- The Washington Times - Friday, September 18, 2009

Independent advocacy groups will be able to spend more money to try to influence federal elections under a decision Friday from a federal appeals court that overturned rules limiting nonprofits’ campaign spending.

Three judges of the U.S. Court of Appeals in Washington agreed with Emily’s List, a nonprofit that backs women Democratic candidates who support abortion rights, that the regulations limited free speech rights.

The Federal Election Commission enacted the rules in 2005, after concerns were raised about the amount of unlimited “soft money” contributions used to fund attacks in the 2004 election.

The FEC said nonprofits would have to pay for political activities involving federal candidates using limited “hard money” contributions. Individuals are only allowed to donate up to $5,000 annually to a nonprofit that indicates it plans to use the money to support or oppose a federal candidate.

“The First Amendment, as interpreted by the Supreme Court, protects the right of individual citizens to spend unlimited amounts to express their views about policy issues and candidates for public office,” the court ruling said. The First Amendment also “safeguards the right of citizens to band together and pool their resources as an unincorporated group or nonprofit organization in order to express their views about policy issues and candidates for public office.”

The opinion was written by Judge Brett Kavanaugh, who was nominated in 2006 by President George W. Bush after working as his aide in the White House, and supported by Judge Karen Henderson, nominated by President Ronald Reagan. Janice Rogers Brown, also a Bush nominee, agreed with the conclusion but wrote a separate opinion that criticized the majority for its sweeping interpretation of First Amendment issues.

FEC spokeswoman Judith Ingram said the agency was studying the opinion and had not decided whether to appeal.

Richard L. Hasen, a professor specializing in election law at Loyola Law School in Los Angeles, said the opinion follows the lead in recent years of the Supreme Court, which has repeatedly struck down campaign finance limits as unconstitutional.

“It’s going to make it easier for people and I would say eventually corporations and unions — to give money to political committees to spend on elections,” Hasen said. He said the opinion would put political parties at a disadvantage because they are still bound by the fundraising limits.

The ruling comes two weeks after the Supreme Court signaled that it may let corporations and unions spend freely to help their favored candidates in time for next year’s elections. The high court’s inclination emerged during questioning by justices during oral argument in a case that began with a dispute over whether a conservative group’s 90-minute movie that harshly criticized Hillary Rodham Clinton during last year’s presidential campaign should be regulated as a campaign ad or treated like any other movie that doesn’t face campaign regulations.

The court came back two weeks early from its summer vacation to hear broader arguments over the limits on campaign spending by corporations and unions.

Larry Noble, former general counsel at the Federal Election Commission, said he is worried that the courts are going to leave a campaign finance system “so full of holes that it will be basically ineffective.”

“Overall the courts are pulling back on the campaign finance laws, and after all the dust settles we’ll have to see what the system looks like,” Noble said. “The question is: Will Congress do anything about it?”

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