In response to an Advisory Opinion Request (AOR 2007-33) submitted to the FEC by the Club for Growth PAC, the Campaign Legal Center, together with Democracy 21, filed comments with the Federal Election Commission (FEC) this week. Club for Growth has requested the Commission's permission to dispense with the spoken "stand-by-your-ad" disclaimer requirements established by federal campaign finance statutes and regulations when it runs 10 and 15 second political television ads.
The Legal Center argued in its comments that federal law requires—in no uncertain terms—that every political committee that pays for an ad on radio or television to state the name, address, telephone number or World Wide Web address of the committee that paid for the communication, state that the communication is not authorized by any candidate or candidate's committee and to include a spoken disclaimer stating the name of the committee responsible for the content of the ad. The Supreme Court upheld these statutory requirements as constitutional in McConnell v. FEC. The clarity of the statute leaves no doubt. Club PAC's proposed ads must contain the written and spoken disclaimers. The Commission has no basis upon which to conclude otherwise.
Comments were filed by the CampaignLegalCenter and Democracy 21 this week regarding alternative draft Advisory Opinions produced by the Federal Election Commission (FEC) in response to an Advisory Opinion Request (2007-28) by U.S. Representatives Kevin McCarthy (R-CA) and Devin Nunes (R-CA). The AOR concerns the important issue of whether federal candidates and officeholders can solicit unrestricted soft money for a ballot initiative committee which will use the funds to qualify and support a ballot proposition that will be on the same ballot that federal candidates will be on. The LegalCenter and Democracy 21 filed comments in November in response to the original advisory opinion request.
For reasons detailed in our comments filed this week, we strongly oppose both alternative draft opinions and urge the FEC to reject both approaches. Using different but equally flawed legal theories, both draft opinions would open the door to federal candidates and officeholders raising unrestricted soft money in contravention of the federal campaign finance laws. This result is even more egregious because it sanctions the raising of soft money by federal candidates for ballot committees that will use the money for voter registration and GOTV activities to influence the same ballot that these federal candidates will appear on. The proposed activity is squarely within the boundaries of what the "soft money" solicitation provisions of federal law restrict.
The CampaignLegalCenter, together with Democracy 21, filed comments in the FEC's rulemaking to interpret the "candidate travel" provisions of the "Honest Leadership and Open Government Act of 2007." The new law provides that a candidate for the office of President or Senate may fly on a non-commercial flight only if the candidate pays " the pro rata share of the fair market value of such flight (as determined by dividing the fair market value of the normal and usual charter fare or rental charge for a comparable plane of comparable size by the number of candidates on the flight)." Candidates for the House are generally prohibited by the new law from flying on non-commercial flights.
Congress' intent in enacting the new travel restrictions was to end the long-time practice of candidates being subsidized for travel on non-commercial flights through the unsurprising generosity of corporations, wealthy individuals and others. Yet several of the Commission's proposed alternatives for implementing the new law would allow this practice of candidate travel on private airplanes being subsidized by others to continue.
The LegalCenter's comments urge the Commission to reject any and all proposed provisions that would permit candidates to shift any part of the full cost of the non-commercial flight onto the plane's owner, other political committees, or non-campaign travelers.
The Campaign Legal Center and Democracy 21 filed comments today with the FEC opposing a new attempt by Members of Congress to circumvent McCain-Feingold by raising soft money for ballot initiatives. The advisory opinion request (AOR 2007-28) submitted by U.S. Representatives Kevin McCarthy (R-CA) and Devin Nunes (R-CA) is seeking the Commission's opinion as to whether the Congressmen may "freely raise funds" - i.e., solicit soft money - for committees formed to support the qualification and/or passage of a California state ballot initiative on either the June 3, 2008 primary election ballot or the November 4, 2008 general election ballot. Both Congressmen are candidates for the U.S. House of Representatives on the June 3 primary election ballot and, if successful in that election, will be candidates on the November 4 general election ballot.
The Federal Election Campaign Act (FECA), as amended by the McCain-Feingold law in 2002, states that federal candidates and officeholders shall not "solicit, receive, direct, transfer, or spend funds in connection with an election for Federal office … unless the funds are subject to the limitations, prohibitions and reporting requirements" of FECA. 2 U.S.C. § 441i(e)(1)(A). This is known as the McCain-Feingold law's "soft money" ban.
Congress and the Supreme Court have both recognized that soft money contributions made as the result of solicitations by federal officeholders threaten real and apparent corruption of such officeholders. The McCain-Feingold law's legislative history, purpose and text, as well as the FEC's regulations, make clear that Congressmen McCarthy and Nunes are prohibited from soliciting soft money contributions in connection with elections in which they are on the ballot - even where, as here, there are also state measures on the ballot.
