commission (FEC) to overturn a lower court ruling that had struck down, as contrary to law, 15 regulations adopted by the FEC to implement the Bipartisan Campaign Reform Act of 2002 (BCRA).


The decision came in the case of Shays and Meehan v. FEC and leaves standing federal district Judge Kollar-Kotelly's decision on September 18, 2004 that struck down 15 FEC regulations and ordered the FEC to adopt new regulations to properly interpret and implement BCRA, including its soft money ban.


The FEC appealed Judge Kollar-Kotelly's ruling to the D.C Circuit Court of Appeals, which in July 2005 upheld Judge Kollar- Kotelly's ruling in all respects, in a divided three-judge panel decision. The FEC then filed a petition for the full D.C Circuit Court to review the three-judge panel's decision. That petition was rejected last Friday.


The decision by the full D.C Circuit Court of Appeals represents another important victory in the courts for the nation's campaign finance laws and yet another clear message from the courts to the FEC that it had failed to properly interpret and implement the laws.


The federal courts have now ruled three times in favor of the lawsuit brought by Representatives Christopher Shays (R-CT) and Marty Meehan (D-MA) against the FEC. There is simply no excuse left for the FEC failing to have proper regulations in place to implement BCRA, more than three years after the law was enacted in 2002.


In denying an FEC request to stay her opinion pending the FEC's appeal of the decision, Judge Kollar-Kotelly wrote on October 19, 2004, "(T)he Court declines to stamp the Commission's 'business-as-usual' tactics and request for delay with the judicial imprimateur of approval."


Judge Kollar-Kotelly further wrote, "Given this situation, in order to prevent the significant, irreparable injury that would accrue to Plaintiffs if revised regulations were not in place by the 2006 election cycle, the Commission upon remand should instigate proceedings and craft proposed regulations following this Court's September 18, 2004 Opinion and Order with reasonable expediency."


Judge Kollar-Kotelly made clear in her October 19, 2004 opinion that the FEC should proceed with new rulemaking proceedings so that it would be able to act promptly to issue new regulations if the agency lost its appeal.


The fact is, however, that today, thirteen months after Judge Kollar-Kotelly's initial decision, and after the FEC has lost its final appeal in the D.C. Circuit, the FEC has issued only one new regulation to replace the 15 regulations that were struck down, and has failed to prepare final regulations ready for adoption for the fourteen other invalidated regulations. And, the FEC has not even begun a rulemaking on the "coordination" issue, one of the most important regulations involved in the lawsuit.


All of this raises very serious questions about whether the FEC has failed to comply with the judge's order to proceed with "reasonable expediency." It is essential for the FEC to move immediately to comply with Judge Kollar-Kotelly's order and to adopt new regulations that are effective for the 2006 elections.


(Democracy 21 President Fred Wertheimer is a member of the legal team representing Representatives Shays and Meehan in the Shays-Meehan v. FEC case.)

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