FEC: CLC Comments Filed with the FEC in Advisory Opinion Proceedings

CLC and Democracy 21 Submit Comments in Response to SpeechNow.org AO Proceeding

The Campaign Legal Center, together with Democracy 21, filed comments with the Federal Election Commission (FEC) this week in response to an Advisory Opinion Request (AOR 2007-32) by the new 527 organization SpeechNow.org. SpeechNow.org seeks the Commission's guidance as to whether it is required to register with the Commission as a political committee and whether it is subject to federal law contribution limits.

The Legal Center advised the FEC that, although this advisory opinion request raises serious issues, it is not a serious advisory opinion request. SpeechNow.org knows full well the answers to the questions it poses. The Commission has recently and repeatedly made clear that 527 groups just like the requester, which have a major purpose to influence federal elections, which make express advocacy expenditures and which solicit contributions to pay for such expenditures, are required by federal law to register as political committees and to abide by contribution limits.

To read the comments filed by the Legal Center and Democracy 21, click here.

CLC Files Comments in Club For Growth AO Proceeding

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.

To read the comments filed by the Legal Center and Democracy 21, click here.

CLC Files FEC Comments Regarding an Advisory Opinion Request (2007-28) by U.S. Representatives Kevin McCarthy (R-CA) and Devin Nunes

Comments were filed by the Campaign Legal Center 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 Legal Center 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.

To read the comments filed by the Legal Center and Democracy 21, click here.

CLC Files FEC Comments Opposing Soft Money Ban Exemption Request

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.

To read the comments filed by the Legal Center and Democracy 21, click here.

Comments on Draft AO 2007-09

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 Legal Center, 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 Legal Center 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 Legal Center, 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.

To read the comments submitted by the Legal Center and Democracy 21, click here.

Comments on AOR 2007-11

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 Campaign Legal Center filed comments this week.

The Legal Center 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.

To read the comments filed by the Legal Center and Democracy 21, click here.

Comments on AOR 2007-9

The Campaign Legal Center 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 Legal Center argued that the permissible uses of GELAC funds are exhaustive and exclusive, with the regulations making no mention of broadcast advertising costs. The Legal Center 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.

To read the comments filed by the Legal Center and Democracy 21, click here.

Comments on Alternative Drafts of AO 2007-4

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 Campaign Legal Center, 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.

To read the comments filed by the Legal Center and Democracy 21, click here.

Comments on AOR 2007-03

U.S. Senator Barack Obama and the Obama Exploratory Committee sought an FEC advisory opinion as to whether, if Senator Obama becomes a candidate for President, he may provisionally raise funds for the general election but retain the option, upon nomination, of returning those contributions and accept public funds for which he would be eligible as the Democratic Party's nominee. The Campaign Legal Center, together with Democracy 21, filed comments advising that their view of the law does not permit the interpretation of "accepted" set forth in the advisory opinion. The statute does not permit a candidate who seeks to obtain general election public financing to have raised private contributions for the general election. The proposed AOR interpretation of "accepted" is not consistent with the overall policy goals that led to the enactment of the law.

Comments on AOR and Draft AO 2006-31

The Bob Casey for Pennsylvania Committee (the "Committee") sought an FEC advisory opinion regarding the ability of the Committee to accept a rate for television and radio time below the usual and normal commercial charge, despite the Committee's forfeiture of entitlement to the lowest unit charge as a result of its proposed refusal to comply with federal law "stand-by-your-ad" disclaimer requirements. The Campaign Legal Center, together with Democracy 21, filed comments in response to both the AOR and the Commission's draft AO, advising the Commission that having forfeited eligibility to the lowest unit cost as a result of its failure to comply with the proper disclaimer requirements, the Committee's acceptance of the lowest unit cost from a corporate broadcast station would constitute acceptance of an illegal corporate contribution in the amount of the difference between the lowest unit cost and the broadcast corporation's usual and normal charge for the time sold.

To read the Legal Center's comments in response on draft AO 2006-31, click here.

