Will EMILY’s List be appealed?

With the campaign finance community already buzzing about Citizens United v. FEC, in which the Supreme Court is expected to correct one of its more egregious errors and reverse the 19 year-old precedent of Austin v. Michigan Chamber of Commerce, a second bomb was dropped on September 18 when the U.S. Court of Appeals for the D.C. Circuit issued its decision in Emily’s List v. FEC.

Emily’s List doesn’t look like a big case at first glance — it merely strikes down some FEC regulations, not a federal or even a state statute. But these are not trivial regulations — 11 C.F.R. 100.57, 106.6(c) and (f) severely limit the ability of non-profit organizations such as the plaintiff EMILY’s List to raise and spend money for political purposes. Democracy 21 had once called these, “key regulations issued by the Federal Election Commission to restrict the use of soft money in federal campaigns by federal political committees and other groups, including 527 organizations.” (Caveat: When the regulations in question were first issued by the FEC, Demcracy 21 President Fred Wertheimer argued that they were all but totally worthless, telling the Los Angeles Times that the new rules wouldn’t stop soft-money groups “from blatantly violating the federal campaign finance laws.” Wertheimer statements are for press consumption to fit Democracy 21’s agenda of the moment, and are not generally intended to be taken as serious legal analysis.)

Moreover, the majority opinion by Judge Brett Kavanaugh is a tour de force of campaign finance law, the relevant Constitutional provisions and grounding, and the Supreme Court’s past opinions on the matter.  And though it finds that the regulations exceeded the FEC’s statutory authority, it also held that the regulations violate the First Amendment.

By striking the regulations, the Court makes clear that non-profits such as EMILY’s List, but also any others, can raise unlimited funds for non-federal races. The majority’s powerful reasoning has already caused the FEC to concede, in the pending appeal of a denial of an injunction to SpeechNow.org in SpeechNow.org v. FEC, that it is unlikely to succeed on the merits.

The decision has sparked much buzz as to whether or not the FEC will appeal. We don’t believe that the Agency will appeal, for the simple reason that it is hard to see how the agency can gain from an appeal — unless there is simply a desire to drag out the process, which we believe would be improper for the agency. 

Let’s start with whether the Agency should ask the D.C. Circuit for a rehearing en banc. There are currently nine judges on the D.C. Circuit, not including four judges who hold senior status and thus do not hear en banc appeals. While Judge Kavanaugh’s opinion was joined only by Judge Karen LeCraft Henderson, the third Judge on the panel, Judge Janice Rogers Brown, concurred in the opinion, solely on the grounds that the FEC’s regulations exceeded its statutory authority. Thus, even if the Court granted a rehearing en banc, in order to overturn the opinion in an en banc hearing, five of the remaining six judges would have to vote to overrule the panel. 

Predicting what judges will do is, of course, always a bit dicey. But Judge Douglas Ginsburg is one of the most pro-liberty, pro-First Amendment judges on the federal circuit. Although Judge Ginsburg did vote to affirm the District Court’s denial of a preliminary injunction in this case, this would appear to reflect the difficulty of winning preliminary injunctions and the standard of review favoring upholding the district court. See 170 Fed. Appx. 719 (2005).

There is little reason to think that he is generally predisposed to the government’s position. Judge Ginsburg has not previously been kind to broad FEC interpretations of the law.* Also voting to affirm the EMILY’s List decision is another conservative/libertarian with a strong penchant to favor free speech, David Sentelle, and a record not particularly favorable to expansive FEC regulations.** Another conservative Republican is Thomas Griffith, appointed to the bench only in 2005. In Shays v. FEC, 528 F.3d 914 (2008), he voted to strike down the FEC’s coordination regulations, but those regulations were generally opposed by the so-called “reform community.” In Davis v. FEC, he wrote an opinion for the Court of Appeals upholding the “millionaires amendment” of the McCain-Feingold law — an opinion that was later overturned by the Supreme Court. 

There are three Democratic Appointees on the Court: Judges Judith Rogers, David Tatel, and Merrick Garland. Garland and Tatel were on the aforementioned Shays panel, with Tatel writing the opinion. Garland has no other significant FEC decision. Tatel also struck down FEC regs in Shays v. FEC, 414 F. 3d 76 (2005), another opinion showing little deference to FEC interpretations of the law but also coming down on the side of greater regulation. Tatel also wrote the Court’s opinion striking down FEC disclosure practices as overly broad in AFL-CIO v. FEC, 333 F. 3d 168 (2003). Another Tatel opinion, in FEC v. NRA, 254 F.3d 173 (2001) knocked down an FEC interpretation of the law — as it pertained to restricting the activities of non-profits — as being too broad. He wrote again for the Court in RNC v. FEC, 76 F. 3d 400, striking down an FEC reg as beyond its statutory authority. He joined the en banc majority in striking down FEC interpretations of its regulations in Akins. Rogers has had few campaign finance cases. She voted to uphold a denial of a preliminary injunction in RNC v. FEC, 1998 U.S. App Lexis 28505 (1998), a case challenging soft money regulations, but again, given the standard for getting an injunction and the standard of review, this says little. In Bush-Quayle 92 v. FEC, she joined a Sentelle opinion overturning a regulatory FEC decision as unjustified. She joined the majority in the en banc Akins hearing.