The Kerry-Edwards 2004 campaign filed AOR 2007-09 seeking guidance from the Commission as to whether the Kerry-Edwards 2004 General Election Legal and Accounting Compliance Fund (GELAC) may reimburse Kerry-Edwards 2004, Inc. (KE04) for a portion of the $43.7 million KEO4 spent to purchase broadcast time for political advertising. The LegalCenter, together with Democracy 21, filed comments in response to the AOR, arguing that the permissible uses of GELAC funds are exhaustive and exclusive, with the regulations making no mention of broadcast advertising costs. The LegalCenter urged the Commission to advise the Kerry-Edwards Campaign that it may not treat any portion of the costs of its broadcast political advertisements as a compliance expense reimbursable by GELAC funds.
Nevertheless, with little explanation or analysis, the Commission's Office of General Counsel published a Draft AO 2007-09 concluding that Kerry-Edwards GELAC fund may reimburse the Campaign "for the compliance expense of the broadcast time in each advertisement that is devoted to the disclaimers required under FECA." According to the draft, a publicly financed presidential campaign can use private GELAC contributions to pay more than 13 percent of the costs of broadcasting a 30-second ad.
The LegalCenter, together with Democracy 21, once again filed comments—in response to Draft AO 2007-09—urging the Commission to reject the draft opinion and instead advise the Kerry-Edwards Campaign it may not use GELAC funds to pay a portion of the costs of its broadcast campaign ads.
In response to an Advisory Opinion Request to the FEC by the California Republican Party and the California Democratic Party seeking guidance on whether a Federal officeholder or candidate may be "publicized" on materials sent by the state party committees that solicit non-federal funds for the parties, the CampaignLegalCenter filed comments this week.
The LegalCenter recommended that the Commission advise the state parties that Federal officeholders may not solicit non-Federal funds on pre-event materials, advertisements and other communications.
The CampaignLegalCenter filed comments with the FEC in response to an Advisory Opinion Request from the Kerry-Edwards 2004 campaign. The campaign sought guidance from the Commission as to whether the Kerry-Edwards 2004 General Election Legal and Accounting Compliance Fund (GELAC) may reimburse Kerry-Edwards 2004, Inc. (KE04) for a portion of the $43.7 million KEO4 spent to purchase broadcast time for political advertising.
The LegalCenter argued that the permissible uses of GELAC funds are exhaustive and exclusive, with the regulations making no mention of broadcast advertising costs. The LegalCenter urged the Commission to advise the Kerry-Edwards Campaign that it may not treat any portion of the costs of its broadcast political advertisements as a compliance expense reimbursable by GELAC funds.
On June 11, 2007, the CampaignLegalCenter filed comments in response to FEC Notice of Proposed Rulemaking (NPRM) 2007-10 regarding so-called "hybrid communications." During the 2004 presidential election cycle, both the Republican National Committee (RNC) and the Democratic National Committee (DNC), and their presidential candidates, engaged in a new scheme to evade both the $74.6 million general election spending limit applicable to publicly financed presidential candidates, and the $16.2 million limit on party expenditures coordinated with their presidential candidates.
Both the RNC and the DNC coordinated so-called "hybrid ad" campaigns with their respective presidential candidates - producing ads that referred by name to Senator Kerry or President Bush, and typically contained some kind of generic reference to members of Congress ( e.g. , "President Bush and our leaders in Congress," "John Kerry and liberals in Congress," "John Kerry and his liberal allies"), but identified no other candidate. The Bush/RNC "hybrid ads" were worth more than $81 million, while the Kerry/DNC "hybrid ads" were worth $22 million.
Although no statute, regulation or advisory opinion authorized them to do so, the party committees unilaterally decided they could allocate just 50% of the cost of these ads to the party's presidential candidate, and allocate the other 50% to the party itself (as if half of the ad were irrelevant to the presidential campaign). The parties argue that because the ads contained some incidental language purportedly benefiting the party generally instead of the presidential candidate specifically, the cost of those generic references could be attributed to the party rather than to the candidate, and further, that the value of such generic references amounted to 50% of the total cost of the ad. The candidates' campaigns then reimbursed the parties for the 50% of the ads attributed to the candidates.
