[EL] ELB News and Commenary 6/25/11

Sat Jun 25 10:40:12 PDT 2011

Marc, thank you for your clarification on how these  solicitations would 
operate, but I think that, even so, this is illegal under  the draft AO. I 
know this is your position and it was offered to the FEC in  comments regarding 
your requested AO, but the FEC did not bite.  It says  nothing about it 
being OK to solicit, if the solicitation is limited to some  arbitrary and 
irrelevant limit like 5K.  It says nothing about a disclaimer  or limits on 
contributions on a page of the Super PACs web site.  On the  contrary, it says 
categorically that it is illegal for a candidate to  solicit for a Super PAC, 
period. 

    You would certainly be able to defend Reid and  Kerry based on the fact 
that the FEC has misinterpreted the FECA and I think the  defense would 
prevail, but I don't think either Reid or Kerry is interested  in defending a 
civil case brought by the FEC, much less a criminal one brought  by the DOJ. 
Here, as in every case, it is important that the FEC gets this right  in the 
first instance.

    Now I certainly agree that candidates are able  under the FECA to 
solicit for Super PACs and I filed comments supporting a  favorable AO for you. 
But the General Counsel's draft is not. And it  certainly would be better if 
the FEC approved your disclaimer scheme than flatly  held solicitation 
illegal.  It is typical of the General Counsel's office  to automatically take 
the "reformers" extreme position that everything is  illegal, but the 
Commissioner's often seem more capable of independent thought.  Hopefully they will 
do that this time.  Jim

In a message dated 6/25/2011 11:14:01 A.M. Eastern Daylight Time,  
MElias at perkinscoie.com writes:

Jim--

I want to clarify one aspect of your comment below.  The  solicitations you 
mention were for funds consistent with the federal limits  for PACs.  The 
email solicitations expressly sought amounts well under  the $5,000 limit.  
Furthermore the emails contained clear statements that  they were seeking 
contributions only up to $5,000 and only from individuals  (or federal PACs).  
The website landing page was further restricted to  not permitting 
contributions in excess of $5,000 and donors had to  affirmatively check a box that 
they were only contributing individual funds  (not corp or labor funds).  
Indeed, in the link you include, the attorney  for CLC is quoted saying:  "Reid 
here is clearly asking only for contributions  from individuals within the 
federal contribution limits."

Thus, the solicitations you reference were legal under all  interpretations 
of the law, including the draft AO published on Thursday and  will be 
regardless of how the FEC decides the very different issue of whether  Members 
can solicit unlimited funds for superpacs.

Marc

From: "_JBoppjr at aol.com_ (mailto:JBoppjr at aol.com) " <_JBoppjr at aol.com_ 
(mailto:JBoppjr at aol.com) >
Date: Sat, 25 Jun 2011 07:04:25  -0500
To: "_rhasen at law.uci.edu_ (mailto:rhasen at law.uci.edu) " 
<_rhasen at law.uci.edu_ (mailto:rhasen at law.uci.edu) >, "_law-election at uci.edu_ 
(mailto:law-election at uci.edu) " <_law-election at uci.edu_ (mailto:law-election at uci.edu) >
Subject: Re: [EL] ELB News and Commenary  6/25/11

Super PACs are federally registered and regulated  PACs that have no 
contribution limits. Soft money is federally unregulated  money. Thus, Super PACs 
raise hard money that candidates can  raise, not "soft money" that they 
usually cannot, as Rick erroneously  describes it.

    The other interesting ramification of the FEC  adopting the General 
Counsel's predictably very restrictive draft is that  Senators Reid and Kerry 
have already solicited funds for a democrat Super  PAC.  
_Click  here: Senate Majority Leader Harry Reid Solicits Cash for New 
Democratic Super  PAC - OpenSecrets Blog | OpenSecrets_ 
(http://www.opensecrets.org/news/2011/06/senate-majority-leader-harry-reid-solicits.html)   This 
solicitation was certainly  intentional, so criminal charges could be brought. 
(Anyone wanta bet on the  Obama DOJ doing that!)  But in any event it is a 
violation under the  draft AO.