Comments on AOR and Draft AO 2006-24

The National Republican Senatorial Committee (NRSC) and the Democratic Senatorial Campaign Committee (DSCC) sought an FEC advisory opinion regarding the application of the amount limitations, source prohibitions, and reporting obligations under FECA, as amended by BCRA, and FEC regulations to the establishment and administration of a recount fund by federal campaign committees that will be used to pay recount, election contest and other post-election litigation costs resulting from federal elections. The party committees further sought guidance on the role the committees and their agents can play in the administration of a state party and/or campaign recount fund. The Campaign Legal Center, together with Democracy 21, filed comments in response to both the AOR and the Commission's draft AO, advising that based on the Commission's prior determination that recount activities are "in connection with" a federal election, the Commission should advise that a state party may not finance recount activities from funds that are in excess of federal contribution limits. The Legal Center further advised that recount activity should be considered by the Commission to be "for the purpose of influencing" a federal election, as well as "in connection with" a federal election. Such activity would constitute an "expenditure" requiring a state party to use only hard money to fund it; and all such activities "for the purpose of influencing" a federal election must be funded by state parties exclusively with federal hard money.

Comments on AOR and Draft AO 2006-20

Unity 08, a "527" organization, sought an FEC advisory opinion with respect to whether the organization is a "political committee" under federal law, subject to contribution amount limits and source prohibitions, as well as "political committee" registration and reporting requirements. The Campaign Legal Center, together with Democracy 21, filed comments in response to the AOR, and then again in response to the Commission's draft opinion, advising that because Unity 08 makes clear its principal purpose is to influence the 2008 presidential election, and also because it is a section 527 group, Unity 08 meets the threshold "major purpose" prong of the test for "political committee" status. The Legal Center urged the Commission to advise Unity 08 that its activities as a nascent political party relating to the 2008 presidential election require it to register as a "political committee" and to comply with the contribution limits, source prohibitions and reporting requirements of the law.

Comments on Draft AO 2006-19

The Los Angeles County Democratic Party (LACDP) sought an FEC advisory opinion confirming whether federally qualified funds are required to pay for the LACDP's mailing and communication activities aimed at registered Democrats leading up to an election in which the LACDP has endorsed candidates in special local elections but not federal elections which occur on the same day. The LACDP sought the Commission's advice as to whether this anticipated communication constitutes "federal election activity." The Campaign Legal Center, together with Democracy 21, filed initial and supplemental comments on the Commission's draft opinion, urging the Commission to advise the LACDP that the activities in question constitute federal election activity and must be paid for by the LACDP entirely with federal funds or a mix of federal funds and Levin funds.

To read the Legal Center's comments on draft AO 2006-19, click here.

Comments on Draft AO 2006-14

The National Restaurant Association PAC ("NRA PAC") sought an FEC advisory opinion confirming that the NRA PAC may make independent expenditures to the general public soliciting contributions to clearly identified federal candidates and then transmit those contributions to the earmarked recipients. The Campaign Legal Center, together with Democracy 21, filed comments on the Commission's draft opinion, advising the Commission that the NRA PAC should not be allowed to solicit contributions from the public, as it would upset the "careful balance" of statutory restrictions on corporate and union PACs. Corporate and union PACs have the considerable advantage that their establishment, administration and solicitation costs can be subsidized by their connected corporation or union, using treasury funds that would otherwise be prohibited in federal elections. In exchange, corporate and union PACs are limited to soliciting only their "restricted class" for contributions, and cannot solicit the general public for such contributions.

Comments on AOR 2006-11

Washington Democratic State Central Committee (the "Committee") sought an FEC advisory opinion to confirm that federal law permits the Committee to send mass mailings in which a federal candidate is clearly identified and each will pay 50% of the mass mailing costs. The Campaign Legal Center, together with Democracy 21 and the Center for Responsive Politics, filed comments advising that: (1) any Committee payment for its proposed coordinated communication would constitute either an in-kind contribution or a coordinated party expenditure subject to contribution amount limits and source prohibitions; (2) any new rule of law extending the telephone bank attribution scheme to mass mailings or other types of communications of the type proposed by the Committee must be established through the rule making process not through issuance of an advisory opinion; and, (3) the Commission should advise the Committee that the new rule of law requested would eviscerate existing statutory limits on coordinated activity between party committees and federal candidates.

