- The Washington Times - Saturday, September 19, 2009

A federal appeals court on Friday dramatically expanded the ability of politically oriented groups such as Emily’s List or the National Rifle Association to raise and spend money to help candidates get elected to federal office.

The opinion, issued by a three-judge panel of the U.S. Court of Appeals in Washington, nullifies the $5,000 annual cap on individual giving to nonprofits. The Federal Election Commission enacted the rule after the 2004 presidential election that saw a flood of money from independent groups including Swift Boats Veterans for Truth and MoveOn.Org.

It was the latest in a string of court rulings that are collectively unwinding the restrictions on campaign giving that have taken effect over the past two decades, most notably with the passage of the landmark McCain-Feingold legislation in 2002.

“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.”

Emily’s List, which advocates for women candidates who support the legal right to an abortion, brought the case against the FEC. The group objected to the restrictions on “hard money” contributions for political activities.

“As a result of this decision, Emily’s List will be able to allocate its federal and non-federal expenses in a manner that reflects our actual work and we will continue to support state and local candidates across the country,” said Ellen R. Malcolm, president and founder of Emily’s List.

Reform groups strongly condemned the ruling as overly broad because two of the three judges - all appointed to the Washington-based court by Republican presidents - declared the restrictions to be First Amendment violations. It follows an even more potent case that has the potential to erase a longstanding ban on targeted corporate and union spending during the campaign season, argued earlier this month and now pending before the United States Supreme Court.

“The majority reached far beyond the bounds of this case to unnecessarily decide broad constitutional questions not properly before the court,” said campaign reform advocate Fred Wertheimer.

He noted a line in the concurring opinion by Judge Janice Rogers Brown, a nominee of President George W. Bush, in which she said “because this case can be decided on statutory grounds, we need not reach the constitutional question, and so should not reach the constitutional question.”

The Campaign Legal Center called the opinion “judicial activism” and said it “has the potential to facilitate a return to the massive soft money spending by 527 groups in prior elections.”

FEC had not decided whether to appeal.

Michael Toner, a former FEC commissioner who served as counsel to Mr. Bush’s presidential campaign, said the decision has the potential to strengthen the hand of outside groups in terms of their political activities.

The most significant element of the decision, he said, was that it freed such groups to raise soft money with solicitations that specifically said the group was targeting a candidate.

“If you send out an appeal saying, ‘Send us money to help beat Sen. Jones,’ only hard money could be raised in response to that,” Mr. Toner said, meaning that the donor was limited to giving up to $5,000. “That rule was struck. It’s a big deal. The green light is now on for raising unlimited soft money with that type of appeal.”

The prospects for the FEC launching an appeal are bleak, Mr. Toner added.

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