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Last week, the Federal Election Commission was blasted by a federal judge for its interpretation of campaign finance reform legislation. But the ruling isn’t necessarily a fatal blow for a set of the agency’s controversial rules governing money in politics. A majority of the six FEC commissioners say they’ll vote to appeal the decision, which would send the case to the U.S. Court of Appeals for the D.C. Circuit. The three-judge panel that would hear an appeal will be free to draw its own legal conclusions concerning the FEC regulations at issue — and could ultimately uphold some or all of them. “Historically the D.C. Circuit defers to agencies,” says Jan Baran, a Republican election law attorney at Wiley Rein & Fielding. “It’s highly unusual to strike down a reg that’s been passed by an agency or department.” Currently, Republican appointees slightly outnumber their Democratic counterparts on the D.C. Circuit. But Kenneth Gross, an election law specialist and partner at Skadden, Arps, Slate, Meagher & Flom, cautions that the way that judges rule in a campaign finance case doesn’t always revolve around traditional party ideologies. “Not all of these cases fall along conservative-liberal lines. It’s really a crapshoot depending on the panel you pull,” Gross says. “But there is a greater possibility that a conservative court would be more likely to agree with the Federal Election Commission.” Since U.S. District Court Judge Colleen Kollar-Kotelly issued her opinion Sept. 18 throwing out 15 FEC provisions regulating campaign activity, the commission has been battered by critics who say it has failed to enforce the 2002 Bipartisan Campaign Reform Act (BCRA) as Congress intended. In her decision, the D.C.-based judge wrote that the commission had “severely undermined” the law. Known as McCain-Feingold after its two Senate sponsors, the act banned unregulated “soft money” donations to parties and candidates and limited electioneering communications. One of the judges on the D.C. Circuit panel that hears the case could be Judge Karen LeCraft Henderson, who sparred in writing with Kollar-Kotelly when the two served together on the three-judge panel that in 2002 examined the constitutionality of the campaign finance law. The law mandated that a mixed panel of trial and appellate judges review court challenges. “It’s quite evident that they . . . disagree over how to interpret McCain-Feingold,” says Rick Hasen, a professor at Loyola Law School in Los Angeles who writes a popular election law blog. If an appeal to the D.C. Circuit is unsuccessful, the commission would have to rewrite the regulations, including rules exempting Internet ads from the campaign finance law, a process that could take a year or more, says Republican FEC Commissioner David Mason. The suit challenging the regulations was filed in October 2002 by two architects of the BCRA, Reps. Christopher Shays (R-Conn.) and Marty Meehan (D-Mass.). Commission Chairman Bradley Smith, a conservative legal scholar and outspoken critic of campaign finance reform, calls the suit itself “weird.” Smith adds that Kollar-Kotelly’s decision goes beyond simply affecting the FEC. It was “alarming for all administrative agencies,” he says, because of the way the judge took the agency to task for inadequately publicizing the proposed campaign finance regulations before they were finalized, despite the fact that the FEC was working on a tight deadline mandated by Congress. To many in Washington, Kollar-Kotelly’s criticisms of the FEC aren’t novel — within the Beltway, the agency has long been a flashpoint. But they did provoke a groundswell of renewed vitriol against the FEC nationwide. Some commission observers say this reprimand is the stiffest they’ve seen for the agency. “In my years at the FEC, I’ve never seen it rebuked the way it has been here,” says former commission Chairman Trevor Potter, a Caplin & Drysdale partner in Washington who is counsel to Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.), who are amici in the case. ‘NOTORIOUSLY SLOW’ Kollar-Kotelly, who was appointed to the bench in 1997 by President Bill Clinton, isn’t the only judge to recently give the commission a dressing-down. In a Sept. 15 opinion, D.C. District Judge James Robertson also took the agency to task. At the same time, he laid much of the blame on Congress. “The Federal Election Commission is notoriously slow and unable to act, and has been throughout the entire period of its existence. But . . . that’s the way Congress set it up, and apparently that’s the way Congress likes it, because that’s the way it has been now for at least 20 years,” Robertson wrote in a ruling in which he refused to grant the Bush campaign an injunction ordering the FEC to take action against some so-called 527 groups that support Democrats. Lawrence Noble, who was general counsel of the FEC for more than a decade, says that Congress hasn’t pushed for tough enforcers at the commission, so no one should be surprised that the regulations at issue didn’t go as far as some would have wanted. “[Commissioners] feel that their first duty is to protect members of Congress,” says Noble, who is now head of the Center for Responsive Politics, a nonpartisan group that researches money in politics. “The FEC is one of the greatest congressional success stories. It looks like an enforcement agency, but won’t actually enforce the laws against them.” Democratic Commissioner Scott Thomas is one agency official who has taken a tougher line on enforcement of campaign finance regulations, says former FEC Chairman Potter. But there is some doubt about whether Thomas will be reappointed to serve another term. Thomas says he hasn’t decided whether he will vote to appeal Judge Kollar-Kotelly’s decision. But he says hammering out the rules two years ago was “a hell of a fight and it was ugly, and I was not amused with most of these regulations.” He adds that he wants to hear what the commission’s staff lawyers have to say on the issue. When the FEC put the regulations in place two years ago, its top lawyer, General Counsel Lawrence Norton, publicly voiced his doubts about the rules. Norton was on vacation last week and could not be reached for comment. Democrat Ellen Weintraub, vice chairman of the commission, who says she will vote to appeal the ruling, says she will defend the agency, though not necessarily the regulations, which were approved before she joined the commission in December 2002 from the D.C. office of Perkins Coie. “Some people are determined to put the worst possible face on what we do,” Weintraub says. “There is such suspicion and animosity toward this agency. People seem to read every regulation and ask what we were trying to get away with.”

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