    This would be a ridiculous outcome but one that  would result if the 
FEC does not get this right and let candidates do  this.  Jim Bopp   

_“Draft Limiting ‘Super  PAC’ Fund-Raising May Not Be FEC’s Last Word on 
Question”_ (http://electionlawblog.org/?p=19632)  
Posted  on _June 24, 2011_ (http://electionlawblog.org/?p=19632)  by _Rick 
Hasen_ (http://electionlawblog.org/?author=3)  

BNA_  reports_ 
(http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=21191867&vname=mpebulallissues&fn=21191867&jd=a0c8e1d4d4&split=0)  on the 
draft advisory opinion on next week’s agenda: “A draft  advisory opinion ruling 
released by the Federal Election Commission would  reject a proposal to 
allow national officials to help so-called Super PACs  raise unlimited 
contributions….However, FEC officials said June 24 that they  expect a competing 
draft to be released before the FEC meets to consider the  pending advisory 
opinion on Super PAC fund-raising. The yet-unreleased draft  may conclude that 
there should be no restrictions on federal and party  officials’ 
fund-raising for these PACs.” 
Let’s be clear: that competing proposal would get party leaders back into  
raising soft money. If the FEC deadlocks again, and this leads to a green  
light to such a turn of events, it would be a very bad development in my  
opinion—reversing the other pillar of McCain-Feingold. It is not clear to me  
whether there could be preemptive court action if, as I expect could well  
happen, the FEC deadlocks on this issue on party lines. 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19632&title=“Draft%20Limiting%20‘Super%20PAC’
%20Fund-Raising%20May%20Not%20Be%20FEC’s%20Last%20Word%20on%20Question”&description=) 

Posted in _campaign finance_ (http://electionlawblog.org/?cat=10)   | 
Comments Off 

In a message dated 6/24/2011 10:48:09 P.M. Eastern Daylight Time, 
_rhasen at law.uci.edu_ (mailto:rhasen at law.uci.edu)  writes:

_“Whether White can  serve as secretary of state to be decided Tuesday”_ 
(http://electionlawblog.org/?p=19643)  
Posted  on _June 24, 2011_ (http://electionlawblog.org/?p=19643)  by  _Rick 
Hasen_ (http://electionlawblog.org/?author=3)  

See _here_ 
(http://www.nwitimes.com/news/state-and-regional/indiana/article_e0209164-ffc4-5b4c-b606-60282735cd51.html) . 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19643&title=“
Whether%20White%20can%20serve%20as%20secretary%20of%20state%20to%20be%20decided%20Tuesday”&description=) 

Posted in _SOS White_ (http://electionlawblog.org/?cat=13)   | Comments Off 

_To the Georgia  Secretary of State: Please Show Me Evidence that a Voter 
ID Law Would Stop  the Kind of Fraud You Find and Prosecute_ 
(http://electionlawblog.org/?p=19641)  
Posted  on _June 24, 2011_ (http://electionlawblog.org/?p=19641)  by  _Rick 
Hasen_ (http://electionlawblog.org/?author=3)  

SOS Kemp, in WaPo_  letter to the editor_ 
(http://www.washingtonpost.com/opinions/how-voter-id-laws-keep-elections-honest/2011/06/22/AGS6UkjH_story.html
) : “Mr. Dionne argued that photo ID and related  election-security laws 
are not needed because voter fraud ‘is not a major  problem.’ As chairman of 
the Georgia State Election Board, I can attest that  every year we 
investigate and penalize hundreds of people guilty of election  and voter fraud, and 
we work with county district attorneys to prosecute  them on criminal 
charges.” 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19641&title=To%20the%20Georgia%20Secretary%20of%20State:%20Please%20Show%20Me%20E
vidence%20that%20a%20Voter%20ID%20Law%20Would%20Stop%20the%20Kind%20of%20Fra
ud%20You%20Find%20and%20Prosecute&description=) 

