Thursday, September 22, 2016

Judge Slaps FEC for Erroneous Analysis of Political Committee

Judge Christopher R. Cooper (D.D.C.) ruled earlier this week that the controlling members of the FEC applied the wrong legal analysis in concluding that two groups were not "political committees" under federal campaign finance law. The ruling reverses and remands to the FEC for reconsideration.

The case matters because designation as a "political committee" triggers more stringent reporting requirements under campaign finance law. Judge Cooper's ruling makes it more likely that a group would be considered a "political committee," and thus marks a victory for campaign disclosure advocates.

The case arose when CREW lodged a complaint with the FEC that two groups, American Action Network and Americans for Job Security, were unregistered "political committees." Those groups spent money on TV ads and other electioneering communication in three congressional districts in the 2010 elections. In response to CREW's complaint, three FEC commissioners determined that the groups' "major purpose" wasn't "the nomination or election of a candidate," and therefore that they were not "political committees" under campaign finance law. The commissioners reasoned that the groups' electioneering communications--ads that mentioned a candidate, but that did not advocate for or against a candidate's election--shouldn't be considered in determining the "major purpose," and that groups' purposes over their entire history should be considered in determining their "major purpose."

Judge Cooper disagreed. He ruled first that under Buckley and its progeny, the commissioners should have considered the groups' electioneering communications in determining their "major purpose":

CREW's citations to legislative history, past FEC precedent, and court precedent certainly support the conclusion that many or even most electioneering communications indicate a campaign-related purpose. Indeed, it blinks reality to conclude that many of the ads considered by the Commissioners in this case were not designed to influence the election or defeat of a particular candidate in an ongoing race. . . . Instead, the Court will limit itself to identifying the legal error in the Commissioners' statements--that is, the erroneous understanding that the First Amendment effectively required the agency to exclude from its consideration all non-express advocacy in the context of disclosure.

Judge Cooper ruled next that the commissioners wrongly considered the groups' spending over their entire existence, instead of confining their analysis to spending within the most recent calendar year, in determining the "major purpose." He explained that a group's purpose can change over time:

The Commissioners' refusal to give any weight whatsoever to an organizations' relative spending in the most recent calendar year--particularly in the case of a fifteen-year-old organization like AJS--indicates an arbitrary "fail[ure] to consider an important aspect of the [relevant] problem."

Judge Cooper sent the case back to the FEC and ordered it "to conform with [this] declaration within 30 days." The FEC can, of course, appeal.

http://lawprofessors.typepad.com/conlaw/2016/09/judge-slaps-fec-for-erroneous-analysis-of-political-committee.html

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