[EL] Quick Take: Van Hollen v. FEC reversed

Tue Sep 18 11:50:04 PDT 2012

Here is a quick take at National Review Online.

http://www.nationalreview.com/corner/324687/sigh-relief-501c4s-and-their-contributors-stephen-m-hoersting

Steve Hoersting

On Tue, Sep 18, 2012 at 2:17 PM, <BZall at aol.com> wrote:

> **
> I was, Beth. And also by the line "The statute is anything but clear,
> especially when viewed in the light of the Supreme Court's decisions in
> [Citizens United] and [WRTL II]." Slip Op. 4. A genteel, but definite,
> smackdown of the lower court's "the statute is clear" rationale. And did
> you notice the panel quoted one of its members' law review articles? Id.
>
> Leaving aside the smackdown, it's an interesting opinion. It's a Chevron
> deference issue, but they seem to have pre-judged it and then gotten
> frustrated because they couldn't finish the job without the FEC's
> participation. Yes, the District Court went off on Step One (did Congress
> speak directly to the issue) and was rejected. But the CtApp panel (which
> is retaining control) also said:
>
> "Indeed, it is doubtful that, in enacting 2 U.S.C. § 434(f), Congress even
> anticipated the circumstances that the FEC faced when it promulgated 11
> C.F.R. § 104.20(c)(9). It was due to the complicated situation that
> confronted the agency in 2007 and the absence of plain meaning in the
> statute that the FEC acted pursuant to its delegated authority under 2
> U.S.C. § 37d(a)(8) to fill “a gap” in the statute. Chevron, 467 U.S. at
> 843-44."
>
> Ordinarily, a court says this when it is about to rule in favor of the
> agency under Chevron Step Two (is the agency position reasonable). Use of
> the phrase "fill a gap" is pretty determinative. Given an agency's supposed
> expertise and the lack of guidance from Congress, under Step Two, usually
> an agency wins on any reasonable interpretation of a nebulous statute.
>
> So here's where the Court says the FEC failed it: is the 2007 FEC reg a
> reasonable interpretation of the statute?
>
> "Unfortunately, as the parties’ arguments in this case have revealed, the
> agency’s adoption of § 104.20(c)(9) has raised as many questions as it
> purported to resolve. For example, neither the court nor the parties
> understand the reference to 11 C.F.R. § 114.15 in § 104.20(c)(9). The FEC’s
> failure to participate in this appeal makes it impossible for the court to
> fully understand the agency’s position on numerous issues that have been
> raised by the parties with respect to the meaning of the statute, the
> intended reach of the disputed regulation, and the import of the Supreme
> Court’s decisions addressing campaign finance law. Therefore, the court is
> in no position to assess the parties’ arguments on whether § 104.20(c)(9)
> is reasonable, and thus entitled to deference under Chevron Step Two ... "
>
> The Court invokes the "primary jurisdiction" doctrine (initial
> determinations of the validity of rules are best made by the entity which
> has the principal responsibility for it). Since the FEC didn't show up, the
> Court told them: "fix this." The Pennsylvania Supreme Court basically did
> the same thing today in remanding for more factfinding on that state's
> voter id (though it didn't call it that). Will the FEC do that? The panel
> is dubious, which is why it also directed the lower court to regulate that
> process or do the interpretation itself. But if she gets it again, Judge
> Jackson is highly unlikely to call the statute "clear" (or cite another
> dictionary).
>
> But, practical effect: the 2007 regs are back in force, unless and until
> something else happens. ECs, which have dropped to three this year, are
> back.
>
> Or are they? Perhaps organizations that have already bit the bullet and
> started express advocacy, may just continue that way.
>
> Barnaby Zall
> Of Counsel
> Weinberg, Jacobs & Tolani, LLP
> Please note our new address:
> 10411 Motor City Dr., Suite 500
> Bethesda, MD 20817
> 301-231-6943 (direct dial)
> www.wjlaw.com <http://www.wj/>
> bzall at aol.com
>
>
>
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>
>  In a message dated 9/18/2012 1:12:52 P.M. Eastern Daylight Time,
> bkingsley at harmoncurran.com writes:
>
>  Was anyone else as amused by this sentence as I was? “For example,
> neither the court nor the parties understand the reference to 11 C.F.R. §
> 114.15 in § 104.20(c)(9).”  ****
>
> ** **
>
> And more seriously, the case seems to be in a very odd procedural posture,
> with the COA dragging the FEC back into the middle of the fight. The
> District Court is instructed to refer the matter to the FEC for further
> consideration, and it must either commence a new rulemaking or defend the
> current regulations under *Chevron* step 2 and an “arbitrary and
> capricious” argument. So what happens in the all too likely event that the
> Commission can’t get 4 votes for either course of action? ****
>
> ** **
>
> Beth****
>
> ** **
>
> Elizabeth Kingsley
> Harmon, Curran, Spielberg & Eisenberg, LLP
> 1726 M St., NW
> Suite 600
> Washington, DC 20036
> 202-328-3500 ****
>
> www.harmoncurran.com****
>
> * *
>
> ** **
>
> ** **
>
> ** **
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Steve
> Hoersting
> *Sent:* Tuesday, September 18, 2012 11:51 AM
> *To:* law-election at uci.edu
> *Subject:* [EL] Van Hollen v. FEC reversed****
>
> ** **
>
> A huge win for Intervenors' counsel in *Van Hollen v. FEC *before the
> D.C. Circuit. Also a win for the FEC, if the agency can see it that way.**
> **
>
> ** **
>
> Most importantly, a win for robust political participation 50 days from
> the election.****
>
> ** **
>
>
> http://www.cadc.uscourts.gov/internet/opinions.nsf/582177A123FA411885257A7D004DA421/$file/12-5117-1394950.pdf
> ****
>
> ** **
>
> (H/T @MichaelEToner)
> ****
>
> ** **
>
> --
> Stephen M. Hoersting****
>
>
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>
>

-- 
Stephen M. Hoersting
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