The Federal Election Commission (“Commission”) released an interesting advisory opinion request from the National Democratic Redistricting Trust (the “Trust”) seeking confirmation that Democratic Members of Congress may raise funds for the organization without running afoul of the soft money ban applicable to federal candidates and officeholders. The advisory opinion request has been identified as AOR 2010-13.
At the outset, I wish to state that this request has merit and appears to build on previous advisory opinion requests approved by the Commission. However, it appears unlikely that, given the Commission’s history, that it will approve the advisory opinion request without receiving more information from the requesters. Absent from the usual mix of FEC requests are the Trust’s organizational documents, the identity of the individuals who will administer the Trust, or the beneficiary of the Trust. It is also unclear from the request whether either of the individuals who will administer the Trust are registered federal lobbyists or foreign agents. The Commission, since BCRA went into effect, has asked for this information so it can determine whether federal officeholders and candidates may solicit funds for the Trust without running afoul of the soft money prohibition.
Such a request should not come as a surprise at this point. This is the first cycle for redistricting under BCRA. Litigation in almost every state is inevitable. Members, who have a natural interest in the redistricting process and the final shape of the maps, are seeking ways to be involved in the redistricting. Interestingly, the current House Rules are specific in allowing pro bono legal services for suits challenging federal laws, but redistricting maps are state laws.
The FEC Advisory Opinion Request
According to the request, “individuals who are not Members of Congress have established the Trust for the purpose of raising funds to spend on legal fees associated with the legislative redistricting process that follows the 2010 census.” AOR 2010-13 at 1. The request also states that the Trust will finance “litigation relating to reapportionment.” Id. at 3. Counsel represented to the Commission that the Trust is not a corporation, and that it has a “trustee who is a private citizen that is not a Member of Congress, and it has an executive director who is also a private citizen that is not a Member of Congress.” Id. at 4. The Trust will “work in concert with like-minded individuals, organizations and committees that will act for the purpose of influencing the redistricting process or elections, but will not itself fund such activities.” Id. (emphasis added).
House Legal Expense Fund Regulations
The Trust appears to be modeled after the Legal Defense Trusts provided for under the House Legal Expense Fund Regulations (“LEFR”). See House Ethics Manual (2008) at 394. The LEFR provides for the following requirements, among others, for a Legal Expense Trust:
- The Trustee shall not have any family, business or employment relationship with the trust’s beneficiary;
- Within one week of the House Ethics Committee’s approval of the trust document, the beneficiary is required to file a copy of the trust document with the Legislative Resource Center for public disclosure.
Id. at 395. While the Trust does not appear to be the type of trust subject to the LEFR, the LEFR’s disclosure requirements appear to provide some guidance concerning the type of information the Commission should request before rendering a decision in this matter.
I have no doubt that someone at the Commission will request the information listed above from the Trust so that the public record is complete.
Pro-Regulation Groups Soft Money Redistricting Organization
It will be interesting to see the reaction from the pro-regulation groups to this request. The Democrats and the pro-regulation groups are “like-minded” organizations when it comes to the issue of redistricting. The pro-regulation groups established a soft-money umbrella organization called Americans for Redistricting Reform to finance their redistricting activities. Member organizations of this soft money group include the Brennan Center, Campaign Legal Center, Common Cause, Public Citizen and other organizations that have spent untold sums of soft money advocating strict campaign finance limits for federal officeholders, candidates and political party committees. It’s also worth noting that the Brennan Center, Common Cause, and Campaign Legal Center (representing other parties as friends of the court) are opposing the Republican National Committee’s lawsuit to raise funds from the same types of sources and in the same amounts for redistricting purposes as the pro-regulation groups.
The Trust’s advisory opinion request would be a moot point if the federal court of appeals for the DC Circuit holds that the national political parties are permitted to raise funds from the same types of sources and in the same amounts as the pro-regulation, soft money, lobbying groups. It’s time to liberate the national party committees so that they may fully participate in the redistricting process.
Posted in Advisory Opinions, FEC, Redistricting.
Tagged with Advisory Opinions, FEC, Redistricting.
By William McGinley
– March 9, 2010
The U.S Treasury Department has opened a Twitter account – @USTreasuryDept. I wonder when and if the Federal Election Commission will open a twitter account?
Posted in Internet.
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By William McGinley
– March 9, 2010
The L.A. Times published an article this morning profiling the advocacy projects sponsored by the U.S. Chamber of Commerce in response the current legislative environment and the U.S. Supreme Court’s holding in Citizens United v. FEC.
