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FEC: Don’t rush SpeechNow

The Federal Election Commission, suggesting that the Supreme Court may well want to take on a new campaign finance case, has asked the D.C. Circuit Court not to rush into effect its March ruling in that case (, et al., v. FEC, Circuit docket 08-5223).  The Commission asked that the government be allowed several more weeks to make up its mind what to do next.  The oppposition to immediate release of the mandate in the SpeechNow case is here.

In its unanimous, en banc SpeechNow decision, the Circuit Court ruled that the conservative advocacy organization had a right to raise unlimited amounts of money to spend directly on opposing or supporting candidates in elections to Congress — presumably, including this year’s election.  The decision has not yet been put into effect, and presently is not scheduled to be until May 17.  But the organization’s leaders want the case to be implemented immediately, to increase their chances of actually taking part in this year’s campaign.  (The plea was discussed in this post earlier this month.)  That is the plea the FEC resisted in its filing on Friday.

While the Circuit Court ruling applied directly to SpeechNow, its effect could well be much wider.  Other independent, non-party groups organized as so-called “527 organizations” (named for a section of the federal tax code) — groups that have spent lavishly in past campaigns before FEC started curbing their activity — would also be in a position to raise and spend without limit.

As of now, the government has two decisions to make about the SpeechNow case: one by the FEC, and one by the U.S. Solicitor General.  The FEC must decide whether to ask the Circuit Court to reconsider — a request that, if made, would not be likely to succeed, since the ruling was made by the full bench without a dissenting vote.  The Solicitor General must decide whether to pursue an appeal to the Supreme Court — an appeal that, under the present timetable, would not have to be filed until June 24.

If the decision is made to go on to the Supreme Court, the SG would want to ask the Circuit Court to put the March ruling on hold until after the case is heard and decided by the Supreme Court.  In its new filing on the mandate queston, the FEC said that it needs time to consider what to suggest to the SG about going to the Supreme Court, and it said that the SpeechNow leaders had not made the case that the Supreme Court would not be likely to hear the case.  And, it added, the SG needs time to make the final decision about pursuing the case on to the Justices.

While this maneuvering involves a quite technical procedural dispute, the practical effect of withholding the mandate would be that SpeechNow and similar organizations in effect would be excluded from this year’s congressional election activity — exactly what SpeechNow is trying to avoid.