Posted: 10/6/04
Related topics: Enforcement | Federal Candidates & Officeholders | Increased Federal Contribution Limits | Political Parties | Outside Groups

    Plaintiffs Shays and Meehan have now responded to the FEC’s motion before Judge Kollar-Kotelly to stay her decision on the BCRA implementing rules. Those who followed the reform community’s response to the decision will recall its insistence that the ruling was immediately effective. We noted the following:

Fred Wertheimer, one of the counsel to the plaintiffs and President of Democracy 21, declared that: "These regulations are now unlawful and the F.E.C. cannot enforce unlawful regulations. No one should attempt to exploit this F.E.C.-created loophole." Yesterday, Trevor Potter, another member of plaintiffs’ legal team and chief of the Campaign Legal Center, advised the election law list serv that he could not "see how these rules can be said to remain in effect."

"Jockeying over the Kollar-Kotelly Decision" (Sept 21, 2004) 

    The plaintiffs, responding to the FEC motion, now say the opposite—presumably because the position taken before a judge, unlike one crafted for a press release, requires some greater measure of scrupulousness. Their response blithely accepts that "this Court expressly denied plaintiffs’ request for an injunction against the continued enforcement of the deficient rules, chose not to vacate any of those rules, and instead remanded for the Commission ‘to determine how to proceed next’." Response at 1. So the FEC’s Motion for a Stay, they argue, "is entirely unnecessary."

    This is a remarkable admission, when one considers the strenuous efforts of the reform community to persuade the press—and through the press, the regulated community—to the contrary. Particularly shifty is this passage from the new response:

Rather than exercising its responsibility and giving the regulated community and public any guidance, the Commission has now belatedly returned to this Court and insisted that it is for the Court ‘to clarify for the public the state of the law in the wake of the Court’s decision.’ [citation omitted.] That is a complete abdication of the Commission’s responsibility.

Response at 1.

    Of course, to the extent that any clarification is needed, it is surely because the plaintiffs rushed to the press with claims that the decision had, effective immediately, nullified the rules. Somehow it is now "irresponsible" for the Commission to address any confusion—confusion, to be precise, that was encouraged quite deliberately by the actions of plaintiffs and their counsel.

    Plaintiffs now complain in their "response" that the FEC refuses to decide "immediately" which rules to appeal, and they express frustration that, as a condition of plaintiffs’ stipulation to a stay, the Commission will not join them in seeking expedited appellate review. The plaintiffs’ concern is not with the rules as they will apply now, in the 27 days before the election, but with a schedule for appellate review that will "allow new rules to be in effect as early in the 2006 election cycle as possible." Response at 2.

    The issue then in the skirmishing over the Kollar-Kotelly decision is the nature of the rules to be enforced in 2006, not this year. Those who mistakenly relied on the "analysis" offered by plaintiffs in the immediate aftermath of the decision will be surprised to hear this.

 

©2005 Perkins Coie LLP.