In legal documents filed with a federal court in Washington, D.C., this week, the commission asked U.S. District Judge Colleen Kollar-Kotelly to put her decision from last month on hold to clear up "confusion" between now and the Nov. 2 election about what rules govern political advertising.
Kollar-Kotelly ruled Sept. 18 that a broad swath of FEC regulations including some Internet rules were unlawful, but she didn't say whether they could remain in effect temporarily through Election Day. In 2002, the FEC concluded that the campaign finance law did not cover the Internet, effectively creating loopholes that both major parties have exploited when creating blistering Web ads in the months leading up to the elections.
The law in question is the Bipartisan Campaign Reform Act of 2002, better known as the McCain-Feingold law. It targeted spending on broadcast, print and mass-mailing advertising that is "coordinated" with political campaigns, but the FEC exempted the Internet.
The FEC is asking Kollar-Kotelly to put her ruling on hold during an appeal in hopes of "clarifying the current state of the law for members of the public whose political activities are subject to those regulations."
"One of the reasons we're filing the stay is to make it crystal clear that there are regulations and the regulations are in effect," an FEC spokesman said Thursday. The FEC has taken the first steps toward appealing Kollar-Kotelly's ruling but has not said which portions it will try to overturn.
In an election-law conundrum that only attorneys could love, the outcome of the case may turn on what Congress meant by "public communication." Kollar-Kotelly concluded that while the term didn't mention the word Internet, legislators "did include the phrase 'any other form of general public political advertising.' While all Internet communications do not fall within this descriptive phrase, some clearly do."
Two politicians, Reps. Christopher Shays and Martin Meehan, sued the FEC in October 2002, asking the courts to overturn the agency's regulations on grounds that they're not sufficiently strict and don't comply with the 2002 campaign finance law.
