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Shays v. Federal Election Commission

The D.C. Circuit affirmed in part and reversed in part the district court in a case considering revised regulations issued by the Federal Election Commission implementing the McCain-Feingold Act, formally known as the Bipartisan Campaign Reform Act of 2002 (BCRA). The appeals court upheld one piece of the regulations at issue, known as the "firewall safe harbor," but it rejected the balance of the regulations as either "contrary to the Act or arbitrary and capricious." The court remanded these regulations "in the hope that, as the nation enters the thick of the fourth election cycle since BCRA's passage, the Commission will issue regulations consistent with the Act's text and purpose."

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Argued May 5, 2008

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

Congress passed the McCainFeingold Act, formally known as the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81, in an effort to rid American politics of two perceived evils: the corrupting influence of large, unregulated donations called “soft money,” and the use of “issue ads” purportedly aimed at influencing people’s policy views but actually directed at swaying their views of candidates. The Federal Election Commission promulgated regulations implementing the Act, but in Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) (“Shays II”), we rejected several of them as either contrary to the Act or arbitrary and capricious, concluding that the Commission had largely disregarded the Act in an effort to preserve the pre-BCRA status quo. Now the FEC has revised the regulations we earlier rejected and issued several new ones, three of which are before us here: (1) a “coordinated communication” standard, the original version of which we rejected in Shays II; (2) definitions of “get-out-the-vote activity” and “voter registration activity”; and (3) a rule allowing federal candidates to solicit soft money at state party fundraisers. Although we uphold one part of the coordinated communication standard known as the “firewall safe harbor,” we reject the balance of the regulations as either contrary to the Act or arbitrary and capricious. We remand these regulations in the hope that, as the nation enters the thick of the fourth election cycle since BCRA’s passage, the Commission will issue regulations consistent with the Act’s text and purpose.

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