Breaking News

Analysis: EMILY’s List case: To the Court, or not?


With U.S. Solicitor General Elena Kagan now weighing what to do next on the hotly controversial EMILY’s List case, it already appears that her decision could have a major impact on next year’s national political campaigns, whatever choice she makes.  If the Supreme Court gets involved, or if it does not, the influence of money on federal politics may change fundamentally — in future presidential contests as well as, perhaps, the 2010 congressional campaign.

The case is EMILY’s List v. Federal Election Commission, a case decided Sept. 18 by the D.C. Circuit Court (the opinion is here), and newly brought into public focus after the FEC split 3-3 in a vote last Thursday, thus refusing to request en banc review by the Circuit Court (an FEC news release, with access to statements by the commissioners, can be found at this link).

The case  involves a successful challenge to a set of regulations adopted in 2004 by the FEC, seeking to curb high-volume spending by non-profit advocacy groups widely known as “527 corporations” — named for a provision of the tax code under which they were organized.  (The author of this post has prepared detailed background on how the case developed before the FEC vote last week; it can be read here.)

Republican-leaning groups like Club for Growth and Democratic-oriented groups like, and others like them, together spent more than $400 million to try to influence voters in the 2004 elections for President and Congress.  EMILY’s List, a group that supports abortion rights and political candidates who share its views, failed to persuade a federal judge to overturn the restrictions last year, but a Circuit Court panel nullified them last month. 

With the FEC passing up a plea for the Circuit Court to reconsider, some groups that support strict curbs on 527 corporations are urging Solicitor General Kagan either to make that request, or to go on to the Supreme Court with an appeal (see a press release available at this site from Democracy 21, one of those groups). There is no doubt that Kagan could take the case to the Supreme Court now; legal analysts are not sure she has the option of seeking en banc review, or whether that was a choice left to the FEC.

If she does neither, then the new restrictions are gone.  As a result, non-profit 527s will be able to spend unlimited amounts of  “soft money” — that is, money raised outside the donation limits of federal law — to attack or support federal candidates or parties, can spend freely on voter drives, and can solicit unrestricted amounts from donors.  And, as one judge on the Circuit Court (Circuit Judge Janice Rogers Brown) noted, “Congress can do nothing about any of this.”  That is because the majority of the Circuit Court panel based its ruling on the Constitution — subject to change only by amendment of the basic charter.

Kagan has until Monday, Nov. 2, to seek en banc rehearing, if she concludes that that option is open to the federal government.  If such reconsideration does not occur, for whatever reason, the earliest deadline the Solicitor General would face for a Supreme Court petition would be Jan. 14.  Filing then, or later, would diminish significantly the chances that the Court could hear and decide the case by next summer, unless it chose to speed it up considerably.

Election law experts are debating these days whether a Supreme Court appeal is likely, given that the FEC was unwilling to mount an effort to keep its own 527 regulations.  The case does, however, involve not only a momentous constitutional issue — just what does the First Amendment protect in political funding by groups not tied to political parties — but also a significant question of what the FEC’s powers are over 527 non-profits.

Two of the judges on the Circuit Court found the First Amendment violated by all five of the 527 rules at issue, and also ruled that three of those regulations were beyond FEC’s authority to adopt.  The third judge, refusing to address the constitutional issue, found all five beyond FEC’s powers as conferred by Congress.  But even that third member of the panel wrote at length to question the underlying constitutional premises of the Supreme Court’s most recent campaign finance rulings, and even hinted that the Court perhaps should reconsider.

Kagan and her client, the FEC, already has pending before the Supreme Court a basic constitutional dispute over campaign finance — whether the Court should overrule two of its precedents as they operate to restrict campaign season ads or documentaries by non-profit advocacy groups (the so-called “Hillary the Movie” case, Citizens United v. FEC, 08-205, argued Sept. 9 and awaiting a ruling).  But even if the Court does not overrule those precedents in the Citizens United case, the EMILY’s List constitutional ruling, if left intact, would free 527s to go on spending sprees in future federal elections.

The Solicitor General argued in the Citizens United case in favor of federal regulation of election season films by advocacy organizations.  But whether she now feels that the FEC also needs the authority to curb spending by 527s will not be clear until she makes up her mind whether to contest EMILY’s List.

One facet of that case that could give Kagan pause is the suggestion, by Circuit Judge Brown, that the Supreme Court’s “increasingly anomalous campaign finance jurisprudence” has worked to “impoverish” the opportunity of non-government entities to contest the government’s policy agenda.   Gloomily, Brown argued that the Court may have “doom[ed] any argument for protection of core political speech.”  And then she added: “Someday the Supreme Court may be persuaded to reconsider this approach. But that cannot be our task [at the Circuit Court level].”

Strong rhetoric like that could lead the Supreme Court’s current majority, which seems quite skeptical of strong federal regulation of campaign “speech” in the form of campaign spending, to use the EMILY’s List case to dismantle some of the basic constitutional ground rules the Court has laid down in this field.  After all, the Citizens United case started out as a much more modest case, until the Supreme Court, in mid-passage, opted to turn it into a sweeping constitutional reexamination.

The Circuit Court majority — Judge Brett M. Kavanaugh, joined by Judge Karen LeCraft Henderson — concluded that the Supreme Court’s broadest endorsement yet of campaign finance limits (the 2003 decision in McConnell v. FEC) did not apply at all to 527 corporations, but only to political parties organized as such.  Judge Brown suggested that that conclusion was “implausible” under McConnell, but her own critique of McConnell, and of some of the Court’s prior rulings, could well strike at least some Justices as a reason to reopen all of McConnell, not just the narrow part of it that is now at issue in Citizens United.

Those may well be some of the thoughts figuring in the behind-the-scenes discussions now going on at the Solicitor General’s office, as Nov. 2 and other deadlines approach.