In a rare move for a federal appellate court, the U.S. Court of Appeals for the Tenth Circuit yesterday released a two-paragraph precedential opinion upholding various federal campaign finance laws and policies by simply adopting the district court’s decision.  The case is captioned Free Speech v. FEC.

The most notable part of the district court opinion deals with a challenge to the FEC’s definition of “express advocacy” found at 11 C.F.R. § 100.22.  Subsection (a) of that regulation provides a definition that codifies Buckley v. Valeo’s “magic words,” such as “vote for,” “re-elect,” “support,” “cast your ballot,” “defeat,” “reject,” among other phrases.  Subsection (b), by contrast, codifies the Ninth Circuit’s broader interpretation of Buckley in a 1987 decision in FEC v. Furgatch, using a test that is similar to the one Chief Justice Roberts more recently referred to as the “functional equivalent of express advocacy” in FEC v. Wisconsin Right to Life.  Justice Kennedy then used this test to determine in Citizens United v. FEC that Hillary: The Movie “is equivalent to express advocacy.”

As we discussed in our FEC Year in Review—2012 (pages 3–5), the more expansive definition found in § 100.22(b) has been the subject of much debate.  On the one hand, the three current Republican FEC Commissioners have argued that § 100.22(b) is statutorily infirm and must be augmented, or is unenforceable under the First Circuit’s 1996 decision in Maine Right to Life v. FEC.  On the other hand, the Fourth Circuit in Real Truth About Abortion v. FEC held that § 100.22(b) is consistent with the First Amendment, and thus constitutionally on solid footing.

Today the Tenth Circuit, amplifying the district court decision’s voice, agrees with the Fourth Circuit on the constitutional analysis.  Why, then, is this news, you might ask?  Two points—one legal and one circumstantial—stand out.

As to the law, the growing federal court consensus that § 100.22(b) is constitutional does not fully address the issue that has hamstrung the FEC: whether the regulation is sufficiently supported by the language of a federal statute.

This leads to the circumstantial development—that, as we and others have noted, the FEC may soon have two new Commissioners.  Some are suggesting that a change in membership may break the 3-3 partisan deadlock that has prevented clear guidance from being issued in some areas of campaign finance law, including what advertisements contain express advocacy.  Perhaps new Commissioners will take the agency in a different direction on § 100.22(b) questions.  Until then, treatment of § 100.22(b) will remain somewhat uncertain.