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arrowSection 3.1.1 - Federal Law

This topic is monitored by Moritz Law Professor Edward B. Foley

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U.S. District Court Invalidates FEC Rules

Judge Colleen Kollar-Kotelly, a federal district judge in Washington, D.C., has struck down as insufficiently stringent 15 specific rules promulgated by the Federal Election Commission. These rules were adopted in order to implement the new Bipartisan Campaign Reform Act, or BCRA, which is commonly known as "McCain-Feingold" after its principal sponsors in the Senate. The lawsuit against the Commission had been filed by Representatives Shays and Meehan, the Act's principal sponsors in the House, and was supported by Senators McCain and Feingold.

Election Law @ Moritz will provide detailed analysis of the court's 157-page opinion in future updates. A primary focus of the court's decision concerned the FEC's new "coordination" rules, which address when campaign advertisements by interests groups will be treated as contributions to a candidate. Judge Kollar-Kotelly invalidated these coordination rules in three respects: (1) they improperly limited their scope to campaign advertisements that mention a candidate within 120 days before an election, rather than encompass any advertisements coordinated with a candidate; (2) they improperly exclude campaign advertisements disseminated through the Internet; and (3) they inadequately justify the term "agent" as used to determine whether coordination exists between a group and a candidate.

The decision also invalidated several other specific rules with considerable significance to this year's election, including rules concerning voter registration and "get out the vote" (GOTV) activities. There is an important question, however, as to whether the court's decision will apply to this year's election. Judge Kollar-Kotelly specifically rejected the plaintiffs' request for an order that would have barred the FEC's enforcement of these rules and, instead, remanded the case to the Commission for further proceedings. The Commission will likely appeal Judge Kollar-Kotelly's decision and, whether by issuance of a stay or a clarifying order, the FEC's rules are likely to remain in effect while the appeal is pending, which will extend well beyond this year's election.