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On September 18, 2009, the U.S.
Court of Appeals for the District of
Columbia found that three Commission
regulations that implement how
nonconnected federal political committees
may allocate funds to finance
certain activities that influence both
federal and non-federal elections,
and that clarify when funds obtained
in response to solicitations are contributions
under the Federal Election
Campaign Act (the Act), violate the
Constitution and are in excess of the
Commission’s statutory authority.
The court found these regulations
to be invalid and ordered the district
court to vacate the challenged
regulations.
On March 11, 2004, the Commission issued a Notice of Proposed Rulemaking on Political Committee Status, which proposed a number of regulatory changes concerning, among other things, the definition of “political committee” and the allocation ratios for PACs. On November 23, 2004, it published final rules that define as "contributions":
(The final rules were published in the November 23, 2004, Federal Register (68 FR 68056). The rules took effect on January 1, 2005.)
The regulations at issue established a new rule for when funds received by political committees in response to certain solicitations must be treated as "contributions" under the Act and thereby must abide by federal limitations and prohibitions. The regulations also modified the Commission’s rules regarding how political committees may allocate spending between federal and nonfederal accounts.
Under current FEC rules, nonconnected political committees that maintain both federal and nonfederal accounts may allocate administrative expenses, costs of generic voter drives and costs of public communications that refer to a political party but not to specific candidates with a minimum of 50 percent federal funds. (The remainder may be allocated to the nonfederal account). 11 CFR 106.6. Public communications and voter drives that refer to one or more clearly identified federal candidates, but not to any nonfederal candidates, must be financed with 100 percent federal funds. 11 CFR 106.6(f)(1). Public communications and voter drives that refer to one or more clearly identified nonfederal candidates but do not refer to any federal candidates may be financed with 100 percent nonfederal funds. 11 CFR 106.6(f)(2).
With regard to solicitations, Commission regulations state that funds received in response to a solicitation must be considered federal "contributions" under the Act if the communication indicates that any portion
of the funds received will be used to support or oppose the election of a
clearly identified federal candidate. 11 CFR 100.57(a). Likewise, if a solicitation refers to a clearly identified federal candidate and a political party, but not to a clearly identified nonfederal candidate, all funds received in response are considered contributions. 11 CFR 100.57(b)(1).
In contrast however, if the solicitation refers to one or more clearly
identified nonfederal candidates, in addition to a clearly identified federal
candidate, at least 50 percent of the funds received must be treated as
contributions under the Act, regardless of whether the solicitation also
refers to a political party. 100.57(b)(2).
EMILY’s List, a nonconnected political action committee (PAC) that maintains both federal and nonfederal accounts, filed a complaint on January 12, 2005, challenging the Commission’s regulations regarding the treatment of funds received in response to certain solicitations and its amended rules regarding federal/nonfederal fund allocation ratios for PACs.
The plaintiff alleged that the Commission exceeded its statutory authority in these regulations because the Federal Election Campaign Act (the Act) only regulates money spent by nonconnected committees "for the purpose of influencing any election for Federal office." 2 U.S.C. §431(8) and (9). According to the plaintiff, the solicitation regulations exceed the Commission’s statutory authority by requiring that funds be considered "contributions" under the Act even if they will also be used for nonfederal elections or other nonfederal activities. Similarly, the plaintiff alleged that the new allocation rules exceed the Commission’s statutory authority by requiring federal funds to be used to pay for nonfederal activities. According to the plaintiff, these allocation rules result in “a mandatory subsidization of nonfederal electoral expenses with federal funds” and restrict activities that are not for the purpose of influencing a federal election.
The plaintiff further alleged that the regulations violate the Administrative Procedures Act (APA) because the Commission failed to give proper notice of the final regulations or to give interested parties a fair and meaningful opportunity to comment. According to the plaintiff, the proposed solicitation rules only addressed express advocacy communications, and the proposed allocation rules did not suggest a "blanket" 50 percent allocation ratio, but instead focused on a "promote, support, attack, or oppose" standard for determining how a given cost should be allocated. Thus, the plaintiff alleged that the Commission’s notice of the proposed rules did not give reasonable notice of the scope or nature of the final regulations, in violation of 5 U.S.C. §553(b).
