FEC: Fundraising and Spending by Candidates & Committees

FEC Complaint Calls for Investigation of Possible Illegal Contributions & Coordination by Montana Congressional Candidate & Super PAC He Founded
 
On March 5, 2014, the Campaign Legal Center, joined by Democracy 21, urged the Federal Election Commission (FEC) to investigate possible illegal in-kind contributions and coordination between Montana congressional candidate Ryan Zinke and the Super PAC he formed and that now supports his candidacy. The complaint, based on published reports, points to the Special Forces for America’s (SOFA) use of photographs that appear to have come from the Zinke campaign in television advertisements aired in support of Zinke’s candidacy. SOFA has spent more than $50,000 distributing the pro-Zinke ads since Zinke launched his campaign in October.
 
Photos of the candidate used extensively in SOFA’s advertisements appear to be from the same photo shoot as nearly identical photos posted on the Zinke campaign’s Facebook page. The photos appear onscreen for more than half of two different television advertisements aired by SOFA in support of Zinke. Federal law treats any funds spent by an outside group to republish candidate campaign materials as an in-kind contribution from the outside group to the candidate. Super PACs like SOFA are prohibited from making such in-kind contributions to candidates. And candidates are prohibited from coordinating with Super PACs in the republication of campaign materials.
 
“It appears that this Super PAC, set up by Mr. Zinke, is now using Zinke campaign photos in its so-called ‘independent’ ads. If so, this is a clear violation of a federal law that prohibits Super PACs from republishing candidate campaign materials,” said Paul S. Ryan, Campaign Legal Center Senior Counsel. “This is just another example of the myth of the independence between outside groups like SOFA and the candidates they support—a myth that the Supreme Court in Citizens United v. FEC bought into when it announced that so-called independent expenditures don’t pose a threat of corruption.”
 
To read the complaint filed by the Campaign Legal Center and Democracy 21, click here.
 

Watchdogs Reiterate to FEC Before Vote that Tea Party Group Does Not Qualify for Disclosure Exemption Originating with NAACP in Jim Crow South

On November 20, 2013, the Campaign Legal Center, joined by Democracy 21, filed comments on two draft advisory opinions released by the Federal Election Commission (FEC) that will be voted on at the FEC’s public meeting tomorrow. The draft opinions have been issued in response to an advisory opinion request from the Tea Party Leadership Fund (TPLF) (AOR 2013-17), which is seeking a rarely-granted exemption from disclosure laws on the grounds that disclosure “would result in threats, harassment, or reprisals from government officials or private parties.” One draft to be considered by the FEC tomorrow would grant the exemption and the other would not.

The exemption stems from a 1958 Supreme Court decision prohibiting the state of Alabama from compelling the NAACP to disclose its membership list at a time when members of the civil rights organization faced grave dangers in the Jim Crow South. The exemption has also been extended over the years to small communist and socialist organizations dating back to the Cold War, with the Socialist Workers Party’s exemption being renewed by the FEC earlier this year.

“This is not a vulnerable and persecuted organization like the NAACP in the Jim Crow South, but instead a group that is part of a highly organized and well-funded movement that has already seen huge successes in state, local and federal elections,” said Paul S. Ryan, Campaign Legal Center Senior Counsel. “This Tea Party group comparing itself to the NAACP of old, whose membership feared for its lives and its livelihoods, would fail the laugh test if their request was not so offensive and so outrageous on its face. The Supreme Court has been repeatedly and abundantly clear in upholding disclosure laws that such laws serve a vital public interest in preventing corruption and informing the electorate. Consequently, the Court has maintained a very high bar for exemption, which this group does not come close to reaching. We sincerely hope that the FEC commissioners see this crass and cynical request for what it is and deny the request.”

On October 18, the Campaign Legal Center and Democracy 21 filed comments with the FEC in response to the Tea Party group’s request, detailing the history of the “threats, harassment, or reprisals” exemption and the reasons why this Tea Party group is not entitled to the exemption. In determining whether a group is entitled to the exemption, courts and the FEC must engage in a balancing test. As the Supreme Court made clear in Buckley v. Valeo, the exemption is only available when the “threat to the exercise of First Amendment rights is so serious and the state interest furthered by disclosure so insubstantial that [the disclosure requirement] cannot be constitutionally applied.”

In the comments filed today, the Campaign Legal Center and Democracy 21 urge the FEC to reject the draft opinion that would grant the exemption to the TPLF, noting that the draft opinion omits entirely half of the relevant legal test—consideration of the public interest in disclosure by Tea Party movement organizations. Unlike the Socialist Workers Party, for example, which has never successfully elected a candidate to public office in a partisan election, the Tea Party has had significant electoral and fundraising success. TPLF itself has raised more than $2.3 million since its creation in 2012. Tea Party movement organizations together have raised and spent tens of millions of dollars, with more than fifty Members of Congress participating in the Tea Party caucus. The public interest in disclosure by such a powerful political faction is compelling.

TPLF presented so-called “evidence” to the FEC consisting of little more than news articles about public and private criticism of the Tea Party movement, IRS scrutiny of Tea Party organizations’ applications for tax-exempt status, and suspicions that the group may have been under surveillance by the Department of Homeland Security and other federal agencies based on, among other things a report advising law enforcement agencies to be on the lookout for “rightwing extremist activity, specifically the white supremacist and militia movements.” It is noteworthy that, despite the fact that TPLF has received more than $2.3 million in contributions, it has not presented evidence of a single instance in which one of its donors was harassed. Given the generality of this so-called “evidence”—it pertains to Tea Party movement organizations, generally, not specifically to TPLF—all other Tea Party organizations would likely be entitled to any exemption granted to TPLF.

When weighed against such meager evidence, the public interest in disclosure by the TPLF clearly outweighs any probability of threats, harassment, or reprisals.

