FEC Surprises by Denying Request for Unlimited Candidate Solicitations for “Super PACs” in Unanimous Vote


The Federal Election Commission today voted unanimously to deny an advisory opinion request by Majority PAC and House Majority PAC seeking permission for federal officeholders and candidates to solicit unlimited contributions from individuals, corporations and unions for federal “Super PACs.”  While officeholders and candidates will be allowed to make solicitations for funds complying with the existing federal contribution limits and prohibitions, as some are already doing, the Commission, in keeping with comments filed by the Legal Center, declined to open yet another loophole in the law by allowing what would amount to illegal “soft money” solicitations.  

“Refreshingly, the FEC came to a consensus when asked for its opinion on the permissibility of some clearly illegal practices,” said Associate Legal Counsel Tara Malloy.  “Solicitations of unlimited corporate, labor and individual funds by federal candidates and officeholders are expressly prohibited by McCain-Feingold, and no court has questioned, much less overturned, those provisions.” 

On May 19, 2011, Majority PAC and House Majority PAC, two Super PACs aligned with the Democratic Party, requested an advisory opinion on whether federal officeholders and candidates, and national party officials could legally solicit unlimited contributions from corporations, labor unions and individuals on behalf of the PACs.  This advisory opinion request came in the wake of an announcement by Republican National Committeeman James Bopp that his committee, Republican Super PAC (RSPAC), will ask federal officeholders, candidates and party officials to solicit unlimited contributions for RSPAC, and that it will earmark the funds raised by any Republican candidate for RSPAC for that candidate’s election.

These types of unrestricted solicitations by federal officeholders and candidates are explicitly prohibited by provisions of the Bipartisan Campaign Reform Act (BCRA) that have been upheld by the Supreme Court.  BCRA provides that a “candidate or an individual holding Federal office . . . shall not . . . solicit . . . funds in connection with an election for Federal office . . . unless the funds are subject to the limitations, prohibitions, and reporting requirements” of the federal campaign finance law.  Otherwise put, a federal officeholder or candidate is barred from soliciting unlimited contributions or funds from prohibited sources, such as corporations and unions, and may solicit contributions for a federal PAC only within the applicable federal contribution limits and source prohibitions.  These provisions were upheld by the Supreme Court in its 2003 decision in McConnell v. FEC.

“The two decisions out of the FEC today largely followed the letter and spirit of the laws on the books.” said Ms. Malloy.  “Unfortunately this has happened with decreasing frequency since the current Commission was seated and deadlocks have become all too common on important issues.  We hope that strong – and even unanimous – enforcement of the federal campaign finance laws continues in the future.”

On June 6, 2011, the Campaign Legal Center and Democracy 21 submitted comments to the FEC outlining that it is illegal for federal officeholders and candidates to solicit unlimited contributions for Super PACs.  To read the full comments, click here.