Posted August 24, 2006 by Paul S. Ryan

Playing Games at the FEC

The game of cat and mouse between the Democratic and Republican campaign committees and the FEC on the question of whether soft money can be used to fund recounts is getting a little old.  Earlier this month the National Republican Senatorial Committee (NRSC), the Democratic Senatorial Campaign Committee (DSCC), and the Republican Federal Committee of Pennsylvania posed essentially the same question to the FEC for the third time.  The last two times the committees yanked their request at the last minute—when it became apparent they didn’t have the votes lined up to get the answer they wanted.  The law has not changed since then, so it is not clear why the party committees are trying again at this point.  Perhaps they think that the three new Commissioners appointed in January haven't had time to read the law and learn of the history of this issue?

The Campaign Legal Center and Democracy 21 filed comments today with the FEC regarding the advisory opinion request (AOR 2006–24) submitted earlier this month by the party committees seeking permission to raise non-federal funds (i.e., “soft money”) for use in recounts and contests of election results following the 2006 mid-term elections.  The party committees also seek permission for their federal candidates to raise soft money for such purposes.

Twice before, party committees have submitted materially similar advisory opinion requests, seeking permission to raise and spend soft money for recount purposes in federal elections.  See AOR 2004-38 (NRSC) and AOR 2002-13 (DSCC, DCCC, NRSC, NRCC).

Twice before, the Commission’s general counsel has recommended that the Commission adopt an opinion that BCRA now requires the committees (and their federal candidates and officeholders) to raise and spend only hard money for recount purposes.  See Draft AO 2004-38 and Draft AO 2002-13.

Twice before, these advisory opinion requests were withdrawn by the party committees at the last minute—after the release of the general counsel’s recommendation, and on the eve of the Commission’s consideration of the matter—thereby preempting the Commission’s vote.  See In the Matter of AO 2004-38 and In the Matter of AOR 2002-13.

Ironically, the party committees in the current AOR now note that the Commission “has not issued any Advisory Opinions or policy statements regarding the establishment of recount funds…since the enactment of BCRA.” AOR at 3.  But they fail to add that the reason there are no prior opinions is due to the fact that the party committees themselves, when faced twice with adverse recommendations by counsel, blocked the Commission from issuing advice by withdrawing their requests at the eleventh hour.

The Commission has now been asked the same question for a third time since the enactment of BCRA.  Nothing has changed.  There is no basis for the general counsel to analyze the question differently this time than he has the two times before.  And there is no reason for the Commission to depart from the general counsel’s previous analysis and recommendations, should it actually get to vote on the matter this time.

In our comments filed today, we emphasize the following conclusions:

First, the Commission has long taken the position that funds spent for recount purposes are “in connection with” a federal election.  Under BCRA’s soft money ban, 2 U.S.C. § 441(i)(e), soft money cannot be solicited or spent by a federal candidate or officeholder “in connection with” a federal election.  Whatever the rule was prior to 2002 on funding recount activities, this provision of BCRA now prohibits federal candidates and officeholders, including the members of the NRSC and DSCC, from soliciting or spending nonfederal funds for a recount of a federal election.

Second, Commission regulations require a state party to spend only federal funds, or allocated federal and nonfederal funds, for all activities “in connection with a Federal election.”  Since activities by a state party related to a recount of a federal election are “in connection with” an election, but are not allocable, they must be funded entirely with hard money from a Federal account.

Third and finally, in opinions prior to BCRA and in the existing recount regulation, the Commission has erroneously taken the position that recount activities are not “for the purpose of influencing” a federal election, even though they are “in connection with” an election.  This interpretation defies common sense, and although not necessary to decide the pending AOR, the Commission should at an appropriate point reconsider its position.  Properly construed, even apart from the new requirements imposed by BCRA, the law requires funds raised and spent for recount activities to be both “contributions” and “expenditures,” and therefore subject to the hard money contribution limits and source prohibitions that apply to both federal candidates and political parties.