To read the comments filed November 20, 2013 on the draft opinions, click here.

To read the original comments filed by the Campaign Legal Center and Democracy 21 on October 18, 2013, click here.


Watchdogs File FEC Complaint Against Santorum Campaign for Illegally Directing Super PAC Contributions

On August 14, 2013, the Campaign Legal Center, joined by Democracy 21, filed a complaint with the Federal Election Commission (FEC), against Rick Santorum and campaign staffers for directing a donor to make a $1 million campaign contribution to a super PAC supporting Santorum’s 2012 presidential run.  Federal candidates and their staff are prohibited by the McCain-Feingold law’s “soft money” ban from directing more than $5,000 to a super PAC.

According to a published report, energy executive Bill Doré told Santorum at a January 2012 dinner meeting that he wanted to contribute $1 million to Santorum’s campaign.  Given that contributions to federal candidate campaigns are limited to $2,500, Doré reportedly stated in an interview that either Santorum or unnamed staffers told Doré to send his $1 million check to the Red, White and Blue Fund super PAC.

“Mr. Doré’s account of his interaction with Mr. Santorum and his staff, if true, reveals a clear violation of federal campaign finance law,” said Paul S. Ryan, Campaign Legal Center Senior Counsel.  “Federal law prohibits candidates and their staff from directing more than $5,000 to a super PAC and either Mr. Santorum or his staff seemingly directed a $1 million contribution to the Red, White and Blue Fund.”

A recent report by the Sunlight Foundation Reporting Group’s Keenan Steiner, The $1 million dinner: When big donor Bill Dore meets Rick Santorum, based on several interviews with Doré,  outlines this apparent violation of federal law.  According to the piece, Bill Doré initially told the reporter that upon learning of Doré’s willingness to make a $1 million contribution, Santorum told him about the super PAC.  After hearing the reporter’s surprise regarding Doré’s account of his conversation with Santorum, Doré reportedly backtracked and said it was “Santorum’s aides” who did so and even provided a mailing address for the Super PAC.  Doré sent the million dollar check that same day and ultimately contributed $2,250,000 to the super PAC over the next two and a half months.

Federal law clearly states that a “candidate, individual holding Federal office, agent of a candidate or an individual holding Federal office, or an entity directly or indirectly established, financed, maintained or controlled by or acting on behalf of 1 or more candidates or individuals holding Federal office” 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 this Act.”  2 U.S.C. § 441i(e)(1)(A) (emphasis added).  FEC regulations define “direct” to mean “guide, directly or indirectly, a person who has expressed an intent to make a contribution, donation, transfer of funds, or otherwise provide anything of value, by identifying a candidate, political committee or organization, for the receipt of such funds, or things of value.”  11 C.F.R. § 300.2(n).

An FEC advisory opinion issued in the wake of the Supreme Court’s Citizens United decision, AO 2011-12, states emphatically that while super PACs may accept unlimited contributions, the McCain-Feingold law’s soft money restrictions and the federal law $5,000 contribution limit remain applicable to federal candidate fundraising for super PACs.

To read the story, click here.

To read the complaint, click here.


Watchdogs Urge FEC to Reject Democratic & Republican Parties’ Request to Use “Recount Funds” as Slush Funds

On August 2, 2013, the Campaign Legal Center, joined by Democracy 21, filed comments with the Federal Election Commission (FEC) in response to an Advisory Opinion Request (AOR) 2013-10, in which both the Democratic and Republican parties seek to use their segregated “recount funds” to pay for office building expenses and in effect double their federal contribution limits.

The AOR submitted on behalf of the Democratic Senatorial Campaign Committee (DSCC), Democratic Congressional Campaign Committee (DCCC), the National Republican Congressional Committee (NRCC), and the National Republican Senatorial Committee (NRSC) seeks permission to build upon an existing regulatory loophole allowing parties to raise “recount funds” under separate contribution limits, to use such “recount funds” to pay for “office building expenses,” which of course have nothing at all to do with recounts. In short, the parties seek permission to effectively double their contribution limits and convert “recount funds” into general purpose slush funds.

“The parties are asking the FEC to create a new soft money system, effectively doubling their contribution limits by regulatory sleight of hand. Their request is outrageous and should be rejected by the Commission,” said Paul S. Ryan, Campaign Legal Center Senior Counsel. “The parties shamelessly seek to use an ill-conceived FEC-created loophole allowing parties to raise ‘recount funds’ under a separate contribution limit to now pay for ‘office building’ expenses that have nothing to do with recounts. The parties’ request is all the more audacious considering that Congress explicitly outlawed separate “office building” accounts in 2002, when it dismantled the corrupt soft money system.”

An old “office building” exemption from the statutory definition of “contribution” gave birth to the “soft money” system in the late 1970s, which grew and grew with the FEC’s support, until unlimited soft money accounted for more than 40% of the funds raised and spent by national parties in 2000. Congress dismantled the soft money system in 2002 by passing the Bipartisan Campaign Reform Act and, in doing so, explicitly repealed the “office facility” exemption. The parties are now asking the FEC to recreate the exemption, based on “recount fund” regulations and advisory opinions having nothing to do with office building expenses.

The comments filed by the Legal Center and Democracy 21 today strongly criticize the Commission’s current recount regulations, which in defiance of logic take the position that recount activities are not “for the purpose of influencing” federal elections, even though they are “in connection with” elections.

The groups urge the Commission to reject the parties’ request in this AOR and further urge the Commission to initiate a rulemaking proceeding to reconsider the severely flawed recount regulations.

To read the comments, click here.


Watchdogs’ Filing Reminds FEC that it Has No Authority to Declare Federal Laws Unconstitutional

On July 22, 2013, the Campaign Legal Center, joined by Democracy 21, filed comments in response to a Federal Election Commission (FEC) Advisory Opinion Request (AOR) 2013-09, which asks the agency to exceed its authority by declaring a statute unconstitutional and announcing that the agency will no longer enforce the statute—even though the Supreme Court has upheld the statute as constitutional.