Comments on AOR 2006-10

EchoStar Satellite LLC ("EchoStar") sought an FEC advisory opinion confirming that EchoStar could air public service announcements featuring members of Congress without violating federal campaign finance laws. The Campaign Legal Center, together with Democracy 21 and the Center for Responsive Politics, filed comments advising that: (1) EchoStar's proposed communications clearly fall within the scope of the existing coordination regulation and would constitute in-kind contributions subject to contribution amount limits and source prohibitions; (2) any exception to the existing coordination regulation for communications of the type proposed by EchoStar must be established through the rule making process, not through issuance of an advisory opinion; and (3) the Commission should advise EchoStar that its proposed activities fall with in the scope of the Commission's existing coordination regulation.

Comments on AOR and Draft AO 2005-16

Fired Up! LLC ("Fired Up"), a for-profit limited liability company, sought an FEC advisory opinion affirming that its publication of a network of progressive blogs around the country qualifies for the press exemption. The Campaign Legal Center, along with Democracy 21 and the Center for Responsive Politics, filed comments in response to the AOR and again in response to the Commission's draft opinion, advising that: (1) Fired Up poses a hypothetical question, which the Commission should not answer, (2) Fired Up is a partisan political organization and, as such, does not qualify for the press exemption; and (3) if the Commission chooses to respond to the hypothetical question, the Commission find that Fired Up does not qualify for the press exemption.

Comments on AOR 2005-10

U.S. Reps. Howard L Berman and John T. Doolittle sought an FEC advisory opinion regarding their ability to raise nonfederal funds (i.e., "soft money") for committees formed to support or oppose initiatives on the November 8, 2005 California statewide special election ballot. The Campaign Legal Center filed comments advising that: (1) BCRA's legislative history, purpose, and text make it clear that federal officeholders are prohibited from soliciting soft money in connection with any election, (2) the Supreme Court in McConnell upheld BCRA's prohibition on federal officeholder solicitation of soft money for committees over which the officeholder has no control, and regardless of the ends to which the funds are ultimately put, (3) Commission regulations reinforce the BCRA provision prohibiting federal officeholders from soliciting soft money in connection with any election, (4) the Commission's Advisory Opinion 2003-12 held that ballot initiative campaigns are "elections" within the meaning of section 441i(e)(1), whether or not the ballot committee is controlled by a federal candidate or officeholder; and (5) the Commission should advise Congressmen Berman and Doolittle that they are prohibited from soliciting or directing funds in excess of FECA amount limitations or from sources prohibited by FECA in connection with California's November election.

Comments on Draft AO 2004-45

Ken Salazar, Senator-elect from Colorado, and Salazar for Senate (the "Salazar Committee") (collectively the "Salazar Committee") sought an FEC advisory opinion determining whether the Salazar Committee could use a last in, first out ("LIFO") method of accounting to determine whether the contributions raised during the 2004 election cycle under increased contribution limits pursuant to the Millionaires' Amendment constitute "excess" contributions that must be returned to contributors. The Campaign Legal Center, together with Democracy 21 and the Center for Responsive Politics, filed comments urging the Commission to deny the Salazar Committee's request that it be permitted to use the LIFO method of accounting to determine whether contributions raised during the 2004 election cycle under the Millionaires' Amendment constitute excess contributions that must be returned to the contributors. Instead, the Legal Center urged the Commission to advise that all post-election funds on hand, up to the aggregate amount of funds raised pursuant to the Millionaires' Amendment, should be deemed excess contributions and returned to the contributors. The Salazar Committee should return its excess contributions by making refunds either to those excess contributors who last contributed such funds, or by giving all excess contributors a proportional share of the excess funds.

