One could argue that Beaumont itself was the remote and, in this instance,
somewhat ironic result of poor litigation choices the FEC had made during
the early 1990s.  By picking and losing cases in the Fourth Circuit like
Christian Action Network (where the agency did not simply lose, but was
forced to pay legal fees), the FEC unwittingly helped build a body of
circuit law that made an outlying appellate decision like Beaumont possible,
if not inevitable.

One must wonder if this is the way an agency would go about building Supreme
Court precedent, were it actually trying to do so.

=B. 



-----Original Message-----
From: FredWooch@aol.com <FredWooch@aol.com>
To: Bauer, Bob-WDC <RBauer@perkinscoie.com>; rick.hasen@mail.lls.edu
<rick.hasen@mail.lls.edu>; election-law@majordomo.lls.edu
<election-law@majordomo.lls.edu>
Sent: Mon Jun 16 20:28:04 2003
Subject: Re: analysis of Beaumont and relationship to BCRA

In a message dated 06/16/2003 6:11:08 PM Pacific Daylight Time,
RBauer@perkinscoie.com writes:



  But the best of all the claims of the day--the truly sparkling
moment in today's "PR"--was the suggestion of one reform organization  that
the case was a "substantial rebuke" to the FEC, because three Commissioners
did not support an appeal to the Supreme Court.  I am confident that the
Supreme Court cared deeply about an appeal in this case, believing that the
Commission was duty-bound to seek the inevitable reversal, and that
additional votes were cast with the majority to send a message to those
three Commissioners that they had acted irresponsibly in refusing to do what
others knew to be right.



I have not read the "offending" PR release from the reform organization, so
I do not know the precise context in which the "rebuke" statement was made,
but I would have to agree that -- completely aside from whether the Supreme
Court cared about what the FEC did and fully believing that the Court did
not rule the way it did in order to "send a message" to the 3 FEC
Commissioners who refused to vote to even file a cert petition -- the
Court's decision does indeed stand as a "rebuke" to those Commissioners
whose constitutional obligation is to enforce and administer the laws that
Congress enacted.  To not even seek review of a decision the reversal of
which you now believe was apparently a foregone conclusion suggests more
than bad prognostication by those Commissioners, but a dereliction of their
responsibilities under the law.  In that sense, the fact that the Supreme
Court upheld the regulation that they were not even willing to defend is a
rebuke to them.

Fredric D. Woocher
fwoocher@strumwooch.com
Strumwasser & Woocher LLP
(310) 576-1233