FEC: CLC Comments Filed with the FEC in Rulemaking ProceedingsCLC Files Supplemental Comments With FEC Following "Coordination" Rulemaking Hearing On March 15, 2010, the Campaign Legal Center, together with Democracy 21, filed supplemental comments with the FEC in response to questions posed by Commissioner McGahn to Paul S. Ryan of the Campaign Legal Center at the Commission's March 3 rulemaking hearing regarding coordinated communications under 11 C.F.R. § 109.21. Commissioner McGahn posed a series of hypothetical scenarios to Ryan at the hearing. The CLC's comments filed this week explain why the various hypotheticals would not fall within the "coordination" rule advocated by the CLC (employing the so-called PASO standard).
The Legal Center further suggested in its supplemental comments that, in addition to crafting clever hypotheticals that seek to probe the outer limits of the proposed PASO coordination rules, the FEC should actually consider those real life ads that fall squarely within the heartland of the PASO test—and ask whether those ads should be excluded from the coordination rule outside the pre-election time frames, and whether by so doing, candidates should be permitted to freely coordinate with outside spenders on the content and airing of such ads that overtly promote a candidate's campaign. This is a real question—not a hypothetical—which the Commission completely ignored at its March 3 hearing. Many witnesses were advocating the adoption of a much narrower "express advocacy" standard—and none of those witnesses were subjected by Commissioner McGahn or any other Commissioner to questions about such real-life PASO ads, hundreds examples of which were submitted to the FEC by the Legal Center in its last "coordination" rulemaking. We urge the Commission to consider the impact of its proposed rules on such real-life ads before it adopts a final rule. To read the supplemental comments on NPRM 2009-23, click here.
Legal Center Files Comments in Nonfederal Fundraising Rulemaking On February 8, 2010, the Campaign Legal Center, together with Democracy 21, filed comments in the FEC rulemaking regarding "Participation by Federal Candidates and Officeholders at Nonfederal Fundraising Events" (NPRM 2009-26). The filing is the latest by the CLC in a nearly eight-year battle with the FEC over the agency's ineffective implementation of the Bipartisan Campaign Finance Reform Act of 2002 (BCRA).
BCRA provides that federal candidates and officeholders may not "solicit, receive, direct, transfer or spend" soft money ( i.e. , funds that do not comply with the amount limitations and source prohibitions of the Federal Election Campaign Act). Notwithstanding this restriction, BCRA also states that federal candidates and officeholders are permitted to "attend, speak, or be a featured guest at a fundraising event for a State, district, or local committee of a political party." Despite clear congressional intent to prohibit—and clear statutory language prohibiting—federal candidate and officeholder soft money fundraising, the FEC in its 2002 rulemaking to implement these provisions concluded that the latter provision "was a total exemption from the general solicitation ban" and adopted a regulation permitting federal candidates and officeholders to attend, speak, and appear as featured guests at State, district, and local party committee fundraising events "without restriction or regulation."
This FEC regulation was challenged in the " Shays III " lawsuit, with the CLC representing Senators McCain and Feingold as amici curiae —and the U.S. Court of Appeals for the D.C. Circuit invalidated the regulation, concluding that the FEC-created regulatory exemption from the general soft money solicitation ban " allows what BCRA directly prohibits."
The FEC in this most current rulemaking proposes three alternative amendments to its regulations to comply with the Shays III decision. The first alternative would simply delete the regulatory language permitting federal candidates and officeholders from participating in soft money fundraisers "without restriction or regulation." We support this approach as the simplest, most straightforward means of complying with the Shays III decision. We further commented that, though perhaps unnecessarily complicated, the second and third alternatives in NPRM 2009-26 are also both permissible means of complying with the Shays III decision. To read the comments, click here.
Legal Center Files in FEC's Latest Coordination Rulemaking Attempt On January 19, 2010, the Campaign Legal Center, together with Democracy 21, filed comments with the FEC in response to the Commission's Notice of Proposed Rulemaking on proposed revisions to federal regulations regarding communications that have been coordinated with federal candidates.
The filing is merely the latest by the CLC in a nearly eight-year battle with the FEC over the agency's ineffective implementation of the Bipartisan Campaign Finance Reform Act of 2002 (BCRA). The "regulatory" agency has repeatedly proven far more willing, and far faster, to deregulate than to perform its sworn duty to promulgate regulations and enforce the laws passed by Congress. By contrast to the Commission's long delay in effectively regulating coordinated expenditures, both with respect to the 2002 command by Congress and the 2008 command by the D.C. Circuit in Shays III, the Commission expedited implementation of the D.C. Circuit's recent decision in EMILY's List v. FEC, 581 F.3d 1 (D.C. Cir. 2009), a decision issued only four months ago.