Comments on AOR 2004-39

Washington State Republican Party ("State Party") sought an FEC advisory opinion regarding the application of the source prohibitions, amount limitation and reporting requirements under FECA, as amended by BCRA, and FEC regulations to a fund that will be used to pay for recount expenses that may arise in connection with one or more federal elections, including the election involving George Nethercutt. Because AOR 2004-39 raised the same legal issue as AOR 2004-38, the Commission decided to consider the two requests jointly. The Campaign Legal Center, together with Democracy 21 and the Center for Responsive Politics, filed a single set of comments in response to AORs 2004-38 and 2004-39. (See below.)

Comments on AOR 2004-38

U.S. senatorial candidate George Nethercutt and the Nethercutt for Senate committee (collectively the "Nethercutt campaign") sought an FEC advisory opinion as to how to comply with the prohibitions, limitations and reporting requirements of FECA and Commission regulations in connection with the raising and spending of funds to be used to pay for recount expenses. The Campaign Legal Center, together with Democracy 21 and the Center for Responsive Politics, filed comments advising that: (1) the Commission has long taken the position that funds spent for recount purposes are "in connection with" a federal election; (2) Representative Nethercutt is prohibited from soliciting or spending nonfederal funds for recount purposes; (3) activities by a state party related to a recount of a federal election are "in connection with" an election and must be paid for with federal funds; and (4) the Commission has erroneously taken the position that recount activities are not "for the purpose of influencing" a federal election, even though they are "in connection with" an election. The Nethercutt campaign withdrew its request for advice before the Commission issued an opinion.

Comments on AOR 2004-35

Presidential candidate John Kerry, vice presidential candidate John Edwards, Kerry-Edwards 2004 Inc., and Kerry-Edwards 2004 General Election Legal and Accounting Compliance Fund ("GELAC") (collectively the "Kerry-Edwards Campaign") sought an FEC advisory opinion as to how to comply with the prohibitions, limitation and reporting requirements of FECA and Commission regulations in connection with the raising and spending of funds to be used to pay for recount expenses if the possibility of one or more recounts arises from the 2004 presidential election. The Campaign Legal Center, together with Democracy 21 and the Center for Responsive Politics, filed comments advising that: (1) the Commission's existing regulation is based on the view that recount funds are "in connection with" an election, the requirements imposed by BCRA necessarily apply to recount funds, and thus the contribution limits necessarily apply to such funds; and (2) the Commission should allow GELAC funds to be spent for recount purposes, allowing candidates to raise funds for a potential recount. The funds would be subject to contribution limits and source prohibitions. Further an individual can make no more than a single donation of $2,000 to a candidate's GELAC account. The Commission absolutely should avoid multiplying the accounts which can be set up by a publicly financed presidential candidate to receive private contributions.

Comments on AOR 2004-31

Russ Darrow Group Inc. ("RDG"), a car dealership, sought an FEC advisory opinion regarding whether BCRA's "electioneering communication" provisions prohibit the company's advertisements which include the company name—which is also the name of a federal candidate. The candidate does not appear in the advertisements, but his son who shares his name does and has for over a decade. The Campaign Legal Center, together with Democracy 21 and the Center for Responsive Politics, filed comments advising the Commission that the name at issue can reasonably be considered a reference to the company and/or the son, not to the candidate, and that on these specific facts, the ads should not be construed as containing a reference to a "clearly identified" candidate, and thus does not constitute electioneering communication.

Comments on AOR 2004-30

Citizens United sought an FEC advisory opinion confirming whether paid broadcast advertisement for a book titled The Many Faces of John Kerry, which was authored by the organization's president, would qualify as "electioneering communications," whether the broadcast of a documentary film on John Kerry and John Edwards and/or broadcast advertisements for the film would qualify as "electioneering communications," or whether the film or ads for the film or book fall within FECA's press exemption. The Campaign Legal Center, along with Democracy 21 and the Center for Responsive Politics, filed comments advising that if the film is broadcast within the pre-election window without Citizens United paying a "fee" it does not constitute "electioneering communications." However, the Legal Center advised that if the film is aired during the pre-election window and a "fee" is paid to air it, it would constitute "electioneering communications" on the part of Citizens United. Finally, the Legal Center advised that Citizens United is not a "press entity" within the meaning of the press exemption.

