Legal Center Files and Testifies on 3 Matters Before the FEC Relating to Coordination, Soft Money & Non-Federal Fundraising Events

This week the Campaign Legal Center offered testimony and submitted comments in three matters before the Federal Election Commission (FEC).  The Legal Center filed comments opposing an advisory opinion request by the National Democratic Redistricting Trust to allow Members of Congress to solicit unlimited soft money contributions for redistricting activities, submitted supplemental comments in a rulemaking on coordination between candidates and outside groups, and testified at an FEC rulemaking hearing regarding the participation of federal candidates and officeholders in nonfederal fundraising events.

 More detailed summaries, including links to the filings themselves follow. 

 CLC Files Comments with FEC in “National Democratic Redistricting Trust” Matter

On March, 15, the Campaign Legal Center, together with Democracy 21, filed comments with the FEC in regard to the Advisory Opinion Request (AOR 2010-03) submitted by the National Democratic Redistricting Trust seeking the Commission’s opinion as to whether “Members of Congress may solicit funds for the Trust outside the limits and source restrictions prescribed by” federal campaign finance laws to pay attorneys fees and other costs associated with the legislative redistricting process that will follow the 2010 census.

The Legal Center urged the FEC to advise that federal law prohibits federal candidates and officeholders from soliciting nonfederal funds (i.e., soft money) in connection with any election—and that redistricting is most certainly connected to elections.  The Legal Center pointed out that both the FEC and the Democratic National Committee correctly argued in their briefs filed recently in Republican National Committee v. FEC—a lawsuit by the RNC challenging the federal law ban on parties raising soft money for redistricting and other purposes—that redistricting activities occur “in connection with elections.”  For the FEC to decide otherwise in this advisory opinion proceeding, we argue, would be inconsistent with, and severely undermine, the FEC’s current position before the court in theRNC case.

 [Executive Director J. Gerald Hebert took no part in the Legal Center’s consideration of this matter.]

To read the comments on AOR 2010-03, click here.

CLC Files Supplemental Comments with FEC Following “Coordination” Rulemaking Hearing

On March 15, the Campaign Legal Center, together with Democracy 21, filed supplemental comments with the FEC in response to questions posed by Commissioner McGahn to Paul S. Ryan of the Campaign Legal Center at the Commission’s March 3 rulemaking hearing regarding coordinated communications under 11 C.F.R. § 109.21.  Commissioner McGahn posed a series of hypothetical scenarios to Ryan at the hearing.  The CLC’s comments filed this week explain why the various hypotheticals would not fall within the “coordination” rule advocated by the CLC (employing the so-called PASO standard).

The Legal Center further suggested in its supplemental comments that, in addition to crafting clever hypotheticals that seek to probe the outer limits of the proposed PASO coordination rules, the FEC should actually consider real life ads that fall squarely within the heartland of the PASO test.  The FEC should be asking whether such ads should be excluded from the coordination rule outside the pre-election time frames, and whether, consequently, candidates should be permitted to freely coordinate with outside spenders on the content and airing of such ads that overtly promote a candidate’s campaign.  This is a real question—not a hypothetical—which the Commission completely ignored at its March 3 hearing.  Many witnesses were advocating the adoption of a much narrower “express advocacy” standard—and none of those witnesses were subjected by Commissioner McGahn or any other Commissioner to questions about such real-life PASO ads, more than a hundred examples of which were submitted to the FEC by the Legal Center in its last “coordination” rulemaking.  We urge the Commission to consider the impact of its proposed rules on such real-life ads before it adopts a final rule.

To read the supplemental comments on NPRM 2009-23, click here.

CLC Attorney Testifies at FEC Rulemaking Hearing on Participation by Federal Officeholders at Non-Federal Fundraising Events

On March 16, the CLC’s FEC Program Director Paul S. Ryan testified at the FEC’s rulemaking hearing on proposed revisions to its regulations regarding participation by federal candidates and officeholders at nonfederal fundraising events under 11 C.F.R. § 300.64.  The FEC was required by the D.C. Circuit Court’s decision in Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008) (“Shays III”), to repeal its regulation allowing federal candidates and officeholders to speak “without restriction” (e.g., solicit soft money) at state, district and local party fundraising events.

The Bipartisan Campaign Reform Act of 2002 (“BCRA”) provides that federal candidates and officeholders may not “solicit, receive, direct, transfer or spend” funds unless the funds comply with the amount limitations and source prohibitions of the Federal Election Campaign Act.  Notwithstanding this restriction, BCRA also states that federal candidates and officeholders are permitted to “attend, speak, or be a featured guest at a fundraising event for a State, district, or local committee of a political party.”  Despite clear congressional intent to prohibit—and clear statutory language prohibiting—federal candidate and federal officeholder soft money fundraising in connection with state and local elections, the FEC in its 2002 rulemaking to implement these provisions concluded that federal candidates and officeholders were permitted to attend, speak, and appear as featured guests at State, district, and local party committee fundraising events “without restriction or regulation.”

 This rule was challenged and invalidated by the D.C. Circuit in Shays III.  In its rulemaking to comply with the Shays III decision, the FEC is considering three alternative approaches.  One would simply repeal the invalidated regulatory language, while the other two would elaborate on how federal candidates and officeholders may participate in nonfederal fundraisers and in pre-event publicity without violating the soft money solicitation ban.  The CLC endorsed simply removing the invalidated language from the FEC’s rules as the simplest, most straightforward means of complying with the Shays III decision, but did not oppose the Commission’s adoption of either of the other two alternatives.  All three alternatives, the CLC believes, comply with the Shays III court’s order and are permissible interpretations of the statute.