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Jul 27, 2007 -- Legal Center Weekly Report: July 27, 2007 Legal Center and Democracy 21 File Comments on Draft AO 2007-09
The Kerry-Edwards 2004 campaign filed AOR 2007-09 seeking guidance from the Commission as to whether the Kerry-Edwards 2004 General Election Legal and Accounting Compliance Fund (GELAC) may reimburse Kerry-Edwards 2004, Inc. (KE04) for a portion of the $43.7 million KEO4 spent to purchase broadcast time for political advertising. The Legal Center, together with Democracy 21, filed comments in response to the AOR, arguing that the permissible uses of GELAC funds are exhaustive and exclusive, with the regulations making no mention of broadcast advertising costs. The Legal Center urged the Commission to advise the Kerry-Edwards Campaign that it may not treat any portion of the costs of its broadcast political advertisements as a compliance expense reimbursable by GELAC funds.
Nevertheless, with little explanation or analysis, the Commission's Office of General Counsel published a Draft AO 2007-09 concluding that Kerry-Edwards GELAC fund may reimburse the campaign "for the compliance expense of the broadcast time in each advertisement that is devoted to the disclaimers required under FECA." According to the draft, a publicly financed presidential campaign can use private GELAC contributions to pay more than 13 percent of the costs of broadcasting a 30-second ad.
The Legal Center, together with Democracy 21, once again filed comments—in response to Draft AO 2007-09—urging the Commission to reject the draft opinion and instead advise the Kerry-Edwards Campaign it may not use GELAC funds to pay a portion of the costs of its broadcast campaign ads.
At its meeting this week, the FEC considered the draft opinion allowing 13 percent of the ad costs to be paid with GELAC funds. Commission Chairman Lenhard, together with Commissioners Mason and von Spakovsky, supported the draft AO. Commissioners Weintraub and Walther objected to the draft. Without the necessary four votes for approval of the draft AO, the Commission was deadlocked until Commissioner Weintraub suggested a "compromise" of allowing up to 5 percent of the ad costs to be paid with GELAC funds—and the "compromise" was approved by the Commission.
The Campaign Legal Center, Common Cause, Democracy 21, the League of Women Voters, Public Citizen and U.S. PIRG sent a letter this week to House members, urging Representatives to support H.R. 2630, legislation introduced by Representatives Adam Schiff (D-CA) and Michael Castle (R-DE).
The bill would prohibit candidates and federal officeholders from making compensation payments to their spouses from their campaign committees and leadership PACs.
According to the letter, "Such payments by a Member's campaign committee or leadership PAC to an immediate family member create the potential for campaign finance and ethics abuses by evasion of the prohibition on Members converting their campaign funds to personal use and the House ethics rule limiting the amount of outside earned income Members can receive."
On July 27, 2007, the parties in EMILY's List v. FEC filed a joint status report proposing a schedule for supplemental briefing of pending motions for summary judgment at the request of Judge Kollar-Kotelley, who issued an order earlier this month requiring additional briefing regarding the impact of the Supreme Court's recent decision in Wisconsin Right to Life on the EMILY's List case. Under the proposed schedule, various updated filings would be due over the next sixty days.
The Legal Center has been participating in this case since June 2005, when it filed an amici memorandum on behalf of the sponsors of the Bipartisan Campaign Reform Act of 2002 - Sens. John McCain (R-AZ) and Russ Feingold (D-WI) and Reps. Christopher Shays (R-CT) and Marty Meehan (D-MA) - as well as Democracy 21, the Center for Responsive Politics, and the Legal Center. EMILY's list has challenged an FEC "allocation rule" that requires organizations such as EMILY's List, which maintain both federal and nonfederal political committees, to spend at least 50 percent federal hard money on political activities that affect both federal and non-federal elections. The allocation rule was designed to guarantee that when 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 district court denied EMILY's List's motion for preliminary injunction in 2005 and that decision was upheld on appeal. Meanwhile, the parties moved for summary judgment and now seek to supplement their filings with further briefing.
This week, reform groups sent a letter to House members, urging Representatives to oppose an amendment that Representative Mike Pence (R-IN) planned to offer to the pending Commerce and Justice, and Science, and Related Agencies Appropriations bill to prohibit funds in the bill from being used to enforce BCRA's "electioneering communications" provisions.
The letter states, "The 'electioneering communications' provisions in BCRA were upheld as constitutional by the Supreme Court on a facial basis in McConnell v. FEC, in 2003, when the Court concluded the law was not substantially overbroad. The recent decision in Wisconsin Right to Life v. FEC did not overrule McConnell and did not strike down the 'electioneering communications' provisions but rather said they were unconstitutional as applied to certain ads.
The reform groups include the Campaign Legal Center, Common Cause, Democracy 21, Public Citizen and U.S. PIRG.
The Pence amendment passed narrowly by a vote of 215-205. Campaign Legal Center Policy Director Meredith McGehee, issued a statement criticizing the amendment and the disinformation campaign that led to its passage. In particular, McGehee called out freshman members who voted for the amendment and those who have flip-flopped on reform since their original support of BCRA in 2002.
On Friday July 27, Paul S. Ryan and David Vance, Directors of the FEC Program and Communications and Research respectively, spoke to a group of graduate students from Northwestern University's Medill School of Journalism. As part of their program, the students cover Congress and the federal government for a variety of publications and broadcast outlets nationwide. Ryan and Vance addressed the history of campaign finance law, its applications for today's candidates and various resources reporters can utilize in covering elections and Congress.
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: " Vote Caging and the Attorney General ," or to sign up for the blog, click here .
To read a variety of this week's editorials and articles on a variety of Campaign Legal Center issues, please click here.
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