In addition, the plaintiff claimed that the regulations are arbitrary, capricious and an abuse of discretion, in violation of 5 U.S.C. §706(2)(A). The plaintiff alleged that the FEC failed to provide a rational explanation for its decisions or to take public comments into account when making its final rules. According to the plaintiff, the FEC also failed to identify for these rules "any purpose to deter corruption or the appearance of corruption, and they serve no such purpose."
Finally, the plaintiff alleged that the challenged regulations violate its First Amendment rights. The plaintiff claimed that in Buckley v. Valeo, 424 U.S. 1 (1976), and McConnell v. FEC, 540 U.S. 93 (2003), the Supreme Court prohibited the FEC from restricting the types and amounts of funds used to influence federal elections unless the restrictions are narrowly tailored to prevent corruption or the appearance thereof. According to the plaintiff, the regulations in question are unconstitutionally vague and overbroad.
On February 25, 2005, the U.S. District Court for the District of Columbia denied the plaintiff's request for a preliminary injunction in this case.
When deciding whether to grant a preliminary injunction, courts consider whether:
In this case, the court found that each of these standards weighed in favor of the FEC and that "the interests of both Defendant and the public would be disserved by the granting of Plaintiff's motion." Thus the court ordered that EMILY's List's motion for a preliminary injunction be denied.
On December 22, 2005, the U.S. Court of Appeals for the District of Columbia Circuit upheld the district court’s refusal to grant EMILY’s List’s request for preliminary injunctive relief. The suit challenges Commission regulations regarding the treatment of funds raised through certain solicitations and the rules on federal/nonfederal allocation by political action committees. See the April 2005 Record [PDF].
The appeals court found that the district court had not abused its discretion in denying injunctive relief. The district court had considered whether EMILY’s List has a substantial likelihood of success on the merits, whether it would suffer irreparable injury absent an injunction, and whether an injunction would substantially injure other interested parties or further the public interest. In light of the evidence of irreparable harm shown submitted by EMILY’s List and its likelihood of prevailing on the merits, the appeals court affirmed the district court’s decision.
On July 31, 2008, the U.S. District Court for the District of Columbia held that EMILY’s List has standing to challenge both the rule regarding how political committees must treat funds received in response to certain solicitations and the rules for how federal and nonfederal activities must be allocated. EMILY’s List brings a facial challenge to the rules rather than an "as-applied" challenge, asserting that the rules are overly broad under the First Amendment because "an individual whose own speech or conduct may be prohibited is permitted to challenge a statute on its face."
The court also held that the allocation and contribution limits that EMILY’s List challenged in this case are contribution limits, which are subject to lesser scrutiny than the "strict scrutiny" standard that is typically applied to limits on campaign expenditures. The Supreme Court has "recognized that contribution limits, unlike limits on expenditures,'entail only a marginal restriction upon the contributor’s ability to engage in free communication.'" Moreover, contribution limits do not pose the same danger to associational rights as expenditure restrictions because the "overall effect of dollar limits on contributions is merely to require candidates and political committees to raise funds from a greater number of persons."
The district court held in this case that the challenged solicitation and allocation regulations serve the governmental interest of preventing corruption and the appearance of corruption by foreclosing the circumvention of the Act’s contribution limits. The court held that EMILY’s List cannot establish that the FEC’s allocation regulations are facially overbroad since the regulations are closely drawn to match the sufficiently important interests of preventing corruption and the appearance of corruption by preventing the use of nonfederal funds for communications that may influence federal elections. The court also held that the solicitation regulations are closely drawn to match sufficiently important government interests and thus must be upheld under a lesser scrutiny standard. The court denied EMILY’s List’s motion for summary judgment and granted the FEC’s cross-motion for summary judgment.
On September 18, 2009, the U.S. Court of Appeals for the District of Columbia held that Commission regulations at 11 CFR 106.6(c), 106.6(f) and 100.57 violate the First Amendment and exceed the FEC’s authority under the Act.
