May 5, 2008 – 1:18 p.m.
Election lawyers tangled in a federal appeals court Monday over a handful of regulations that remain incomplete six years after Congress approved a landmark campaign-law overhaul.
The latest appeal focuses on five regulations. The Federal Election Commission is trying to salvage four regulations that District Court Judge Colleen Kollar-Kotelly threw out. Rep.
Lawyers for the FEC and for Shays agreed on very little in their appearance before the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. But they each ranked as most important the issue of how to govern coordination between candidates and their outside advocates.
The FEC decided not to regulate ads as contributions to a campaign if a wealthy donor or advocacy group runs them more than 90 days before a congressional election or 120 days before a presidential primary. Kollar-Kotelly threw out those time frames as arbitrary and capricious.
David B. Kolker, an FEC lawyer, said the ads are a small portion of those broadcast.
“There is no evidence this is being abused,” Kolker said.
But appeals Judge David S. Tatel asked how anybody would know about abuse from advertising that he called “substantial” and questioned whether the commission’s time frame was the right one.
“The question is whether it’s drawn in the right place,” Tatel said.
Shays and watchdog groups argued regulators shouldn’t ignore ads that air earlier than the cutoff set by the FEC. More than 8 percent of federal ads in the 2004 campaign ran outside the period covered by the FEC plan and were worth more than $800,000 in just the 23 markets studied, according to Charles Curtis Jr., a Shays lawyer.
Curtis credited former President Clinton’s 1996 campaign with spending $2.3 million as early as June and July 1995.
“There are numerous issues where candidates perceive real value” from early ads, Curtis said.
Judge Merrick B. Garland questioned what enforcement there would be if a wealthy donor announced on the front page of the New York Times that he would help a candidate before the deadline with hundreds of thousands of dollars in advertising.
“The campaign could not be stopped and could not be pursued,” Garland said.
“That’s correct,” Kolker said.
The hearing was merely the latest wrangling over the 2002 McCain-Feingold law. The bulk of the landmark legislation outlawed so-called “soft money” donations in federal elections from wealthy individuals, corporations and unions.
The FEC is asking the appeals court restore two other regulations that deal with a company hiring a former employee of the candidate and then coordinating advertising to help the candidate.
The FEC set a 120-day “cooling off” period before a company that has hired a candidate’s former employee could work for that candidate. The FEC also called on companies to set up “firewalls” preventing former employees from helping with independent ads for the candidate.
Kollar-Kotelly found both standards arbitrary and capricious.
Kolker said information from a former employee has a short shelf-life. But Curtis argued that some polling results are valuable for 180 days and that Congress requires its own former members to observe a one-year cooling off period before lobbying.
Another regulation the FEC was trying to restore dealt with state and local parties performing voter registration or get-out-the-vote activity. Kollar-Kotelly found the definitions don’t flesh out “gray areas.”
Garland asked how the FEC would regulate automated calls from the Los Angeles County Democratic Party urging its members to vote. Kolker said it would depend on the message, and what qualifies as federal election activity.
Meanwhile, Shays sought to overturn a regulation allowing congressional candidates to help state and local party organizations raise money for election activity at their level. Such funds are considered “soft money” because they aren’t federally regulated.
Kollar-Kotelly upheld the regulation allowing federal candidates to “attend, speak, to be a featured guest” at a local fundraising so long as they weren’t soliciting money or directing how it was spent.
But Shays argued that would allow a no-holds-barred free-for-all at state and local fundraisers.
Judge Thomas B. Griffith asked repeatedly how to regulate a federal candidate speaking at an event.
“The very nature of the event is to raise money,” Griffith said.
Curtis said a speech would be all right, but the candidate couldn’t solicit funds. Curtis urged a regulation similar to when candidates appear at events for political-action committees.
“There is no indication that Congress intended to blow a hole in the solicitation standard,” he said.