Specifically, the AOR submitted on behalf of Special Operations Speaks PAC (“SOS PAC”) and U.S. Senate candidate Col. Robert L. Maness, asks whether the PAC may make, and the candidate accept, a contribution exceeding the $2,600 limit applicable to non-multicandidate political committees, up to the $5,000 limit applicable to multicandidate political committees despite the fact the SOS freely admits it has not and will not meet the requirement that it contribute to five or more candidates for federal office in order to qualify as a multicandidate political committee.

In the AOR itself, the requestors acknowledge that the U.S. Supreme Court has reviewed and upheld the requirements for multicandidate committees as a constitutionally permissible means to prevent circumvention of contribution limits.

“The Supreme Court has upheld the requirements in question, yet the requestors ask the FEC to ignore and exceed the limits of its authority and declare them unconstitutional,” said Paul S. Ryan, Campaign Legal Center Senior Counsel. “Such an outrageous request, filed by campaign finance attorneys as seasoned as those retained by the requestors, would certainly seem to point to plans for protracted litigation.”

The comments strongly urge the FEC to reject the request and to prepare to defend the law in court against an expected challenge by the requestors.

To read the comments, click here.


Watchdogs Urge FEC to Reject Democratic Governors Association Proposal to Violate Soft Money Ban

On July 8, 2013, the Campaign Legal Center, joined by Democracy 21, filed comments with the Federal Election Commission urging the agency to reject a request by the Democratic Governors Association (DGA) for permission to fund federal election activity with money raised outside federal contribution limits (i.e., “soft money”), which would clearly violate the McCain-Feingold Law soft money ban.

Under the soft money ban, state party committees, as well as any “association or similar group of candidates for State or local office or of individuals holding State or local office” must use funds raised under federal contribution limits to pay for federal election activity—defined in the law to include voter registration, get-out-the-vote (“GOTV”) activities, voter identification and ads that promote, attack, support or oppose federal candidates. The DGA along with Jobs and Opportunity (J&O), an organization under the full control of the DGA, submitted Advisory Opinion Request (AOR) 2013-4 to the FEC asking if they could pay for federal election activity with unlimited soft money.

The Legal Center and Democracy 21 emphasized to the FEC that DGA is an association of state officeholders, so paying for the proposed activities with nonfederal funds would clearly violate the plain language of the statute. The watchdogs reminded the Commission that the U.S. District Court for the District of Columbia held in Shays v. FEC that the Commission lacks the authority to create exemptions from the federal election activity soft money restrictions for associations of state candidates and officeholders. Further the comments point out that the U.S. Supreme Court upheld the soft money ban in McConnell v. FEC.

“The statute anticipates exactly this type of attempted circumvention of the law and makes it abundantly clear that federal election activity must be funded using money raised under federal contribution limits,” said Paul S. Ryan, Campaign Legal Center Senior Counsel. “This request is a Trojan Horse, but those sending it are clearly seeking willing accomplices inside the walls of the FEC.”

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


Watchdogs Criticize FEC for Disregarding Public Comment Period, File Comments on Tea Party Leadership Fund Advisory Opinion Request

On October 3, 2012, the Campaign Legal Center, joined by Democracy 21, filed comments criticizing the Federal Election Commission (FEC) for scheduling consideration of Advisory Opinion Request (AOR) 2012-32 at a meeting tomorrow, before the statutorily-required 10-day public comment period ends Friday. Furthermore, regarding the substance of the AOR, the Legal Center argues that the Commission has no authority to grant the Tea Party Leadership Fund (TPLF) request that the Commission declare a statute unconstitutional.

The AOR, filed by TPLF and federal candidates John Raese and Shawn Bielat, asks that the FEC cease enforcement of the statutory requirement that a committee be in existence at least six months in order to attain multicandidate political committee status and become eligible to make larger contributions to candidates. TPLF has already given each candidate $2,500, the maximum contribution allowed from standard political committees to candidates, but asks the FEC to waive the “six months in existence” requirement for multicandidate committee status, which would enable TPLF to contribute an additional $2,500 to each candidate.

“The request itself acknowledges that the statute preventing evasion of candidate contribution limits has been upheld by the Supreme Court, but nevertheless asks the Commission to exceed its authority by declaring the statute unconstitutional and therefore unenforceable,” said Paul S. Ryan, Campaign Legal Center Senior Counsel. “Formally considering this request before the end of the comment period shows a complete disrespect for the public comment process required by law and actually rendering an opinion within the comment period would in fact violate the law.”

The comments urged the Commission not only to reject the request but to prepare to defend the law in court against an expected challenge by the requestors.

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


Legal Center Files FEC Complaint Against Rep. Towns for Personal Use of Campaign Funds

On May 30, 2012, the Campaign Legal Center filed a complaint with the Federal Election Commission (FEC) seeking an investigation of Rep. Edolphus Towns concerning allegations that he illegally converted campaign funds to personal use.  Media reports have indicated that the Congressman’s wife, Gwen Towns, regularly uses a vehicle financed by the campaign for a variety of noncampaign-related personal uses, including her daily commute to and from her place of employment.

“The regular personal use of a campaign-financed car by the Congressman’s wife alleged in media reports would constitute a clear violation of campaign finance laws related to personal use of campaign funds unless the Towns’ campaign was fully reimbursed,” said J. Gerald Hebert, Campaign Legal Center Executive Director.  “We found no evidence in FEC disclosure reports filed by the Towns campaign that it was ever reimbursed for any personal use of the vehicle by Mr. or Mrs. Towns.”

Under federal law, campaign contributions are deemed “converted to personal use” if such funds are “used to fulfill any commitment, obligation or expense of a person that would exist irrespective of the candidate’s election campaign or individual’s duties as a holder of Federal office.”  The law also expressly defines any “noncampaign-related automobile expense” as a personal use of campaign funds.

