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FEC Simultaneously Clarifies, Punts FEC Simultaneously Clarifies, Punts

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FEC Simultaneously Clarifies, Punts

Members of Congress won’t be able to raise and spend unlimited amounts of money on behalf of other candidates they support, the Federal Election Commission said on Thursday.

In unanimously approving an opinion, FEC commissioners rejected a request from a political action committee controlled by Sen. Mike Lee, R-Utah, to allow his leadership PAC to spend unlimited amounts of money on races other than his own.


In several cases in recent years, the Supreme Court and lower circuits have allowed outside groups to raise and spend unlimited amounts of money on independent expenditures. Those so-called super PACs are prohibited from coordinating with candidates; the FEC has also said federal candidates may only solicit amounts up to $5,000 — the legal limit for ordinary PACs — when they raise funds for super PACs.

Lee’s leadership PAC, the Constitutional Conservatives Fund, challenged the notion that a federal officeholder could not operate his own super PAC. Lee’s attorneys asked for permission to open a separate account expressly for independent expenditures, so long as candidates who benefit from those expenditures don’t participate in raising the funds themselves.

“We don’t believe there is a contribution limit on [independent expenditure] activity anymore,” said Dan Backer, the attorney for Lee’s PAC. But commissioners reacted skeptically. Republican member Donald McGahn, perhaps the most vocal opponent of strict campaign finance regulations, said the laws governing contributions to any entity controlled by a federal candidate prohibit unlimited donations.


“Wherever he goes, the contribution limit follows him, essentially,” McGahn said.

Backer said he believes the issue will eventually end up in federal court, the latest salvo opponents of campaign finance regulation have launched at the Bipartisan Campaign Finance Reform Act of 2002, better known as McCain-Feingold, and similar measures.

McGahn acknowledged the probability of a court case during Thursday’s hearing.

“I can see a court challenge, maybe equal protection,” McGahn said. “Everyone else gets to do unlimited [independent expenditures]. Why can’t Senator Mike Lee do IEs?” he said.


In a related matter, the FCC was far less decisive.

It deadlocked on how closely super PACs and members of Congress can work together on campaign ads without breaking the rules governing coordination between their campaigns and outside groups.

The Republican-leaning American Crossroads super PAC asked the FEC to provide guidance on the issue after Nebraska Democratic Party officials paid for an ad featuring Democratic Sen. Ben Nelson, who is up for reelection. Because the law largely prohibits campaigns and outside groups, including party committees, from coordinating their ads, Crossroads asked the FEC if it could produce similar ads with GOP candidates.

Faced with this important and controversial question, the FEC punted. The three Democrats on the committee voted in favor of an opinion that would have essentially banned the practice, while the three Republicans voted against it. The commission did nothing to make the murky issue of coordination any clearer.

Still, even the non-answer will have an effect on the campaign landscape, making it much less likely that lawmakers will participate in ads closely coordinated with outside groups. Lawmakers have traditionally been leery of running afoul of the rules by working too closely with outside groups, and Thursday’s ruling only reinforces how unsettled this area of campaign finance law is.

The Nebraska Republican Party has also filed an FEC complaint against Nelson for coordinating with Democratic state officials on his ad campaign.

This article appears in the December 2, 2011 edition of NJ Daily.

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