In its discussion of the First Amendment, the court referred to Buckley v. Valeo, which found that campaign contributions and expenditures constitute "speech" and, therefore, fall under the protection of the First Amendment. The court noted that in Davis v. FEC 128 S. Ct. 2759, 2773 (2008), it was decided that limiting contributions and expenditures in an effort to equalize the political field is not a "legitimate government interest" and, therefore, cannot be the reasoning behind these types of regulations. The court went on to state that the only legitimate government interest that allows for the restriction of campaign finances is preventing corruption or the appearance of corruption. The appeals court stated that that government interest has only been applied to contributions to candidates and parties because those two groups pose the greatest risk of quid pro quo corruption. Buckley, 424 U.S. at 26-27; see also Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 296-97 (1981).
The court stated that, since the
regulations in question do not address
candidates, parties or for-profit
corporations, which the court said
are the only entities the Supreme
Court has allowed these types of
limits to be placed on, the appeals
court had to determine how to apply
the above principles to non-profit entities.
The court determined that "the
central issue turns out to be whether
independent non-profits are treated
like individual citizens (who under
Buckley have the right to spend
unlimited money to support their
preferred candidates) or like political
parties (which under McConnell
[v. FEC, 540 U.S. 93 (2003),] do
not have the right to raise and spend
unlimited soft money)." The court
then made a distinction between three different types of non-profits
and stated how their contributions
and expenditures can be regulated.
First, the court stated, there are
non-profits that make no contributions,
but only expenditures for
political activities such as advertisements
and GOTV activities. In
the decision, the court stated that
"non-profit entities, like individual
citizens, are constitutionally entitled
to raise and spend unlimited money
in support of candidates for elected
office—with the narrow exception
that, under Austin, the Government
may restrict to some degree how
non-profits spend donations received
from the general treasuries of forprofit
corporations or unions."
The court stated that a second category of non-profits are those that make contributions to candidates, but no expenditures. The court stated that these groups can be limited in the contributions they receive.
The court stated that a third category, which includes EMILY’s List, consists of those non-profits that make both contributions and expenditures. According to the court, such groups "are entitled to make their expenditures…out of a soft-money or general treasury account that is not subject to source and amount limits," as long as they make their contributions from a hard-money account. The court did not interpret McConnell as permitting the types of soft-money restrictions currently placed on political parties to be applied to non-profits like EMILY’s List.
The court then held that sections
106.6(c), 106.6(f) and 100.57 are not
closely drawn to meet an important
government interest and would,
therefore, be struck down. Among
other things, the court stated that
"non-profits are constitutionally entitled
to pay 100 percent of the costs
of…voter drive activities [and generic campaign activity] out of their soft-money accounts." 1 The court
reached the same conclusion for ads
that refer to a federal candidate. 2 It
further stated that the solicitation
regulation unconstitutionally prohibits
a non-profit from stating that
the money it is raising will be used
to support its preferred candidate. 3 The court also held that the regulations
exceeded the Commission’s
statutory authority because, the court
said, they required non-profits to use
hard money for activities that were
exclusively non-federal. The court
found the regulations to be invalid
and ordered the district court to vacate
the challenged regulations.
Judge Brown concurred in the result reached by the two judges in the majority because she agreed that the regulations exceeded the Commission’s authority under the Act. However, she disagreed with the majority’s First Amendment analysis, and she stated that the court’s decision to reach the constitutional questions was unnecessary.
FOOTNOTES:
1 11 CFR 106.6(c) requires that nonconnected political committees maintaining both a federal and a nonfederal account allocate administrative expenses, costs of generic voter drives and costs of public communications that refer to a political party, but not to a specific candidate, with a minimum of 50 percent federal funds.
2 11 CFR 106.6(f)(1) requires that public communications and voter drives that refer to one or more clearly identified federal candidates, but not to any nonfederal candidates, must be financed with 100 percent federal funds.
3 11 CFR 100.57 states that funds received in response to a solicitation must be considered federal "contributions" under the Act if the communication indicates that any portion of the funds received will be used to support or oppose the election of a clearly identified federal candidate.
Source: FEC Record -- March 2005 [PDF]; April 2005 [PDF]; September 2008 [PDF]; November 2009 [PDF].
