In a letter sent today to members of Congress, Campaign Legal Center President Trevor Potter and Democracy 21 President Fred Wertheimer informed Senators and Representatives that it would be a violation of law for a Member to solicit unlimited contributions for a Super PAC.

Noting that Members may be approached to make such solicitations for a Super PAC, the letter stated:

Democracy 21 and the Campaign Legal Center are writing to inform you that in our view any federal officeholder or candidate who solicits unlimited contributions for an independent-spending Super PAC is violating the federal law that prohibits federal officeholders and candidates from soliciting unlimited contributions in connection with a federal election.  

The ban on soft money enacted in 2002 prohibits federal officeholders and candidates from soliciting or directing any funds in connection with a federal election “unless the funds are subject to the limitations, prohibitions and reporting requirements” of the law. This solicitation prohibition has been upheld by the Supreme Court.

Soliciting unlimited contributions for a Super PAC would violate this prohibition.

According to the letter:

This issue arose recently when three members of the RNC formed “Republican Super PAC” (RSPAC) to make independent expenditures in federal elections. RSPAC announced plans to have federal officeholders and candidates solicit unlimited contributions for the PAC.

A RSPAC founder, furthermore, said that the federal officeholders and candidates who solicit such unlimited contributions for RSPAC will be able to earmark those funds to be spent by the PAC to support the election of the federal officeholder or candidate soliciting the funds.

This scheme for federal candidates and officeholders to solicit unlimited contributions is plainly illegal under federal campaign finance law, regardless of whether the funds are earmarked to be spent for the election of the officeholder or candidate soliciting the money.

The letter continued:

The argument that officeholders and candidates can solicit unlimited contributions for Super PACs is in direct conflict with the language and purpose of the federal statutory prohibition on officeholders and candidates soliciting unlimited contributions.

This argument would lead to an absurd and obviously corrupting result that a President or member of Congress could solicit a $5 million donation for a Super PAC with the understanding that the PAC will spend the money on “independent” expenditures to benefit that particular federal officeholder or candidate.

As a practical matter, this kind of solicitation is just as corrupting and creates just as much an appearance of corruption as if the officeholder or candidate was soliciting and receiving a $5 million donation for his or her own campaign committee.

Federal law prohibits candidates from accepting any corporate or labor union contributions for their campaigns and limits individual contributions to $2,500 per donor per election.

The letter also pointed out:

One of the founders of RSPAC has misleadingly argued that officeholders and candidates can solicit unlimited contributions for a Super PAC because the federal ban on coordination between candidates and independent groups applies only to spending, not to fundraising.  

But, in fact, the coordination provision is not the provision that is applicable here. It is the ban on solicitation of unlimited contributions, not the coordination restriction, which prohibits you and every other federal officeholder from raising unlimited contributions for a Super PAC.

The letter stated:

On May 19, 2009, Majority PAC and House Majority PAC, two Super PACs established to make independent expenditures in support of Senate and House Democratic candidates, submitted an Advisory Opinion request to the FEC.  

In the request the pro-Democratic PACs asked the FEC for an advisory opinion on whether it would in fact be legal for federal officeholders and candidates to raise unlimited contributions for their Super PACS.  The Advisory Opinion request also states that “if the Commission does not find that such solicitations violate 2 U.S.C. Section 441i, the PACs plan to ask covered officials to make such solicitations on their behalf.”

According to the letter:

Supporters of the Super PAC solicitation scheme argue that the scheme is allowed by the decision of the D.C. Circuit Court of Appeals in Speech Now v. FEC, which permits PACs making only independent expenditures to raise funds not subject to contribution limits.

However, even though it is permissible under the SpeechNow ruling for a Super PAC to raise unlimited funds, it is not permissible for federal officeholders and candidates to solicit such funds.

We believe the only possible correct result in the FEC Advisory Opinion Request is for the Commission to hold that the solicitation of unlimited contributions by federal officeholders and candidates is prohibited by law.

The letter further stated:

The statute prohibiting federal officeholders and candidates from soliciting unlimited funds was upheld by the Supreme Court in McConnell v. FEC (2003) and there is nothing in subsequent court decisions, including the Citizens Uniteddecision, which undermines the McConnell decision on this issue.

...