FEC reports indicate that Representative Towns’ campaign has leased an Infiniti for at least 12 months at a cost of more than $600 per month and published reports have indicated that the vehicle has been used exclusively or primarily by the Congressman’s wife Gwen Towns for noncampaign-related personal activities.

The complaint filed by the Legal Center called for an immediate investigation and urged the FEC to impose appropriate sanctions for any and all violations.

To read the complaint, click here.


Rep. Schock’s $25K Solicitation from Majority Leader Cantor Violated the Law: FEC Complaint Filed

On April 30, 2012, the Campaign Legal Center, together with Democracy 21, filed a complaint with the Federal Election Commission against Rep. Aaron Schock (R-IL) for his illegal solicitation of Majority Leader Eric Cantor (R-VA) to make a contribution of $25,000 to the super PAC Campaign For Primary Accountability.  Press reports quote both Rep. Shock and a spokesman for Leader Cantor freely admitting that the solicitation was made for an amount five times the legal limit.

The FEC made clear in an advisory opinion last year (AO 2011-12) that a federal officeholder “may only solicit contributions of up to $5000 from individuals . . . and Federal political action committees” for a super PAC such as Campaign For Primary Accountability.  But an article published in Roll Call makes very clear that Rep. Schock asked Majority Leader Cantor to make a $25,000 contribution to the super PAC.

“Rep. Schock and Leader Cantor’s campaign spokesman Ray Allen told Roll Call in no uncertain terms that a solicitation was made for $25,000, which amounts to a public confession to a clear violation of the law,” said Paul S. Ryan, Campaign Legal Center Senior Counsel.  “The FEC must pursue this violation by Rep. Schock or the agency would in effect be green-lighting candidates soliciting multi-million dollar contributions to the ostensibly ‘independent’ Super PACs that have been doing the dirty work of presidential candidates in the primaries – an activity expressly banned by the agency.”

“The FEC last year correctly recognized that Members of Congress are not free to solicit large contributions to super PACs,” said Donald Simon, counsel to Democracy 21.  “It must now enforce the law against what appears to be a clear violation of it by Rep. Schock.  As bad as the super PAC problem is, it would be worse if the FEC allows Members of Congress to get into the business of soliciting huge contributions for super PACs, in violation of the law.”

The complaint asked the FEC to conduct an immediate investigation of the matter and impose appropriate sanctions.

To read the complaint, click here.


Legal Center Files FEC Comments in Support of Proposal to Allow Political Contributions via Text Message

On April 30, 2012, the Legal Center, along with nine other watchdog groups, filed comments with the Federal Election Commission (FEC) in support of a proposal to allow political contributions to be made via text message.  The Advisory Opinion Request (AOR 2012-17) was made by two political consulting firms (one Republican and one Democratic) seeking to utilize the practice used with great success by charities to raise money using text messaging.

The request from Red Blue T and ArmourMedia states that the firms will use a customized Service Order between the requestor consultants’ clients and the mobile messaging and billing aggregator to address objections raised by the Commission to a similar proposal in 2010.  The primary hurdles were finding a means to comply with the requirement that contributions be forwarded to the recipient political committees within ten or 30 days, depending on the type of recipient committee, and finding a means to prevent political contributions from being comingled with other corporate funds of the vendors.  The terms of the proposed special Service Order address these compliance issues.

The Legal Center’s comments emphasized the benefits of encouraging the participation of small donors in the political process:

“In addition to amplifying the voices of small donors, it can increase civic engagement by bringing more people into the political process and enable Members of Congress to spend more time with constituents and less time dialing for dollars.”

To read the full comments, click here.


FEC Urged to Require Registration for Obvious Political Committee in Filing by Campaign Legal Center and Democracy 21

On March 22, 2012, the Campaign Legal Center, together with Democracy 21, filed comments today with the Federal Election Commission (FEC), urging the Commission to advise the organization ‘Free Speech’ that if it engages in its proposed activities it will have no choice but to register and report as a political committee.

As the comments filed by the Legal Center and Democracy 21 point out, the Free Speech request (AOR 2012-11) is absurd in light of the laws passed by Congress and upheld by the courts:

Notwithstanding Free Speech’s claims to the contrary, it is clear from the fact that every one of its proposed ads and solicitations is focused on federal candidates and elections (with many containing “magic words” express advocacy), Free Speech clearly has the “major purpose” of influencing federal elections.

Any group that has the major purpose of influencing federal elections that spends more than $1,000 disseminating the type of express candidate advocacy ads that Free Speech plans to air must register with the FEC as a “political committee.”

“The Free Speech request spells out textbook activities of a political committee and then asks the FEC to essentially ignore the law and allow the group to avoid registering and reporting as a political committee,” said Paul S. Ryan, Campaign Legal Center FEC Program Director.  “This is an open and shut case and the commissioners have no choice but to inform Free Speech that it cannot lawfully undertake the activities it proposes without registering and reporting as a political committee.”

To read the comments, click here.


FEC Urged to Reject Super PAC American Crossroads’ Request for Permission to Coordinate Ads with Candidates

On November 14, 2011, the Campaign Legal Center, together with Democracy 21, filed comments with the Federal Election Commission (FEC), urging the Commission to reject a request from the Super PAC American Crossroads for permission to fully coordinate campaign ads with candidates despite clear laws prohibiting Super PACs from making expenditures coordinated with candidates.

As the comments filed by the Legal Center and Democracy 21 point out, the American Crossroads request (AOR 2011-23) is absurd in light of the laws passed by Congress and upheld by the courts:

“In short, a political committee seeks the Commission’s permission to ‘fully coordinate[]’ ads with candidates, featuring those candidates, echoing the candidates’ campaign slogans, in ads that are ‘thematically similar’ to the candidates’ own campaign ads, for the purpose of improving voters’ ‘perceptions’ of those candidates in the 2012 election—without treating its payments for such ads as coordinated expenditures under federal law.  Just to recite this request is to demonstrate the absurdity of it.”

