In 2002, Congress passed the Bipartisan Campaign Reform Act of 2002 (1) (BCRA), overhauling the campaign finance regulatory system. Following enactment, the Act was challenged on constitutional grounds, (2) and its implementation by the Federal Election Commission (FEC) was challenged by supporters and opponents of the Act, asserting that the implementing regulations were, respectively, too permissive and too restrictive. (3) Recently, in Shays v. FEC, (4) the D.C. Circuit adjudicated the latest challenge from BCRA's supporters. Facing regulations revised after initial versions were invalidated in an earlier suit, (5) the court again struck them down. Although it criticized the FEC for not acting as BCRA required, the court could only invalidate the regulations, not replace them; it had to leave that affirmative task to the FEC. With the court's role limited to attempting to prompt action, ultimate resolution of the dispute depends on Congress's intent in passing BCRA and on the capacity of courts to influence agencies. In this case, the FEC's involvement and the limited nature of the remedy the court could provide make a lasting solution--the production of BCRA-compliant regulations--exceedingly unlikely.
BCRA was enacted in response to what had become a "'meltdown' of the campaign finance system." (6) Its aim, in the D.C. Circuit's words, was "to rid American politics of two perceived evils: the corrupting influence of large, unregulated donations called 'soft money,' and the use of 'issue ads' purportedly aimed at influencing people's policy views but actually directed at swaying their views of candidates." (7) Among its "dramatic changes" to the existing campaign finance system,
it (1) "required the FEC to develop a new test for determining what advertisements count as 'coordinated communications,'" (8) (2) "barred state parties from spending soft money on 'federal election activity,'" (9) "including 'get-out-the-vote activity' and 'voter registration activity,'" (10) and (3) "prohibited federal candidates from soliciting soft money." (11)
Regulations implementing these changes were among those invalidated in the first round of litigation initiated against the FEC by BCRA's House sponsors, after which the FEC revised its regulations in each area. (12) The most substantial changes were made to the test defining "coordinated communications." First, in keeping with the invalidated rule, a new "content standard" limited the ads deemed "coordinated" because of their clear reference to a federal candidate to ads making such a reference that occur within a 120-day window of an election for presidential and vice-presidential candidates, but it shortened to ninety days the window for congressional candidates. (13) Outside these windows, ads had to contain "magic words" expressly advocating a candidate's election or defeat, or use official campaign materials, in order to be treated as "coordinated communications." (14) Second, the "conduct standard" governing vendors or former employees of a campaign or political party--which had originally treated ads created by such actors as "coordinated" unless the actors refrained from using or sharing "'material' information about 'campaign plans, projects, activities, or needs'" in the ads' creation for the entire election cycle--was revised to limit the ban to the 120-day period after a covered person stopped working for a campaign or party. (15) A new "firewall safe harbor" provision also allowed an organization working for both a campaign or party and an outside group to avoid meeting the "conduct standard" by creating an appropriate firewall. (16) In addition to the "coordinated communications" revisions, the FEC also repromulgated in essentially the same form "federal election activity" regulations initially rejected on procedural grounds. (17) These regulations defined "get-out-the-vote activity" and "voter registration activity," limiting them to actions in which parties use individualized means to assist people in registering or voting. …