Representatives Christopher Shays (R-Conn.) and Marty Meehan (D-Mass) filed suit against the Federal Elections Commission (FEC), challenging the regulations developed pursuant to the mandate of the Bipartisan Campaign Reform Act (BPCA) of 2002, an act intended to limit the use of “soft money” in political campaigns.The BCRA expanded the criteria used to determine whether political communication is “coordinated” with a political campaign, allowing “content-based” as well as “conduct-based” factors to be considered. Such “coordinated” political communication is treated as a de facto financial contribution to that political campaign, and thereby subject to relevant campaign finance rules.
In the regulations it wrote to implement the statute, the FEC excluded all communication over the Internet from its definition of “public communication,” meaning that such communication could be coordinated with political campaigns without being treated as a financial contribution.
The issue raised by the case is whether the FEC’s regulations are consistent with statutory instructions given by Congress in enacting the BCRA.
In a ruling on September 18, 2004, the U.S. District Court for the District of Columbia struck down a number of the FEC’s regulations, including the one that exempted Internet communications from the general regulation of coordinated public communications. In so doing, the court reasoned that the regulation failed to pass either of two legal tests for assessing a regulation’s compliance with BCRA. The court found that:
(1) the regulation was not faithful to the “plain meaning” of the statute, which defined “public communication” to include any form of “general public political advertising”;
(2) even if the plain meaning was not apparent in the statute, the regulation was not based on a “permissible” construction of the statute, the intent of which was to expand the scope of political communication qualifying as “coordinated,” not limit it.
The court remanded the failing regulations -- including the one relating to Internet communication -- back to the FEC for further action.