FEC Proposes Rules to Comply With EMILY’s List Decision

On Dec. 17, the Federal Election Commission (FEC) proposed rules that would limit donations to some nonprofit groups that engage in campaign activity after the Justice Department announced that it would not appeal the EMILY’s List decision.

The FEC decided in late October that it would not appeal the decision, but Solicitor General Elena Kagan still had the option to appeal the case to the Supreme Court. Additionally legal analysts were split on if she also had the option of "seeking en banc review, or whether that was a choice left to the FEC," according to the Supreme Court of the United States Blog. Kagan’s decision not to appeal leaves the verdict intact.

In EMILY’s List, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit struck down the FEC regulations, ruling that they violated EMILY's List's speech rights under the U.S. Constitution.

The rules that were struck down "called for EMILY's List and other similar PACs to use at least 50 percent FEC-regulated hard money for activities linked to federal candidates. Another FEC rule struck by the court provides that contributions solicited on the basis of support or opposition to federal candidates must follow FEC hard money limits," according to BNA [1].($$)

The current rules will remain in effect until the rulemaking process is complete, but the 2010 edition of the FEC’s code of regulations will note that the rules are "no longer in effect" due to the decision in the EMILY’s List case, according to BNA.