Michigan Parties Unite to Defend FEC
The Michigan Democratic and Republican parties don’t often see eye to eye, but the two diametrically opposed groups have teamed up to fight Reps. Christopher Shays (R-Conn.) and Marty Meehan’s (D-Mass.) effort to have a federal court throw out campaign finance regulations issued by the Federal Election Commission.
The legal battle revolves around the FEC’s interpretation of portions of the Bipartisan Campaign Reform Act of 2002 — an interpretation that House sponsors Shays and Meehan say undermines critical aspects of their soft-money ban and other reforms.
As Shays and Meehan wage suit in U.S. District Court to have the FEC’s regulation invalidated, the Michigan parties are weighing in on the case and imploring the judge to allow the FEC’s regulations to stand, lest the parties be caught up in a web of unintended regulation that could “greatly impact” their activities.
In a 25-page brief filed jointly last week, the Michigan Democratic Party and the Michigan Republican Party — represented by campaign finance lawyers Bob Bauer and William Canfield, respectively — defended how the FEC defined state committees and district or local committees, federal election activity, voter registration activity, get-out-the-vote activity, and numerous other terms.
The FEC “took its responsibility seriously” when it crafted regulations implementing BCRA, Bauer and Canfield wrote on behalf of their clients.
“It knew whatever rules that it adopted, it must be prepared to enforce. It knew that before it penalized, or referred to the Justice Department for prosecution, a local party official for registering a new citizen to vote, transporting an elderly person to the polls or paying a salary out of the wrong account, that the rules must be clear,” the brief continued. “Ambiguity might well foster some of the well-intentioned ends of the statute, but the cost would be imposed on well-meaning citizens.”
Shays and Meehan are challenging numerous aspects of the FEC’s rules concerning coordination, soft-money fundraising solicitations, soft-money restrictions for state parties and issue advocacy.
They and Senate sponsors of the law, Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.), contend that the regulations allow improper coordination among supporters, candidates and parties by exempting entirely several categories of communications from coordination rules.
These include all political ads run more than 120 days before a general election, primary or convention as long as the advertisements do not republish the candidate’s own campaign materials or engage in “express advocacy.” Also exempt from regulation are all ads that do not refer to a political party or candidate and all communications on the Internet.
The BCRA sponsors also contend that the FEC opened up new loopholes in the soft-money ban by defining the term “solicit” to encompass only an outright, express “ask” for soft money, thereby allowing a wink-and-nod approach to soft-money fundraising. They also believe that the FEC’s exemption of 501(c)(3) corporations from electioneering communications provisions of the law were a mistake, raising the possibility that such groups may be utilized specifically as new vehicles to evade campaign finance laws.
Not surprisingly, the Alliance for Justice, a nonprofit association of numerous advocacy organizations, is backing the FEC’s exemption of 501(c)(3) groups, arguing the agency acted “in a proper manner, staying within the bounds of its congressionally delegated authority.”
“Plaintiffs paint a picture of renegade 501(c)3 organizations being used as vehicles to circumvent the system established by BCRA,” the Alliance for Justice brief states. “Their undocumented and unsupported speculation that 501(c)3s will suddenly become the recipients of corporate and labor funds designed to influence federal election ignores the restrictions of federal tax law, the history of compliance and the overwhelming amount of good that 501(c)3 organizations accomplish in the public policy arena.”
Even in the pre-stages of a trial, the case has become contentious, and motions and cross-motions are flying as counsel for Shays and Meehan squabble with FEC lawyers about what materials they believe may legally be submitted to the court.
The FEC contends that review of the agency’s rulemaking must be limited to the administrative record that was before the FEC when it issued the rules in question.
“Most of the plaintiff’s extra-record evidence consists of news stories and studies that were released or published after the commission issues its final rules,” argued the FEC lawyers, who contend that it is a “widely accepted principle of administrative law” that courts review only materials that were before the agency when it rendered its decision.
Lawyers for Shays and Meehan vigorously defended their right to submit proposed exhibits, calling the FEC’s contention that the court’s own findings of fact in McConnell v. FEC must be stricken from consideration “remarkable.” The reformers said it was “emblematic of a much broader problem in the agency’s attitude toward judicial review of its actions.”
“The Commission wants no mention of a Commissioner’s Congressional testimony, which is clearly part of the legislative history; no acknowledgement of the rapidly growing importance of political advertising on the Internet; and no reference to some of the most infamous examples in American political history of coordinated issue ad campaigns, all of which took place more than 120 days before an election and therefore would be exempt from most regulation under the new coordination rules,” Shays and Meehan complained.