[EL] Fwd: Democracy 21 and Campaign Legal Center Challenge Legality of Pr...

Tue May 17 14:25:21 PDT 2011

Fred is so ignorant.  The RSPAC is a federal  PAC and therefore 
contributions to it are HARD MONEY which political parties and  candidates can solicit. 
 It is an IE-PAC which the FEC says and federal  courts have required have 
not source or amount limits on contributions.   And it is set up by Roger, 
Solomon and I and is not controlled by anyone but  us.  More bluster from the 
guys that think all political spending is  illegal.  Jim Bopp

In a message dated 5/17/2011 5:00:53 P.M. Eastern Daylight Time,  
rhasen at law.uci.edu writes:

in  response to Steve Gold's post, see below (not yet up on the CLC or D21  
websites).

-------- Original Message --------     Subject:  Democracy 21 and Campaign 
Legal Center Challenge Legality of  Proposed Soft Money Activities by RNC 
Shadow Group Formed by RNC  Committeeman James Bopp  Date:  Tue, 17 May 2011 
13:54:01 -0700  From:  _wertheimer at democracy21.org_ 
(mailto:wertheimer at democracy21.org)   _<wertheimer at democracy21.org>_ 
(mailto:wertheimer at democracy21.org)   Reply-To:  _ekesler at democracy21.org_ (mailto:ekesler at democracy21.org)  
_<ekesler at democracy21.org>_ (mailto:ekesler at democracy21.org)   To:  Hasen, 
Richard _<rhasen at law.uci.edu>_ (mailto:rhasen at law.uci.edu) 

Democracy 21 -  Campaign Legal  Center
_________________________________________________________________ 
Press Release, May 17, 2011, _www.democracy21.org_ 
(http://www.democracy21.org/) 
_________________________________________________________________ 
Democracy  21 and Campaign Legal Center Challenge Legality of Proposed Soft 
Money  Activities by RNC Shadow Group Formed by RNC Committeeman James  
Bopp 

Statement of Fred Wertheimer, President of  Democracy 21 and
Trevor Potter, President of Campaign Legal Center and  former FEC Chairman 
Recent press reports have revealed the formation of a new "Republican Super 
 PAC" whose planned operations would appear to violate multiple federal  
campaign finance laws because of the involvement of members of the RNC in  
establishing and controlling the PAC and because of the planned use of federal  
officeholders and candidates to solicit unlimited contributions for the  
PAC.  Such solicitations by federal officeholders and candidates are  
explicitly prohibited by provisions of the Bipartisan Campaign Reform Act that  have 
been upheld by the Supreme Court.

According to recent press  reports, three members of the Republican 
National Committee - Indiana RNC  Committeeman James Bopp Jr, Oregon RNC 
Committeeman Solomon Yue and Louisiana  State party Chairman Roger Villere - have 
established a new political  committee called “Republican Super PAC.”

They have indicated that the  purpose of this PAC is to make independent 
expenditures in federal elections  and that it will use funds solicited in 
unlimited amounts by, among others,  federal candidates who will benefit from 
those expenditures.  

In  our view, the proposed efforts of this RNC “shadow group” would 
violate  multiple provisions of the federal campaign finance laws.  

First,  this constitutes an illegal scheme to violate the ban on the 
raising or  spending of soft money by national party committees. Second, the 
proposed  activities would violate the ban on federal officeholders soliciting 
unlimited  soft money donations in connection with a federal election.  Each 
of  these bans has been upheld by the Supreme Court, and neither of them was  
affected by the Court’s decision in Citizens United.

Indeed,  in RNC v. FEC, Mr. Bopp failed in his attempt to overturn the  
decision in McConnell v. FEC, which upheld the constitutionality  of  both the 
ban on political party soft money and the ban on federal  officeholders and 
candidates soliciting unlimited contributions.  

Mr. Bopp urged a three-judge lower court to declare provisions  of the soft 
money ban unconstitutional but the lower court unanimously  rejected the 
argument and the Supreme Court last year summarily affirmed the  lower court 
decision. The party soft money ban remains the law.

Mr.  Bopp is now apparently attempting to ignore the statutory ban on 
political  party soft money and to overturn by fiat the Supreme Court  decision.

The soft money ban prohibits the RNC “or any officer or agent  acting on 
behalf of ” the RNC or “any entity that is directly or indirectly  
established, financed, maintained or controlled” by the RNC from soliciting,  
receiving, spending or directing to another person any contributions that are  not 
subject to the limitations, prohibitions and reporting requirements of the  
law.

