Legality of Proposed Soft Money Activities by RNC Shadow Group Challenged by Campaign Legal Center and Democracy 21


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.