The Federal Election Commission (“FEC”) just released the final rules implementing the federal court’s holding in the Emily’s List v. FEC case. Emily’s List challenged a number of FEC regulations requiring nonconnected PACs to pay for certain expenses with hard money and one that required funds received in response to certain types of solicitations to be treated as hard money contributions. The final rules remove the regulations that were struck down on First Amendment grounds by the court. The final rules can be found here.
UPDATE: Oops. An astute reader correctly points out that the rules cited above were released one year ago. So let’s just call this post a one year anniversary celebration of what may be last time the FEC could muster the four votes to remove the regulations invalidated by a series of landmark decisions handed down by the federal courts, including the Citizens United decision. Perhaps I will start a countdown to determine how long it will take for the agency to finally adopt a rulemaking simply deleting the rules invalidated by the Citizens United decision. One name for the countdown could be “Countdown to Freedom.”
On balance, when taken as a whole and with limited reference to external events, such as the proximity to the actual release date of the final rules referenced above, this mistake can only be interpreted by a reasonable person as an innocent one. Oh well, sorry for the confusion caused by an innocent mistake.
UPDATE II: The more that I think about this issue, the more I am troubled by a series of questions. Why has it taken the FEC more than a year, a party to the SpeechNow.org and Citizens United cases, to remove the regulations that were invalidated by the federal courts? What is the problem? Why hasn’t the press focused on the FEC’s inability to remove these regulations from the books? Why the focus on “deadlocks” regarding enforcement matters that in some instances apply novel and outside-the-box legal theories that do not appear to be supported by the statutes, regulations and case law?
How difficult is it to review the Citizens United and SpeechNow.org cases and remove the affected regulations? Why do these rulemakings need to be polluted with extraneous issues that were not addressed by the courts? Why not a clean rulemaking that complies with each decision? Perhaps it is time to go back and review the record to determine why the FEC has not complied with these federal court decisions.