Posted in Express Advocacy, FEC, Outside Groups.
Tagged with Express Advocacy, FEC, Outside Groups.
By William McGinley
– March 9, 2010
The Federal Election Commission (“FEC”) just released the draft final rules and corresponding explanation and justification implementing the D.C. Circuit’s holding in Emily’s List v. FEC. The FEC is scheduled to discuss the matter during its March 11, 2010 open meeting.
Posted in FEC, Rulemakings.
Tagged with FEC, Rulemakings.
By William McGinley
– March 8, 2010
Politico published a story discussing the increase in cyber attacks on Congress and federal government agencies.
Posted in Internet.
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By William McGinley
– March 7, 2010
The Washington Post published an article highlighting the ethics investigations pending against Congressional Democrats and discussing their possible impact on the 2010 midterm elections.
Posted in Congress, Ethics, Investigations.
Tagged with Congress, Ethics, Investigations.
By William McGinley
– March 7, 2010
The Hill published a story highlighting an iPhone application designed to permit individuals to make contributions to campaigns through their iPhone. Contrary to the statement contained in the article, corporate contributions to federal candidates are still prohibited.
Posted in Campaigns, FEC, Internet.
Tagged with Campaigns, FEC, Internet.
By William McGinley
– March 3, 2010
The Democratic Party’s largest soft money support network, the unions, announced their plans to spend more than $53 million in the 2010 midterm elections. According to the Wall Street Journal article disclosing the union strategy:
The AFL-CIO is planning its biggest political campaign ever this year, surpassing the $53 million spent in 2008 to help elect President Barack Obama
Trying to avert a Republican takeover of both the House and Senate in the November midterm elections, the labor federation is focusing on a “firewall” of six states with key congressional elections and relatively high numbers of union households: California, New York, Illinois, Nevada, Ohio and Pennsylvania.
It is anticipated that a significant portion of the funds will be used to finance independent expenditures advocating the election of specific Democratic candidates. After Citizens United, unions are permitted to sponsor independent expenditures so long as the disclaimer and disclosure requirements are satisfied.
Posted in Campaigns, Express Advocacy, FEC, Outside Groups.
Tagged with Campaigns, Express Advocacy, FEC, Outside Groups.
By William McGinley
– March 3, 2010
The New York Times published an article today discussing the issue of donor disclosure for nonprofit corporations and other organizations that may sponsor express advocacy advertisements. The U.S. Supreme Court upheld the disclaimer and disclosure requirements for express advocacy advertisements and electioneering communications in Citizens United v. FEC.
The Federal Election Commission’s coordination rules and the disclosure requirements for organizations sponsoring political advertisements are complicated issues that the federal courts will probably need to sort out at some point.
Posted in FEC, Legislation, Rulemakings.
Tagged with FEC, Legislation, Rulemakings.
By admin
– February 27, 2010
Politico recently published an article discussing the use of joint fundraising committees by federal candidates and political party committees to increase fundraising totals.
Posted in Campaigns, FEC, Party Committees.
Tagged with Campaigns, FEC, Party Committees.
By William McGinley
– February 26, 2010
The Federal Election Commission (“FEC”) just released the witness list for the coordinated communications rulemaking hearings to be held on March 2nd and 3rd.
The comments filed in response to the original coordinated communications notice of proposed rulemaking (“NPRM”) can be found here. The supplemental NPRM comments are here.
In the wake of Citizens United v. FEC, the regulatory line between independent speech and coordinated communications is an important issue for the 2010 midterm elections. Candidates, political party committees and outside groups will be watching these proceeding closely because of their potential impact on this election cycle.
Posted in FEC, Rulemakings.
Tagged with FEC, Rulemakings.
By William McGinley
– February 26, 2010
The Federal Election Commission (“FEC”) recently made public the results of six Matters Under Review (commonly referred to as “enforcement matters” or “cases”). In one matter, the FEC dismissed a complaint against the Obama presidential campaign alleging conversion of campaign funds for the personal use of then-Senator Obama and other allegations. The FEC press release regarding the matters can be found here.
Posted in FEC, Investigations.
Tagged with FEC, Investigations.
By William McGinley
– February 26, 2010
Politico published an article regarding a study concluding that the total cost of 2010 midterm elections may be as high as $3.7 billion. The estimate does not include anticipated spending by corporations, labor unions and nonprofit organizations in the wake of the U.S. Supreme Court’s Citizens United decision. The article can be found here.