Looking at those judges, it is difficult to see where the FEC would get votes to overturn the panel’s decision. I see not a single reasonably sure vote for the FEC. Some of the judges would seem, as a question of constitutional interpretation, to be hostile to the FEC’s expansive substantive rule. Those that would seem less skeptical in that regard have nonetheless shown themselves to be skeptical of FEC overreach in interpreting its statutory mandate. Beginning an en banc rehearing in a 3-0 hole, the odds that the FEC could essentially run the table to get to a majority seem somewhere between slim and none. 

But if a request for an en banc rehearing seems futile, what about the big enchilada — an appeal to the Supreme Court? The Agency would be appealing a decision striking a regulation. How eager would the Supreme Court be to hear such a case? If, as we suspect, the Court is likely to use Citizens United to overrule Austin and parts of McConnell v. FEC, we very much doubt that the Court would take this case. The Court has had quite a full serving of campaign finance cases in the last few years. All signs are that, were it to take the case, the majority would be likely to uphold the judgment of the Court of Appeals — but then, why bother?  This would not be a case that would allow the Court — if it wanted to — to further review core provisions of the law or core constitutional issues. There is no federal statute at issue, no split in the circuits to be resolved. If the Court of Appeals opinion stands, the FEC will head back to the regulatory drawing board. While we would love to see the Court take this case and affirm the Court of Appeals carefullly reasoned opinion, this simply seems like a strange vehicle for doing so, especially given the alternative administrative law grounds for the holding. The Court has to see other cases moving in its direction that would be better vehicles to reconsider — if it wanted to — such constitutional principles. These include SpeechNow.org v. FEC and the suits the Republican National Committee has filed challenging portions of McCain-Feingold. For the same reasons (but opposing motives) it is hard to see the Court’s anti-speech justices — Breyer, Ginsburg, Stevens, and maybe, Sotomayor, wanting to bring this case before the Court.

Given these odds — low odds that either an en banc hearing or a cert petition would be granted, and low odds of success if it were — why would the FEC want to appeal this case? Doing so would merely delay the Commission in starting to rewrite regulations; meanwhile, it would create added chaos in the 2010 elections, which will shortly begin in earnest. Meanwhile, none of the existing commissioners are much vested in the regs in question — only one was on the Commission at that time, and the regulation has been implemented by the General Counsel in a way that is quite different from what the Commissioners thought they were passing in 2004.

There has also been some thought that the Solicitor General could appeal even if the Commissioners voted not to. It is not at all clear that the SG can get involved in the Court of Appeals, but under NRA v. FEC the Solicitor appears to have the right to appeal in the Supreme Court regardless of what the Commission does.  There is precedent for this, in Beaumont v. FEC, in 2002. On the other hand, there are also arguments that that authority does not apply where no federal statute is in question. We haven’t looked much at that argument.

Leaving that aside, a decision by the SG to appeal without an FEC vote would smack of a partisan power play by the Obama administration. While the plaintiff here, EMILY’s List, is generally seen as a Democratic Party ally, it is generally understood, or at least perceived, that the Administration believes its interest are best served by tight rules on soft money (and conversely, as its lawsuits indicate, the RNC seems to believes that its best interests are served by loose rules on soft money). Indeed, that seems to be one factor driving speculation that the SG might appeal even absent an FEC vote. Of course, this inevitable type of calculus in Washington’s political community, even if (especially if) unfair to the Administration in general and Solicitor General Kagan in particular, is one reason we have consistently voiced for getting the government out of the speech regulation business. 

When all is said and done, we believe that the EMILY’s List decision will not be appealed. Given the low odds of success and the fact that no federal statute is at stake, an appeal — whether for an en banc rehearing or for certiorari in the Supreme Court — would create more confusion in the 2010 campaign, increase the likelihood of a major rules change in the middle of that campaign, and, if pursued by the SG after an FEC decision not to appeal, would inevitably spark accusations of partisan chicanery.   

We kind of like the cert idea — it is no secret that we are trying to get cases moving in the Courts, with SpeechNow.org at the top of our list. We just don’t see it happening, not with EMILY’s List, and we have to admit that it probably shouldn’t happen with EMILY’s List.

*See Common Cause v. FEC, 906 F.2d 705 (1990); Akins v. FEC, 101 F. 3d 731 (1996) (en banc) (rev’d on other grounds); Chamber of Commerce v. FEC, 1996 U.S. App. Lexis 3954 (denial of rehearing en banc);  FEC v. NRA, 254 F.3d 173 (2001); AFL-CIO v. FEC, 2003 U.S. App. Lexis 18536 (2003) (denial of rehearing en banc).

** See Wisconsin Right to Life v. FEC, 466 F.Sup 2d 195 (2006); AFL-CIO v. FEC, 333 F.3d 168 (2003); In re Sealed Case, 237 F.3d 657 (2001); Bush-Quayle ’92 Primary Committee v. FEC, 104 F.3d 448 (1997); Republican National Committee v. FEC, 76 F. 3d 400 (1996); Chamber of Commerce v. FEC, 69 F.3d 600 (1995);  

The Center for Competitive Politics is now the Institute for Free Speech.