The United States Court of Appeals, entertaining a petition for rehearing en banc of Shays v. FEC, tantalized observers by asking for a brief from the "sponsors," Messrs. Shays and Meehan.  "D.C. Circuit Orders BCRA Sponsors to Answer FEC Bid for En Banc Review," BNA Money & Politics Report (Sept. 7, 2005).  This suggests some serious attention to the request for en banc review.  And of the issues before the Court, the most significant one is whether Members of Congress have standing, as candidates, to challenge regulations promulgated by the Commission. 

        Of course, the Members here, while arguing their interests as candidates, are really asserting them as "sponsors."  Their concern is not the effect of the law on their elections: it is to preserve their control over the regulatory process.  No such interest is really recognized under existing law, which left the Congressmen to pursue the fictitious claim that, as candidates, they were entitled to participate in elections free of the "taint" of soft money prohibited by BCRA.   Messrs. Shays and Meehan insist that their opposition will seize on the loopholes wrought by the FEC to subject them to intensified competition.  This threat to them as candidates is sufficient, they claim, to equip them with legal standing to challenge the regulations.

        The FEC strongly disagrees.  In the brief filed in support of en banc considerations, the agency argues that there is no basis at law for the assertion of this kind of "competitor" injury.  The FEC even points out, amusingly, that there is indeed no evidence in the finances of the Connecticut and Massachusetts state parties that the opposition to Shays and Meehan, respectively, depends upon the liberal, illicit use of soft money.  Petition for Rehearing En Banc at 5, n.5.  In other words, Shays and Meehan may fear competition, but it is not competition paid with soft money that they should worry about.

        The FEC’s petition also challenges the Shays decision’s rationale for invalidating rules contested by Shays and Meehan.  One footnote offers this observation, which applies to much of the reasoning now widely applied, by courts and reformers, to expand BCRA well beyond the boundaries marked off by Congress:

The majority's reliance upon a supposed overarching congressional goal to "shut down the soft-money system,"  Add.A22, "unduly elevate[s] the rhetoric of purpose above the specifics of text, ignoring in the process the enormous subtleties and complexities inherent in the 'FECA's first-amendment-sensitive regime'," Common Cause, 842 F.2d at 445 (citation omitted).

        This captures precisely the current trend in reform argument: the elevation of the rhetoric of "purpose" above all else, whether it be the text, constitutional limits or the exercise of interpretative restraint.  McConnell has supplied much of this rhetoric, becoming in this way almost more significant than the statute it upheld; and an aggressive assertion of "standing" to make these rhetorical arguments has so far empowered the sponsors to manage the regulatory process to their specifications.  A Court rehearing of Shays could at least help set the stage for solving the second problem.

Bob Bauer