FEC: FEC Opens 'Soft Money' Loophole for Upcoming Redistricting Battle: Statement of Campaign Legal Center FEC Program Director Paul S. Ryan

This advisory opinion ignores both the letter and the intent of the 'soft money' ban in McCain-Feingold. To declare that redistricting activities are not "in connection with" elections ignores the realities of the process. The outcomes of elections for some congressional seats for the next decade will be determined by those who draw the lines during the redistricting process.

The FEC announced late today 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 McConnelldemonstrates 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.

* Legal Center Executive Director J. Gerald Hebert took no part in the consideration of this matter.

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

To read the Advisory Opinion, click here.