Those seeking to roll back campaign finance laws remain eager to try their luck with a new and potentially sympathetic lineup of Justices at the Supreme Court. EMILY’s List is one step closer to the High Court in its long-running legal challenge to key FEC regulations that aim to prevent federal political committees from spending “soft money” (i.e., funds not in compliance with federal contribution limits) to influence federal elections. Having lost repeatedly at the district court level over the last four years, EMILY’s List’s case is now pending at the Court of Appeals for the D.C. Circuit.

EMILY’s List is challenging two regulations adopted by the FEC in 2004 to shut down a new avenue for circumventing the federal contribution limits that developed after passage of the Bipartisan Campaign Reform Act of 2002 (BCRA). Essentially, BCRA barred political parties from spending soft money on federal election activity – so political fundraisers turned to non-party committees as new conduit for soft money. Their scheme was to manipulate the campaign finance “allocation” rules so that non-party federal political committees could fund most of their campaign activities, including partisan voter drives, almost entirely with soft money. These committees simply claimed that their activities were non-federal or “generic” in nature, and therefore could be “allocated” to their non-federal, soft money accounts – even though their activities were clearly aimed at electing or defeating federal candidates. For instance, America Coming Together (ACT), the largest non-party political committee active in the 2004 elections, spent around 98% soft money and only 2% hard money (i.e., funds raised in compliance with federal contribution limits) on its $100-million voter mobilization effort intended to influence the 2004 Presidential election.

In response, the FEC passed a new “allocation” regulation that requires a federal political committee (with a non-federal account) to spend at least fifty percent hard money on “mixed” or “generic” political activities that affect both federal and non-federal elections – such as voter mobilization efforts. The FEC also clarified that funds raised in response to solicitations that indicate that the money will be used “to support or oppose” the election of federal candidates will be deemed federal “contributions” subject to federal contribution limits.

As we emphasized in our brief to the court yesterday, the FEC’s actions to close these loopholes are a reasonable exercise of its statutory authority and are consistent with the First Amendment. Political committees and their fundraisers may not like it – but shutting down the soft money abuses that developed after BCRA’s enactment is an important government interest that more than justifies the FEC’s regulations.

By Tara Malloy, Campaign Legal Center Associate Counsel

To read the full brief of the Campaign Legal Center and Democracy 21 in the case, click here.