Comments on AOR 2004-05

America Coming Together ("ACT"), a "527" political organization under the Internal Revenue Code with a federally-registered non-connected political committee, sought an FEC advisory opinion to confirm that ACT: (1) establish federal and nonfederal accounts; (2) raise corporate and union funds and individual funds without regard to limits for deposit into the nonfederal account; (3) allocate the costs of voter mobilization activities constituting "generic voter drives" between its federal and nonfederal accounts; (4) in describing their purposes to the public, refer to the "Bush Administration," "Republican Party," or "Conservative" environmental, civil liberties, social and other policies inimical to a progressive agenda, (5) include appeals to support candidates associated with particular parties or policy agendas in personal communications with or materials disseminated to voters contacted through the voter mobilization; and (6) include references to "Bush Administration" policies in personal communications with or material disseminated to individuals and organizations solicited for contributions and donations to ACT and its programs. The Campaign Legal Center, along with Democracy 21 and the Center for Responsive Politics, filed comments advising that: (1) campaign finance laws apply different standards to section 527 groups than to other groups, such as those organized under section 501(c) of the tax code; (2) Act is a political committee with an overriding purpose to influence federal elections and accordingly, it should not be permitted to use soft money for its generic partisan voter drive activities through allocation of its spending; (3) the Commission's current allocation rules for non-connected political committees are faulty, can lead to absurd results and if left in place will once again invite widespread circumvention of the laws; and (4) the Commission should prohibit ACT from using corporate or labor union funds for partisan voter mobilization activities aimed at the general public, because the "direct or indirect" use of such funds is prohibited. ACT withdrew its request for advice before an opinion was issued by the Commission.

To view the Legal Center's comments, click here.

Comments on AOR 2004-01

Bush-Cheney '04, Inc ("Bush-Cheney '04") and Alice Forgy Kerr for Congress ("Kerr for Congress") sought an FEC advisory opinion to clarify whether Kerr for Congress' dissemination of ads featuring President Bush endorsing Kerr, aired within 120 days of the presidential primary, would constitute an in-kind contribution to the President's re-election campaign. Clarification of the extent to which the President or his agents may review such a communication, including the scripts and footage, both outside and within the 120 day window was also sought. The Campaign Legal Center filed comments advising that payments by Kerr for Congress for any of the advertisements in question aired within 120 days of the Kentucky presidential primary would constitute in-kind contributions to Bush-Cheney '04.

To view the Legal Center's comments, click here.

Comments on AOR 2003-38

U.S. Representative Eliot Engel (D-NY) sought an FEC advisory opinion seeking permission to participate in the formation and operation of a redistricting committee to pay for legal fees incurred in connection with redistricting litigation (concerning the New York congressional map). Representative Engel would like to raise and spend funds "on an unrestricted basis" for redistricting activities. The Campaign Legal Center filed comments urging the Commission to advise the requestor that funds raised by a federal officeholder to form and operate a redistricting committee and pay legal fees incurred in connection with redistricting litigation are subject to the prohibitions, limitations and reporting requirements of BCRA. In addition to limiting the contemplated redistricting committee to raising and spending hard money, the Commission should also apply "in-kind contribution" analysis to this request.

Comments on AOR and Draft AO 2003-37

Americans for a Better Country ("ABC), an unincorporated entity operating under section 527 of the Internal Revenue Code, sought an FEC advisory opinion concerning whether ABC may engage in a variety of fundraising and political activities in the 2003-04 election cycle, culminating in a massive voter mobilization effort emphasizing voter registration and get-out-the-vote activities. ABC wishes to state in a press release announcing its launch that its purpose is to reelect President Bush and defeat the Democratic nominee, and seeks the permissibility of these activities, in particular the use of non-federal dollars ("soft money") raised outside the source and amount limitations of FECA, as amended by BCRA. The Campaign Legal Center, together with Democracy 21, filed comments in response to the AOR as well as the Commission's draft opinion , advising that: (1) the Commission should conclude in this advisory opinion that corporations and labor unions are prohibited from making donations to 527 organizations like ABC to be used to fund partisan voter drive activities aimed at the general public, and that groups like ABC are prohibited from receiving and using corporate and labor union donations for such purposes; and (2) the Commission must ensure that the statutory provisions dealing with "coordination" and "solicitation" are effectively administered and enforced to prevent widespread circumvention of the law.

