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Oct 5, 2006 -- Legal Center Weekly Report: October 5, 2006
On October 5, 2006, Reps. Christopher Shays (R-CT) and Martin Meehan (D-MA) filed a reply memorandum in the U.S. District Court for the District of Columbia in Shays & Meehan v. FEC (Shays II)—a lawsuit challenging the FEC's failure to regulate 527 groups. The FEC had recently filed its opposition to Shays-Meehan's motion to enforce an order from the court entered last March. The Legal Center represents U.S. Senators John McCain and Russ Feingold in this case as amici curiae.
In an opinion and order issued by the court in March 2006, the district court found that the FEC had violated the Administrative Procedures Act, reasoning that the FEC's "case-by-case adjudication [of 527 group non-compliance with campaign finance laws] appears to have been a total failure." The court in March ordered the FEC to "articulate its reasoning for its decision to proceed with case-by-case adjudication or to promulgate a rule, if necessary." Despite a June letter from Reps. Shays & Meehan to the FEC noting the importance that the FEC act in time to provide clear guidance on the regulation of 527 groups prior to the November general election, and asking the Commission to comply with the order within 30 days, the FEC has not yet complied with the court's order.
Reps. Shays and Meehan then filed a motion asking the court to establish a deadline, "for example, within 30 days after entry of an order on this motion," for the FEC to issue its new explanation and justification for its decision not to adopt rules regulating 527 groups, or to begin a rulemaking to address 527 groups' compliance with federal campaign finance laws. The FEC opposed this relief, essentially saying that no deadline was needed because the Commission staff was working on the matter.
In their reply memorandum, Shays and Meehan note that nowhere in the FEC's opposition does the agency state that it intends to comply with the March 2006 court order. The reply memo further observes that the 527 group issue remains an urgent problem for the 2006 and 2008 elections, and that the FEC has failed to offer any reason why the court should not exercise its authority and compel the agency to act. The reply memo states that the "527 groups are now reinvigorating their activities, [and] the FEC has done nothing either proactively [to address the problem] or in response to the Court's order."
To view the Shays-Meehan reply memorandum, click here .
This week, the Federal Election Commission promptly and commendably adopted by a vote of 5-1 Advisory Opinion 2006-20, advising Unity 08 that "[m]onies spent by Unity 08 to obtain ballot access through petition drives will be expenditures" under federal campaign finance law, and that the organization must register as a "political committee" and abide by reporting requirements, and contribution amount limitations and source prohibitions, when its "expenditures" exceed $1,000.
Unity 08, a 527 organization with the stated purpose of nominating a ticket for President and Vice President in 2008, filed AOR 2006-20 in May, asking the Commission to declare that the organization is not a "political committee" and, consequently, that it is not required to comply with federal "political committee" restrictions. The Campaign Legal Center and Democracy 21 filed comments June 19 in response to the AOR, and a second set of comments August 23, in response to a Unity 08 supplement to its AOR.
Consistent with the Legal Center's and Democracy 21's comments, Advisory Opinion 2006-20 adopted today correctly rejects Unity 08's request that it be permitted to raise and spend funds to influence the 2008 presidential election without registering as a "political committee" and abiding by federal campaign finance restrictions.
To view the legal Center's and Democracy 21's comments filed in June, click here and in August, click here .
To view Advisory Opinion Request 2006-20 filed by Unity 08, click here .
The FEC also adopted Advisory Opinion 2006-24, advising the National Republican Senatorial Committee (NRSC), the Democratic Senatorial Campaign Committee (DSCC) and the Republican Federal Committee of Pennsylvania, a state party, that the party committees and their federal candidates may not raise non-federal funds (a.k.a. "soft money") for use in recounts or election contests following the 2006 mid-term elections.
The Legal Center and Democracy 21 filed two sets of comments with the Commission urging them to deny the parties request. Twice before, the Commission's general counsel has recommended that the Commission adopt an opinion that BCRA now requires the committees (and their federal candidates and officeholders) to raise and spend only hard money for recount purposes. The law requires funds raised and spent for recount activities to be both "contributions" and "expenditures," and therefore subject to the hard money contribution limits and source prohibitions that apply to both federal candidates and political parties.
To view the Legal Center's and Democracy 21's comments filed this week, click here .
Foley Scandal Shows Urgent Need for Office of Public Integrity
In the wake of the scandal involving former-Rep. Mark Foley (R-FL) and allegations of cover-ups, the Campaign Legal Center renewed its calls for Congress to create an Office of Public Integrity.
Meredith McGehee, Legal Center Policy Director stated, "Words and outrage are nice, but meaningful, reasonable action is what is needed. The creation of a Congressional Office of Public Integrity is the place to start. Congress has proven again that it cannot police its own."
The establishment of an Office of Public Integrity, like the one proposed earlier this year by Senator Susan Collins (R-ME), would create an independent, nonpartisan and professional office in both Houses of Congress to enforce ethics rules. The House and Senate ethics committees would no longer serve as the investigators, prosecutors and judges of potential ethics violations by their own Members, a process of inherently conflicting responsibilities. No matter what party is in power, the current Congressional ethics process has proven a fiasco and must be overhauled with an Office of Public Integrity at its core.
To view the full press release, click here.
Legal Center Blog Highlights
Each week, the Campaign Legal Center staff posts blog entries on its site, www.clcblog.org. Click to read this week's entries: "Narrowing "Official Acts" Definition Could Lead to Widening Corruption," "Legal Center Files Comments in Two FEC Proceedings," "Supreme Court Deals More Setbacks to Campaign Finance Reform Opponents," "Ethics Committees: A Question of Credibility," "Third Time's a Charm: FEC Adopts Advisory Opinion that Federal Candidates and Parties Can NOT Fund Recounts With Soft Money," "Compromise Rules the Day: FEC Adopts Opinion Advising 527 Group Unity 08 to Register as a Federal Political Committee," or to sign up for blog updates, click here.
To read a variety of this week's editorials and articles on campaign finance, please click here.
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