Posted in _election  administration_ (http://electionlawblog.org/?cat=18) , 
_fraudulent fraud  squad_ (http://electionlawblog.org/?cat=8) , _voter id_ 
(http://electionlawblog.org/?cat=9)   | Comments Off 

_“Illinois’s  controversial redistricting map becomes law; GOP will sue”_ 
(http://electionlawblog.org/?p=19638)  
Posted  on _June 24, 2011_ (http://electionlawblog.org/?p=19638)  by  _Rick 
Hasen_ (http://electionlawblog.org/?author=3)  

The Hill‘s Ballot Box blog_  reports._ 
(http://thehill.com/blogs/ballot-box/redistricting/168397-illinois-proposed-redistricting-map-becomes-official)  

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19638&title=“Illinois’
s%20controversial%20redistricting%20map%20becomes%20law;%20GOP%20will%20sue”&description=) 

Posted in _redistricting_ (http://electionlawblog.org/?cat=6)   | Comments 
Off 

_Remember the Obama  Micro-Donors?_ (http://electionlawblog.org/?p=19635)  
Posted  on _June 24, 2011_ (http://electionlawblog.org/?p=19635)  by  _Rick 
Hasen_ (http://electionlawblog.org/?author=3)  

_LA  Times_ 
(http://www.latimes.com/news/nationworld/nation/la-na-0625-obama-donors-20110625,0,1065791.story) : “A new program called Presidential 
Partners asks supporters  to commit $75,800 to the Obama Victory Fund, a joint 
project of the campaign  and the Democratic National Committee.” 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19635&title=Remember%20the%20Obama%20Micro-Donors?&description=) 

Posted in _campaign finance_ (http://electionlawblog.org/?cat=10)   | 
Comments Off 

_“Draft Limiting  ‘Super PAC’ Fund-Raising May Not Be FEC’s Last Word on 
Question”_ (http://electionlawblog.org/?p=19632)  
Posted  on _June 24, 2011_ (http://electionlawblog.org/?p=19632)  by  _Rick 
Hasen_ (http://electionlawblog.org/?author=3)  

BNA_  reports_ 
(http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=21191867&vname=mpebulallissues&fn=21191867&jd=a0c8e1d4d4&split=0)  on the 
draft advisory opinion on next week’s agenda: “A draft  advisory opinion ruling 
released by the Federal Election Commission would  reject a proposal to 
allow national officials to help so-called Super PACs  raise unlimited 
contributions….However, FEC officials said June 24 that they  expect a competing 
draft to be released before the FEC meets to consider the  pending advisory 
opinion on Super PAC fund-raising. The yet-unreleased draft  may conclude that 
there should be no restrictions on federal and party  officials’ 
fund-raising for these PACs.” 
Let’s be clear: that competing proposal would get party leaders back into  
raising soft money.  If the FEC deadlocks again, and this leads to a  green 
light to such a turn of events, it would be a very bad development in  my 
opinion—reversing the other pillar of McCain-Feingold.  It is not  clear to me 
whether there could be preemptive court action if, as I expect  could well 
happen, the FEC deadlocks on this issue on party lines. 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19632&title=“Draft%20Limiting%20‘Super%20PAC’
%20Fund-Raising%20May%20Not%20Be%20FEC’s%20Last%20Word%20on%20Question”&description=) 

Posted in _campaign finance_ (http://electionlawblog.org/?cat=10)   | 
Comments Off 

_A Courageous  Statement on Voter ID Bill from Republican Ohio Secretary of 
State_ (http://electionlawblog.org/?p=19628)  
Posted  on _June 24, 2011_ (http://electionlawblog.org/?p=19628)  by  _Rick 
Hasen_ (http://electionlawblog.org/?author=3)  

