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Mar 17, 2006 -- Legal Center Weekly Report: March 17, 2006
The Federal Election Commission this week adopted new final rules defining the terms "solicit" and "direct." The rulemaking was necessitated by a ruling of the U.S. District Court, affirmed by the D.C. Circuit Court of Appeals, in Shays v. FEC, in which the courts invalidated the current "solicit" and "direct" rules on the ground that the FEC's definitions of the terms "fly in the face" of BCRA's purpose "because they reopen the very [soft money] loophole the terms were designed to close." The invalidated rules defined both "solicit" and "direct" to mean only to "ask." The courts held that the terms should not be limited to explicit requests for funds, but should also include indirect, implicit solicitations.
The new rule defines "solicit" to mean to "ask, request, or recommend, explicitly or implicitly," that a person make a contribution. The new "solicit" rule makes clear that a solicitation may be made directly or indirectly, and takes into consideration the conduct of the person involved in the communication. The new rule defines "direct" to mean to "guide, directly or indirectly, a person who has expressed and intent to make a contribution" by identifying a candidate or political committee for receipt of such funds.
The Legal Center submitted written comments in the "solicit" and "direct" rulemaking (NPRM 2005-24) in October, and Legal Center Associate Legal Counsel Paul S. Ryan testified at a public rulemaking hearing—arguing that the term "solicit" should be defined to mean to include direct, indirect, explicit and implicit requests for funds, and that the term "direct" should mean to "guide."
To view the Legal Center's comments in the "solicit" and "direct" rulemaking, click here.
Legal Center Files Comments in Two FEC Advisory Opinion Requests
The Legal Center, together with Democracy 21 and the Center for Responsive Politics, filed comments in regard to an advisory opinion request submitted to the FEC by EchoStar Satellite LLC (AOR 2006-10). EchoStar seeks guidance as to the applicability of federal campaign finance laws to public service announcements that feature members of congress. The Legal Center urged the FEC to advise EchoStar that its proposed ads will constitute "coordinated communications" under federal campaign finance law if they are publicly disseminated within 120 days of an election of any candidate featured in the ad. As such, payments for such coordinated communications would be in-kind contributions to the federal candidates appearing in the ads, subject to amount limits and source prohibitions. The Legal Center reasoned that the Commission's existing coordination regulation is clearly applicable on its face—and that any exception to the regulation for the activities proposed by EchoStar must be established through the rulemaking process, not through issuance of an advisory opinion.
To view the Legal Center's comments in AOR 2006-10, click here.
The Legal Center, together with Democracy 21, also filed comments in regard to an advisory opinion request submitted to the FEC by the Washington Democratic State Central Committee (AOR 2006-11). The Committee asks whether federal campaign finance law permits the Committee and a federal candidate to each pay 50% of the cost of a mass mailing that features the federal candidate, does not clearly identify any other candidate, but makes a general statement supporting the party's other candidates. The Legal Center urges the FEC to advise the Committee that the Committee and the federal candidate may each pay 50% of the cost of the mass mailing, but that the Committee's payment for the mass mailing would constitute payment for a "coordinated communication" and, as such, would constitute either an in-kind contribution to the candidate or a coordinated party expenditure—both of which are subject to federal limits.
To view the Legal Center's comments in AOR 2006-11, click here.
This week the Campaign Legal Center continued to work with Common Cause, Democracy 21, the League of Women Voters, Public Citizen and U.S. PIRG to oppose efforts to create a new soft money loophole. The House Republican leadership had announced it would bring up H.R. 1606, introduced by Jeb Hensarling (R-TX), this week. This legislation seeks to change the definition the term of "Political Communication" in BCRA as it relates to the Internet, and open a new soft money loophole. H.R. 1606 did not get the two-thirds majority necessary to pass when it was voted on as part of the Suspension Calendar last November. Recently the Center for Democracy and Technology offered a new proposal that does more to protect the rights of bloggers and other individuals communicating on the Internet, without opening huge soft money loopholes. This bill, H.R. 4900, has been introduced by Representatives Tom Allen (D-ME) and Charles Bass (R-NH).
On Wednesday, March 15, after much speculation that House members would not be allowed to vote on H.R. 4900 as a substitute for H.R. 1606, the House Rules Committee differed any further action on these bills until after the St. Patrick's Day recess. Legislation similar to H.R. 1606 is also pending currently in the Senate. Reform supporters, including the Legal Center, are continuing to monitor these and similar efforts to undermine BCRA.
To read the groups' letter sent to all House members urging them to vote against any rule that does not allow the House to vote on H.R. 4900 as a substitute for H.R. 1606, click here.
To read the groups' letter sent to House members who supported BCRA urging them not to undermine the law by voting for 1606, click here.
To read a variety of this week's editorials and articles on campaign finance, please click here. |
