Federal Judge Strikes Down FEC Regulation

Case against former Utah Attorney General dismissed

Alexandria, VA – A federal judge today struck down a Federal Election Commission (FEC) regulation expanding liability for contributions made through straw donors.

U.S. District Court Judge Dee Benson ruled that the FEC “exceed[ed] its authority to write regulations and improperly intrud[ed] into the realm of law making that is the exclusive province of Congress.” The ruling also effectively ends the FEC’s litigation against former Utah Attorney General John Swallow.

“The Federal Election Commission’s brazen attempt to supplant Congress was rightly rejected by the court. Unelected commissioners cannot act outside of the law to punish conduct they deem inappropriate. Today’s ruling is a victory for separation of powers and secures the rights of all Americans to discuss and participate in campaign fundraising,” said Institute for Free Speech Legal Director Allen Dickerson.

The FEC alleged that Swallow aided Utah businessman Jeremy Johnson, another defendant in the case, to make illegal contributions through straw donors. But there was no evidence that Swallow made illegal contributions or provided funds for straw contributions by others.

The FEC claimed that a 1989 regulation created liability under the Federal Election Campaign Act (FECA) for secondary actors like Swallow. Represented by the Institute for Free Speech and former FEC Chairman Scott E. Thomas, Swallow countered that FECA did not authorize the FEC to create such a regulation. U.S. District Court Judge Dee Benson agreed, calling the FEC’s arguments “illogical” and “without precedent.”

“The question [in the case] asks simply whether the Federal Election Commission had the right to promulgate [the regulation.] The answer is no. The Commission, as an independent agency created by Congress for the sole purpose of enforcing FECA had no authority to write a regulation that went beyond the Act itself,” he wrote.

“While it may, or may not, be a good idea to expand the reach of FECA in such a way, such expansion may happen only through an Act of Congress, pursuant to Article I of the United States Constitution. Such power does not exist in an independent agency comprised of six unelected commissioners,” he concluded.

To read the ruling by the United States District Court for the District of Utah, Central Division, click here. To read more about the case, click here.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

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