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FEC Charged With Allowing Soft Money to Pay for Recounts of Federal Elections
Democracy 21, Campaign Legal Center and Center for Responsive Politics have charged the Federal Election Commission (FEC) with attempting "some kind of extra-agency Commission ruling".
Nov 1, 2004 -- Press Release: Campaign Finance Groups Assail FEC for "Non-Ruling Ruling" On Soft Money Use In Recounts as "Wholly Outside Bounds of Legal Commission Practice"
FOR IMMEDIATE RELEASE Press Contact: Democracy 21 - Amanda Lewis, 202-429-2008 Campaign Legal Center - Paul Ryan, 202-736-2200 LINK Democracy 21, Campaign Legal Center and Center for Responsive Politics today charged the Federal Election Commission (FEC) with attempting "some kind of extra-agency Commission ruling" following a last-minute withdrawal last week of an advisory opinion request on the legality of using soft money to pay for recounts of federal elections. These groups charged the Federal Election Commission (FEC) with attempting "some kind of extra-agency Commission ruling" following a last-minute withdrawal last week of an advisory opinion request on the legality of using soft money to pay for recounts of federal elections. "Issuing a formal response to the advisory opinion request would have required the Commission to provide a legal basis and a reasoned, public explanation for its decision," wrote Democracy 21 President Fred Wertheimer, Campaign Legal Center President Trevor Potter, and Center for Responsive Politics Executive Director Lawrence Noble in a letter today to the six Commissioners. Instead, the withdrawal of the request was followed by individual Commissioners announcing their positions to the press, culminating with one Commissioner stating that the informal expressions of views amounted to some sort of legal green light for candidates to proceed with recount fundraising in violation of the new law. Vice Chair (Ellen) Weintraub was quoted as stating: "I think it's worth telling people it's not worth filing those complaints" should their opponents raise unlimited individual donations for recounts, Weintraub said.1 These comments, the campaign finance groups wrote, "are completely out of line and this whole sorry episode illustrates how aberrant Commission procedures have become." Click here to view the letter sent to the FEC. The letter went on to say: It was entirely improper for Commissioner Weintraub to claim the right to set official Commission policy by telling people "it's not worth filing those complaints," and in effect announcing, even before a complaint is filed, that any such complaint will be summarily dismissed, and that any candidate or officeholder who raises million-dollar donations from individuals for recount purposes is functionally immunized. The FEC did not issue an advisory opinion, as it was scheduled to do on Thursday, October 28, because the request for the opinion was withdrawn "literally in the middle of the night," according to the letter. The request had been submitted by the National Republican Senatorial Committee on behalf of Representative George Nethercutt, who is running for a seat in the U.S. Senate from the state of Washington. The FEC was asked whether Representative Nethercutt could raise and spend unlimited contributions from individuals to pay for the expenses of a possible recount in his Senate race. Despite its non-issuance of an opinion, four of the FEC's six Commissioners were reported as saying on Thursday, October 28 that "the FEC's long-standing rule on recount fund raising remains in effect, which means federal candidates can set up separate recount funds and finance them with unlimited donations from individual contributors," according to the letter. The letter cites press reports stating that Vice Chair Weintraub "also said after the meeting that the regulated political community could continue to rely on existing rules allowing unlimited recount contributions," (emphasis added) and that similar comments were attributed to Chairman Bradley Smith and Commissioner Michael Toner. The groups wrote: This attempt by Commissioners to make some sort of non-ruling ruling by signaling a legal position on what is a highly disputed matter, resulting in press reports that the Commission has indicated majority approval for soft money fundraising for recounts, is wholly outside the bounds of legal Commission practice. Several Commissioners had noted in their public comments that a longstanding FEC regulation had never been repealed by the Commission and is thus still "on the books." "But this regulation is flatly contrary to the [Bipartisan Campaign Reform Act of 2002]," the campaign finance groups wrote. "It is superseded by BCRA, which was enacted after the regulation was adopted, and which, in 2 U.S.C. Sec. 441i(e)(1), prohibits federal candidates and officeholders from raising or spending any nonfederal funds 'in connection with' an election, including funds which do not comply with the contribution limits of the law." The groups go on to note that "Regardless of whether the . . . regulation has been formally withdrawn or not, the regulation does not provide legal refuge for illegal fundraising activities that are contrary to a later enacted statute." The letter also points out that "comments made during the meeting seemed intended to exonerate the Commission for not having removed its unlawful recount regulation because, as was stated, no outside group ever asked the Commission to repeal the recount regulation." The authors point out that, "This is simply wrong as a matter of fact." They cite written comments submitted on July 12, 2002 by the Center for Responsive Politics in response to a rulemaking to reorganize the regulations on "contributions" and "expenditures." In those comments the Center stated, according to the letter: Under the current rules, recounts and election contests serve as an avenue for the use of soft money to influence federal elections. . . . We urge the Commission to end the use of excessive contributions for recounts and election contests by deleting these exemptions from the contribution and expenditure definitions. Recounts and election contests should be treated as part of the election they seek to resolve, and donations made for the recount or contest should be treated as contributions for that election. The groups conclude, "Thus, even if somehow the burden was borne by outside groups to inform the Commission of its responsibility to repeal the improper recount regulation, that request was in fact plainly made to the Commission in a formal proceeding. The Commission chose to ignore it." The fact that the Commission failed to withdraw its regulation does not somehow, by the Commission's own inattention or inaction, vest the regulation with validity notwithstanding its clear conflict with a superseding statute. Yet that, in essence, is the position taken by a majority of the Commissioners in their labored attempt, through sidebar press conversations, to issue an "informal" ruling outside the bounds of Commission procedure, and in conflict with the advice of their general counsel. This is contrary to law and may constitute an attempt to open yet another in a long line of unlawful loopholes in the campaign finance laws that have been manufactured by both Commission action and inaction. Endnotes 1. S. Theimer, "No Limits to Donations for Recounts," The Associated Press (Oct. 28, 2004). Democracy 21: Capital Bits & Pieces, Vol. IV, No. 49 |