| Subject: Mason-Toner on Berman-Doolittle |
| From: Rick Hasen |
| Date: 8/30/2005, 10:32 AM |
| To: election-law |
I have posted the document here.
The opinion addresses an important legal question about the ability of
federal officeholders to raise funds for state initiative contests,
including those (as in the Berman-Doolittle case) involving proposed
changes to the redistricting process. The Mason-Toner opinion begins:
The threshold legal question in deciding whether Section 441i(e)’s fundraising restrictions apply is whether the activities in question are in connection with an election. Sections 441i(e)(1)(A) & (B) prohibit Federal officeholders and candidates from soliciting, receiving, directing, transferring, or spending funds outside the prohibitions and limitations of the Act, but only in connection with an election for Federal office or in connection with any election other than an election for federal office. Both statutory provisions are expressly limited to elections for office. The plain meaning of the statute is that the soft-money ban applies to federal and non-federal elections for public office, but does not apply to non-candidate political activity, such as ballot initiatives and referenda. Any other interpretation would render the statutory reference to “office” in Sections 441i(e)(1)(A) & (B) a nullity. Commission regulations likewise define election as limited to candidate elections. See 11 C.F.R. §100.2(a) (defining election as the “process by which individuals…seek nomination for election, or election, to Federal office”). In light of the foregoing, ballot initiatives and referenda are not elections for office as a matter of law under Section 441i(e) and, therefore, the statute’s soft-money fundraising restrictions do not apply to ballot measure activities.
-- Rick Hasen William H. Hannon Distinguished Professor of Law Loyola Law School 919 Albany Street Los Angeles, CA 90015-1211 (213)736-1466 (213)380-3769 - fax rick.hasen@lls.edu http://www.lls.edu/academics/faculty/hasen.html http://electionlawblog.org