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SpeechNow may be appealed

The Federal Election Commission on Friday dropped a vague hint that it may be close to deciding to ask the Supreme Court to revive a federal law that restricts the amount of money that independent political advocacy groups can raise for their efforts to influence the election of members of Congress and the presidency.  In a new filing in U.S. District Court in Washington, the FEC asked a federal judge to limit the scope of orders soon to emerge in v. FEC (08-248), a major new campaign finance case and a key sequel to the Supreme Court’s January ruling in Citizens United v. FEC.

The FEC argued that it is currently bound by court order not to try to enforce the donation restriction on SpeechNow, and it said in a footnote that that would not change even though the decision imposing that duty “may yet be reviewed by the Supreme Court.”  The fact that an appeal may be pursued, it added, does not diminish the currently binding effect on the Commission to obey the ruling against it.

SpeechNow won a unanimous decision in the D.C. Circuit Court in March striking down a federal law’s ceiling on contributions to independent political groups, who already had an unlimited right to spend whatever funds they had, in federal elections.   The FEC and the Justice Department have until June 24 to decide whether to challenge that ruling in the Supreme Court.

In the meantime, SpeechNow asked Judge Robertson earlier this month not only to issue a routine order to implement its victory in the Circuit Court, but also to go further, and issue a broad nationwide injunction that would forbid the FEC from enforcing the contribution limits in any other lower federal court.   Simply putting the Circuit Court decision into effect, by declaring that SpeechNow had won its case, would not be enough, the organization’s lawyers contended.

Responding on Friday, the FEC agreed that Robertson should issue an order declaring that the contribution limits cannot be enforced in this case, but argued that he should refuse to issue the broader ban on FEC action elsewhere.   Not only should the judge operate on the presumption that FEC would obey a ruling declaring that it lost, the FEC said, the
Commission is actually barred now from relitigating the constitutional issues in another court.   The issue was settled against FEC in the Circuit Court, it explained, so it is formally blocked (by the “doctrine of collateral estoppel”) from trying to go to another federal court to enforce the now-invalidated donation restrictions.

“Since the [District] Court is to exercise its remedial powers only to the extent necessary to protect parties from irreparable harm, the Court should only grant the [SpeechNow] motion insofar as it asks for declaratory relief consistent with the judgment of the Court of Appeals,” the FEC contended.

With the Circuit Court’s ruling that SpeechNow’s First Amendment rights were violated by the contribution limits, the FEC said, SpeechNow is free to raise money as it pleases anywhere in the country where the organization seeks to do so, while its victory remains intact.

Of course, if the issue does go to the Supreme Court, the FEC would have a chance of getting the donation limits revived, and could then enforce them nationwide.