United States DC Circuit

A decision rejecting revised regulations issued by the Federal Elections Commission in order to cure several problems previously found by a court in implementing the McCain-Feingold Act is affirmed in part where: 1) a revised "consent standard" standard frustrated Congress' goal of prohibiting soft money from being used in connection with federal elections; 2) revised campaign vendor and former employee standards were arbitrary and capricious since the FEC failed to justify the policy change; and 3) restrictive definitions of get out the vote activity and voter registration activity ran directly counter to the Act's purpose and there was no persuasive justification for them. However, the matter is reversed in part as to a "firewall safe harbor" and a rule allowing soft money solicitations at state party events where: 1) the FEC adequately justified the rule and its departure from past practice since it made it easier for candidates and organizations to engage in protected speech by helping them hire consultants and employees without fear of false accusations of coordination; and 2) a rule allowing federal candidates to solicit soft money at state party fundraisers allows expressly prohibited activity.

Appellate Information

• Argued 05/05/2008
• Decided 06/13/2008
• Published 06/13/2008

Judges

• Before:  TATEL, GARLAND, and GRIFFITH, Circuit Judges.

Court

• United States DC Circuit

Counsel

• For Appellant:
  
• Sean P. Trende was on the brief of amicus curiae Center for Competitive Politics in support of appellant urging reversal.


• For Appellees:
  
• David Kolker, Associate General Counsel, Federal Election Commission, argued the cause for appellant/crossappellee.   With him on the briefs was Vivien Clair, Attorney.  Gregory J. Mueller, Attorney, entered an appearance., Charles G. Curtis, Jr. argued the cause for appellee/cross-appellant.   With him on the briefs were Michelle M. Umberger, David L. Anstaett, Lissa R. Koop, Roger M. Witten, Randolph D. Moss, Fred Wertheimer, and Donald J. Simon., J. Gerald Hebert and Paul S. Ryan were on the brief of amicus curiae U.S. Senator Russell D. Feingold in support of appellee.