“American Crossroads’ request is absurd and flies in the face of decades of Supreme Court decisions upholding laws to prevent political corruption,” said Campaign Legal Center FEC Program Director Paul S. Ryan.  “The Supreme Court has long recognized the importance of contribution limits to preventing corruption, and that expenditures coordinated with candidates must be treated as contributions in order to prevent easy circumvention of the limits.  Most recently, in Citizens United, the Court once again explained that ‘prearrangement and coordination’ presents the ‘danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.’”

Yet the Super PAC American Crossroads urges the FEC to ignore federal statutes and court decisions and, instead, to pretend that its ads intended to improve voters’ perceptions of candidates in the 2012 election, paid for with unlimited contributions from corporations and wealthy individuals, and fully coordinated with the candidates featured in the ads, nevertheless are not “coordinated communications” under the law.

The FEC has been sued twice since passage of the Bipartisan Campaign Reform Act of 2002, by the law’s principal sponsors in the House of Representatives, for the Commission’s failure to enact adequate coordination rules.  In both cases, the courts have struck down the FEC’s rules and ordered the Commission to rewrite them. 

“A green light from the FEC on this request would be an admission by the agency that its own rule defining ‘coordinated communication’ is invalid and that the Commission had failed yet again to promulgate effective rules in compliance with court orders,” said Ryan.

The Campaign Legal Center took the lead in preparing these comments.

To read the comments, click here.


FEC Urged to Reject Senator Lee’s Attempt to Create a “Super Leadership PAC” in Comments Filed Campaign Legal Center & Democracy 21

On November 3, 2011, the Campaign Legal Center, together with Democracy 21, filed comments with the Federal Election Commission (FEC), urging the Commission to reject an advisory opinion request  submitted by the Constitutional Conservatives Fund PAC (“CCF”), Senator Michael Shumway Lee’s (R-UT) Leadership PAC seeking to fundraise in a manner clearly prohibited by existing law.

Senator Lee’s Leadership PAC asks the Commission (AOR 2011-21) whether it can raise unlimited contributions from corporations, labor unions and individuals to use for “independent expenditures” supporting or opposing other federal candidates.  In other words, Senator Lee’s Leadership PAC asks the FEC if it can fundraise like a Super PAC.

“This is an easy question, which the Commission should answer with an unequivocal no,” said Campaign Legal Center FEC Program Director Paul S. Ryan. 

The “soft money” prohibition of the Bipartisan Campaign Reform Act of 2002 (BCRA) clearly states that a federal candidate or officeholder, or an entity directly or indirectly established, financed, maintained or controlled by a candidate or officeholder, shall not solicit, receive, direct, transfer, or spend funds in connection with a federal election unless the funds are subject to the limitations, prohibitions, and reporting requirements of the law.

“By its own admission,” Ryan said, “CCF is a Leadership PAC established by Senator Lee.  Therefore, it falls squarely within the BCRA soft money ban.  As such, CCF, like Senator Lee himself, may only solicit or receive contributions up to $5000 from individuals and federal PACs, and may not solicit or receive any corporate or union funds.”

“The answer to the Advisory Opinion Request submitted by Senator Mike Lee (R-UT) to the FEC is open and shut:  the federal campaign finance laws clearly and unequivocally prohibit the Leadership PAC of a Member of Congress from soliciting or receiving unlimited contributions,” said Democracy 21 President Fred Wertheimer. “Senator Lee’s Leadership PAC is flatly prohibited by law from raising unlimited contributions and Senator Lee should abandon this effort.”

The heart of the argument made by CCF is that recent court decisions permit federal PACs to accept unlimited contributions from individuals, corporations and unions so long as such contributions are used only for independent expenditures.  But these cases, which gave birth to Super PACs, apply only to PACs that are not established by federal candidates or officeholders.  These cases are inapplicable to CCF, which is established by a federal officeholder.

The FEC has already recognized precisely this distinction earlier this year, when two Super PACs, Majority PAC and House Majority PAC, sought an advisory opinion as to whether federal candidates and officeholders are permitted to solicit unlimited individual, corporate, and union contributions on their behalf.  By a unanimous 6-0 vote, the Commission correctly advised the Super PACs that the BCRA soft money ban was upheld by the Supreme Court in McConnell v. FEC and remains valid since it was not disturbed by either Citizens United or SpeechNow.

The Campaign Legal Center and Democracy 21 urged the FEC to reaffirm its opinion that all federal candidates, officeholders and committees they established—including Senator Lee’s Leadership PAC, CCF—are prohibited from raising or spending funds in connection with a federal election unless the funds are subject to the limitations, prohibitions, and reporting requirements of federal law.

The Campaign Legal Center took the lead in preparing these comments.

To read the comments, click here.


LEGAL CENTER & DEMOCRACY 21 URGE FEC TO MAKE CLEAR THAT FEDERAL CANDIDATE AND OFFICEHOLDER SOLICITATION OF UNLIMITED CONTRIBUTIONS FOR SUPER PACS IS ILLEGAL

On June 6, 2011, the Campaign Legal Center, together with Democracy, filed comments with the Federal Election Commission (FEC) urging the Commission to make clear that it is illegal for federal officeholders and candidates to solicit unlimited contributions for Super PACs.  The comments address Advisory Opinion Request (AOR) 2011-12 submitted on behalf of Majority PAC and House Majority PAC asking the Commission’s opinion as to whether federal officeholders and candidates could raise unlimited contributions for Super PACs making independent expenditures to influence federal elections.