The “Republican Super PAC” has been set up by three members of the  RNC, 
including Mr. Bopp, who is, according to press reports, unveiling the  scheme 
in a presentation to all RNC members tomorrow. 

Press  reports also indicate that party officials and agents will raise 
funds for the  “Republican Super PAC,” in unlimited amounts.  According to an 
article in  POLITICO: 
“We are not going to do any fundraising,” Bopp  told POLITICO. “We are 
harnessing the fundraising operations of those  entities, the RNC and all the 
state parties and federal candidates, who will  be raising money first for 
themselves and then they would tell their donors,  if they have extra money, 
to send it to the Republican Super PAC.” 
Given these circumstances, this PAC is exactly the type of group that is  
described by the law as an entity “that is directly or indirectly 
established,  financed, maintained or controlled” by a national party committee and 
that is  a group controlled by “agents” of the RNC who are acting on behalf of 
the  RNC.

As such, the soft money ban applies directly to “Republican Super  PAC” 
and the PAC is subject to the contribution limits that apply to national  
party committees. It would be illegal for the PAC to accept, or for any agent  
of the national party to solicit, a contribution in excess of the limits that 
 apply to contributions that can be accepted by the national  parties.

RNC Chairman Reince Priebus should be on notice that it would  be a 
violation of law for the RNC and “Republican Super PAC” to solicit or  receive any 
corporate or labor union contributions, and a violation of the law  for the 
RNC and "Republican SuperPac" to solicit or receive contributions from  an 
individual that in the aggregate exceed $30,800 per year.

Mr. Bopp  has also said that he intends to have federal candidates solicit 
unlimited  funds for “Republican Super PAC.”

Every member of Congress and every  federal candidate should be on notice 
that it would be a violation of the law  for them to solicit unlimited 
contributions for “Republican Super PAC” or for  any other Super PAC.

According to press reports, “Republican Super PAC”  is taking the position 
that it is intending to make only “independent”  expenditures, and 
therefore can accept contributions that are not subject to  any limitations. (The 
DC Circuit Court of Appeals held in SpeechNow v.  FEC that contributions to 
an independent expenditure-only PAC are not  subject to contribution limits). 

The federal campaign finance  law prohibits federal officeholders and 
candidates from soliciting or  directing any funds in connection with a federal 
election “unless the funds  are subject to the limitations, prohibitions and 
reporting requirements” of  the law.  

If “Republican Super PAC” raises unlimited  contributions under SpeechNow, 
it will be raising funds that are  not “subject to the limitations” of the 
federal law.  

Even  if it is permissible for “Republican Super PAC” to accept such 
unlimited  funds, it is not permissible for federal candidates and officeholders 
to  solicit such funds as they are not “subject to the limitations” of the 
federal  law.

Any contrary view would lead to the absurd and obviously  corrupting result 
that an incumbent federal officeholder can solicit a $1  million or $5 
million donation to “Republican Super PAC” with the  understanding that the PAC 
will then spend the money on “independent”  expenditures to benefit that 
officeholder.

The D.C. Circuit in the  SpeechNow case found that a PAC which makes only 
independent  expenditures can accept unlimited contributions on the grounds 
that such  contributions do not pose any threat of corruption. SpeechNow,  
however, said it operated wholly independently of candidates and parties, and  
the court did not consider a situation where the contributions raised by 
the  PAC are to be solicited by federal candidates. There is nothing in the 
court’s  opinion to suggest that it would permit solicitations of unlimited 
amounts by  federal candidates.

Federal law prohibits federal candidates and  officeholders from soliciting 
funds that are not subject to any contribution  limit.  That provision was 
upheld by the Supreme Court in the  McConnell case and even Justice Kennedy 
- who otherwise dissented in that  case, and who subsequently authored the 
Citizens United  decision-  said this solicitation ban was the one provision 
that  “satisfies Buckley’s anticorruption rationale and the First Amendment 
 guarantee.”  

As Justice Kennedy wrote, “The making of a solicited  gift is a quid both 
to the recipient of the money and to the one who  solicits the payment (by 
granting his request).  Rules governing  candidates’ or officeholders’ 
solicitation of contributions are, therefore,  regulations governing their receipt 
of quids. This regulation fits  under Buckley’s anticorruption rationale.”

Any federal  candidate or officeholder who solicits unlimited contributions 
to the  “Republican Super PAC” or any other super PAC will be violating 
federal  law.

# # # 
Released: Tuesday, May 17,  2011

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