Monday, September 20, 2004

U.S. District Court Strikes Down Fifteen Weak FEC Regulations

Over the weekend, a U. S. District Court judge from the D.C. circuit struck down 15 regulations passed by the Federal Election Commission for watering down parts of the Bipartisan Campaign Reform Act of 2002. Among the provisions or regulations struck down in Shays v. Federal Election Commission were definitions or regulations concerning the raising or spending of soft money by a state party, coordination between candidates and outside groups, and the exemption of 501(c)(3) groups from BCRA's electioneering rules.

The long-term ramifications of the ruling are still unclear. The court did not require specific regulations to replaces the stricken ones, nor did it mandate that new regulations be passed before the November elections. In fact, the old regulations will likely be in effect up to and past this year's elections while the FEC appeals the ruling and rewrites the regulations if necessary.

The court's ruling should probably not be viewed as heralding in a new era of elections free from the influence of big money, but rather as a series of adjustments to a partially successful regime of existing campaign finance laws. For instance, even setting aside the vertiginous $2,000/$95,000 limit regime agreed to by supporters of BCRA, which allows a wealthy individual to give annually to federal candidates and committees an amount equal to the US median household income, the court's ruling does nothing to address the millions pouring into this year's elections through 527s. That issue is the subject of another complaint, brought by the same plaintiffs - Congressmen and BCRA backers Chris Shays and Marty Meehan.

What is clear from Saturday's decision is that even the judicial system, traditionally no ally of the campaign finance reform movement, increasingly regards the FEC as an agency where something may be broken, as the plain meaning of the campaign finance laws passed by Congress is subverted by a decision-making process which does not appear to meet regulatory standards. In short, the FEC may be part of the problem as much or more than it is part of the solution.

And one last thought: that neither Congress, nor administrative agencies, nor executive fiat will be enough to rid our elections of the corrosive effect of big money. We must enlist and maintain popular support in our efforts to achieve the promise of democracy, because in the end, it is from the people that all power and legitimacy flow.

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