The AO request from the two Super PACs that support Democratic candidates followed an announcement by the Republican Super PAC that it planned to have Republican federal officeholders and candidates raise unlimited contributions for the Super PAC and would spend the funds to support the specific Republican candidates who raised the funds.

As explained in the Legal Center's comments, the Bipartisan Campaign Reform Act of 2002 (BCRA) prohibits federal candidates and officeholders from soliciting funds in connection with a federal election "unless the funds are subject to the limitations, prohibitions, and reporting requirments" of the Federal Election Campaign Act.  This BCRA solicitation restriction was upheld by the Supreme Court in McConnell v. FEC and has neither been challenged nor called into question in any subsequent law suit.

Though the D.C. Circuit Court of Appeals in SpeechNow v. FEC created an exemption from the contribution limits for political committees that make only independent expenditures (so-called "Super PACs"), the organization SpeechNow assurred the courts repeatedly through the course of litigation that it would not involve federal candidates or officeholders in any of its activities, including its solicitations.  SpeechNow did not challenge the BCRA solicitation restrictions and the court in SpeechNow did not invalidate or even discuss the restrictions.  BCRA's solicitation restriction remains good law and the FEC is obligated to enforce it.

To read the comments, click here.


Legal Center Sends Letter to FEC Regarding Non-enforcement of Express Advocacy Disclosure Rules

On September 13, 2010 the CLC, together with Democracy 21, sent a letter to the Federal Election Commission (FEC) seeking clarification regarding an FEC spokesperson comment to the media suggesting that the FEC is not enforcing a key “express advocacy” disclosure regulation.  FEC regulations contain a two-part definition of “expressly advocating”—which, in turn, determines whether a person or group buying a political ad must disclose the expenditure to the FEC.  The rules apply to (1) ads “using ‘magic words’ such as ‘vote for’ or ‘vote against’” and (2) ads that “could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s).”  However, an FEC spokeswoman was quoted in a news article in August stating that a particular Chamber of Commerce ad “wouldn’t qualify as express advocacy because it doesn’t actually state to vote for or vote against a candidate.  It says ‘help her’ but it doesn’t say ‘vote for Jane Norton[.]”  The statement implies that the FEC will only deem an ad to be expressly advocating a candidate’s election or defeat if the ad contains the so-called magic words and will not require disclosure of meeting the second “only reasonable interpretation” prong of the “express advocacy” test.

The Legal Center wrote to the FEC requesting clarification as to whether the spokeswoman was accurately stating the Commission’s position regarding what constitutes “express advocacy” under federal law and, if so, requesting an explanation as to the legal basis for the Commission’s refusal to enforce its own regulation.

To read the letter, click here.


Comments Filed by Legal Center in Post-Citizens United Contribution Limit AO

On August 27, 2010 the Campaign Legal Center, together with Democracy 21, filed comments with the Federal Election Commission (FEC) in response to an advisory opinion request (AOR 2010-20) by National Defense PAC (NDPAC).  NDPAC asked the FEC to extend recent court and FEC decisions allowing unlimited contributions to independent expenditure groups to also allow unlimited contributions to groups like NDPAC—which not only make independent expenditures, but also make contributions directly to candidates.  The CLC argued in its comments that the U.S. Supreme Court in California Medical Ass’n v. FEC, 453 U.S. 182 (1981) (CalMed), made clear that the federal law contribution limit is constitutional as applied to groups like NDPAC, that make contributions to candidates.  At its September 23 meeting, the FEC considered NDPAC’s request, but commissioners deadlocked 3-3 and were unable to adopt an advisory opinion.

To read the Comments, click here.


On May 7, 2010, the FEC announced its Advisory Opinion 2010-03 to the National Democratic Redistricting Trust—declaring that redistricting activities are not "in connection with" elections and granting the Trust permission to have federal candidates and officeholders solicit soft money to fund its litigation in the upcoming post-2010 Census redistricting battle.

The Trust brought this advisory opinion request because federal law prohibits federal candidates and officeholders from soliciting, receiving, directing, transferring, or spending any "funds in connection with an election for Federal office" or any "funds in connection with an election other than an election for Federal office" unless such funds are "subject to the limitations, prohibitions, and reporting requirements of this Act" or are consistent with the Act's contribution limits and source restrictions, respectively.

The question posed by the Trust was a simple one: Are funds raised for, and spent on, legal and administrative costs associated with redistricting to be treated as funds raised and spent "in connection with an election" for purposes of the soft money solicitation ban?

Just last Thursday, three of the six Commissioners (Bauerly, Weintraub, Walther) refused to grant the requested permission for federal candidate and officeholder soft money fundraising, but requested from the Trust a week extension to try to work out a "compromise."

And last year, in the RNC v. FEC case, the entire Commission argued to the U.S. District Court for the District of Columbia: "[T]he record from McConnell demonstrates that '[r]edistricting efforts affect federal elections no matter when they are held.'"

Nevertheless, earlier today the Commission unanimously opened the door to this soft money fundraising, without a word about how today's decision squares with its argument in RNC v. FEC .

To read the comments on AOR 2010-03, click here.

To read the Advisory Opinion, click here.


On April 29, 2010, the Federal Election Commission adopted a final rule and "explanation and justification" on "Participation by Federal Candidates and Officeholders at Nonfederal Fundraising Events." The Legal Center filed written comments in this rulemaking in February and testified at the hearing held March 16. The adoption of this rule is the Commission's latest and perhaps final action in an eight-year battle over the agency's ineffective implementation of a provision 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 federal law contribution restrictions). Notwithstanding this restriction, BCRA also states that federal candidates and officeholders are permitted to "attend, speak, or be a featured guest" at a state or local political party fundraising event. 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 I" and "Shays III" lawsuits, with the CLC representing Senators McCain and Feingold as amici curiae in both cases. In Shays I, the federal district court held that the FEC had failed to adequately explain and justify the rule. And in Shays III, 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."

