Jan 25, 2005 -- Congressional Sponsors of BCRA, Reform Groups Oppose EMILY's List Suit on "Allocation Rules"

FOR IMMEDIATE RELEASE: January 25, 2005
Press Contact: Mark Glaze, 202-271-0982

The sponsors of the Bipartisan Campaign Reform Act of 2002 - Senators John McCain (R-AZ) and Russell Feingold (D-WI) and Representatives Christopher Shays (R-CT) and Martin Meehan (D-MA) - filed an amicus brief on Monday, January 24 in a case in which EMILY's List, a federal political committee, is urging a federal court to throw out a key allocation rule adopted by the Federal Election Commission (FEC) in 2004. The Campaign Legal Center joined the congressional sponsors on the amicus brief opposing the EMILY's List suit.

Under campaign finance law, "allocation rules" govern the kind of funds that a federal political committee may spend on activities that affect both federal and non-federal elections. Activities to influence a federal election must be funded exclusively by "hard money" - limited contributions from individuals and PACs. Activities aimed at non-federal races, however, are not subject to federal source and contribution limits, and so they can often be funded through use of unlimited "soft money" contributions. Allocation rules are designed to provide a formula for which kinds of funds can be used to fund activities that affect both federal and non-federal races, such as generic voter registration drives.

The case brought by EMILY's List challenges a new rule adopted by the FEC late last summer that requires a federal committee to use at least 50 percent federal funds to pay for generic voter mobilization drives and other activities that affect both federal and nonfederal elections, along with a rule that clarified the definition of the term "contribution." The new rule was designed to guarantee that when federal political committees engage in activities that are primarily aimed at influencing federal elections, a reasonable amount of the funds spent on those activities will come from "hard money" accounts.

"The point of the new allocation rule is to guarantee that groups that are working to influence federal elections cannot spend primarily soft money to do so," said Trevor Potter, a former FEC commissioner and chairman and president of the Campaign Legal Center. "In the 2004 cycle, groups like America Coming Together were able to manipulate the old formula to spend up to 98% soft money on their activities, even though they were obviously working almost exclusively to influence federal elections. EMILY's List is trying to put that absurd soft money loophole back on the books."

The brief filed by the congressional sponsors and the reform groups sets forth the benefits of the new rule:

The Commission's new rule is not a perfect safeguard, but it will substantially limit the kind of circumvention of the law that ACT engaged in. It will prevent a federal committee from calculating a near-zero federal allocation ratio by the simple expedient of eschewing all candidate-specific federal activity, as it could under the former rule. And it will thus prevent a federal committee from spending almost exclusively soft money funds for generic activities and voter mobilization drives that are for the purpose, and have the effect, of influencing federal elections. By requiring all non-party committees to spend "at least" 50 percent federal funds for their generic and voter drive activities, 11 C.F.R. Sec. 106.6(c) (2005), the new rule partially repairs the fundamental flaw that was exposed in the prior "funds expended" method.

The brief also defends the new rule's clarified definition of "contribution" as consistent with the statute, and argues that the group's request for a preliminary injunction should be denied.

The sponsors and the Legal Center were joined by Democracy 21 and the Center for Responsive Politics on the brief.

The Campaign Legal Center is a nonpartisan, nonprofit group working to improve and enforce the nation's campaign finance, communications and government ethics laws. The group represents the public interest in administrative and legal proceedings where the nation's campaign finance and related media laws are enforced: at the Federal Election Commission, the Federal Communications Commission, the Internal Revenue Service and in the courts.

Click here to view the Motion For Leave To File Memorandum As Amici Curiae.

Click here to view the Memorandum of Amici Curiae In Opposition to Plaintiff's Motion For A Preliminary Injunction.