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Federal judge overturns FEC election regulations

- The Washington Times - Tuesday, September 21, 2004

A federal judge has overturned more than a dozen regulations created by the Federal Election Commission to implement the 2002 campaign-finance law, because she said the regulations were too weak.

The decision by U.S. District Court Judge Colleen Kollar-Kotelly has the potential to cause political confusion for candidates in the last heated weeks before the election.

FEC Commissioner Michael Toner, a Republican, said he is "very disappointed" in the ruling and thinks the court should avoid confusion by saying whether the ruling is effective immediately.

Mr. Toner wants to stay the ruling, keeping the current regulations in place for the remaining weeks of the election season, until the case is appealed or the rules are rewritten. He said any other course would result in chaos, because there would be no rules telling campaigns, for example, what constitutes illegal "coordination" with political parties.

"If history is any guide, any uncertainty or ambiguity about what the law is has the potential to be exploited by political operatives on both sides of the aisle," he said.

In her decision, issued without publicity Saturday, the judge said some of the regulations the FEC crafted after the new campaign-finance law was passed in 2002 did not carry out the intent of the law and some weakened or created loopholes around it.

The judge's ruling doesn't pertain to the campaign-finance law's main provisions banning soft-money donations in federal elections. But on such issues as when candidates and outside parties can coordinate activities, the FEC must return to the drawing board, the judge said.

The congressional sponsors of the campaign-finance law sued the FEC in 2002, arguing that 19 FEC regulations weren't tough enough and were actually undermining their new law.

Yesterday, they applauded the judge's ruling, which agreed that 15 of those regulations did not fully implement the law.

"This is a great decision, which provides further evidence the FEC had no intention of enforcing campaign-finance law as it was intended to be enforced," said Rep. Christopher Shays, the Connecticut Republican who filed the suit along with Rep. Martin T. Meehan, Massachusetts Democrat.

"The federal district court's opinion is a victory for democracy and clean elections -- and a clear rebuke of the FEC's repeated attempts to subvert campaign law and create new loopholes," Mr. Meehan added.

Mr. Shays and Mr. Meehan asked the judge to demand that the FEC rewrite the laws in the next 15 days, but the judge said it is not her job to set deadlines. In the meantime, no specific regulations exist on these matters until the FEC writes new rules, which is not likely this election cycle.

A Republican official said campaigns are likely to "assume everyone would operate as if the current regulations are in place."

FEC Chairman Bradley A. Smith, a Republican, said he favors appealing the case and the FEC may ask the court to stay the judge's decision. He said those decisions obviously must be made by the entire FEC, which is scheduled to meet Sept. 28.

Mr. Smith said the "dire predictions" that the regulations are too weak and will allow abuses simply haven't come true.

"Nobody's actually complaining about these regulations -- they say the law's working fine," he said, adding that the FEC has a "strong basis for appeal."

One of the FEC regulations that was overturned by the judge as too lenient stipulated that no ad run by an outside group more than 120 days before an election would be considered "coordinated" with a campaign, unless it contained "express advocacy" words like "vote for" or "vote against."

The FEC also exempted from its coordination regulations any communication over the Internet, since the new campaign-finance law didn't specifically address it.

The judge overturned that exemption, because she said it meant that "Internet communications, no matter how closely they are coordinated with political parties or a candidate's campaign, cannot be considered 'coordinated' under the FEC's regulations."

• This article is based in part on wire service reports.