Dorothy Walsh

The Federal Election Commission is abandoning an ongoing court battle involving EMILY's List that may increase financial involvement by outside groups in future elections.

The agency Thursday deadlocked 3-3 in a vote to decide whether it would ask an appellate court to re-hear a September decision involving the group, which works to elect Democratic women candidates who support abortion rights.

The group had challenged the regulations enacted by the FEC in 2005, which prohibited nonprofit groups from using soft money -- unlimited contributions from individuals, corporations, unions and political action committees -- for campaign and election activities. The regulations directed the groups to pay for those activities with "hard money" contributions, which are limited to $5,000 annually from individuals and political action committees.

Solicitor General Elena Kagan has the authority to ignore the FEC's vote and seek a rehearing of the case by a higher court, but she has not made a statement on the matter.

"The Solicitor General's office is studying the Court of Appeals decision," said Justice Department spokeswoman Beverly Lumpkin.

For years, nonprofits spent unlimited contributions to influence campaigns until the Bipartisan Campaign Reform Act of 2002 (PL 107-155) took a major step in removing such soft money from elections.

Despite its origination with a partisan liberal group, many conservatives -- including FEC's three Republican commissioners -- say the case represents a fundamental free speech issue. Meanwhile, Democrats and the campaign finance overhaul community are calling it a case of judicial activism.

In its 74-page decision, a panel of the Court of Appeals for the District of Columbia Circuit court wrote that EMILY's List -- "like individual citizens" is "entitled to spend and raise unlimited money."

Following Thursday's FEC vote, Democratic-nominated commissioners Cynthia L. Bauerly and Ellen L. Weintraub said their Republican colleagues are to blame for not reaching a consensus on how to proceed in the EMILY's List case.

"Although we do not believe it appropriate to appeal every adverse decision from a court, in cases where a divided opinion reaches significant constitutional questions not briefed by either party, we believe it is imperative to seek guidance from the full Circuit on behalf of the Commission and all who must comply" with the Federal Election Campaign Act, they wrote in a joint statement following the vote.

Republican commissioners Donald F. McGahn II, Caroline C. Hunter and Matthew S. Petersen issued a statement following the vote. "The court followed Supreme Court precedent in applying constitutionally sound reasoning," they wrote.

Critics in the campaign finance overhaul community blasted the FEC for not authorizing the appeal.

"We made some progress in slowing that down, but now all of that has fallen by the wayside," said Democracy 21 President Fred Wertheimer. "The three Republican commissioners ... once again have prevented the agency from doing what they would normally do in these circumstances."