Previous BCRA coordination regulations adopted by the FEC have led to two lawsuits resulting in two federal district court decisions and two D.C. Circuit Court of Appeals decisions holding that the FEC coordination regulations are arbitrary, capricious, an abuse of discretion and contrary to law.
Legal Center Files Comments in FEC's "Federal Election Activity" Rulemaking On Nov. 20, 2009, the Legal Center, together with Democracy 21, filed written comments with the FEC in response to the FEC's Notice of Proposed Rulemaking (NPRM) 2009-22, published at 74 Fed. Reg. 53674 (Oct. 20, 2009), seeking comment on proposed changes to its rules defining various components of the term "Federal election activity" ("FEA") under the Commission's rules. Specifically, the Commission sought comment on changes to its rules defining "voter registration activity" and "get-out-the-vote activity" ("GOTV activity") in response to the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) ("Shays III").
This rulemaking marks the third time the Commission has gone to the drawing board to write rules implementing the critical "FEA" provisions of the Bipartisan Campaign Reform Act of 2002, which determine when state political party committees must use Federally-permissible funds to pay for activities connected to Federal elections. The Commission's FEA rules were first invalidated by a Federal court in 2004, then again in 2008, in the Shays I and Shays III law suits, respectively. The Legal Center represented BCRA's principal Senate sponsors, Senators McCain and Feingold, as amici curiae in these law suits opposing the earlier rules promulgated by the Commission.
Hoping the third time will be a charm, the Legal Center in its November comments urged the Commission to adopt the Commission's proposed rule defining "voter registration activity" to include "encouraging or assisting potential voters in registering to vote" and to adopt its proposed rule defining "GOTV activity" as "encouraging or assisting potential voters to vote," with the recommended amendments and omissions set forth in the Legal Center's Comments. The Legal Center's FEC Program Director, Paul S. Ryan, will testify before the Commission at a related rulemaking hearing on December 16. To read the supplemental comments filed January 6, 2010, click here. To read the comments, click here.
Legal Center Files Comments in Lobbyist Bundling Disclosure Rulemaking On November 30, 2007, the Campaign Legal Center filed comments with the FEC in the Commission's rulemaking (NPRM 2007-23) to interpret the lobbyist bundling disclosure provisions of the Honest Leadership and Open Government Act of 2007, Pub. L. 110-81, 121 Stat. 735 (HLOGA). The Act requires candidates for federal office to disclose to the FEC the name of any registered lobbyist that raises ("bundles") more than $15,000 in contributions for the candidate during a specified period (either a 3-month or 6-month "covered period," depending on the candidate's reporting schedule), along with the amount of contributions bundled by the lobbyist.
The Campaign Legal Center's November 2007 comments addressed various aspects of the FEC's proposed rules, noting the explicit statutory requirement that the Commission "shall provide for the broadest possible disclosure" of activities described in the Act . Following a September 17, 2008 hearing held by the FEC as part of the rulemaking proceeding, the Campaign Legal Center filed supplemental written comments to address specific issues raised by the Commission at the hearing.
Among the most important issues in the rulemaking is the question of whether the Act will be interpreted to require disclosure only where a candidate has created a written record of crediting lobbyists for the contributions they bundle, or whether disclosure will be required whenever a candidate knows that a lobbyist has bundled contributions for the candidate. The Legal Center urges the Commission not to require a written record in order for the disclosure requirements to apply—because such a requirement would allow for easy evasion of the Act. To read comments filed on November 30, 2007, click here. To read supplemental comments filed on September 24, 2008, click here.
Legal Center Files Comments in "Candidate Travel" Rulemaking The Campaign Legal Center, 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 Legal Center'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. To read the comments filed by the Legal Center and Democracy 21, click here.
Legal Center Files Comments in Wisconsin Right to Life Rulemaking The Campaign Legal Center submitted two sets of comments in response to the Federal Election Commission's (FEC) request for comments on proposed revisions to its rules governing electioneering communications, in order to implement the Supreme Court's decision in FEC v. Wisconsin Right to Life, Inc. To read the comments filed by the Legal Center, Democracy 21, the Brennan Center for Justice, Common Cause, the League of Women Voters and U.S. PIRG click here. To read the comments filed by the Legal Center and Bob Bauer click here.
Legal Center and Democracy 21 File Comments in NPRM 2007-14 To read the comments filed by the Legal Center and Democracy 21, click here.
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