Posted October 4, 2006 by Paul S. Ryan

Third Time’s a Charm: FEC Adopts Advisory Opinion that Federal Candidates and Parties Can NOT Fund Recounts With Soft Money

The Federal Election Commission (FEC) today adopted Advisory Opinion 2006-24, advising the National Republican Senatorial Committee (NRSC), the Democratic Senatorial Campaign Committee (DSCC) and the Republican Federal Committee of Pennsylvania, a state party, that the party committees and their federal candidates may not raise non-federal funds (a.k.a. “soft money”) for use in recounts or election contests following the 2006 mid-term elections.

The end result was a good one, and the correct one—but things could have turned out much worse.  Last Friday, the Commission’s Office of General Counsel produced alternative draft Advisory Opinions 2006-24 for consideration by the Commission at today’s meeting.  “Draft A” made clear that soft money could not be used to fund recounts; while “Draft B” concluded that recounts are not “in connection with” a federal election and, therefore, could be funded with soft money.

As explained in greater detail below, the Commission today first deadlocked on party-line votes regarding the alternative draft opinions, with the Commission’s three Democrats supporting “Draft A,” and the Commission’s three Republicans supporting “Draft B.”  But Commissioner Weintraub fashioned a compromise and Commissioner Mason joined the Commission’s three Democrats to approve an amended version of “Draft A,” prohibiting the use of soft money to fund recounts.  The Campaign Legal Center commends Commissioners Weintraub, Mason, Lenhard and Walther for preventing the return of soft money to federal elections through the back door.

The Legal Center and Democracy 21 filed comments Monday in response to the draft advisory opinions, incorporating comments we filed August 24 in response to the parties’ advisory opinion request—urging the Commission to deny the parties’ request for permission to raise and spend soft money to fund recounts, and supporting “Draft A” of the alternative draft opinions published last week.

We reminded the Commission that twice before, party committees have submitted materially similar advisory opinion requests; twice before, the general counsel recommended that the Commission adopt an opinion that BCRA now requires the committees (and their federal candidates and officeholders) to raise and spend only federal funds (a.k.a. “hard money”) for recount purposes; and 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.

Third time’s a charm.  The Commission today proceeded to a vote on the draft advisory opinions.  After an initial party-line 3-3 deadlock vote on the alternative draft opinions, Commissioner Weintraub offered a compromise amendment to “Draft A,” with hopes of obtaining the necessary fourth vote to adopt an opinion and provide much-needed guidance to the AO requestors, specifically, and to the regulated community, generally.  Whereas the original “Draft A” provided that party spending on recounts coordinated with a candidate are subject to the statutory limit on coordinated party expenditures at 2 U.S.C. § 441a(d)(3), Commissioner Weintraub’s compromise amendment provided that, although parties and candidates may only use hard money to fund recounts, the statutory limit on coordinated party expenditures does not apply in the recount context.  Commissioner Weintraub’s statutory-text-based argument is that, although recounts are “in connection with an election” and thus subject to the BCRA soft money ban, recounts are not “in connection with the general election campaign of a candidate”—the statutory language of the coordinated party spending limit—because a candidate’s campaign ends on election day.

Commissioner Weintraub’s compromise worked.  Commissioner Mason joined Commissioners Lenhard, Walther, and Weintraub in approving “Draft A,” as amended—making clear that federal candidates and parties may not raise and spend soft money to fund recounts.

And the Campaign Legal Center is not alone in its view that this result is a good one.  “The Commission got to the right result on the recount issue, and gave effect to BCRA's ban on soft money,” said Democracy 21 counsel Don Simon.  “Commissioner Weintraub is to be especially commended for her leadership role in finding a good solution, as is Commissioner Mason for his willingness to compromise.  All four Commissioners who voted for the final advisory opinion properly rejected a request by the parties to re-open the door to soft money in federal elections.”