In the new rule adopted April 29, the FEC repealed the provision permitting federal candidates and officeholders to speak "without restriction or regulation" (i.e., solicit soft money) at nonfederal fundraising events. Under the new rule, the FEC makes clear that though federal candidates and officeholders can attend, speak and be featured guests at nonfederal fundraising events, they may not solicit soft money at such events, nor in the pre-event publicity materials for such events, and they must make clear using disclaimers that they are not soliciting soft money.

To read the final rule and “explanation and justification”, click here.


On April 27, 2010, the Campaign Legal Center, together with Democracy 21, filed comments yesterday with the Federal Election Commission (FEC) in regard to an advisory opinion request (AOR 2010-7) submitted on behalf of "Yes on FAIR." The California political committee is seeking the Commission's opinion as to whether "Members of Congress may solicit funds for Yes on FAIR outside the limits and source restrictions prescribed by the Federal Election Campaign Act ("FECA") [i.e., soft money]."

As recognized by Yes on FAIR, the question of whether federal candidates and officeholders may solicit soft money for state ballot measure committees has been posed to the Commission in at least three advisory opinion requests since the enactment of the Bipartisan Campaign Reform Act of 2002 ("BCRA")—"each yielding a different outcome." We agree with Yes on FAIR that the "result has been confusion in the law" and that the "time has long since passed" for the Commission to answer this question definitively. However, we disagree in the strongest possible terms with Yes on FAIR regarding what the definitive answer should be under the controlling law.

To read the comments on AOR 2010-7, click here.


On March 15, 2010, the Campaign Legal Center, together with Democracy 21, filed comments with the FEC in regard to the Advisory Opinion Request (AOR 2010-03) submitted by the National Democratic Redistricting Trust seeking the Commission's opinion as to whether "Members of Congress may solicit funds for the Trust outside the limits and source restrictions prescribed by" federal campaign finance laws to pay attorneys fees and other costs associated with the legislative redistricting process that will follow the 2010 census.

The Legal Center urged the FEC to advise that federal law prohibits federal candidates and officeholders from soliciting nonfederal funds ( i.e. , soft money) in connection with any election—and that redistricting is most certainly connected to elections. The Legal Center pointed out that both the FEC and the Democratic National Committee correctly argued in their briefs filed recently in Republican National Committee v. FEC —a lawsuit by the RNC challenging the federal law ban on parties raising soft money for redistricting and other purposes—that redistricting activities occur "in connection with elections." For the FEC to decide otherwise in this advisory opinion proceeding, we argue, would be inconsistent with, and severely undermine, the FEC's current position before the court in the RNC case.

To read the comments on AOR 2010-03, click here.


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.


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.


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.


The Campaign Legal Center, together with Democracy 21, filed comments March 18, 2009, with the FEC in regard to three draft advisory opinions responding to an advisory opinion request (AOR 2009-04) submitted to the FEC jointly by the jointly the Al Franken for U.S. Senate Committee and the Democratic Senatorial Campaign Committee. The AOR asked (1) whether the DSCC could set up a fund to raise hard money to pay for post-election recounts, as candidates and state parties were permitted to do under a 2006 advisory opinion (AO 2006-24), and (2) whether the Franken Committee, which had already set up a fund to pay for its recount, could set up a second fund, subject to a new set of contribution limits, to pay for its post-recount election contest litigation.

Draft A would allow the DSCC to set up a recount fund, under the rationale of AO 2006-24, but would deny the Franken Committee permission to set up a second fund, reasoning that the Commission's regulations permit only a single post-election fund to pay for recounts, election contests and any other post-election proceedings necessary to determine the winner of an election—not multiple post-election funds for each phase of post election proceedings, because allowing the latter would undermine federal contribution limits.

Draft B would allow both the DSCC recount fund and the second post-election fund proposed by the Franken Committee.

Draft C would overturn three decades of FEC precedent, under which the Commission has treated recount expenses as "in connection with" the election and subject to federal campaign finance restrictions. Draft C would establish that recounts and election contest litigation are not "in connection with" an election and, consequently, would allow candidates to raise and spend unlimited soft money to pay for post-election proceedings.

The CLC comments opposed Draft C in the strongest possible terms, as nonsensical and contrary to established law. The CLC also opposed Draft B because of its potential to undermine federal contribution limits. The CLC reluctantly supported Draft A, reasoning that Draft A was consistent with FEC precedent of allowing candidates and parties to set up a single recount / election contest fund subject to a new set of limits. But the CLC also urged the Commission to conduct a rulemaking to revisit the Commission's longstanding incorrect position that recounts are not "for the purpose of influencing" the election and, consequently, eligible for a fresh set of contribution limits, rather than being paid for out of the campaign account for the election that the recount deciding.

At its meeting March 20, 2009, the Commission answered the first question in the affirmative—allowing the DSCC to set up a recount fund, consistent with AO 2006-24. But the Commission deadlocked on the question of whether the Franken Committee should be permitted to set up a second post-election fund subject to new contribution limits.

To read the CLC comments on draft AOs 2009-04, click here.


 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.


The Campaign Legal Center, together with Democracy 21, filed comments with the FEC in regard to an advisory opinion request (AOR 2008-9) submitted by Sen. Frank Lautenberg requesting that the Commission "confirm that as a result of [the ruling in Davis v. FEC ], the Commission no longer will seek to enforce the provision in the Millionaire's Amendment that pertains to loan repayment." Specifically, Sen. Lautenberg urged the Commission to announce in the context of an advisory opinion that it will no longer enforce the federal law $250,000 limit on post-election repayment of personal loans established by 2 U.S.C. § 441a(j).

