Court Deems Campaign Finance Rules Too Weak

By Matthew Mosk
Washington Post Staff Writer
Saturday, June 14, 2008

The U.S. Court of Appeals for the District of Columbia Circuit ruled yesterday that the Federal Election Commission has failed to adequately enforce key aspects of the McCain-Feingold campaign finance restructuring that Congress passed six years ago, and urged the FEC to write new rules that help prevent corporations, unions and special interest groups from influencing federal elections.

"Basically, we're now getting into our fourth election cycle under McCain-Feingold, and we still don't know what the rules are," said Richard L. Hasen, an election law professor at Loyola Law School in Los Angeles.

At issue in the case were regulations the FEC wrote in response to the 2002 campaign finance law -- named for Senate sponsors John McCain (R-Ariz.) and Russell Feingold (D-Wis.). Sponsors of the law sued the FEC arguing that the rules were too lax, and the court agreed.

"The question is . . . does the challenged regulation frustrate Congress's goal of 'prohibiting soft money from being used in connection with federal elections'?" Judge David Tatel wrote for a three-judge panel. "We think it does."

The opinion will not have practical implications for the 2008 elections, as it will take months for the FEC to draft new rules implementing the McCain-Feingold law. And the FEC could still appeal this ruling to the U.S. Supreme Court. For now, the FEC's current rules will apply.

But the opinion suggests that, down the road, the FEC will have to crack down on efforts by federal candidates to coordinate their campaign activities with corporations, unions and special interest groups, said Donald J. Simon, an election lawyer who helped argue the case.

One specific complaint, Simon said, was conduct that the FEC permitted so long as a presidential election was more than 120 days away or a congressional election was more than 90 days away.

Under the FEC's rules, Simon said, "a candidate could sit down with a corporate executive, dictate the content of a political ad, decide when and where to run it, and how much to spend, and it would not be considered coordinated."

Simon said those contesting the FEC rules provided the court with "lots of evidence. We found dozens of political ads that aired outside the [90-day and 120-day] window. Every one of those ads could have been fully coordinated."

An FEC spokeswoman said the commission is reviewing the opinion and has not yet decided how to proceed. But former FEC chairman Michael E. Toner said he is appalled by the court ruling. He said the FEC took pains in formulating its rules. And, he said, the commissioners were "on solid ground" by creating different standards for ads that aired six months or a year before an election.

"The FEC compiled an exhaustive record, went through thousands of broadcast commercials and carefully crafted these regulations based on the empirical record," Toner said. "The court is essentially substituting its own view."

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