The effect of this innovated allocation scheme was to evade completely the $16.2 million coordinated spending limit, and to dramatically increase the $74.6 million spending limit applicable to the publicly financed presidential campaigns (an increase of $41 million for the Bush campaign and $11 million for the Kerry campaign). In short, the parties subsidized half of the cost of the candidates' campaign ads, and did so outside the spending limits that applied to both the candidate and the party - all based on the simple expedient of including an incidental generic reference in an ad that otherwise was plainly a candidate campaign ad.
The Commission deadlocked on the legality of this 50% allocation scheme, in the context of auditing the campaign committees, and decided to promulgate a rule regarding the future treatment of so-called "hybrid ads."
The Campaign Legal Center and Democracy 21 comments urged the Commission to promulgate a rule requiring the entire amount (100%) of each disbursement for a so-called "hybrid communication" to be attributed to the Federal candidate(s) of the party making the communication. " This alternative would be similar to the allocation rules for separate segregated funds and nonconnected committees" at 11 C.F.R. § 106.6(f) and is based on the commonsensical "proposition that a generic party reference could be reasonably expected to provide at most an insignificant benefit to the political party making the public communication, and that the Federal candidate of the political party making the communication could reasonably expect to derive all of the benefit from the communication." 72 Fed. Reg. at 26573-74.
Atlatl, a corporation, proposes to offer a fundraising service to federal political committees for the processing of contributions to such committees. Specifically, a committee using Atlatl's services would place a link on its Web site to Atlatl's contribution-processing Web site. Visitors to the committee's Web site could then make a contribution to the committee via the Web-link and would be charged a percentage-based "convenience fee" by Atlatl. Atlatl sought an FEC advisory opinion as to whether the dollar amount of the "convenience fee" charged to contributors would be considered part of the contributions to the committee.
The FEC Office of General Counsel published alternative draft advisory opinions for the Commission's consideration. Draft A concludes that contributor payment of the "convenience fee" would be a contribution to the recipient committee, while Draft B concludes that contributor payment of the "convenience fee" would not be a contribution to the recipient committee.
The CampaignLegalCenter, together with Democracy 21, filed comments urging the adoption of Draft A. Draft A correctly recognizes that the convenience fee is a cost negotiated by, and imposed upon, the political committee, which is the beneficiary of the services provided by Atlatl. Thus, the payment of the convenience fee made to Atlatl by the individual donor is an in-kind contribution by the donor to the political committee which benefits from the services provided by Atlatl. Accordingly, the donor's payment of the fee should be treated as a contribution by the donor to the committee, and counted against the donor's contribution limit to the committee. Draft B, by contrast, is sharply at odds with a long line of Commission Advisory Opinion precedent and would, simply put, permit federal political committees to off-load their fundraising expenses to contributors, with the effect of evading federal contribution limits.
On Tuesday, February 20, the LegalCenter joined Democracy 21 in filing comments with the FEC regarding the Advisory Opinion Request (AOR 2007-3) submitted on behalf of Senator Barack Obama and his presidential campaign committee. The AOR requests a ruling to allow Senator Obama, in the event he becomes the Democratic Party presidential nominee, to "retain the option" to choose public financing for the general election race notwithstanding the intent of his campaign to "provisionally" raise, and deposit into an escrow account, private contributions for the general election between now and the end of the presidential nominating period.
The Presidential Election Campaign Fund Act which states that, as a "condition for eligibility" to receive general election public funding, a candidate must certify that "no contributions" for general election expenses "have been or will be accepted" by the candidate. 26 U.S.C. § 9003(b)(2).
Although the Campaign Legal Center and Democracy 21 recognize that the AOR reflects a good faith effort by Sen. Obama and his campaign to preserve, and to have the opportunity to use, this extremely important and valuable system for our democracy and the American people—and that Sen. Obama is the first Senator to co-sponsor legislation recently introduced by Sen. Feingold (S. 436) to fix the system for future presidential elections—it is nevertheless our view that the law does not permit the statutory interpretation set forth in the AOR and, for this reason, the FEC should advise Sen. Obama and his presidential campaign committee that their receipt of private funds for the general election will render the committee ineligible to receive general election public financing.
On Friday, January 13, the Legal Center joined Democracy 21 and the Center for Responsive Politics in filing comments with the FEC regarding the Commission's proposed new regulation on "coordinated communications" (NPRM 2005-28).
The FEC initiated this rulemaking at the order of the U.S. District Court, affirmed by the D.C. Circuit Court of Appeals, in Shays v. FEC . The courts ruled that the FEC's existing regulations defining "coordinated communications"—which largely exempt advertisements aired more than 120 days before an election—may "permit exactly what BCRA aims to prevent: evasion of campaign finance restrictions through unregulated collaboration." The district court ordered the Commission to conduct a factual investigation to determine whether political advertisements are, in fact, aired more than 120 days before an election.
