Posted by Jonathan Adler:
D.C. Circuit Voids Campaign Finance Regs:
http://volokh.com/archives/archive_2009_09_13-2009_09_19.shtml#1253287361
It may be a little while before we see what the U.S. Supreme Court
will do to campaign finance law in Citizens United v. Federal Election
Commission. In the meantime, lower court challenges to various FEC
rules continue apace. This morning, the U.S. Court of Appeals for the
D.C. Circuit struck down some in [1]EMILY's List v. FEC. The court, in
an opinion by Judge Kavanaugh, joined by Judge Henderson in full and
Judge Brown in part, held several FEC rules are contrary to statute
and violative of the First Amendment. Judge Kavanaugh's opinion
begins:
A non-profit group known as EMILY�s List promotes abortion rights
and supports prochoice Democratic women candidates. It challenges
several new Federal Election Commission regulations that restrict
how non-profits may spend and raise money to advance their
preferred policy positions and candidates. EMILY�s List argues that
the regulations violate the First Amendment.
The First Amendment, as interpreted by the Supreme Court, protects
the right of individual citizens to spend unlimited amounts to
express their views about policy issues and candidates for public
office. Similarly, the First Amendment, as the Court has construed
it, safeguards the right of citizens to band together and pool
their resources as an unincorporated group or non-profit
organization in order to express their views about policy issues
and candidates for public office. We agree with EMILY�s List that
the new FEC regulations contravene those principles and violate the
First Amendment. We reverse the judgment of the District Court and
direct it to enter judgment for EMILY�s List and to vacate the
challenged regulations.
The regulations at issue, as descirbed in the opinion, limit the
ability of non-profits such as EMILY's List to raise and spend funds
by requiring such groups to fund some election-related activities,
such as voter registration, advertisements, get-out-the-vote efforts,
from their hard money accounts, to which contributions are limited.
These rules, the could found, exceed the FEC's power under the Federal
Election Campaign Act and violate the First Amendment.
Judge Brown concurred in the court's result, but not it's approach.
Her opinion concurring in part argued that the case should have been
resolved purely on statutory grounds and questioned Judge Kavanaugh's
First Amendment analysis. Her opinion begins:
�If there is one doctrine more deeply rooted than any other in the
process of constitutional adjudication, it is that we ought not to
pass on questions of constitutionality . . . unless such
adjudication is unavoidable.� Spector Motor Serv., Inc. v.
McLaughlin, 323 U.S. 101, 105 (1944). �Thus, if a case can be
decided on either of two grounds, one involving a constitutional
question, the other a question of statutory construction or general
law, the Court will decide only the latter.� Ashwander v. TVA, 297
U.S. 288, 347 (1936) (Brandeis, J., concurring). Because these
regulations must be vacated as contrary to the statute, we need not
and should not reach the First Amendment issue. But if we�re going
to answer an unnecessary constitutional question, we at least ought
to get it right. In light of McConnell v. FEC, 540 U.S. 93 (2003),
I have grave doubts about the court�s analysis, which bears at most
a passing resemblance to the parties� briefs, and which will
profoundly affect campaign finance law in this circuit. I thus
respectfully concur only with Part IV of the court�s opinion,
except for footnotes 17, 18 and 20.
Something tells me this is not the last we will hear of this case.
References
1. http://pacer.cadc.uscourts.gov/common/opinions/200909/08-5422-1206889.pdf
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