FOR IMMEDIATE RELEASE 
Friday, June 24, 2011 
SECRETARY OF STATE HUSTED STATEMENT ON PHOTO ID  LEGISLATION 
COLUMBUS – The following may be attributed in whole or in part to  
Secretary of State Jon Husted regarding the photo identification  legislation 
pending in the General Assembly.  
“I want to be perfectly clear, when I began working with the General  
Assembly to improve Ohio’s elections system it was never my intent to  reject 
valid votes. I would rather have no bill than one with a rigid  photo 
identification provision that does little to protect against fraud  and excludes 
legally registered voters’ ballots from counting. 
“It is in the hands of the General Assembly.” 
-30-

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19628&title=A%20Courageous%20Statement%20on%20Voter%20ID%20Bill%20from%20Republic
an%20Ohio%20Secretary%20of%20State&description=) 

Posted in _Uncategorized_ (http://electionlawblog.org/?cat=1)   | Comments 
Off 

_Adler Predicts a  Likely Cert. Grant in Renzi Case_ 
(http://electionlawblog.org/?p=19623)  
Posted  on _June 24, 2011_ (http://electionlawblog.org/?p=19623)  by  _Rick 
Hasen_ (http://electionlawblog.org/?author=3)  

_Here_ 
(http://volokh.com/2011/06/24/circuit-split-over-speech-and-debate-clause/) .   I’m inclined to agree. 
UPDATE: Mike Stern _too_ 
(http://www.pointoforder.com/2011/06/24/a-cert-worthy-speech-or-debate-case/) . 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19623&title=Adler%20Predicts%20a%20Likely%20Cert.%20Grant%20in%20Renzi%20Case&des
cription=) 

Posted in _Speech or Debate  Clause_ (http://electionlawblog.org/?cat=36)  
| Comments Off 

_“Soros and liberal  groups seeking top election posts in battleground 
states”_ (http://electionlawblog.org/?p=19620)  
Posted  on _June 24, 2011_ (http://electionlawblog.org/?p=19620)  by  _Rick 
Hasen_ (http://electionlawblog.org/?author=3)  

The Washington Times has this very interesting _report_ 
(http://www.washingtontimes.com/news/2011/jun/23/section-527-works-to-seat-liberals-as-election-
ove/) . 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19620&title=“
Soros%20and%20liberal%20groups%20seeking%20top%20election%20posts%20in%20battleground%20states”&description=) 

Posted in _campaign finance_ (http://electionlawblog.org/?cat=10) ,  
_election  administration_ (http://electionlawblog.org/?cat=18)  | Comments Off 

_Will ColbertNation  Invade the FEC?_ (http://electionlawblog.org/?p=19617) 

Posted  on _June 24, 2011_ (http://electionlawblog.org/?p=19617)  by  _Rick 
Hasen_ (http://electionlawblog.org/?author=3)  

_Could  be._ 
(http://www.rollcall.com/news/fec_seeks_to_clarify_rules_for_super_pac-206774-1.html?pos=htmbtxt)  You can read two draft opinions to be 
considered by the FEC at its  June 30 meeting _at this  link_ 
(http://fec.gov/agenda/2011/mtgdoc_1138a_and_b.pdf) . 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19617&title=Will%20ColbertNation%20Invade%20the%20FEC?&description=) 

Posted in _campaign finance_ (http://electionlawblog.org/?cat=10) ,  
_chicanery_ (http://electionlawblog.org/?cat=12)   | Comments Off 

-- 
Rick Hasen
Visiting Professor
UC  Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA  92697-8000
949.824.3072 - office
949.824.0495 - fax
_rhasen at law.uci.edu_ (mailto:rhasen at law.uci.edu) 
_http://law.uci.edu/faculty/page1_r_hasen.html_ (http://law.uc
i.edu/faculty/page1_r_hasen.html) 

William  H. Hannon Distinguished Professor of Law
Loyola Law School
_http://www.lls.edu/academics/faculty/hasen.html_ 
(http://www.lls.edu/academics/faculty/hasen.html) 
_http://electionlawblog.org_ (http://electionlawblog.org/) 

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