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Oct 21, 2005 -- Legal Center Weekly Report: October 21, 2005 Testifies at FEC Hearing on "Electioneering Communications"
The FEC held a hearing this week as part of its "electioneering communication" rulemaking, required by the U.S. District Court and D.C. Circuit Court of Appeals decisions in the Shays I lawsuit. In that suit, the congressional sponsors of the Bipartisan Campaign Reform Act of 2002 challenged nineteen FEC regulations implementing the landmark campaign finance law. The district court invalidated 15 of the regulations and ordered the FEC to conduct new rulemakings. The court of appeals affirmed the district court ruling.
Testifying before the agency in a hearing on several aspects of the rule defining "electioneering communication" (NPRM 2005-20), Legal Center Associate Legal Counsel Paul S. Ryan urged the Commission to repeal the current invalidated rule's "for a fee" requirement and per se exemption for 501(c)(3) organizations.
Professor Frances R. Hill of the University of Miami School of Law, who consults with the Legal Center as director of its tax program, also testified at the hearing. Professor Hill, a nationally recognized expert on taxation of exempt organizations, advised the Commission on the intersection of 501(c)(3) tax law and federal campaign finance law.
To view comments filed by the Campaign Legal Center on NPRM 2005-20, click here .
To view comments filed by Professor Hill on NPRM 2005-20, click here .
The FEC this week unanimously approved Advisory Opinion ("AO") 2005-13, requested by EMILY's List. EMILY's list sought advice regarding the type of funds the organization must use to pay for various proposed fundraising communications, administrative expenses and generic voter drive expenses.
An issue central to EMILY's List's Advisory Opinion Request ("AOR") was the application of a new allocation rule adopted by the FEC in November 2004. Consistent with BCRA's soft money restrictions, the new allocation rule requires that organizations such as EMILY's List—which maintain a federal political committee but are also active in state elections—use federal funds to pay at least 50% of their administrative and generic voter drive expenses. Prior to the FEC's adoption of this rule, such organizations often used nearly all soft money to pay such expenses.
The EMILY's List AO also made clear that the organization must use 100% federal funds, rather than a mixture of federal funds and soft money, to pay for any communications that clearly identify a federal candidate.
The Campaign Legal Center , together with Democracy 21 and the Center for Responsive Politics, filed comments on EMILY's List request for advice. The Advisory Opinion adopted this week is consistent with the Legal Center 's comments.
To read the Legal Center's comments on the Advisory Opinion Request, click here .
To read FEC Advisory Opinion 2005-13, click here .
On October 20, the Brookings Institution unveiled The New Campaign Finance Sourcebook, authored by Legal Center president and general counsel Trevor Potter, the Brookings Institutions' Thomas Mann and Colby College professor Tony Corrado. The authors discuss lessons learned during the 2004 election cycle, the first to take place under the Bipartisan Campaign Reform Act. They also discuss the latest developments in Congress, the courts and at the Federal Election Commission.
The New Campaign Finance Sourcebook is available at the Brookings Institution website.
Click here to view the book.
On October 18, the Campaign Legal Center - along with Common Cause, Democracy 21, Public Citizen and U.S. PIRG - sent a letter to the U.S. House of Representatives urging members "to reject a proposed effort in the House to kill the presidential public financing system, enacted following the Watergate scandals to protect the American people against corruption of the presidency and presidential decisions."
The move to eliminate the presidential public financing system could come up as early as next week in the House Ways and Means Committee when the panel considers additional cuts to be made as part of the "reconciliation" legislation used to adopt next year's budget. The proposal to gut the system has not been the subject of any House hearings, nor have House members had the opportunity to vote up-or-down on whether the system should continue. According to the letter, ideological opponents of the system are using the costs of Hurricane Katrina as cover for ending a program they have been unable to eliminate on the merits.
To read the full letter, click here.
The October 19, 2005 edition of The Hill newspaper featured an op-ed piece by Legal Center Media Policy Director Meredith McGehee and former FCC Commissioner Gloria Tristani on broadcasters' public interest obligations. The piece highlights the importance of meaningful public interest obligations for broadcasters - a point made brutally obvious by the communication failures in the aftermath of Hurricane Katrina.
The House and Senate Commerce Committees are expected to mark up reconciliation legislation next week. While the Chairmen of each committee have indicated they do not intend to include policy issues in their bill, there are likely to be efforts in committee to add policy provisions. If those efforts fail, the Committees are expected consider a second bill addressing policy issues either later this year or at the beginning of the 2nd session.
To read the op-ed, please click here.
Legal Center Testifies on Renewing the Voting Rights Act
On October 20, J. Gerald Hebert, executive director and director of litigation at the Campaign Legal Center, testified before the House Judiciary Subcommittee on the Constitution. The Subcommittee is holding a series of hearings over the next several weeks on the reauthorization of the Voting Rights Act, parts of which are scheduled to expire in 2007. Mr. Hebert's testimony focused primarily on the issue of "bailouts" under the Voting Rights Act.
To view his testimony, click here .
To read a variety of this week's editorials and articles on campaign finance, please click here .
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