FEC May Expand BCRA’s Purview

Posted February 2, 2004 at 3:48pm

Federal Election Commission lawyers are recommending that the agency adopt the stance that federal lawmakers are bound by hard-money limits when raising funds for the purposes of reapportionment-related activities.

The issue arose recently when Rep. Eliot Engel (D-N.Y.) asked the watchdog agency whether he can help form and operate a redistricting committee to pay for legal fees incurred in connection with redistricting litigation and whether such activities would fall outside the scope of the Bipartisan Campaign Reform Act. (Engel participated last fall in the lawsuit Rodriguez v. Pataki, in which civil rights activists 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.)

The FEC general counsel’s office prepared two draft advisory opinions for the commission’s consideration: one argues that redistricting funds lie outside the scope of BCRA because they are not in connection with a federal or nonfederal election, and the other reaches the opposite conclusion.

Having submitted opposing options, the general counsel’s office is urging commissioners to adopt the second approach, one that would pull redistricting committees under the FEC’s purview.

“The threshold question is whether the funds involved are in connection with a Federal or non-Federal election,” the draft opinion states.

“The outcome of the redistricting litigation will directly and significantly affect subsequent elections including decisions by individuals as to whether to become candidates,” the draft continues. “Therefore, donations to the Committee are in connection with an election for Federal or non-Federal office.”

In the past, prior to BCRA’s 2002 enactment, the Federal Election Commission had approved proposals for separate entities established for redistricting activities, including the defrayal of reapportionment-related expenses, on the theory that although such activities were part of the political process, they were not considered to be election-influencing activity, and thus subject to campaign finance laws.

But the recent Supreme Court decision upholding BCRA changed that, according to the FEC general counsel.

“Given the broad language [of the new law] and the Court’s interpretation of that language, it is inappropriate to maintain the proposition that funds raised and spent on reapportionment-related activities are not subject to the limitations and prohibitions of the Act,” Draft B of the advisory opinion states.

Nonetheless, both drafts will be considered Thursday at an open meeting, where commissioners will also discuss another controversial advisory opinion request regarding the activities of groups operating under Section 527 of the tax code.