Engel Seeks Soft-Money OK for Remap Activities

Posted January 2, 2004 at 5:08pm

In the wake of the Supreme Court’s decision to uphold the constitutionality of a federal ban on soft money, the Federal Election Commission will decide whether New York Rep. Eliot Engel (D-N.Y.) can raise and spend funds on an unrestricted basis for reapportionment-related activities in his home state without running afoul of the Bipartisan Campaign Reform Act.

Last fall, a three-judge panel in Manhattan listened to a case brought by civil rights activists who claimed that New York state Senate leaders violated the Voting Rights Act when they redrew the lines of a Bronx district to limit the voting strength of ethnic minorities in that area.

Engel, who participated in the lawsuit known as Rodriguez v. Pataki, would now like to participate in the formation and operation of a redistricting committee to pay down the legal fees incurred in connection with the redistricting litigation but is wondering if BCRA prohibits such activities.

Cassandra Lentchner, an attorney with Perkins Coie, recently wrote to the FEC on Engel’s behalf, arguing that BCRA’s restrictions ought not to apply in this instance.

“The Commission has consistently held both officeholder legal defense funds and redistricting activities not to be in connection with any election,” Lentchner wrote. “It has allowed officeholders to continue raising and spending funds on an unrestricted basis for the former, and should do the same for the latter.”

Last year, the FEC ruled in an advisory opinion that federal officeholders may establish, maintain and raise funds for legal defense trusts — even when those funds exceed the $2,000 contribution limit that applies to campaigns.

But some BCRA proponents are arguing those funds shouldn’t be used in fights over Congressional remapping.

“We disagree with the notion that federal campaign finance law — as properly applied — permits Members of Congress to raise and spend funds on an unrestricted basis for redistricting expenses,” Glen Shor, the FEC program director for the Campaign Legal Center, wrote in a Dec. 29 letter to the FEC.

“Instead, we believe that the law requires them to raise and spend only ‘hard money’ for such expenses,” said Shor, who went on to argue that he believes redistricting should be considered to be “in connection with an election for Federal office.”

“The connection between the outcome of redistricting and the elections of House members is direct, substantial and widely recognized,” wrote Shor, who added that “in current times, it may be fair to characterize redistricting as the election (with voting, unfortunately, increasingly consigned to the role of ratifying seemingly predestined results).”

The FEC has been besieged with requests for how the federal soft-money ban applies to specific situations and whether federally covered individuals may undertake certain types of fundraising activities outside of federal campaigns.

At its first meeting of the year on Jan. 7, the FEC will discuss its response to the Republican Governors Association’s request as to how federal officeholders and candidates may participate in the 527’s fundraising activities while legally complying with BCRA.

Commissioners will consider two draft responses from the general counsel’s office that allow for participation by such individuals for most of the RGA’s accounts under specified conditions.

Namely, the FEC drafts state that lawmakers and candidates can attend events where nonfederal funds are solicited and even be the featured guests or speakers at such events or on written fundraising solicitations, as long as they comply with the source prohibitions in the new law.

The practical effect of this means that a lawmaker could write a letter asking for funds for the RGA if he or she included a disclaimer such as the following: “I am asking for a donation of up to $2,000 per election from an individual’s own funds [or up to $5,000 per election from a multi-candidate political committee or a political party committee]. I am not asking for funds from corporations or labor organizations.”

Likewise, the individual could conceivably also generally solicit funds for the RGA in a speech, without mentioning any specific dollar amount, so long as written notices displayed, or an oral disclaimer is made, that he is only asking for donations within the federally permissible limits.

However, the FEC must still sort out whether Congressionally chartered corporations like the Federal Home Loan Mortgage Corporation and the Federal National Mortgage Association may contribute to the RGA’s conference account, a separate fund used primarily to defray expenses in connection with policy conferences, and whether federal lawmakers and candidates may raise unlimited funds for the account.

The FEC is required to respond to advisory opinion requests within 60 days.