Legal Center Opposes Soft Money End-Around Request at FEC

The Campaign Legal Center, together with Democracy 21, filed comments yesterday with the Federal Election Commission (FEC) in regard to an advisory opinion request (AOR 2010-7) submitted on behalf of "Yes on FAIR." The California political committee is seeking the Commission's opinion as to whether "Members of Congress may solicit funds for Yes on FAIR outside the limits and source restrictions prescribed by the Federal Election Campaign Act ("FECA") [ i.e., soft money]."

As recognized by Yes on FAIR, the question of whether federal candidates and officeholders may solicit soft money for state ballot measure committees has been posed to the Commission in at least three advisory opinion requests since the enactment of the Bipartisan Campaign Reform Act of 2002 ("BCRA")—"each yielding a different outcome." We agree with Yes on FAIR that the "result has been confusion in the law" and that the "time has long since passed" for the Commission to answer this question definitively. However, we disagree in the strongest possible terms with Yes on FAIR regarding what the definitive answer should be under the controlling law.

We urge the Commission to make clear that FECA, as amended by BCRA, along with existing Commission regulations, require the Commission to advise Yes on FAIR that Members of Congress may not "solicit funds for Yes on FAIR outside the limits and source restrictions" prescribed by FECA.

Despite the Yes on FAIR's best efforts to complicate the matter—and the Commission's indecisiveness in past advisory opinion proceedings—the appropriate legal analysis is simple. The Commission needs to answer only two straightforward questions:

* Are Members of Congress within the class of persons restricted by the soft money solicitation prohibition of BCRA— i.e. , are Members of Congress federal candidates, federal officeholders, or agents of federal candidates or officeholders?

* If so, is the proposed activity covered by the soft money solicitation prohibition of BCRA— i.e. , are the funds being solicited or directed in connection with an "election"?

The answer to the first question is yes. Obviously, Members of Congress are federal officeholders and many are likewise federal candidates and thus are clearly subject to the soft money prohibition of BCRA.

The answer to the second question is also yes. The activity proposed by Yes on FAIR—to have Members of Congress soliciting funds for an initiative committee whose activities relate to a ballot proposition that will appear on the same ballot that Members of Congress will appear as candidates for federal office—is not only solicitation in connection with "an election," but in connection with an "election for Federal office" where federal candidates are on the ballot and stand to benefit from the soft money expenditures that the initiative committee makes.

Because both questions above should be answered in the affirmative, BCRA prohibits Members of Congress from soliciting soft money for Yes on FAIR.

The Commission should be clear as to what is at stake in this AOR. Yes on FAIR seeks permission to have Members of Congress solicit soft money funds for the ballot measure committee to spend on activities that—according to empirical studies as well as common sense—will shape the electoral environment in which the federal candidates themselves are running for office: Yes on FAIR will motivate voters, they will seek to register voters, and they will turn out voters to the polls, all of whom will then vote in the federal candidates' elections as well.

We strongly urge the Commission to advise Yes on FAIR that solicitation of funds for it by Members of Congress in connection with the November 2010 California general election must comply with FECA amount limitations, source prohibitions and reporting requirements as required by BCRA.

To read the comments, click here.