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No en banc in EMILY’s List case?

The D.C. Circuit Court’s deeply controversial ruling in September, removing federal restrictions on high-volume spending in federal elections by non-profit advocacy groups, is not going to be challenged further in the Circuit Court.  Monday was the deadline for parties to seek en banc review by the full Court of the panel ruling in the EMILY’s List case, but U.S. Solicitor General Elena Kagan will not seek it, concluding that she has no authority to do so.  She still has the option, in coming weeks, of asking the Supreme Court to hear it, however.  (An earlier post discussing the case can be read here.)

Kagan’s spokesperson, Beverley Lumpkin, said in response to a query: “It’s simply not a decision that the SG has anything to do with; the agency itself [the Federal Election Commission] has the authority to make that decision in the courts of appeals.  The Solicitor General will make any decision regarding a cert petition.”

The FEC voted 3-3 on the en banc issue last month; it would have taken four votes for the agency itself to request the full Circuit Court to reconsider.  Thus, there is now no party in a position to seek such a rehearing; the Circuit Court itself, however, has the option of ordering en banc review by majority vote.  The panel’s Sept. 18 ruling in EMILY’s List v. FEC (Circuit docket 08-5422) is here.

If the Circuit Court on its own does not order rehearing, it will issue its formal mandate to implement the decision.  The 90-day period for filing a petition in the Supreme Court would run from the Sept. 18 date of the panel ruling, not the date of the mandate’s issuance.