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D.C. Circuit Voids Campaign Finance Regs:

It may be a little while before we see what the U.S. Supreme Court will do to campaign finance law in Citizens United v. Federal Election Commission. In the meantime, lower court challenges to various FEC rules continue apace. This morning, the U.S. Court of Appeals for the D.C. Circuit struck down some in EMILY's List v. FEC. The court, in an opinion by Judge Kavanaugh, joined by Judge Henderson in full and Judge Brown in part, held several FEC rules are contrary to statute and violative of the First Amendment. Judge Kavanaugh's opinion begins:

A non-profit group known as EMILY's List promotes abortion rights and supports prochoice Democratic women candidates. It challenges several new Federal Election Commission regulations that restrict how non-profits may spend and raise money to advance their preferred policy positions and candidates. EMILY's List argues that the regulations violate the First Amendment.

The First Amendment, as interpreted by the Supreme Court, protects the right of individual citizens to spend unlimited amounts to express their views about policy issues and candidates for public office. Similarly, the First Amendment, as the Court has construed it, safeguards the right of citizens to band together and pool their resources as an unincorporated group or non-profit organization in order to express their views about policy issues and candidates for public office. We agree with EMILY's List that the new FEC regulations contravene those principles and violate the First Amendment. We reverse the judgment of the District Court and direct it to enter judgment for EMILY's List and to vacate the challenged regulations.

The regulations at issue, as descirbed in the opinion, limit the ability of non-profits such as EMILY's List to raise and spend funds by requiring such groups to fund some election-related activities, such as voter registration, advertisements, get-out-the-vote efforts, from their hard money accounts, to which contributions are limited. These rules, the could found, exceed the FEC's power under the Federal Election Campaign Act and violate the First Amendment.

Judge Brown concurred in the court's result, but not it's approach. Her opinion concurring in part argued that the case should have been resolved purely on statutory grounds and questioned Judge Kavanaugh's First Amendment analysis. Her opinion begins:

"If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable." Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944). "Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter." Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). Because these regulations must be vacated as contrary to the statute, we need not and should not reach the First Amendment issue. But if we're going to answer an unnecessary constitutional question, we at least ought to get it right. In light of McConnell v. FEC, 540 U.S. 93 (2003), I have grave doubts about the court's analysis, which bears at most a passing resemblance to the parties' briefs, and which will profoundly affect campaign finance law in this circuit. I thus respectfully concur only with Part IV of the court's opinion, except for footnotes 17, 18 and 20.
Something tells me this is not the last we will hear of this case.

PatHMV (mail) (www):
I'm delighted to see that the majority looks at the Freedom of Association, which I think has been often over-looked in these campaign finance cases.
9.18.2009 11:51am
Prof Hasen, call your office:
So if Judge Brown were Justice Brown (in place of, say, Justice Alito), would she similarly adhere to the statutory-grounds imperative and thus avoid overruling Austin and McConnell in Citizens United? /skepticism
9.18.2009 1:22pm
AHayward:
Having looked at those regs quite a bit in my misspent past, I am convinced that they pas muster as a permissible interpretation of the statute - otherwise the litigation wars surrounding allocation that were waged in the 1980s don't make sense. There are other precedents, in other words. The constitutional questions is more ambitious, but the precedents there leave space for interpretation, IMHO. So I think the Kavanaugh opinion is a stronger basis for the result.
9.18.2009 1:29pm
AHayward:
I should probably proofread before commenting, eh?
9.18.2009 1:30pm
Dilan Esper (mail) (www):
So if Judge Brown were Justice Brown (in place of, say, Justice Alito), would she similarly adhere to the statutory-grounds imperative and thus avoid overruling Austin and McConnell in Citizens United? /skepticism

She might not. But she's doing her job here, which is to let the Supreme Court overrule McConnell if that's what they want to do.
9.18.2009 1:52pm
einhverfr (mail) (www):

So if Judge Brown were Justice Brown (in place of, say, Justice Alito), would she similarly adhere to the statutory-grounds imperative and thus avoid overruling Austin and McConnell in Citizens United? /skepticism


The issue in Citizens United is fundamentally different.

I actually agree with Judge Brown here. If you don't have to reach to the Constitution, don't do it. If the regulations are contrary to statute, don't decide the Constitutional issues and instead assume that they can be decided if and when Congress passes a law mandating that those regulations be put in place again.

In Citizens United the fundamental question is what do you do about Constitutional challenges that arise in relation to statutes. The question is whether a narrow approach of as-applied challenge (found in the Massachusetts Citizens for Life and Wisconsin Right to Life cases) are sufficient or whether the mess that is McConnell* needs to be overruled along with at least part of Austin.

* Anyone who doesn't think a ruling that has 3 majority opinions, three dissenting opinions, and 2 concurring opinions is not a mess needs to adjust their criteria.

Thus in Citizens United there is no shrinking from the Constitutional issues. Here those decisions could be deferred until a decision where they must be decided.

Those are fundamentally different cases and need to be seen as such.
9.18.2009 4:37pm

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