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Advocacy Blog
Wednesday, March 05, 2008
Citizens United Must Submit New Briefs and an Uncertain FEC
Last week the Supreme Court ordered that both sides in Citizens United v. Federal Election Commission must file new briefs on whether the Court may hear the appeal. Citizens United is challenging the disclosure requirement for those funding "electioneering communications" (ads mentioning federal candidates 60 days before a general election or 30 days before a primary), as applied to ads for the group's film Hillary: The Movie. U.S. Solicitor General Paul Clement, representing the Federal Election Commission (FEC), asked the Court to dismiss the case or affirm the lower court's ruling . The new briefs are due March 10 and reply briefs due March 13, leaving open the chance that the Court will decide whether to consider the case at its next Conference on March 14.
Before deciding whether to take the case, the Court wants this procedural question answered; whether the Court is required to rule in the case. As BNA Money and Politics ($$) details, a part of the campaign finance law being challenged, "called for a three-judge district court to decide constitutional challenges to the reform law, with that court's decisions put on a fast track for a final Supreme Court decision. However, the use of a three-judge court in BCRA cases became optional beginning last year . . . But, it still was not clear whether that three-judge court's decision not to grant an injunction could be appealed directly to the Supreme Court or should go first to the U.S. Court of Appeals for the D.C. Circuit."
Meanwhile, BNA detailed last week that FEC Chairman David Mason suggested that the FEC cannot enforce the rule defining "express advocacy." BNA ($$) reports; "The rule--11 CFR Section 100.22(b)--says the FEC may regulate the funding of political messages based on their timing and context and may go beyond a narrow range of "magic words" calling for a vote for or against a candidate. Mason said such broad regulation now must be considered unconstitutional in light of a Supreme Court ruling handed down last year in FEC v. Wisconsin Right to Life Inc. . . . . Mason's four-page statement on the Gunowners of America case said his view was that the only standard the FEC should apply to regulating voter guides is whether they use words that "expressly advocate the election or defeat of a clearly identified candidate." He said a broader provision of the FEC rules discussing the context and timing of political messages--Section 100.22(b)--was "constitutionally suspect for purposes of future enforcement matters."
The numerous ramifications of having an FEC with only two commissioners have caused many to blame lawmakers who had a hold on the nomination of Hans von Spakovsky. However, Senators Barack Obama (D-IL) and Russell Feingold (D-WI) have announced that since December they no longer had holds on his nomination. Majority Leader Harry Reid (D-NV) would like separate votes on the four FEC nominees, but Minority Leader McConnell (R-KY) has insisted the Senate take up all pending FEC nominations in a single vote.
Posted by Amanda Adams
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