FEC By a 3-3 Vote Refuses to Appeal Extreme and Overreaching Decision by D.C. Court of Appeals in EMILY’s List Case That Declared Important FEC Regulations Unconstitutional
Statement of Democracy 21 President Fred Wertheimer
The three Republican Commissioners of the Federal Election Commission (FEC) once again have failed to discharge their duty to faithfully administer the campaign finance laws.
By voting in the EMILY’s List case to block the recommendation of the FEC General Counsel to appeal the decision by a three-judge panel of the D.C. Circuit Court to the full Court of Appeals, the three Republicans have voted to keep in place an extreme and overbroad decision by the panel that declared important FEC regulations unconstitutional.
Given the fact that a 3-3 vote has blocked the FEC from taking any action, we strongly urge the Solicitor General either to appeal this case to the full D.C. Circuit Court of Appeals or to appeal to the Supreme Court.
Normally government agencies take actions to defend the constitutionality of the regulations they have issued, but today’s vote by the Republican FEC Commissioners to block an FEC appeal continues their pattern of doing everything they can to emasculate the nation’s campaign finance enforcement agency and thereby to emasculate the nation’s campaign finance laws.
Judge Janice Rogers Brown, a member of the three-judge panel in the EMILY’s List case, joined with the other two Circuit Court judges in the case in voting to strike down the FEC regulations at issue. But Judge Brown strongly objected to the majority opinion in the case written by Judge Brett Kavanaugh.
In criticizing the majority opinion for overreaching, Judge Brown, an appointee of President George W. Bush, stated:
Because this case can be decided on statutory grounds, we need not reach the constitutional question, and so should not reach the constitutional question. Our precedent is not wishy-washy: "Federal courts should not decide constitutional questions unless it is necessary to do so. Before reaching a constitutional question, a federal court should therefore consider whether there is a nonconstitutional ground for deciding the case, and if there is, dispose of the case on that ground."
According to Judge Brown, the majority opinion answered a “gratuitous constitutional question” that invalidated campaign finance laws well beyond what even EMILY’s List asked for in the case.
Judge Brown said the majority “sua sponte spins a more aggressive argument than the one EMILY’s List actually makes” and in so doing, “re-imagines the ‘key question in this case.’”
Given the fact that the opinion by the Court of Appeals panel unnecessarily ruled on constitutional grounds and invalidated the law well beyond what was necessary to decide the case, it should have been an easy call for the FEC to seek further review from the full D.C. Court of Appeals.
We strongly agree with the statement issued by FEC Chairman Steven Walther that:
[I]n a case like this, where the constitutional arguments were not squarely before the court, the ruling has significant and lasting national impact, and where the DC Circuit is the locus of most of the Commission’s litigation on such issues, it is in the best interest of the Commission, as an institution, and in the best interest of others guided by the FECA, to have the issues decided by the broadest consensus available in the DC Circuit after full briefing on those issues. The Commission and the public were foreclosed from that opportunity in this case.
For the foregoing reasons, I believe that it was an unequivical responsibility of the Commisssion to seek guidance from the entire Circuit Court in order to obtain clarity on the law reflecting the consensus of the full Circuit, especially on the consitutional issues, rather than the more limited opinion of two judges on a divided Circuit panel.
We also strongly agree with the statement issued by FEC Commissioners Ellen Weintraub and Cynthia Bauerly, who said, “The Commission’s inability to reach an agreement to seek rehearing is troubling because the divided panel’s majority opinion reaches constitutional conclusions that were not necessary to its holding and were not briefed by either party at any stage in the litigation.”
They added, “Although we do not believe it appropriate to appeal every adverse decision from a court, in cases where a divided opinion reaches significant constitutional questions not briefed by either party, we believe it is imperative to seek guidance from the full Circuit on behalf of the Commission and all who must comply with the FECA. Indeed, we voted to seek rehearing en banc because we consider it our duty as officials charged with administering the federal campaign finance laws to do so in this matter.”
