At 06:13 AM 05/29/2003 -0700, Rick Hasen wrote:

It has been a while since I've looked at the solicitation rules and FEC implementing regulations. I don't see how solicitation of funds by a federal officeholder for a wholly state law purpose such as the recall election is covered by BCRA, but maybe I'm missing something.

2 U.S.C. Sec. 441i(e)(1) states: (1) In general. A candidate, individual holding Federal office, agent of a candidate or an individual holding Federal office, or an entity directly or indirectly established, financed, maintained or controlled by or acting on behalf of 1 or more candidates or individuals holding Federal office, shall not-- (A) . . . (B) solicit, receive, direct, transfer, or spend funds in connection with any election other than an election for Federal office or disburse funds in connection with such an election unless the funds--
(i) are not in excess of the amounts permitted with respect to contributions to candidates and political committees under paragraphs (1), (2), and (3) of section 315(a) [2 USCS ¤ 441a(a)]; and
(ii) are not from sources prohibited by this Act from making contributions in connection with an election for Federal office.

The Davis recall effort is, at a minimum, "financed" by Rep. Issa, since the A.P. article reports that he gave $445,000 to the effort and "formed a committee to raise money" on the issue.  As such, he cannot (and the committee funded by him cannot) raise money from prohibited sources or in unlimited amounts.

This is really the same issue as Rep. Flake's Advisory Opinion Request about his initiative committee in Arizona (FEC A.O.R. 2003-12).  The prohibition prevents federal office holders from using campaigns over state issues to boost their federal election chances ("Support Rep. Smith's initiative" translates well into "vote for Rep. Smith") and also prevents corporations or wealthy individuals from attempting to buy influence with an elected federal official by bankrolling a campaign supported by the officeholder.

There is an exception, in 2 U.S.C. Sec. 441i(e)(2), for financing state campaigns where a current federal officeholder is a candidate.  So if Rep. Issa were a candidate against Davis for the election, he could then raise money only limited by state law to campaign for governor.



Adam H. Morse
Associate Counsel, Democracy Program
Brennan Center for Justice
161 Avenue of the Americas, 12th Fl.
New York, NY  10013-1205
adam.morse@nyu.edu
www.brennancenter.org
212-992-8648
fax:  212-995-4550