Jul 18, 2003 -- LEGAL CENTER WEEKLY REPORT July 18, 2003

FEC Limits Federal Officeholder Involvement

In State Ballot Measures

After failing to reach consensus when the matter was first considered a week ago, the FEC this week decided that organizations promoting state ballot measures are subject to federal "hard-money" contribution limits if they are "established, maintained or controlled" by a Federal candidate or officeholder.

The Advisory Opinion (2003-12) was issued in response to a request from U.S . Rep. Jeff Flake (R-AZ) and the Stop Taxpayer Money for Politicians committee ("STMP"). Representative Flake founded - and seeks to control - STMP, whose main purpose is to promote an Arizona ballot initiative for 2004. Because Flake had previously indicated that he might also seek a seat in the U.S. Senate in 2004, he sought clarification on whether his ties to STMP prevented it from raising and spending "soft money" - unregulated donations from corporations, labor unions and wealthy individuals - to promote the initiative .

The Commission, 5-1, held that because the STMP was "established, maintained, or controlled" by Flake, it can receive no greater than a $5,000 contribution from any one source - the same requirement governing all other candidate-controlled committees. The Commission also ruled that some of STMP's voter mobilization activities must comply with the source prohibitions that govern candidate-related expenditures. It did, however, state that Flake can solicit contributions for STMP. Commissioner David Mason provided the lone dissenting vote.

The commissioners declined to address whether Flake's direct ties with STMP would result in findings of "coordination" between STMP and Flake's principal campaign committee. More specific facts about particular allegedly coordinated communications would be necessary to answer that question, the Commissioners said.

Also, the Commission suggested that even ballot committees that are not "established, maintained, or controlled" by an officeholder would be subject to some limits on the fund-raising activity of a federal candidate. But according to amendments offered at the last hour by Commissioner Michael Toner, the limits would only begin to apply after the ballot measure or initiative was "qualified" for the ballot.

The Commission emphasized that the AO was a compromise between commissioners with divergent views. Chair Ellen Weintraub expressed concern that the AO could open up a new loophole to the soft money prohibition recently enacted in the Bipartisan Campaign Reform Act. Weintraub argued for a harder position that would have made STMP subject to joint contribution limits with Flake's principal campaign committee .

Commissioner Mason, urging a more permissive approach, asserted that the STMP was completely out of the reach of hard money limits. He stated that given Flake's ties to the committee, he saw "the connection" between STMP's ballot-related activities and Flake's own efforts to win federal office. But that connection alone, Mason added, was not enough to make the committee subject to federal campaign finance laws.

To view Rep. Flake's AO request and the Legal Center 's comments on the matter, please click here.

A final version of the Flake AO is not yet available.

Parties Offer Proposals to Divide Four-Hour Argument in McConnell v. FEC

The parties in McConnell v. FEC filed proposals this week for dividing up the unusually long four-hour oral argument to take place at the U.S. Supreme Court on the morning of September 8, 2003.

Two hours will be accorded to the parties who oppose the Reform Act, and two hours will go to the Act's defenders. Because there are more than 70 plaintiffs divided into several groups, however, and two sets of defendants, the proposals are intended to provide the Court with guidance on how to divide each side's time among different parties with different - sometimes opposite - interests and issues.

The proposals may be found here.

Campaign Legal Center Launches Media Program

The Legal Center is launching a new Media Program to be directed by Amy Wolverton, an attorney specializing in the field of communications legal policy.

The Legal Center 's program will seek to shape political broadcasting policy by promoting awareness and enforcement of political broadcasting laws through rulemaking proceedings, congressional action, and public education.

Specifically, the Media Program will be active in:

• Participating in administrative actions and rulemakings regarding broadcasters' public interest obligations;

• Educating federal candidates on their broadcasting rights and serving as a resource on Federal communications law issues during campaigns;

• Representing the public interest in formal and informal actions against broadcasters for failure to adequately supply publicly-disclosed information when requested or meet other political broadcasting requirements, and

• Seeking to improve the political process by educating the public on media law issues.

Ms. Wolverton will serve as an associate legal counsel and director of the program. Previously, she was an attorney and fellow for the Citizens Communications Project at the Institute for Public Representation, one of Georgetown University Law Center 's legal clinics, representing major consumer and civil rights organizations in litigation and administrative actions before the Federal Communications Commission. In addition to teaching and supervising clinic law students, she worked to develop and manage advocacy strategies on federal legal and policy issues, including cable broadband, media ownership, Internet jurisdiction and access, public broadcasting, and equal employment opportunities.

Prior to her work at the Institute, Ms. Wolverton was in-house counsel for Cox Communications, Inc. and an associate at the firm of Alston & Bird in Atlanta doing general corporate, First Amendment and environmental litigation and negotiation.

Ms. Wolverton is a co-chair of the Federal Communications Bar Association's On-line Practice Committee, and, as a past board member, she remains actively involved in Women in Cable and Telecommunications, a professional association.

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