In response to the court's directive and the Commission's subsequent inquiry, the Legal Center's comments provide the agency with scripts of more than 200 political advertisements run more than 120 days prior to federal elections between 1999 and 2006, demonstrating that the existing regulation does permit exactly what BCRA aims to prevent: evasion of federal contribution limits.
In addition, the Legal Center proposes specific revisions to the "coordination" regulation in order to close the existing 120-day loophole.
The FEC will hold a public hearing on this rulemaking January 25-26, at which a Legal Center representative will testify.
On Friday, September 30, 2005, the Legal Center joined Democracy 21 and the Center for Responsive Politics in filing comments in the on-going FEC rulemaking regarding the definition of "electioneering communication" (NPRM 2005-20). The FEC initiated this rulemaking at the order of the U.S. District Court, affirmed by the D.C. Circuit Court of Appeals, which ruled in Shays v. FEC that several aspects of the FEC's existing regulations defining "electioneering communication" are arbitrary, capricious and inconsistent with plain meaning of BCRA's text. Specifically, the Legal Center urged the Commission to amend its "electioneering communication" regulations to conform with the Shays court order by repealing both the blanket exemption for 501(c)(3) organizations from BCRA's "electioneering communication" provisions, and the "for a fee" requirement which exempts from BCRA's "electioneering communication" provisions donated advertising.
On September 9, 2005, the Campaign Legal Center, along with Democracy 21 and the Center for Responsive Politics, submitted comments to the FEC on an advisory opinion request (No. 2005-13) submitted by EMILY's List. EMILY's List had sought the Commission's opinion as to the application of 11 C.F.R. § 106.6 allocation rules to various EMILY's List fundraising and spending activities. This marks the first advisory opinion request seeking construction of the new allocation and solicitation rules promulgated as a result of the Commission's 2004 rulemaking on "Political Committee Status." In our comments, we urged the Commission to advise EMILY's List that, as a Federal nonconnected political committee, its public communications are subject to the allocation requirements established by 11 C.F.R. § 106.6. Accordingly, we informed the FEC that, in our view, EMILY's List must use entirely Federal funds to pay for public communications that refer only to a Federal candidate, and must use at least 50 percent Federal funds to pay for the costs of its generic voter drives and administrative costs.
On July 27, 2005, the LegalCenter filed comments to the FEC on AOR-2005-10. California Congressmen Berman and Doolittle sought an FEC opinion as to whether they may "freely raise funds for committees that are formed solely to support or oppose initiatives on the November 8, 2005 California statewide special election ballot; and that are neither established, financed, maintained or controlled by persons covered by" the Bipartisan Campaign Reform Act of 2002 (BCRA) soft money fundraising prohibition. The Legal Center comments that the Federal Election Campaign Act (FECA), as amended by BCRA, along with existing FEC regulations, require the FEC to decide Congressmen Berman and Doolittle may not "freely raise funds" in connection with California's November election.
On June 3 2005, the LegalCenter joined Democracy 21 and the Center for Responsive Politics in filing comments urging the Commission to strengthen several components of its rules defining "Federal election activity." The FEC initiated this rulemaking at the order of U.S. District Court Judge Colleen Kollar-Kotelly, who ruled in Shays v. FEC that several aspects of the FEC's existing regulations defining "Federal election activity" are inconsistent with Congressional intent to prohibit the use of soft money in Federal elections.
Specifically, the Legal Center urges the Commission to amend its definitions of "voter registration" and "get-out-the-vote activity" to include state political party efforts to encourage individuals to register and vote. The Legal Center also urges the Commission to amend its definition of "voter identification" to include the acquisition of voter lists.
On June 3, 2005 the LegalCenter joined Democracy 21 and the Center for Responsive Politics in filing comments urging the Commission to close an existing regulatory loophole that allows state and local political party committees to use soft money to pay the salaries of certain employees engaged in Federal election activity.
The FEC initiated this rulemaking at the order of U.S. District Court Judge Colleen Kollar-Kotelly, who ruled in Shays v. FEC that the FEC's regulations regarding state and local party payment of certain employees' salaries are inconsistent with Congressional intent to prohibit the use of soft money in Federal elections.
