Ruling puts federal elections panel in jeopardy FEC enforcements may be nullified

WASHINGTON — WASHINGTON -- A federal appeals court ruled yesterday that the Federal Election Commission has been operating unconstitutionally since it started 19 years ago -- a decision that puts in doubt hundreds of actions the FEC has taken to police presidential and congressional campaigns.

A two-judge panel of the U.S. Circuit Court of Appeals here struck down the requirement that two of Congress' staff members act unofficially as commission members, and it ordered the FEC to operate from now on without them.


The requirement, the court said, puts legislative aides into the business of enforcing the laws, and that is unconstitutional because federal powers must be separated between the branches. The six other FEC members are appointed by the president. Their status was not disturbed by the decision.

The ruling does not put the FEC out of business, but the final parts of the ruling did appear to nullify all enforcement actions the agency has carried out since 1974. The agency generally enforces federal limits on campaign donations and spending.


The court, in an opinion written by U.S. Circuit Judge Laurence H. Silberman, said it was forbidden by Supreme Court precedents from applying its ruling only to future actions, thus leaving the clear impression that the decision would be fully retroactive, back to the agency's birth 19 years ago this month.

Charles J. Cooper, the Washington lawyer who won the case, said he was "very gratified by the decision," but declined to speculate upon its potential significance.

The FEC itself said through its press office that it was "still analyzing the ruling" and had made no decision on any next step, including what it would do if the two members delegated by Congress show up for agency meetings.

It will be up to the Justice Department to decide whether to

appeal to the Supreme Court. Ordinarily, it does so when a federal court nullifies a federal law. Because of the key constitutional issue involved, the court would be likely to review it.

One limited step open to the government would be to ask that the Circuit Court ruling be put on hold for the time being, postponing any action that might undo past FEC campaign spending limits or penalties.

The ruling came in a case involving the National Rifle Association's political arm, the Political Victory Fund, and its lobbying arm, the Institute for Legislative Action. The dispute focused on the legality of the fund's spending of $415,745 it had received from the institute to pay for campaign advertising during federal election campaigns in November 1988.

The FEC ruled that this spending violated the ban in federal law on campaign financing by corporations.


The NRA then took the case on to the Circuit Court, arguing that the FEC could not take any enforcement action because its two ex officio members -- representing the Senate and the House -- could not serve on an executive branch agency.

That was the argument the Circuit Court accepted yesterday. It said that the two members, while forbidden to vote on any commission action, were added to the commission by Congress in the beginning to "serve its interests" and to exercise some influence.