The court in SpeechNow did not consider and certainly did not authorize federal candidates and officeholders to solicit unlimited contributions for a PAC making independent expenditures in federal elections. There is nothing in the court’s opinion to suggest that such solicitations are legal.

The letter concluded:

In summary, any federal officeholder or candidate who solicits unlimited contributions for the Republican Super PAC, Majority PAC, House Majority PAC or any other Super PAC would be violating the law.

We expect that our organizations, and others, will take all steps available to ensure the law is enforced.

The full text of the letter follows below.

May 25, 2011

Dear Senator (Representative),

Given recent press reports, you as a Member of Congress may be approached to solicit contributions for a so-called Super PAC, which is an entity that may receive unlimited contributions (including corporate and labor union contributions) and makes only independent expenditures in federal elections. Both Republican and Democratic organizations have expressed an interest in having members of Congress make such solicitations.

Democracy 21 and the Campaign Legal Center are writing to inform you that in our view any federal officeholder or candidate who solicits unlimited contributions for an independent-spending Super PAC is violating the federal law that prohibits federal officeholders and candidates from soliciting unlimited contributions in connection with a federal election.  

The ban on soft money enacted in 2002 prohibits federal officeholders and candidates from soliciting or directing any funds in connection with a federal election “unless the funds are subject to the limitations, prohibitions and reporting requirements” of the law. This solicitation prohibition has been upheld by the Supreme Court.

Soliciting unlimited contributions for a Super PAC would violate this prohibition.

This issue arose recently when three members of the RNC formed “Republican Super PAC” (RSPAC) to make independent expenditures in federal elections. RSPAC announced plans to have federal officeholders and candidates solicit unlimited contributions for the PAC.

A RSPAC founder, furthermore, said that the federal officeholders and candidates who solicit such unlimited contributions for RSPAC will be able to earmark those funds to be spent by the PAC to support the election of the federal officeholder or candidate soliciting the funds.

This scheme for federal candidates and officeholders to solicit unlimited contributions is plainly illegal under federal campaign finance law, regardless of whether the funds are earmarked to be spent for the election of the officeholder or candidate soliciting the money.

The argument that officeholders and candidates can solicit unlimited contributions for Super PACs is in direct conflict with the language and purpose of the federal statutory prohibition on officeholders and candidates soliciting unlimited contributions.

This argument would lead to an absurd and obviously corrupting result that a President or member of Congress could solicit a $5 million donation for a Super PAC with the understanding that the PAC will spend the money on “independent” expenditures to benefit that particular federal officeholder or candidate.

As a practical matter, this kind of solicitation is just as corrupting and creates just as much an appearance of corruption as if the officeholder or candidate was soliciting and receiving a $5 million donation for his or her own campaign committee.

Federal law prohibits candidates from accepting any corporate or labor union contributions for their campaigns and limits individual contributions to $2,500 per donor per election.

One of the founders of RSPAC has misleadingly argued that officeholders and candidates can solicit unlimited contributions for a Super PAC because the federal ban on coordination between candidates and independent groups applies only to spending, not to fundraising.  

But, in fact, the coordination provision is not the provision that is applicable here. It is the ban on solicitation of unlimited contributions, not the coordination restriction, which prohibits you and every other federal officeholder from raising unlimited contributions for a Super PAC.

On May 19, 2009, Majority PAC and House Majority PAC, two Super PACs established to make independent expenditures in support of Senate and House Democratic candidates, submitted an Advisory Opinion request to the FEC.  

In the request the pro-Democratic PACs asked the FEC for an advisory opinion on whether it would in fact be legal for federal officeholders and candidates to raise unlimited contributions for their Super PACS.  The Advisory Opinion request also states that “if the Commission does not find that such solicitations violate 2 U.S.C. Section 441i, the PACs plan to ask covered officials to make such solicitations on their behalf.”

Supporters of the Super PAC solicitation scheme argue that the scheme is allowed by the decision of the D.C. Circuit Court of Appeals in Speech Now v. FEC, which permits PACs making only independent expenditures to raise funds not subject to contribution limits.

However, even though it is permissible under the SpeechNow ruling for a Super PAC to raise unlimited funds, it is not permissible for federal officeholders and candidates to solicit such funds.