On March 28th, 2005, the Campaign Legal Center joined by Democracy 21 and the Center for Responsive Politics filed comments this week in response to the Commission's Notice of Proposed Rulemaking ("NPRM") 2005-6, urging the Commission to replace an existing rule allowing federal candidates to speak at state, district and local party fundraising events "without restriction and regulation," with a new rule making clear that federal candidates are prohibited by law from soliciting so-called soft money ( i.e. , funds not subject to federal contribution limits, reporting requirements and source prohibitions).
The FEC regulation at issue in this rulemaking was challenged in the U.S. District Court of the District of Columbia in the Shays I lawsuit. The court determined that the Commission had not provided an adequate Explanation and Justification ("E&J") for the exemption described above and remanded the regulation to the Commission for further action consistent with the court's opinion. Through NPRM 2005-6, the Commission is considering two alternatives: first, to keep the rule as is and provide a more detailed E&J; or second, to adopt a new rule that would allow a federal officeholder to attend and speak at a fundraiser, but not to solicit soft money.
On March 4, 2005 the Campaign Legal Center joined by Democracy 21 and the Center for Responsive Politics filed comments in response to the Commission's Notice of Proposed Rulemaking 2005-3 urging that the Commission adopt the rules proposed for sections 109.3 and 300.2(b), to include "apparent authority" in the definition of "agent."
On March 4, 2005 , the Campaign Legal Center along with Democracy 21 and the Center for Responsive Politics filed comments with the FEC in response to the Commission's Notice of Proposed Rulemaking 2005-2 published at 70 Fed. Reg. 5385 (February 2, 2005), seeking comment on whether the Commission should delete the $5,000 exemption from 11 C.F.R. § 300.32(c)(4) or revise the de minimis exemption as to apply only to state, district, and local party committees with combined receipts and disbursements for federal election activity that together aggregate less than $5,000 in a calendar year. In the comments, the Legal Center , Democracy 21, and the Center for Responsive Politics stressed the support the deletion of the $5,000 exemption and opposed the alternative proposal to reformulate the exemption.
At its public meeting Thursday, January 26, 2005, the Commission adopted Draft AO 2004-45, approving the use of a last-in, first-out ("LIFO") method of accounting to determine whether contributions raised under the increased limits of the Millionaires' Amendment constitute "excess contributions" that must be returned to contributors after an election. Senator Ken Salazar's campaign committee requested the Commission's advice in order to determine whether it is required by law to return its post-election cash-on-hand to contributors or is permitted to retain its remaining funds for a future election.
The LegalCenter filed comments with the Commission Wednesday, urging the Commission to prohibit LIFO accounting in this context. The Center reasoned that employment of LIFO accounting here would violate both the letter of the law and congressional intent by allowing the Salazar Committee to transfer the benefit of the Millionaires' Amendment's higher contribution limits to the next election, where the funds could be used in a race against a non-wealthy opponent. The Center was joined in its comments by Democracy 21 and the Center for Responsive Politics.
Several Commissioners noted that the LegalCenter's approach seemed the most consistent with congressional intent, but voiced concerns that taking the LegalCenter's approach was beyond the Commission's authority in the AO process. Instead, several Commissioners suggested that this issue be revisited—and the Center's approach given full consideration—when the Commission finalizes its now-interim rules implementing the Millionaires' Amendment.
In other actions, the Commission approved by unanimous vote two NPRMs, one regarding a de minimis exemption for disbursement of Levin Funds and the other regarding the regulatory definition of "agent." The Commission also unanimously approved its final rules on contributions by minors.
On January 7, 2005, the CampaignLegalCenter, Democracy 21 and the Center for Responsive Politics jointly filed comments with the FEC on the proposed rulemaking (NPRM 2004-17) to amend several regulations regarding political party committees making or directing donations to tax-exempt organizations.
The FEC specifically requested comments on the question of whether party committees should be allowed to make or direct donations of Levin funds to tax-exempt organizations. The CLC urged the Commission not to allow party committees to make or direct donations of Levin funds to tax-exempt organizations. To allow party committees to do so, reasoned the CLC, would be to authorize circumvention of important BCRA restrictions on the expenditure of Levin funds.
On December 15th, the Campaign Legal Center, Democracy 21 and the Center for Responsive Politics filed comments with the FEC on a draft response to an Advisory Opinion, number 2004-43, filed by the Missouri Broadcasters Association (MBA). The MBA request posed the question of whether a broadcaster can permissibly sell advertising at "Lowest Unit Charge" (LUC) to a candidate who, by law, is not "entitled" to receive that discount because the candidate failed to include legally required disclaimer statements in his or her campaign advertisements. The Commissioners discussed this and requested additional information from the requestee and postponed issuing a ruling.