The Legal Center urged the FEC to decline Sen. Lautenberg's request that it unilaterally invalidate a provision of federal law. The statutory $250,000 limit on post-election repayment of personal loans established by section 441a(j) was not even challenged, let alone invalidated, in Davis v. FEC , 128 S. Ct. 2759 (2008). Indeed, the Supreme Court did not even mention section 441a(j) in its Davis decision.

The FEC, consistent with the Legal Center's comments, unanimously rejected Sen. Lautenberg's request that the Commission cease enforcement of the post-election personal loan repayment limit—opining that the loan repayment provision is severable from the Millionaire's Amendment provisions invalidated in Davis and that the loan repayment limit applies to Sen. Lautenberg's outstanding loans to his campaign committee.

To read the Advisory Opinion Request, click here.

To read the comments filed on behalf of the Campaign Legal Center and Democracy 21, click here.


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.


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.


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.


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.


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.


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.


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.


On June 11, 2007, the Campaign Legal Center 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.

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


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.


On Tuesday, February 20, the Legal Center 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.

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


To view the Legal Center’s supplemental comments, click here

To view the Legal Center’s addendum to the "coordination" comments, click here.


To read the Legal Center's comments in AOR 2006-10, click here.

To read the Legal Center's comments in AOR 2006-11, click here.


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.

To read comments by the Legal Center, Democracy 21, and the Center for Responsive Politics, click here.

To read Appendix I, click here.

To read Appendix II, click here.

To read Appendix III, click here.

To read Appendix IV, click here.

To read Appendix V, click here.

To read Appendix VI, click here.


To read the Legal Center's comments on "solicit" and "direct," click here.


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.

To read the full comments, click here.

To view comments filed by Professor Hill on NPRM 2005-20, click here.


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.

To read a copy of the comments submitted by CLC to the FEC, click here.


On July 27, 2005, the Legal Center 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.

Click here to read the Legal Center's comments on AOR 2005-10.


On June 3 2005, the Legal Center 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.

Please click here to view the Legal Center's comments filed in this rulemaking.


On June 3, 2005 the Legal Center 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.

Please click here to view the Legal Center's comments filed in this rulemaking.


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.

Please click here to view the Center's filing in this rulemaking.


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."

Click here to view the comments.


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.

Click here to view the comments.


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 Legal Center 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 Legal Center's approach seemed the most consistent with congressional intent, but voiced concerns that taking the Legal Center'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.

Click here to view the draft Advisory Opinion.

Click here to access the Center’s Salazar Committee AO comments filed with the FEC.


On January 7, 2005, the Campaign Legal Center, 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.

Click here to view the CLC’s comments on NPRM 2004-17.


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."

Click here to read the full comments filed in this Advisory Opinion filed in December 2004.

Click here to read comments filed on February 11, 2005.


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.

Click here to read full text.

Click here to view the letter sent to the FEC.


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.

Click here to view full text.


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.

Click to view AOR 2004-38 and AOR 2004-39.

Click here to view the comments.

Click here to view the letter from the BCRA sponsors to the FEC regarding recounts.


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.

Click here to view the Advisory Opinion Request.

Click here for the Legal Center's filing on this matter.


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.

To view alternative draft Advisory Opinions prepared by the FEC's Office of General Counsel, please click here.


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.

Click here to view the Legal Center's comments on Advisory Opinion Request 2003-38.


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.

Click here to view the Legal Center’s comments on Advisory Opinion Request 2003-32.


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.

Click here to view Advisory Opinion 2003-24 in its entirety.

Click here to view Commissioner Toner's concurring opinion.

Click here to view Commissioner Thomas's concurring opinion.


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.

Click here to view the Legal Center’s comments.


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.

Click here to view a copy of this Notice of Proposed Rulemaking in its entirety.

Click here to view the FEC's Notice terminating its rulemaking on political committees' mailing lists.

Click here to view the Legal Center’s comments in their entirety.


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.

Click here to view the FEC's final rules on candidate travel.

Click here to view materials assembled by FEC Commissioner Michael Toner concerning air travel rates.

Click here to view materials assembled by FEC Commissioner Scott Thomas concerning air travel rates.

Click here to view the Legal Center’s comments in their entirety.


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.

Click here to view the FEC's final rules on candidate travel.

Click here to view materials assembled by FEC Commissioner Michael Toner concerning air travel rates.

Click here to view materials assembled by FEC Commissioner Scott Thomas concerning air travel rates.

Click here to view the Legal Center's comments in their entirety.


 

Click here to view a copy of Advisory Opinion 2003-25.

Click here view a copy of the Legal Center’s comments on Advisory Opinion request 2003-25.

Click here to view the concurring opinion of Commissioners Scott Thomas and Danny McDonald.

Click here to view the concurring opinion of Commissioners Bradley Smith, Michael Toner, and David Mason.


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.

Click here to view the Legal Center’s comments on Advisory Opinion request 2003-24 in their entirety.


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.

Click here to view a copy of the Legal Center’s comments in their entirety.


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.

Click here to view Advisory Opinion request 2003-24 in its entirety.


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).

Click here to view a copy of the Legal Center's comments on this Advisory Opinion request.


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).

Click here to view the Legal Center's comments on draft Advisory Opinion 2003-03 in their entirety.


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.

Click here to view the Legal Center's comments on this Advisory Opinion request in their entirety.


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.

Click here to view the Legal Center's comments on this Advisory Opinion request in their entirety.


On January 31, 2003, the Legal Center submitted comments in response to the FEC's Notice of Proposed Rulemaking on Leadership PACs.

Click here to read the comments in their entirety.


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.

Click here to view Advisory Opinion 2002-14 in its entirety.


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".

Click here to view the letter in its entirety.


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.

Click to read full text


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.

Click here to view the document in its entirety.


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".

Click here to view the NPRM in its entirety.

Click here to view the FEC final rules in their entirety.

Click here to view the Legal Center's comments in their entirety.

Last Updated (Monday, 10 March 2014 23:18)

 
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