Shays v. FEC (Petition for rehearing)

On August 29, 2005, the Commission filed with the U.S. Court of Appeals for the District of Columbia Circuit a petition for rehearing en banc of the court’s July 15, 2005, ruling in this case. In that ruling, a three-judge panel of the appeals court affirmed the appealed portions of the district court’s decision invalidating several Commission regulations that implement provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA). See the September 2005 Record.

In its petition for rehearing, the Commission argues that consideration by the full appeals court is necessary because the decision by the three-judge panel with respect to whether Representatives Christopher Shays and Martin Meehan have standing to bring this suit conflicts with the Supreme Court’s findings in McConnell v. FEC and with the DC circuit’s own decisions in prior cases.

The Commission also argues that rehearing is warranted because the three-judge panel’s decision involves exceptionally important issues. First, the appeals court decision regarding standing effectively allows any candidate to challenge nearly all Commission regulations without demonstrating any personal harm from a particular regulation. This interpretation of the court’s standing requirements creates “uncertainty and instability in the law affecting constitutionally protected advocacy during the relatively short congressional election cycles.” Second, the decision failed to give the required deference to the Commission’s “exercise of its judgment in balancing the conflicting policies and First Amendment interests underlying this complex statute.” The Commission thus requests that the court grant its petition for rehearing.

U.S. Court of Appeals for the District of Columbia Circuit, CV04-5352.