In Febraury, 2005, the Commission took up this AO again and issued a revised draft ruling in this matter. On February 11, 2005, the Legal Center again filed comment in this proceeding in defense of the belief that Congressional intent in BCRA was to make the LUC discount available only to those candidates who include the required disclaimer statements in their ads."
On November 1, 2004, Democracy 21, Campaign Legal Center and Center for Responsive Politics charged the Federal Election Commission (FEC) with attempting "some kind of extra-agency Commission ruling" following a last-minute withdrawal last week of an advisory opinion request on the legality of using soft money to pay for recounts of federal elections.
The FEC was scheduled to consider, at its October 28, 2004 meeting, two alternative draft Advisory Opinions in response to Advisory Opinion requests (AOR 2004-38 and 39) made by Rep. Nethercutt and the Nethercutt for Senate Committee. Nethercutt sought the FEC's opinion as to how it may permissibly pay for recount expenses related to the November 2004 general election. Nethercutt asked for clarification as to whether funds raised and spent by his committee in connection with a recount would be subject to the limitations, prohibitions and reporting requirements of FECA, as amended by BCRA.
On October 25, 2004, the Campaign Legal Center, Democracy 21 and the Center for Responsive Poltics filed comments on AOR 2004-38 and 39. We stated that because funds spent for recount purposes are "in connection with" a federal election, and BCRA prohibits solicitation or expenditure of nonfederal funds by a federal candidate or officeholder in connection with a federal election, Rep. Nethercutt was barred from soliciting or expending nonfederal funds for recount activities. In addition, we also noted that because activities by a state party for recount activities are "in connection with" a federal election, state parties may only spend funds from federal accounts for recount purposes. Finally, we urged the FEC to take a common sense approach of seeing recount activities as being undertaken "for the purpose of influencing" the election. Properly construed as such, we said, the law requires funds raised and spent for recount activities to be both "contributions" and "expenditures" and therefore subject to the hard $ limits and source prohibitions that apply to federal candidates and political parties.
In September 2004, the Kerry-Edwards campaign sought an advisory opinion request from the FEC in regards to the rules that apply to the raising and spending of funds to pay for recount expenses.
On Thursday, February 5, 2004 the FEC deadlocked on an Advisory Opinion request (Advisory Opinion request 2003-38) from U.S. Representative Eliot Engel (D-NY), inquiring whether he could participate in the formation of a committee to defray redistricting litigation expenses and raise unlimited funds for this committee.
Consistent with the recommendation of the FEC's Office of General Counsel, the three Democratic Commissioners indicated that such fundraising activity by a federal officeholder was "in connection with an election to Federal office" - and thus fell subject to the Bipartisan Campaign Reform Act's new soft money solicitation restrictions. Democratic Vice-Chair Ellen Weintraub indicated that she would accordingly vote in favor of preventing Rep. Engel from raising soft money for the contemplated redistricting committee. In the course of the discussion, she also indicated a willingness to conclude that this committee was "established, financed, maintained or controlled" by Rep. Engel and was thus itself unable to receive unlimited funds. But she would not endorse the notion that the organization met the test for registering as a federal "political committee."
Republican FEC Chairman Bradley Smith disputed that fundraising for a redistricting committee was "in connection with an election to Federal office." Republican Commissioner Michael Toner argued that the Reform Act did not overrule past FEC holdings that redistricting activity was not connected to federal elections. Republican Commissioner David Mason indicated that he could see a case on both sides - but he could not support a draft which concluded that fundraising for this redistricting committee was subject to the Reform Act's soft money solicitation restrictions and yet did not deem this organization to be a federal "political committee."
Without a four-vote majority in favor of any particular approach, the FEC was unable to approve a response to the Advisory Opinion request. The result at least suggests that the Commission would deadlock in an enforcement proceeding in the event a complaint was filed alleging that the contemplated fundraising for a redistricting committee violated the Reform Act.
On December 29, 2003 , the Campaign Legal Center filed comments on Advisory Opinion Request 2003-38. It argued that fundraising by federal officeholders to defray the costs of redistricting expenses occurs in connection with federal elections; thus, such fundraising is limited to hard money under the Reform Act. The Legal Center 's comments emphasize the "direct, substantial and widely recognized" connection between the outcome of redistricting and the elections of House Members. They further argue that the Commission should not consider itself bound by past Advisory Opinions construing redistricting to be unconnected to federal elections.
On October 21st, 2003, the Campaign Legal Center submitted comments to the FEC on Advisory Opinion request 2003-32. The Legal Center 's comments took issue with all the proposals in the Advisory Opinion request for disposing of the federal candidate's remaining state campaign funds and instead indicated that the funds should either be returned to the original donors or disgorged to the state treasury.
