On September 18, the U.S. Court of Appeals, D.C. Circuit, held unconstitutional several Federal Election Commission regulations on campaign spending by non-profit groups, often known as “527’s”. The case is Emily’s List v FEC, 08-5422. Here is the decision. The majority decision is 44 pages, and the partial dissent/partial concurrence is 29 pages.
The FEC regulations held that non-profit groups that run their own ads campaigning for or against candidates for federal office are limited, in how they raise the money to pay for those ads. The FEC said individual contributions to such non-profit groups could not exceed $5,000. Two judges in the 3-judge panel said such contribution limits are unconstitutional. The third judge said that the Court should not have reached the constitutional issue, but should have limited its holding to finding that the FEC lacked authority to issue the regulations.
A paradox of the decision is that now (assuming the decision stands), non-profits have more ability to raise money to run their own political ads referring to candidates for federal office than political parties do. When political parties raise money, contributions from individuals are limited.
Of course, under the decision, non-profits are still limited in how much money individuals may contribute, if the non-profit then uses those contributions to contribute directly to particular candidates. The decision does not deal with contributions from non-profits to candidates. It only deals with contributions to non-profits when the non-profit uses its money to produce and run its own ads.
This decision, if it stands, should be very helpful to Unity08 in its pending lawsuit against FEC regulations that limited contributions to it. Thanks to Howard Bashman’s HowAppealing for the link.
I’m intrigued that the judges seem to have overlooked the impact a lot of state races this year and next will have on Federal elections thereafter. 2010 is a Census year, of course, and redistricting/reapportionment battles often come down to which party has control of legislatures. (If any, of course. Maybe that’s another good reason to vote in some non-duopolists: we might actually get the people a bit more voice in those debates.)
The judges can’t go beyond the issues complained about. I doubt Emily’s List brought up the issue of state candidates.
Both opinions talk about state — and local — candidates repeatedly. They just don’t mention the Census or redistricting/reapportionment. And that’s what caught my attention.
As I read this case, one key issue — if not THE key issue — was whether spending money on those lower races affects Federal races . . . and whether it must *intend* to do so to be subject to FEC regulation. The judges discussed how state and local parties and candidates are connected to Federal candidates and campaigns — but IMO they ignored a much more direct link, a more plausible and likely *intentional* link: between the candidates for US House and the candidates for the state offices whose holders will decide whose districts stay the same and whose get mixed up or merged or erased. . . .