Will the Campaign Finance Rules Come Into Effect for This Election?

Following up on this post, it seems pretty clear that the campaign finance rules are not likely to change for this election cycle. Judge Kollar-Kotelly (who, by the way, was one of the three judges deciding the McConnell case and whose conclusions in that case were pretty much adopted by the Supreme Court) expressly refused to enjoin the FEC’s existing rules or to maintain jurisdiction over the case. (The plaintiffs wanted the FEC to have to continue reporting to the judge about its progress in rewriting the rules—given the judge’s attitude toward the FEC, it is understandable why plaintiffs wanted this oversight.)
Instead, the court’s remedy was simply to remand to the FEC “for further action consistent with this opinion.” Quoting an earlier case, the court stated that “it is up to the agency to determine how to proceed next — not for the Court to decide or monitor.”
This updated A.P. report notes the following:

    FEC Chairman Bradley Smith said he wanted the agency to appeal, and the commission’s No. 2 member, Vice Chairwoman Ellen Weintraub, said an appeal was likely. They were uncertain when the six-member commission would vote on it.
    Weintraub said it was her position that the current rules would remain in effect while the commission worked to comply with the ruling, and Smith agreed that the ruling seemed to say that. Smith said the might seek a stay of the ruling anyway to alleviate any uncertainty and avoid having to adopt new rules while the case was pending.

Seeking a stay seems like a prudent strategy, though it may not be strictly necessary. My intuition suggests that someone violating the current FEC rules in the weeks before the election would be acting at his or her peril, especially if the FEC issues a statement indicating that the old rules remain in effect until the new rules are put in place. (Others with expertise in administrative law might have more insight on my intuition here.)
NPR’s Peter Overby suggested the ruling could affect how 527s operate, listen here, but again, I have serious doubts this will apply to the current election cycle.
If all of this is correct, one of the oddest things about this ruling is its timing. The case had been pending for six months. Not only did the judge decide to issue it rather than hold it until after the election so as to avoid uncertainty, but the judge took the highly unusual step of issuing it on a Saturday. It is hard to see what the urgency is, given the judge’s chosen remedy.
UPDATE: Over on the election law listserv, Trevor Potter disagrees with me here and I respond here.

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