On October 9, 2003 the FEC adopted Advisory Opinion 2003-24, completely rejecting proposals from the National Center for Tobacco-Free Kids to make certain uses of contributor information disclosed in candidate and PAC filings with the FEC. Tobacco-Free Kids wished to use this information to identify individuals who have made contributions to candidates and PACs and then contact certain of those individuals to provide them information on policy issues, as well as to urge them to contact candidates to whom they had contributed and weigh in on those policy issues.
This Advisory Opinion request called for the interpretation and application of 2 U.S.C. § 438(a)(4), which prohibits the sale or use of contributor information contained in reports filed with the FEC for the purpose of soliciting contributions or for commercial purposes. The Commission rejected a draft prepared by its Office of General Counsel which would have permitted certain communications by Tobacco-Free Kids that the draft did not consider to involve a solicitation or commercial purpose (the OGC draft also prohibited communications that would have resulted in the contacted individuals' being added to Tobacco-Free Kids' general mailing list and thus becoming susceptible to future solicitations by the organization).
Instead, five Commissioners (Vice-Chairman Bradley Smith and Commissioners Michael Toner, David Mason, Scott Thomas, and Danny McDonald) opted for an alternative draft which precluded all the contemplated communications out of broad concern about protecting donors' privacy. Chair Ellen Weintraub opposed the alternative draft (which was adopted), arguing that the statute prohibited only the use or sale of contributor information in FEC reports for solicitation or commercial purposes, and that neither was present in the communications contemplated by Tobacco-Free Kids.
On October 9, 2003, the Campaign Legal Center filed comments on a draft of Advisory Opinion 2003-24 which completely rejected proposals from the National Center for Tobacco-Free Kids to make certain uses of contributor information disclosed in candidate and PAC filings with the FEC (this draft was ultimately adopted by the FEC by a 5-1 vote of the Commissioners - see immediately above ). The Legal Center argued that the draft expanded the Federal Election Campaign Act's ban on the sale or use of contributor information copied from reports filed with the FEC "for the purpose of soliciting contributions or for commercial purposes" to encompass uses of such information which were not determined to involve a solicitation or commercial purpose. It urged the FEC instead to pursue a legal framework employed by its Office of General Counsel in another (ultimately rejected) draft of this Advisory Opinion, which was more faithful to the boundaries of the statutory prohibition on the use or sale of contributor information taken from disclosure documents filed with the FEC.
On September 25, 2003, the Campaign Legal Center filed comments on the FEC's Notice of Proposed Rulemaking addressing the sale, rental or exchange of political committees' mailing lists.
On September 19, 2003 the Campaign Legal Center filed comments with the FEC concerning its Notice of Proposed Rulemaking on candidate travel. This rulemaking addresses the proper rates and timing for payment of candidate campaign travel on private means of transportation which are not offered for commercial use, including government conveyances. Candidates use private corporate and labor jets for campaign travel in order to avoid commercial airline schedules, enjoy greater privacy, and secure direct service to destinations, among other things. Under current FEC regulations, candidates may reimburse providers of private, non-commercial air service at the rate of a first-class flight if the destination city is served by regularly scheduled commercial air service. This reimbursement rate does not capture the full value of these flights - resulting in an unacknowledged in-kind campaign contribution to candidates. To address this flaw in the FEC's current regulations, the Legal Center filed comments urging the Commission to adopt a uniform rule requiring candidates using airplanes not normally offered for commercial use to reimburse at the analogous charter rate.
On September 19, 2003 the Campaign Legal Center filed comments with the FEC concerning its Notice of Proposed Rulemaking on candidate travel. This rulemaking addresses the proper rates and timing for payment of candidate campaign travel on private means of transportation which are not offered for commercial use, including government conveyances. Candidates use private corporate and labor jets for campaign travel in order to avoid commercial airline schedules, enjoy greater privacy, and secure direct service to destinations, among other things. Under current FEC regulations, candidates may reimburse providers of private, non-commercial air service at the rate of a first-class flight if the destination city is served by regularly scheduled commercial air service. This reimbursement rate does not capture the full value of these flights - resulting in an unacknowledged in-kind campaign contribution to candidates. To address this flaw in the FEC's current regulations, the Legal Center filed comments urging the Commission to adopt a uniform rule requiring candidates using airplanes not normally offered for commercial use to reimburse at the analogous charter rate.