We believe the only possible correct result in the FEC Advisory Opinion Request is for the Commission to hold that the solicitation of unlimited contributions by federal officeholders and candidates is prohibited by law.

The statute prohibiting federal officeholders and candidates from soliciting unlimited funds was upheld by the Supreme Court in McConnell v. FEC (2003) and there is nothing in subsequent court decisions, including the Citizens Uniteddecision, which undermines the McConnell decision on this issue.  

The solicitation prohibition was not challenged or litigated in SpeechNow. Indeed, the group SpeechNow made clear in litigating the question of whether it could raise unlimited contributions that it would operate wholly independently of federal candidates, officeholders and political party committees.  

The court in SpeechNow did not consider and certainly did not authorize federal candidates and officeholders to solicit unlimited contributions for a PAC making independent expenditures in federal elections. There is nothing in the court’s opinion to suggest that such solicitations are legal.

In the McConnell case, Justice Anthony Kennedy, who otherwise dissented inMcConnell, said in defending the solicitation ban that it was the one provision that “satisfies Buckley’s anticorruption rationale and the First Amendment guarantee.”  Justice Kennedy explained:

The making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the payment (by granting his request).  Rules governing candidates’ or officeholders’ solicitation of contributions are, therefore, regulations governing their receipt of quids. This regulation fits under Buckley’s anticorruption rationale.”

In summary, any federal officeholder or candidate who solicits unlimited contributions for the Republican Super PAC, Majority PAC, House Majority PAC or any other Super PAC would be violating the law.

We expect that our organizations, and others, will take all steps available to ensure the law is enforced.

Trevor Potter                                         Fred Wertheimer

/s/ Trevor Potter                                     /s/ Fred Wertheimer

President, Campaign Legal Center          President, Democracy 21

Coming on the heels of an announcement by James Bopp, a member of the Republican National Committee, that he is establishing a new Republican Super Pac and will be asking party officials and candidates to solicit for it, comes the news that two Democratic Super PACs have filed an Advisory Opinion Request with the FEC seeking confirmation that such solicitations are permissible.  The FEC should do its duty and make very clear that candidate and party solicitations of unlimited amounts of individual funds, and solicitations of corporate and labor funds in any amount, constitute a violation of federal law (specifically of the Bipartisan Campaign Reform Act) .

While some credit should be given to the Democratic groups for seeking an advisory opinion from the FEC, the request itself is every bit as outrageous as the plan that came to light earlier this week from Bopp’s group that publicly stated that an advisory opinion was neither needed nor wanted.  However, now that the FEC has formally been asked for its opinion, it has no legal option but to clearly and forcefully advise that the proposed solicitations by federal candidates and party officials of unlimited individual funds and corporate and union contributions would be completely illegal.

There has been some speculation that the two political parties expect a three-three tie on this issue at the FEC, thereby resulting in a deadlock and a statutory inability to render any formal opinion.  Relying on an FEC deadlock would be a fatal mistake for federal officeholders and parties: such a tie means the FEC has been unable to render advice, and ONLY an FEC Advisory opinion approved by a majority of the Commission can be used as a legal “shield” against charges of violations of federal election law. Accordingly, covered officials violating the law by soliciting soft money would find than an FEC deadlock provided no cover at all; in the past, the FEC has been required by court order to proceed with enforcement action after a 3-3 tie in an Advisory Opinion.

To see a point-by-point breakdown of the myriad violations of the law proposed by both the Democratic and Republican Super PACs, see the statement of May 17, 2011 concerning the formation of the “Republican Super PAC” by members of the Republican National Committee, click here.

Statement of Trevor Potter, President of Campaign Legal Center and former FEC Chairman and Fred Wertheimer, President of Democracy 21

Recent press reports have revealed the formation of a new "Republican Super PAC" whose planned operations would appear to violate multiple federal campaign finance laws because of the involvement of members of the RNC in establishing and controlling the PAC and because of the planned use of federal officeholders and candidates to solicit unlimited contributions for the PAC.  Such solicitations by federal officeholders and candidates are explicitly prohibited by provisions of the Bipartisan Campaign Reform Act that have been upheld by the Supreme Court.

According to recent press reports, three members of the Republican National Committee - Indiana RNC Committeeman James Bopp Jr, Oregon RNC Committeeman Solomon Yue and Louisiana State party Chairman Roger Villere - have established a new political committee called “Republican Super PAC.”

