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

[Scott F. Bieniek]

Jim,

My understanding of 300.64 is that a federal candidate can attend an event
at which funds in excess of the federal limits are solicited provided that
the candidate does not appear in a fundraising role (Honorary Chairman) or
directly solicit funds in excess of the contribution limits.

So, provided that the Super PAC invitation said:
Featured Guest Senator Harry Reid
Included a disclaimer that all funds solicited were by the Super PAC, and
not Harry Reid, and
Contained a "Paid for by Super PAC" disclaimer
And if they create a short disclaimer in the program, Reid can probably
event take the stage and say, open your wallets and do what you can to
support the Super PAC.

It would appear that the appearance would be legal under 300.64. I do not
read anything in the draft AO that would change that analysis.

Whether this makes any sense is another question entirely. I don't see the
difference between allowing Harry Reid to headline the event as set forth
above, and allowing him directly solicit the funds.

-Scott F. Bieniek

On Sat, Jun 25, 2011 at 1:40 PM, <JBoppjr at aol.com> wrote:

> **
>     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" <JBoppjr at aol.com>
> Date: Sat, 25 Jun 2011 07:04:25 -0500
> To: "rhasen at law.uci.edu" <rhasen at law.uci.edu>, "law-election at uci.edu" <
> 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.
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19632&title=“Draft
> Limiting ‘Super PAC’ Fund-Raising May Not Be FEC’s Last Word
> on Question†&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19632&title=%E2%80%9CDraft%20Limiting%20%E2%80%98Super%20PAC%E2%80%99%20Fund-Raising%20May%20Not%20Be%20FEC%E2%80%99s%20Last%20Word%20on%20Question%E2%80%9D&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 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>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19643&title=“Whether
> White can serve as secretary of state to be decided Tuesdayâ€Â
> &description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19643&title=%E2%80%9CWhether%20White%20can%20serve%20as%20secretary%20of%20state%20to%20be%20decided%20Tuesday%E2%80%9D&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.”
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19641&title=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&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19641&title=To%20the%20Georgia%20Secretary%20of%20State%3A%20Please%20Show%20Me%20Evidence%20that%20a%20Voter%20ID%20Law%20Would%20Stop%20the%20Kind%20of%20Fraud%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>
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19638&title=“Illinois’s
> controversial redistricting map becomes law; GOP will sueâ€Â
> &description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19638&title=%E2%80%9CIllinois%E2%80%99s%20controversial%20redistricting%20map%20becomes%20law%3B%20GOP%20will%20sue%E2%80%9D&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.”
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19635&title=Remember
> the Obama Micro-Donors?&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19635&title=Remember%20the%20Obama%20Micro-Donors%3F&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.
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19632&title=“Draft
> Limiting ‘Super PAC’ Fund-Raising May Not Be FEC’s Last Word
> on Question†&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19632&title=%E2%80%9CDraft%20Limiting%20%E2%80%98Super%20PAC%E2%80%99%20Fund-Raising%20May%20Not%20Be%20FEC%E2%80%99s%20Last%20Word%20on%20Question%E2%80%9D&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-
>
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19628&title=A
> Courageous Statement on Voter ID Bill from Republican Ohio Secretary of
> State&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19628&title=A%20Courageous%20Statement%20on%20Voter%20ID%20Bill%20from%20Republican%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/>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19623&title=Adler
> Predicts a Likely Cert. Grant in Renzi Case&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19623&title=Adler%20Predicts%20a%20Likely%20Cert.%20Grant%20in%20Renzi%20Case&description=>
>  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/>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19620&title=“Soros
> and liberal groups seeking top election posts in battleground statesâ€Â
> &description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19620&title=%E2%80%9CSoros%20and%20liberal%20groups%20seeking%20top%20election%20posts%20in%20battleground%20states%E2%80%9D&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>.
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19617&title=Will
> ColbertNation Invade the FEC?&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19617&title=Will%20ColbertNation%20Invade%20the%20FEC%3F&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
> http://law.uci.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://electionlawblog.org
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
> ------------------------------
> IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with Treasury Department
> and IRS regulations, we inform you that, unless expressly indicated
> otherwise, any federal tax advice contained in this communication (including
> any attachments) is not intended or written by Perkins Coie LLP to be used,
> and cannot be used by the taxpayer, for the purpose of (i) avoiding
> penalties that may be imposed on the taxpayer under the Internal Revenue
> Code or (ii) promoting, marketing or recommending to another party any
> transaction or matter addressed herein (or any attachments).
>
> * * * * * * * * * *
>
> NOTICE: This communication may contain privileged or other confidential
> information. If you have received it in error, please advise the sender by
> reply email and immediately delete the message and any attachments without
> copying or disclosing the contents. Thank you.
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110625/81589fe4/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/unknown
Size: 1520 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110625/81589fe4/attachment.bin>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/unknown
Size: 1520 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110625/81589fe4/attachment-0001.bin>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/unknown
Size: 1520 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110625/81589fe4/attachment-0002.bin>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/unknown
Size: 1520 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110625/81589fe4/attachment-0003.bin>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/unknown
Size: 1520 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110625/81589fe4/attachment-0004.bin>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/unknown
Size: 1520 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110625/81589fe4/attachment-0005.bin>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/unknown
Size: 1520 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110625/81589fe4/attachment-0006.bin>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/unknown
Size: 1520 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110625/81589fe4/attachment-0007.bin>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/unknown
Size: 1520 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110625/81589fe4/attachment-0008.bin>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/unknown
Size: 1520 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20110625/81589fe4/attachment-0009.bin>