Federal Judiciary

No appeal in EMILY’s List case

By Akin Gump Supreme Court Practice Group

The Obama Administration has notified Congress that it will not ask the Supreme Court to revive a set of government regulations seeking to curb high-volume campaign spending by non-profit advocacy groups. If Solicitor General Elena Kagan had opted to ask for review by the Justices, she would have had to do so today, Thursday.  Now, there will be no appeal in the case of EMILY’’s List v. Federal Election Commission.

In a letter on Wednesday to House Speaker Nancy Pelosi, Attorney General Eric H. Holder, Jr., said that another case newly set for argument before the D.C. Circuit Court next month may have an impact on underlying questions about government authority to regulate the so-called “527 corporations.”  That case is SpeechNow.org v. FEC (lead Circuit Court docket 08-5223), now set for argument Jan. 27 before the full, en banc Circuit Court.

That review, Holder added, will include a direct constitutional challenge to provisions of federal campaign finance law.  Because it will be sitting en banc, he noted, the full Circuit Court will not be bound by anything decided differently by the three-judge panel in the EMILY’s List case.  Potentially, the full Court could even overrule the panel, the letter said.

The EMILY’s List case involves an organization that supports abortion rights and political candidates who share its views, but the litigation in that and in the SpeechNow case may affect a wide-range of advocacy groups that have spent tens of millions of dollars trying to influence voters in elections for Congress and the Presidency.

The FEC’s “527″ regulations challenged by EMILY’S List were adopted in 2004.  A federal judge refused to block them, but then the D.C. Circuit nullified all five of the rules tested before it.  As a result of the Circuit ruling, non-profit “527″ organizations will be able to spend unlimited amounts of so-called “soft money” to attack or support federal canddidates or parties, can spend freely on voter drives, and can soliciit unrestriced amoutns of money from donors.

In striking down the five FCC rules for “527″ groups, the Circuit Court majority based its ruling on both constitutional and statutory grounds.  But, since the FEC did not seek en banc review of that decision, it means, the Attorney General told Congress, that “the constitutiional arguments have not yet been presented to the full court of appeals.”

In addition, Holder’s letter noted that the Circuit Court’s ruling does not conflict with any ruling by any other Circuit Court.  That, together with other factors that may diminish the significance of the EMILY’s List case, the letter argued, suggests that the case “does not meet the criteria for Supreme Court review.”

The SpeechNow case that the en banc Circuit Court will hear in late January is a consolidated pair of cases involving a “527″ association based in Washington, D.C., and created by a long-time political activist, David Keating, who also is executive director of a major political advocacy group, Club for Growth.  SpeechNow is an aggressive foe of campaign finance regulation, and its main activity is to encourage voters to cast their ballots for candidates who share the group’s First Amendment opposition to campaign finance curbs.

The lead appeal (docket 08-5223) contests a federal judge’s refusal to issue a preliminary injunction exempting SpeechNow from campaign contribution limits.  The organization also is resisting registering as a federally regulated “political committee.”  The second appeal (docket 09-5342) involves five constitutional challenges to federal campaign regulaions as they would apply to SpeechNow.

Briefing was already completed in the injunction case before the Circuit Court consolidated it with the later-filed constitutional challenges — certified to the Circuit Court by the trial judge, U.S. District Judge James Robertson.  Briefing is nearing completion on the constitutional questions.

Full post as published by SCOTUSBLOG on December 17, 2009 (boomark / email).