They have indicated that the purpose of this PAC is to make independent expenditures in federal elections and that it will use funds solicited in unlimited amounts by, among others, federal candidates who will benefit from those expenditures.  

In our view, the proposed efforts of this RNC “shadow group” would violate multiple provisions of the federal campaign finance laws.  

First, this constitutes an illegal scheme to violate the ban on the raising or spending of soft money by national party committees. Second, the proposed activities would violate the ban on federal officeholders soliciting unlimited soft money donations in connection with a federal election.  Each of these bans has been upheld by the Supreme Court, and neither of them was affected by the Court’s decision in Citizens United.

Indeed, in RNC v. FEC, Mr. Bopp failed in his attempt to overturn the decision inMcConnell v. FEC, which upheld the constitutionality of  both the ban on political party soft money and the ban on federal officeholders and candidates soliciting unlimited contributions.  

Mr. Bopp urged a three-judge lower court to declare provisions of the soft money ban unconstitutional but the lower court unanimously rejected the argument and the Supreme Court last year summarily affirmed the lower court decision. The party soft money ban remains the law.

Mr. Bopp is now apparently attempting to ignore the statutory ban on political party soft money and to overturn by fiat the Supreme Court decision.

The soft money ban prohibits the RNC “or any officer or agent acting on behalf of ” the RNC or “any entity that is directly or indirectly established, financed, maintained or controlled” by the RNC from soliciting, receiving, spending or directing to another person any contributions that are not subject to the limitations, prohibitions and reporting requirements of the law.

The “Republican Super PAC” has been set up by three members of the RNC, including Mr. Bopp, who is, according to press reports, unveiling the scheme in a presentation to all RNC members tomorrow. 

Press reports also indicate that party officials and agents will raise funds for the “Republican Super PAC,” in unlimited amounts.  According to an article inPOLITICO:

“We are not going to do any fundraising,” Bopp told POLITICO. “We are harnessing the fundraising operations of those entities, the RNC and all the state parties and federal candidates, who will be raising money first for themselves and then they would tell their donors, if they have extra money, to send it to the Republican Super PAC.”

Given these circumstances, this PAC is exactly the type of group that is described by the law as an entity “that is directly or indirectly established, financed, maintained or controlled” by a national party committee and that is a group controlled by “agents” of the RNC who are acting on behalf of the RNC.

As such, the soft money ban applies directly to “Republican Super PAC” and the PAC is subject to the contribution limits that apply to national party committees. It would be illegal for the PAC to accept, or for any agent of the national party to solicit, a contribution in excess of the limits that apply to contributions that can be accepted by the national parties.

RNC Chairman Reince Priebus should be on notice that it would be a violation of law for the RNC and “Republican Super PAC” to solicit or receive any corporate or labor union contributions, and a violation of the law for the RNC and "Republican SuperPac" to solicit or receive contributions from an individual that in the aggregate exceed $30,800 per year.

Mr. Bopp has also said that he intends to have federal candidates solicit unlimited funds for “Republican Super PAC.”

Every member of Congress and every federal candidate should be on notice that it would be a violation of the law for them to solicit unlimited contributions for “Republican Super PAC” or for any other Super PAC.

According to press reports, “Republican Super PAC” is taking the position that it is intending to make only “independent” expenditures, and therefore can accept contributions that are not subject to any limitations. (The DC Circuit Court of Appeals held in SpeechNow v. FEC that contributions to an independent expenditure-only PAC are not subject to contribution limits).  

The federal campaign finance law prohibits federal officeholders and candidates from soliciting or directing any funds in connection with a federal election “unless the funds are subject to the limitations, prohibitions and reporting requirements” of the law.  

If “Republican Super PAC” raises unlimited contributions under SpeechNow, it will be raising funds that are not “subject to the limitations” of the federal law.  

Even if it is permissible for “Republican Super PAC” to accept such unlimited funds, it is not permissible for federal candidates and officeholders to solicit such funds as they are not “subject to the limitations” of the federal law.

Any contrary view would lead to the absurd and obviously corrupting result that an incumbent federal officeholder can solicit a $1 million or $5 million donation to “Republican Super PAC” with the understanding that the PAC will then spend the money on “independent” expenditures to benefit that officeholder.

