Not much of a surprise in today’s D.C. Circuit ruling affirming the lower court in the Shays v. FEC case. Two more liberal judges (Edwards and Tatel) affirmed Judge Kollar-Kotelly’s decision that the FEC’s implementing regulations of BCRA were too lax, and Judge Henderson dissented. Judge Henderson was one of the three original judges deciding McConnell v. FEC, the main challenge to BCRA, and she had voted there that most of BCRA violates the First Amendment.
One notable aspect of the opinion is the extensive discussion of standing issues. Judge Henderson wrote a short opinion dissenting on the standing issue. But she did not reach the merits of the FEC rulemaking in the alternative. That was an interesting choice. Had Henderson done so and made persuasive arguments to uphold the FEC regulations on the merits, it might have increased the chances of the D.C. Circuit rehearing the case en banc.
On the merits, the FEC is already considering how to implement aspects of the district court’s opinion by rewriting some of the regulations. (See, for example, here.) One of the main issues now is one of timing. The FEC is crafting new regulations, including the controversial internet regulations. Many of the new regulations are likely to be challenged in court, by the reformers if they are seen as too lax, and by the election lawyers and free speech groups if they are seen as too onerous. In the meantime, we are getting closer to the 2006 congressional elections, meaning we may go into yet another election period with unclear campaign finance rules.