EMILY’s List Wins First Amendment Case

The D.C. Circuit Court of Appeals’ opinion in EMILY’s List v. FEC is here.

The FEC rules challenged by EMILY’s List – §§ 106.6(c), 106.6(f), and 100.57 – violate the First Amendment. Sections 106.6(f) and 100.57 also exceed the FEC’s authority under the Federal Election Campaign Act, as does the provision of § 106.6(c) that applies to administrative expenses. The FEC may not enforce §§ 106.6(c), 106.6(f), or 100.57. We reverse the judgment of the District Court and direct it to enter judgment for EMILY’s List and to vacate the challenged regulations.

Scanning the opinion quickly, there’s much discussion of Austin, which some might interpret as handwriting on the wall.  (And another occasion to plug HasAustinBeenOverruled.com.)

The Supreme Court is presently considering whether to overrule Austin (and McConnell’s reliance on it) to the extent Austin permitted the Government to limit for-profit corporations’ and unions’ expenditures. See Citizens United v. FEC, No. 08-205 (S. Ct. reargued Sept. 9, 2009); cf. Austin, 494 U.S. at 702 (Kennedy, J., dissenting) (“Today’s decision abandons [Buckley’s] distinction and threatens once-protected political speech.”). The regulations at issue here violate the First Amendment with or without Austin on the books. See infra note 11.

The Times‘ summary of the case is here.

The federal appeals court for the District of Columbia ruled Friday that the government cannot restrict independent political spending by nonprofit groups or political committees, accelerating the judicial rollback of regulations aimed at curtailing the power of money in politics.

Comments are closed.