Posted in Elections.
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By William McGinley
– February 23, 2010
Politico posted an interesting piece profiling Facebook’s Washington, DC office and their mission. The post can be found here.
Posted in Internet, Lobbying.
Tagged with Internet, Lobbying.
By William McGinley
– February 23, 2010
Here are a few more links discussing Citizens United and other topics of interest in today’s political law news summary:
“Countering the Court”- the Los Angeles Times editorializes that the Congressional Democrats’ current legislative framework designed to chill corporate political speech needs to be more “narrowly focused.”
“All The Free Speech Money Can Buy” - the Miami Herald published this opinion piece on Citizens United.
“Congress Parties With Big Money” - the New York Times latest editorial on fundraising by Members of Congress.
Posted in Website.
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By William McGinley
– February 22, 2010
Politico reports that the White House is making plans to shift its policy agenda from “change” t0 “reform.” A significant component of this new effort will be campaign finance reform legislation.
The campaign committee leaders for the Congressional Democrats in the House and Senate are pushing for legislation designed to chill corporate political speech and protect their incumbent Members. Apparently, the White House intends to support this effort by publicly supporting the legislation. According to the article:
A top administration official said that “the biggest piece of reform” will be supporting congressional efforts to limit the impact of the Citizens United Supreme Court ruling that opened campaigns to huge independent spending by corporations and unions. “Americans really turned against this opinion, the official said. “And so the biggest reform is to ensure that our politics and our campaigns are not controlled by special interests. Getting legislation that deals with the Supreme Court decision on the floor and debated — and hopefully passed — is very important.”
The Politico article can be found here.
Posted in FEC, Legislation.
Tagged with FEC, Legislation.
By William McGinley
– February 22, 2010
The Washington Post published an article this morning releasing the results of a poll on whether respondents support or oppose the Supreme Court’s holding in Citizens United v. FEC. The article states that respondents overwhelmingly oppose the Citizens United holding on a bipartisan basis. I suspect that the polling results were largely driven by the phrasing of the questions. The two polling questions on Citizens United can be found here. The cross tabs were not released.
Here are a few suggested questions for a future poll about the Citizens United decision:
- Do you believe that the free speech guarantees of the First Amendment are a core American value?
- Do you believe that the government has the authority to ban books containing campaign speech as argued by the federal government before the Supreme Court in the Citizens United case? Should the federal government be permitted to impose criminal or civil penalties for simply engaging in political speech?
- Should the federal campaign finance laws be designed to silence critics of incumbent Members of Congress and the Administration? Do you believe that the ability to criticize the government and its actions is protected by the First Amendment?
- Did you know that an overwhelming number of corporations in the United States are small businesses? Did you know that most jobs are created by small businesses? In this jobless recession, should the business community be permitted to express its political views regarding the economic policies of the Administration and Members of Congress and the government officials who formulate the policies?
Posted in FEC, Legislation, Litigation.
Tagged with FEC, Legislation, Litigation.
By William McGinley
– February 17, 2010
Politico published an interesting story this morning regarding the use of Twitter by White House officials to take their message directly to the public and push back when they believe reporters are not fairly presenting their side of the story. According to the article:
The White House has started using a new weapon for correcting news reports, pushing back against a negative story, or shaping the press corps narrative of the day: Twitter.
On Monday, deputy press secretary Bill Burton told his more than four thousand followers — which includes much of the White House press corps — that a Washington Post report that morning was wrong. The Obamas, he noted, went to Chicago for Valentine’s Day in 2009, not this past Sunday, as was reported in the Post’s Style section.
The article touches on an interesting dynamic – White House officials believe they need a mechanism to take their message directly to the public without the filter of reporting by the press.
The same dynamic is at play in the Citizens United decision. The Court made clear that the American public – including voters – benefit from more speakers delivering their message directly to the public without filter. The First Amendment protects the associational and speech rights of individuals and organizations to pool their resources to discuss federal candidates and important issues of the day without fear that the federal government will impose civil or criminal penalties for engaging in political activities. If the federal government can ban political speech in the form of television or radio advertisements, political speech over the internet may be next. As the Court stated:
Rapid changes in technology – and the creative dynamic inherent in the concept of free expression – counsel against upholding a law that restricts speech in certain media by certain speakers. Today, 30-second television ads may be the most effective way to convey a political message. Soon, however, it may be that Internet sources, such as blogs and social networking sites, will provide citizens with significant information about political candidates and issues. Yet, [the ban on corporate expenditures] would seem to ban a blog post express advocating the election or defeat of a candidate if that blog were created with corporate funds. The First Amendment does not permit Congress to make these categorical distinctions based on the corporate identity of the speaker and the content of the political speech. Slip Opinion at 49 (citations omitted).