Comments on AOR 2003-32

Inez Tenenbaum, the South Carolina State Superintendent of Education, and a candidate for the U.S. Senate sought an FEC advisory opinion concerning the disposal of the remaining funds in her state campaign account and specifically inquired as to whether she may contribute such funds to Section 501(c)(3) organizations (including those that make disbursements for get-out-the-vote activity in connection with elections where federal candidates appear on the ballot and other "federal election activity"), the South Carolina Democratic Party or a state legislative caucus committee within South Carolina. The funds in her state campaign account, though all expenses of her 2002 state election have been paid, were not raised in accordance with the source prohibitions and amount limitations of FECA. The Campaign Legal Center filed comments advising that if Ms. Tenenbaum wishes to dispose of remaining funds in her state campaign account while a federal candidate, they must be either refunded to the donors or contributed to the state's general fund. The avenues for disposing the funds proposed in the AOR request would be impermissible. The Commission could also allow Ms. Tenenbaum to retain such funds in the state campaign account while she is a federal candidate, so long as she does not use or augment them in any manner. Once she is no longer a federal candidate or officeholder, she may at that time resume making disbursements.

Comments on AOR 2003-25

Jonathan Weinzapfel and Weinzapfel for Mayor Committee sought an FEC advisory opinion inquiring whether Mr. Weinzapfel and his mayoral campaign committee may finance a television advertisement featuring (and narrated by) U.S. Senator Evan Bayh (D-IN) for which a storyboard has been provided, (1) with funds contributed to such committee in compliance with Indiana's campaign finance laws but not necessarily federal campaign finance law, and (2) without making an in-kind contribution to Senator Bayh's re-election campaign in 2004. The advertisement would begin running in October 2003 and run no later than November 4, 2003. Senator Bayh is likely to be a candidate for re-election in 2004. The Campaign Legal Center, together with Democracy 21, filed comments advising that the advertisement would not be an "electioneering communication," for it would not be publicly distributed within 60 days of a general election or 30 days of a primary election for an office sought by Senator Bayh (the Indiana primary is on May 4, 2004). Likewise, it would not be publicly distributed within 120 days of a general or primary election for an office sought by Senator Bayh. Under the Commission's regulations, this failure to meet any of the specified content standards alone prevents it from being considered a "coordinated communication."

Comments on AOR 2003-24

The National Center for Tobacco Free Kids ("NCTFK") sought an FEC advisory opinion seeking permission to use information in FEC reports identifying the names and addresses of contributors to federal candidates and political committees to undertake certain communications with these persons. The Campaign Legal Center filed comments urging the Commission to advise NCTFK that where the use or sale of information copied from the Commission reports or statements is not for the purpose of soliciting contributions or for a commercial purpose, such activity is not forbidden by federal law.

Comments on AOR and Draft AO 2003-15

Representative Denise Majette and the Committee to re-elect Congresswoman Denise Majette (the "Committee") sought an FEC advisory opinion as to whether she could establish a Legal Expense Fund that would raise and spend funds contributed by individuals, corporations, and labor organizations in amounts no greater than $5,000 per year per donor, to defray legal expenses already incurred and incurred in the future in relation to a lawsuit filed by supporters of the incumbent she defeated in the last Democratic primary election. The Campaign Legal Center filed comments in response to both the request for advice and a Commission draft opinion , advising that the contemplated Legal Expense Fund would be "directly or indirectly established, financed, maintained or controlled by or acting on behalf of" a federal officeholder and acting in connection with an election for federal office, and may solicit, receive, spend, transfer, and direct only funds subject to the limitations, prohibitions, and reporting requirements of FECA. This would foreclose any possibility of this Fund receiving even limited donations from corporations and labor organizations. Funds raised and spent by the Legal Expense Fund should be subject to FECA's contribution limitations and reporting requirements.

