[EL] ELB News and Commenary 6/25/11
JBoppjr at aol.com
JBoppjr at aol.com
Sun Jun 26 14:47:49 PDT 2011
Another interesting aspect of Reid and Kerry's solicitation of
contributions to the Democrat Super PAC is that they paid for the solicitation. See
the disclaimer on the letters. Thus, they have made an inkind contribution
to the Democrat Super PAC of their fundraising expense.
This takes what candidates can do for Super PACs to another level. Not
only can they fundraise for a Super PAC, they can contribute to a Super PAC.
If they can contribute, they could just totally fund it if they wish.
I had not proposed this but the Democrats are actually doing it. I don't
see any problem with this under the FECA. Jim Bopp
In a message dated 6/25/2011 5:19:24 P.M. Eastern Daylight Time,
JBoppjr at aol.com writes:
Agreed and nor do I. Furthermore, this invented disclaimer, pretending to
only ask for 5K for a Super PAC, is meaningless in the real world, so if
the FEC won't agree that candidates can solicit freely for Super PACs as the
law permits, I hope they endorse the charade -- the disclaimer (which the
draft AO does not) and the fundraising activity you describe (which the
draft AO does). This will clearly get the job done. Otherwise, Reid and
Kerry will just have to go to jail. Jim
In a message dated 6/25/2011 1:50:43 P.M. Eastern Daylight Time,
sbieniek at bienieklaw.com writes:
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_
(mailto: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_ (mailto: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_ (tel:949.824.3072) - office
_949.824.0495_ (tel: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.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://www.lls.edu/academics/faculty/hasen.html)
_http://electionlawblog.org_ (http://electionlawblog.org/)
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