The clear import of the Court’s decision is that more speech is better than less speech. The American people are capable of making their own decisions about the speakers and political speech that will form the basis of their decision-making in the political market place.
White House officials believe they need to use the internet to deliver their political messages directly to the American people about important issues of the day. Congress should not enact legislation designed to silence the other side of the debate.
Posted in FEC, Internet, Legislation.
Tagged with FEC, Internet, Legislation.
By William McGinley
– February 16, 2010
The Washington Post published an editorial this morning on the Congressional Democrats’ legislative proposals designed to chill corporate speech and protect their incumbents in the wake of the Supreme Court’s Citizens United decision. While the Post supports the disclosure provisions contained in the legislative framework released by the Democrats, it approaches with skepticism the provisions addressing the federal government contractor and foreign national issues. The editorial states:
The proposal also attempts to curtail political involvement by particularly troublesome classes of corporations: foreign-owned companies and government contractors. This part gives us more pause. The Supreme Court has spoken, however wrongly; the proper legislative response is to come up with a well-tailored solution, not the one that achieves the biggest end-run around what the court has said is the constitutionally required room for free speech.
The legislative framework released by the Congressional Democrats is ill conceived. The Supreme Court’s Citizens United decision was a forceful pronouncement of free speech principles signaling that the Court will not tolerate legislation designed to chill political speech.
Congressional Democrats appear to be making a simple political calculation. If they pass legislation that will ultimately be struck down by the Supreme Court on constitutional grounds, the law will remain on the books while the litigation works its way through the federal court system and chill political speech for the 2010 congressional election. This means Congressional Democrats are willing to suppress First Amendment rights during the 2010 election season – the time period when the First Amendment has its most urgent application – for partisan political reasons.
Posted in FEC, Legislation.
Tagged with FEC, Legislation.
By William McGinley
– February 16, 2010
Today’s political law news summary focuses on the Obama administration’s lobbying reform efforts and whether the pro-regulation groups are satisfied, and the Federal Election Commission’s (“FEC”) coordinated communications rulemaking.
Lobbying Issues
The Washington Post published an article over the weekend discussing the pro-regulation community’s dismay concerning the unintended consequences of the Obama administration’s lobbying reform efforts. According to the article, some pro-regulation groups believe that the Administration’s efforts have shifted power from lobbyists who register and report under the Lobbying Disclosure Act to another set of inside-the-beltway players who may not be subject to the federal lobbying disclosure requirements. The consequence is a reduction in transparency.
Last month a number of liberal nonprofit groups wrote to President Obama to express their frustration with the unintended consequences of the Administration’s lobbying restrictions. The groups argue that the Administration’s lobbying restrictions are interfering with their own lobbying activities and ask that the Administration amend the policies to exempt their organizations and ones that are similarly situated. The letter states:
We represent non-profit organizations engaged in public policy advocacy on a broad range of vital issues, including those relating to consumers, civil rights, vulnerable children and democracy reform. As stated before, we support the intent of your Executive Order on ethics. However, one year later, it is clear that the Order as currently structured has yielded some unintended consequences that undermine your goals of open government and broad civic participation in the public interest.
The full text of the letter can be found here.
FEC Coordinated Communications Rulemaking
The Hill published an article yesterday about the FEC’s decision to solicit additional comments about Citizens United’s impact on the pending coordinated communications rulemaking. The article states that the pro-regulation groups seek to expand the application of the FEC’s coordination rules by making any communication that promotes, attacks, supports or opposes (“PASO”) a federal candidate subject to regulation and possible prohibition. The PASO standard is not defined in the federal statutes or FEC regulations and constitutes a vague standard that will sweep more speech than is necessary within the FEC’s jurisdiction. The FEC should resist calls to adopt vague and subjective standards that are designed to chill speech and do not provide the regulated community with clear notice about what types of speech are subject to regulation and those that are outside the agency’s jurisdiction.
Posted in Website.
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By William McGinley
– February 15, 2010
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