FEC decides not to seek en banc appeal in EMILY’s List case

The Federal Election Commission today voted not to seek an en banc rehearing in Emily’s List v. FEC.

We think this decision is clearly correct for a host of reasons.  First and foremost, the decision of the panel is itself carefully reasoned and quite persuasive.  While the panel split on its reasoning, all three judges made clear that the FEC’s allocation and solicitation regulations exceeded the agency’s statutory authority, and all three made clear their personal understanding that the regulations also violated the First Amendment of the Constitution. Their disagreement was only over whether or not it was necessary to reach the constitutional question, and the meaning of certain Supreme Court precedents.

Second, it is clear that the three commissioners who voted not to appeal believe that the FEC’s regulations are, in fact, unconstitutional.  Commissioners may have an obligation to defend a federal statute in court, they have obligations as to enforcement of duly enacted regulations, but they have no obligation to defend those regulations once a federal court has unanimously found them to be unlawful.  The commissioners are, after all, free to amend the Commission’s own regulations.  The reality is that there is not a majority of the commission that thinks that these regulations, now struck down in EMILY’s List, are constitutional.  As such, it is absurd for the FEC to be trying to enforce them.  These regulations are not mandated by statute and the commissioners are acting within their power to reject them.

Finally, as we previously discussed here, there are nine judges on the D.C. Circuit.  Therefore, in order to win an en banc decision (if granted, which is always a longshot), the FEC would have to persuade five of the remaining six justices that the unanimous panel was wrong, which seems highly unlikely based on the record of those judges.  Thus, an en banc appeal would most likely be a waste of time. 

And time matters in this case.  Another election season is soon upon us.  Funds are already being raised.  Best to have the law settled.  Presumably, the three commissioners who voted against pursuing an en banc appeal will vote against pursuing certiorari in the Supreme Court, for the same reasons outlined above.  Arguably, the Solicitor General could then appeal despite the commission’s recommendation against an appeal*, but if that unusual circumstance were to arise, best to get right to it, rather than delay with a en banc appeal that is unlikely to accomplish a thing.

Statements by the Commissioners can be found here.

* The Solicitor General represents the FEC in the Supreme Court, and can appeal statutory and constitutional questions even if the FEC does not ask her to do so. However, such action by the SG is extremely rare.  Moreover, it is not entirely clear that she can appeal a regulation without the agency’s acceptance — her authority is to defend “statutes” of the United States.  No statute is at issue in Emily’s List.   It would be strange indeed for the Solicitor General to seek certiorari in the Supreme Court in order to defend the validity of a regulation that the agency itself does not believe is constitutional, and it would seem a waste of the Supreme Court’s time to hear such an odd appeal.

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