Comments on AOR 2003-12

The Stop Taxpayer Money for Politicians Committee ("Committee") and U.S. Rep. Jeff Flake sought an FEC advisory opinion regarding whether a federal officeholder and candidate may serve as founder and chairman, and raise nonfederal funds for, a state ballot measure committee to engage in voter mobilization activities and federal candidate-specific communications undertaken simultaneously with federal elections campaigns in which the officeholder is a candidate. The Campaign Legal Center filed comments advising the Commission that: (1) the Committee is "directly or indirectly established, financed, maintained or controlled by or acting on behalf of" Congressman Flake and is thus subject to the BCRA soft money ban; (2) if the Committee is a corporation, any in-kind contribution it makes to Congressman Flake by virtue of having financed a "coordinated communication" is illegal; (3) if the committee is not incorporated, it still may not use corporate or labor funds to finance its "coordinated communications"; and (4) if the Committee is incorporated, it may not use its treasury funds to finance any "electioneering communication."

Comments on AOR 2003-10

The Nevada State Democratic Party (the "Party") and Rory Reid, a Nevada county commissioner and son of U.S. Sen. Harry Reid, sought an FEC advisory opinion regarding fundraising activities that Commissioner Reid plans to undertake under BCRA to support the Party. The requestors specifically asked whether: (1) Commissioner Reid may solicit nonfederal funds for the party; and (2) if Sen. Reid were to give Commissioner Reid actual authority to raise federally permissible funds in certain circumstances or at certain events in connection with an election on Senator Reid's behalf, Commissioner Reid may still undertake soft money fundraising activity on his own behalf for the Party in other circumstances. The Campaign Legal Center filed comments advising that on the facts presented, Commissioner Reid would continue to be an "agent" of Senator Reid while raising non-federal funds for the Party and thus fully subject to BCRA restrictions.

Comments on Draft AO 2003-03

A group of New Jersey state office candidates, together with U.S. Rep. Eric Cantor sought an FEC advisory opinion to determine the extent to which federal candidates and officeholders may participate in state candidate fundraising activities when state law permits contributions in excess of federal amount limitations and without source prohibitions. The Campaign Legal Center filed comments advising that: (1) BCRA does require federal candidates and officeholders to limit their solicitations on behalf of state and local candidates to amounts compliant to federal source prohibitions and amount limitations, but, within those parameters, solicitation on behalf of state and local candidates is fully permitted; (2) general solicitations of funds (i.e. solicitations that do not request specific amounts) for state and local candidates by federal candidates and officeholders are impermissible; and (3) the use of the name of a federal candidate or officeholder in a written fundraising solicitation, with the authorization of that federal candidate or officeholder, constitutes a "solicitation" by the candidate which is subject to limitations.

Comments on Draft AO 2002-14

The Libertarian National Committee sought an FEC advisory opinion regarding the application of the BCRA soft money ban to the Committee's practice of renting its mailing lists, selling advertising space in its monthly newsletter, and licensing its trademarks to manufacturers of campaign items. The Campaign Legal Center, together with Democracy 21 and Common Cause, filed comments in response to a Commission draft advisory opinion, urging the Commission to advise the Committee that any payments for Committee assets are subject to federal law source prohibitions, amount limitations and reporting requirements.

To view the Legal Center's comments, click here.

Comments on AOR 2002-13

The Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee, the National Republican Senatorial Committee, and the National Republican Congressional Committee sought an FEC advisory opinion regarding the application of the recently-enacted BCRA to fundraising in connection with federal election recounts. The Campaign Legal Center filed comments urging the Commission to advise the party committees that BCRA's soft money ban applies to recount fundraising and spending and, consequently, such funds are subject to federal law contribution source prohibitions, amount limitations and reporting requirements.