The latest filing by the Federal Election Commission in the SpeechNow.org case acknowledges that the Federal Appeals Court decision in the Emily’s List case adversely affects their quest to preserve contribution limits to independent expenditure groups. SpeechNow.og is mounting a First Amendment challenge to the contribution limits to independent expenditure groups. The FEC’s brief contains the following admission:
The Commission recognizes that the reasoning in EMILY’s List v. FEC, No. 08-5422, 2009 WL 2972412 (D.C. Cir. Sept. 18, 2009), appears to resolve the likelihood of success issue against the Commission and that the panel in the instant litigation is currently bound by that decision. To preserve the issue for possible further judicial review by this Court sitting en banc or the Supreme Court, however, the Commission argues here that appellants failed to carry their burden to establish that the Commission is unlikely to succeed in defending the contribution limits at the merits stage.
The FEC has 45 days to seek a rehearing before the full D.C. Circuit Court of Appeals in the Emily’s List case. However, I believe that there are not four votes on the FEC to seek the rehearing. It remains to be seen whether the Solicitor General has the appetite to bring another campaign finance case to the U.S. Supreme Court. In the meantime, it appears the Emily’s List case will continue to impact other pending cases involving the FEC.