|For Immediate Release
October 29, 2004
Kelly Huff George Smaragdis
FEC VOTES ON SPECIFICS OF SHAYS V. FEC APPEAL
WASHINGTON –The Federal Election Commission (FEC) voted Thursday to ask the
U.S. Court of Appeals for the D.C. Circuit to overturn a U.S. District Court's
conclusions regarding several regulations the Commission adopted to implement
the Bipartisan Campaign Reform Act of 2002 (BCRA). The case is Shays v. FEC,
Case No. 04-5352 in the court of appeals. The Commission voted to:
- Appeal the district court's decision regarding the coordinated communications
content standards, including the specific regulations found at 11 C.F.R. 109.21(c)(4)(i),
(ii), and (iii). These rules define when some public communications might
be subject to coordination restriction.
- Appeal the district court's decision regarding the definition of “solicit”
at 11 C.F.R. 300.2(m) and “direct” at 11 C.F.R. 300.2(n).
- Appeal the district court's decision regarding the regulation governing
payment of state, district, or local party employee wages or salaries at 11
- Appeal the district court's decision regarding the de minimis
exemption for Levin Amendment funds in 11 C.F.R. 300.32(c)(4). The rule allows
state and local parties to use federal funds or “Levin” funds, or a combination
of both for certain federal election activities aggregating up to $5,000 in
a calendar year.
- Appeal the district court's decision regarding the requirement that public
distribution be “for a fee” in 11 C.F.R. 100.29(b)(3)(i). This rule pertaining
to electioneering communications imposes the BCRA restrictions on broadcast
ads referring to federal candidates within certain timeframes and geographic
areas to those where the broadcaster has charged a fee.
The FEC will also ask the court of appeals to review district court findings
about plaintiff's standing and the ripeness of issues in this litigation.
The Commission also decided that it will be opening rulemaking proceedings
to adjust those regulations, many of which were found deficient on procedural
rather than substantive grounds.
In announcing the decision, FEC Chairman Bradley A. Smith said, “The Commission
will present a strong case to the Court of Appeals that its rules reflect a
proper exercise of agency discretion. It is also worth noting that none of the
problems the plaintiffs predicted would be caused by the regulations have come