The D.C. Circuit in the SpeechNow case found that a PAC which makes only independent expenditures can accept unlimited contributions on the grounds that such contributions do not pose any threat of corruption. SpeechNow, however, said it operated wholly independently of candidates and parties, and the court did not consider a situation where the contributions raised by the PAC are to be solicited by federal candidates. There is nothing in the court’s opinion to suggest that it would permit solicitations of unlimited amounts by federal candidates.

Federal law prohibits federal candidates and officeholders from soliciting funds that are not subject to any contribution limit.  That provision was upheld by the Supreme Court in the McConnell case and even Justice Kennedy - who otherwise dissented in that case, and who subsequently authored the Citizens Uniteddecision-  said this solicitation ban was the one provision that “satisfies Buckley’santicorruption rationale and the First Amendment guarantee.”  

As Justice Kennedy wrote, “The making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the payment (by granting his request).  Rules governing candidates’ or officeholders’ solicitation of contributions are, therefore, regulations governing their receipt of quids. This regulation fits under Buckley’s anticorruption rationale.”

Any federal candidate or officeholder who solicits unlimited contributions to the “Republican Super PAC” or any other super PAC will be violating federal law.

Today, in a 2-1 opinion, the Eighth Circuit Court of Appeals affirmed that Minnesota Citizens Concerned for Life (MCCL) was unlikely to prevail in its challenge to Minnesota’s comprehensive disclosure requirements for independent expenditures and the state restriction on direct corporate contributions to state candidates and political parties.

“This is good news for Minnesota and for the health of campaign finance law in the post-Citizens United era,” Legal Center Associate Legal Counsel Tara Malloy stated.  “The Minnesota case is but one of the dozens of legal challenges to campaign finance laws that were filed in a wave of litigation from coast to coast following the High Court’s Citizens United decision.  In light of the many pending challenges, we are pleased that the Eighth Circuit has joined the Ninth Circuit and many lower courts in the last year to hold that strong disclosure laws for independent expenditures are constitutional.”

In September 2010, the district court in MCCL v. Swanson denied the plaintiffs’ motion for a preliminary injunction, and plaintiffs appealed this decision in to the Eighth Circuit.  In their challenge, the plaintiffs rely on the Supreme Court’s decision in Citizens United to attack Minnesota’s restriction on corporate contributions and its state disclosure requirements.

The Eighth Circuit, however, rejected plaintiffs’ argument that Citizens United cast doubt on the constitutionality of restrictions on corporate contributions and the continuing validity of the Supreme Court’s 2003 Beaumont v. FEC decision.  Further, the Court of Appeals also rejected the contention that Minnesota’s disclosure law was a “functional ban on corporate independent expenditures,” noting that the law in no way prevented corporations from using their treasury funds for independent expenditures, but rather simply required some measure of transparency in connection to such spending.

On December 22, 2010, the Campaign Legal Center, along with Democracy 21, filed an amici brief with the Eighth Circuit.  To read the brief filed by the Campaign Legal Center and Democracy 21, click here.

To read today’s opinion, click here.

On Wednesday, May 4, 2011 groups representing more than 30 organizations held a press conference on Capitol Hill in support of a draft White House executive order to require disclosure of secret political spending by government contractors.  The organizations urged President Obama to promptly sign the executive order and unveiled a citizens’ petition and letter to be delivered to the White House.

The press conference addressed the vast amount of disinformation leveled at the draft executive order since it was leaked last month to opponents of the executive order. 

Associate Legal Counsel Tara Malloy provided remarks on behalf of the Campaign Legal Center at this event.  She highlighted the history of secret money spent to influence the election of candidates in our democracy and noted that, "Unsurprisingly, the U.S. Supreme Court has shown very little tolerance for the argument that the First Amendment requires that campaign contributions and expenditures remain anonymous.  Nevertheless, opponents of President Obama’s April 13th draft executive order, apparently lacking any objections to the order on its merits, have resorted to attacking its constitutionality.  But they conveniently disregard the Supreme Court’s longstanding and consistent support for campaign finance disclosure both as a means to combat political corruption and to ensure a well-informed electorate."

Click here to view her full remarks.