FEC won’t appeal EMILY’s List ruling

The decision not to appeal to an en banc panel of the U.S. Court of Appeals means independent political organizations will be able to raise and spend significantly more money on voter registration drives and advertisements that refer to political parties.

A Sept. 18 Appeals Court ruling vacated three FEC regulations it said violated the First Amendment by prohibiting political speech. Those regulations required political committees not affiliated with a party or a specific candidate to use federal funds, which are severely limited, for many campaign activities.

After the ruling, the FEC had the option to appeal to an en banc panel of more than just the three judges who originally ruled against the commission, or to appeal directly to the Supreme Court. The vote taken Thursday, a 3-3 tie, means the FEC will not pursue the en banc hearing.

The suit was originally brought by EMILY’s List, the organization that backs pro-abortion rights Democratic women running for office.

Now EMILY’s List and groups like it will be able to spend non-federal money on generic voter registration drives, advertisements that refer to federal candidates and political parties but do not specifically advocate voting for or against a candidate, and administrative expenses.

Three Democratic commissioners said an appeal was necessary in order to resolve “significant constitutional questions” brought up by the lawsuit, Commissioners Cynthia Bauerly and Ellen Weintraub argued in a statement. A full rehearing, they argued, would provide more guidance from the D.C. Circuit, where much of the litigation involving the commission takes place.

The commission’s three Republican commissioners, Vice Chairman Matthew Petersen, Caroline Hunter and Donald McGahn, argued that the regulations amounted to “untenably expansive interpretations” of campaign finance law.

The decision comes amid a string of setbacks for advocates of campaign finance reform. Early last month, the Supreme Court heard arguments in a case that could dismantle key prohibitions against corporate involvement in federal elections; the ruling has yet to be issued in that case.

Instead of appealing the EMILY’s List ruling, the FEC will attempt to craft new guidance in the near future, according to a press release.

While the FEC will not appeal the decision, Solicitor General Elena Kagan would have the option to do so. Many election law experts, though, believe she is unlikely to make an appeal.

Kagan is studying is the decision, a spokeswoman for the solicitor general said.