Chairman Walther has issued this statement on a possible appeal of the Emily’s List case.
BNA reports ($) on interview with Commissioner McGahn: “A key Republican member of the Federal Election Commission said Sept. 24 that he feels vindicated by a new federal appeals court decision declaring that contributions to independent political groups are constitutionally protected and cannot be limited by the FEC.”
I would not expect Commissioner McGahn to vote to appeal the Emily’s List ruling. Indeed, it is hard for me to imagine 4 votes to do so. So we may be looking more closely at the question of the SG’s ability to seek en banc review without a vote of a majority of the commission. From what I can tell from the input of others on the election law listserv, the SG has the ability to file a cert. petition without the approval of the FEC. But that may not be a wise move.