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  • FEC Record: Litigation

Shays v. FEC (III)

June 1, 2008

On April 11, 2008, the U.S. District Court for the District of Columbia denied the plaintiff’s “motion to enforce” the court’s earlier final judgment in the Shays III litigation.


In response to the court decisions and judgment in Shays I, the FEC held rulemaking proceedings during 2005 and 2006 to revise a number of its Bipartisan Campaign Reform Act (BCRA) regulations. On July 11, 2006, U.S. Representative Christopher Shays and then Representative Martin Meehan (the plaintiffs) filed another complaint in district court. The complaint challenged the FEC’s recent revisions to, or expanded explanations for, regulations governing coordinated communications, federal election activity (FEA) and solicitations by federal candidates and officeholders at state party fundraising events. The plaintiffs claimed that the rules did not comply with the court’s judgment in Shays I or with the BCRA. The complaint also alleged the FEC did not adequately explain and justify its actions.

On September 12, 2007, the district court granted in part and denied in part the parties’ motions for summary judgment in this case. The court remanded to the FEC a number of regulations implementing the BCRA, including:

  • The revised coordinated communications content standard at 11 CFR 109.21(c)(4);
  • The 120-day window for coordination through common vendors and former employees under the conduct standard at 11 CFR 109.21(d)(4) and (d)(5);
  • The safe harbor from the definition of “coordinated communication” for a common vendor, former employee, or political committee that establishes a “firewall’’ (11 CFR 109.21(h)(1) and (h)(2)); and
  • The definitions of “voter registration activity” and “get-out-the-vote activity” (GOTV) at 11 CFR 100.24(a)(2)-(a)(3).

On October 16, 2007, the Commission filed a Notice of Appeal seeking appellate review of all of the adverse rulings issued by the district court. On October 23, 2007, Representative Shays cross-appealed the district court’s judgment insofar as it denied the plaintiff’s “claims or requested relief.”

Court decision

On November 7, 2007, Representative Christopher Shays (the plaintiff) filed a Motion to Enforce the court’s September 12, 2007, judgment that remanded certain regulations to the FEC for further action. In its September 12, 2007, Memorandum Opinion, the court expressly denied the plaintiff’s requests that the court enjoin the operation of the regulations, order the Commission to commence expedited rulemaking proceedings and adopt interim regulations, and retain jurisdiction over the matter to ensure the FEC’s timely and sufficient compliance with the court’s decision. In doing so, the court noted that under settled principles of administrative law, when a court reviewing agency action determines that an agency made an error of law, the court’s inquiry is at an end; the case must be remanded to the agency for further action consistent with corrected legal standards. While the court noted its assumption that “on remand, the Commission would act promptly, in light of the impending 2008 elections,” ultimately it is up to the agency to determine how to proceed next, not for the court to decide or monitor. Therefore, the court concluded that it has no authority to grant the relief plaintiff sought in his Motion to Enforce.

The court also found that the record provides no basis for granting plaintiff’s relief. The court noted that the FEC’s Response to plaintiff’s Motion to Enforce indicates that the Commission is currently undertaking the very steps that the court previously required it to undertake pending the appeal in Shays I, and the Commission is aware that it “must take significant steps during the appeal to prepare for possible new regulations.” In its Response, the Commission also highlighted competing priorities, including three major rulemakings necessitated by acts of Congress and a Supreme Court case, which preclude it from undertaking the type of immediate action plaintiff seeks. The court held that it “is in no position to grant the relief Plaintiff seeks, i.e., to essentially reorder the FEC’s priorities.” Given the fact that oral arguments on the FEC’s appeal of the September 12th judgment were scheduled for May 5, 2008, the court stated that in “the present posture, … the Court lacks both a reason for and the authority to order the FEC to comply with any particular timetable in taking ‘significant steps’ so that it will ‘have new, fully compliant regulations ready for immediate implementation after the expiration of its appeals process.’”

  • Author 
    • Amy Pike