GOVERNMENT ETHICS AND ELECTION LAW
ALERT
October 1, 2004
FEC Campaign Finance Regulations Invalidated
A recent ruling by the D.C. District Court invalidated a
number of regulations promulgated under the McCainFeingold Bipartisan Campaign Reform Act (“BCRA”).
Judge Colleen Kollar-Kotelly ruled that the Federal
Election Commission (“FEC”) had impermissibly
adopted regulations that essentially gutted substantial
portions of BCRA.
The opinion did not enjoin the FEC from enforcing the
regulations, but the regulations in question have been
remanded to the FEC for revision. Until the FEC
revises its regulations, we recommend, as does the
FEC, that clients behave as if the regulations were
still in force.
The opinion, handed down in Christopher Shays v. FEC
(Civil Action No. 02-1984, Sept. 18, 2004), was a
victory for BCRA’s sponsors (including Representatives
Shays and Meehan, the two plaintiffs in the suit). The
judge agreed with BCRA’s sponsors that the FEC’s novel
interpretations of basic terms in the statute opened
large loopholes that contravened its intent. The ruling
is the latest in a series of setbacks for the FEC, which
has also faced criticism of its handling of “527”
advocacy groups and its slow enforcement of election
law violations by campaigns.
Among the regulations remanded to the FEC are those
that:
• held that federal candidates and officeholders
could indirectly solicit soft money as long as
they did not explicitly ask for it;
•
enabled tax-exempt 501(c)(3) organizations to
use corporate or union money for ads directly
mentioning federal candidates within a month
prior to a primary election or two months prior
to a general election;
•
narrowly defined “get out the vote,” voter
registration, and voter identification activities,
significantly reducing the scope of the FEC’s
oversight of those activities;
•
exempted Internet advertising from rules
limiting coordination between outside entities
and federal candidates’ official campaign
organizations; and
continued...
•
narrowly defined “coordination” to include only
cases in which there was “agreement” between
a candidate or party and an outside spender,
and allowed outside groups to coordinate with
campaigns until 120 days before an election.
At the same time, the ruling upheld some of the more
technical FEC regulations that:
•
•
•
•
“grandfathered” entities that already had ties
with political party committees, allowing
continued coordination;
loosened restrictions on state party committees’
use of less-regulated “Levin” funds for electionrelated activity;
established accounting procedures that state,
district, and local party commitees must keep if
they participate in federal election activities;
and
defined state, district, and local committees as
being “part of the official party structure” for
the purpose of day-to-day activities.
TO FIND OUT MORE
If you have questions about this Alert,
or other issues related to campaign finance
law, please contact the following attorneys,
who comprise the Government Ethics
and Election Law practice group at
Preston Gates:
Tim Peckinpaugh, Washington, D.C.
(202) 662-8465
timp@prestongates.com
David Thomas, Washington, D.C.
(202) 661-3864
davidth@prestongates.com
Paul Stimers, Washington, D.C.
(202) 661-3883
pauls@prestongates.com
To obtain a copy of our firm’s Guide to
Political and Lobbying Activities, please
contact our Marketing Department at
(202) 628-1700.
For more information about the firm, visit
www.pgerm.com.
Again, due to the lack of an injunction in Judge KollarKottelly’s ruling and the likelihood that appeals or redrafting of the relevant regulations will last months,
clients are advised to treat the remanded regulations as
still in effect.
DISCLAIMER
This ALERT provides general information about campaign finance law. It is not a legal opinion or legal advice. Readers should confer with
appropriate legal counsel on the application of law to their own situations. Entire contents copyright 2004 by Preston Gates Ellis & Rouvelas
Meeds LLP. Reproduction of this ALERT in whole or in part without written permission is prohibited.