On August 25, 2003, the Campaign Legal Center filed comments in response to Advisory Opinion request 2003-24. The Legal Center 's comments emphasize that 2 U.S.C. § 438(a)(4)'s prohibition on the sale or use of contributor information filed with the FEC applies only when such use or sale is for solicitation or commercial purposes.
On August 13, 2003, the Campaign Legal Center filed comments on the FEC's draft response to Advisory Opinion request 2003-15. The FEC draft would permit Rep. Denise Majette (D-GA) to establish a legal expense fund to defray costs relating to a lawsuit arising out of her election, the donations to and spending of which would not be subject to Federal campaign finance law's funding source prohibitions, contribution amount limitations, and reporting requirements. The Legal Center 's comments took issue with the FEC's analysis of this matter and urged the Commission to revise its draft to conclude that the legal expense fund contemplated by Rep. Majette would be subject to Federal campaign finance limits.
August 5, 2004, the National Center for Tobacco Free Kids has requested an Advisory Opinion from the FEC, concerning whether it may use information in FEC reports identifying contributors to federal candidates to initiate certain communications with those contributors. 2 U.S.C. § 438(a)(4) indicates permits copying of reports and statements filed with the FEC, though such information may not be sold or used by any person for the purpose of soliciting contributions or for commercial purposes.
On May 12, 2003, the Legal Center filed comments in response to Advisory Opinion Request 2003-15 submitted to the FEC by U.S. Representative Denise Majette. The Legal Center's comments indicated that the contemplated fundraising and spending through a Legal Expense Fund to defray the costs of the litigation over how the August 2002 Democratic primary for the 4th Congressional District of Georgia was conducted would clearly be "in connection with a Federal election." As the Fund would be established by Congresswoman Majette, it must, under the Bipartisan Campaign Reform Act of 2002, raise and spend only funds subject to the prohibitions, limitations, and reporting requirements of the Federal Election Campaign Act ( e.g., no corporate or labor treasury funds).
On April 22, 2003, The Campaign Legal Center submitted comments to the FEC concerning the draft Advisory Opinion prepared by the Commission's Office of General Counsel, relating to permissible fundraising by Federal candidates and officeholders for state and local candidates under the Bipartisan Campaign Reform Act (draft Advisory Opinion 2003-03).
On April 21, 2003, the Campaign Legal Center submitted comments to the FEC in response to the Advisory Opinion Request of Congressman Jeff Flake and the Stop Taxpayer Money for Politicians Committee. Among other things, the Legal Center's comments noted the Bipartisan Campaign Reform Act's restrictions on raising and spending soft money applicable to this ballot measure committee as an entity 'directly or indirectly established, financed, maintained or controlled by or acting on behalf of' a Federal officeholder and candidate.
On April 14, 2003 the Campaign Legal Center submitted comments to the FEC in response to the Nevada State Democratic Party's and Rory Reid's request for an Advisory Opinion from the Commission. The Legal Center indicated that, under the particular circumstances presented in this case, Rory Reid should be considered an 'agent' of U.S. Senator Harry Reid -- and accordingly subject to the Bipartisan Campaign Reform Act's soft money fundraising restrictions -- in any endeavor to raise non-Federal funds for the Nevada State Democratic Party in the current election cycle.
On January 31, 2003 the FEC unanimously approved (through a tally vote) Advisory Opinion 2002-14. This Advisory Opinion indicated that national parties could, without violating the Reform Act's soft money ban, rent their mailing lists at the "usual and normal charge," in bona fide, arm's length transactions with corporations and unions. However, parties could not sell advertising space in their newsletters or license their trademarks to corporations and unions.
On January 21, 2003 the Legal Center, Democracy 21, and Common Cause wrote to the FEC, criticizing its apparent willingness to allow national parties to receive payments from corporations and unions for mailing list rentals. The letter also urged the Commission to ensure that any forthcoming Advisory Opinion on this topic does not license or encourage national party efforts to evade the Reform Act's soft money ban by establishing or supporting "shadow groups".
On November 8, 2002, the Campaign and Media Legal Center submitted written comments to the FEC on the request from the political parties for an Advisory Opinion regarding the use of soft money for election recounts.
On October 17, 2002 the national congressional campaign committees requested an Advisory Opinion from the Federal Election Commission concerning the use of soft money for recounts. In response to the Commission's questions about this Advisory Opinion request, the party committees followed up with a subsequent letter on October 30. The parties withdrew this Advisory Opinion request on November 13.
The Campaign and Media Legal Center 's written comments on the FEC's proposed rules to reorganize the definition of the terms, "contribution" and "expenditure".
