WASHINGTON -- The Federal Election Commission (FEC) is looking at three votes at its Thursday meeting on one key issue that would dramatically alter the way lawmakers and Super PACs raise money.
The votes will be on an advisory opinion request from two Democratic Party-affiliated Super PACs, Majority PAC and House Majority PAC, asking whether it would be legal for lawmakers and federal office holders to solicit money on behalf of a Super PAC raising unlimited sums of money.
Super PACs are independent political committees that can raise unlimited sums from corporations, unions and individuals to use for independent expenditures in elections.
The commission has released three draft advisory opinions -- one came last week and the other two dropped late Tuesday afternoon. Two of these draft opinions take opposing views on the issue, with one arguing that the requested type of solicitation would be illegal and the other permitting it. The third draft would refuse the request while allowing federal office holders to solicit limited funds, those facing contribution limits, for an independent political committee that could, on its own, receive unlimited contributions.
The opposing views in the first two drafts likely mean that the FEC will deadlock on the issue. The FEC is a nonpartisan body with three commissioners from each political party. All actions by the FEC require four of the six commissioners to vote for approval.
The third draft opinion would permit the type of solicitation that Sens. Harry Reid (D-Nev.) and John Kerry (D-Mass.) engaged in by asking supporters to donate limited amounts to Majority PAC.
An approval of an advisory opinion request acts as a "legal shield against any type of future prosecution," according to Tara Malloy, an associate counsel at the Campaign Legal Center. "They would be bulletproof in regards to the FEC," she said.
In explaining the possible outcome of a deadlocked vote, Malloy said that "if there's no advisory opinion at all, [the requestor] could proceed, take the split that the FEC wouldn't enforce the law against them. ... It will depend on how risk averse these groups are."
A deadlocked vote could force the issue to the courts. The advisory request came from the Democratic Super PACs only after conservative lawyer Jim Bopp launched his Republican Super PAC with the express intent of having federal elected officials solicit unlimited funds for his organization as earmark contributions for specific races. Bopp did not ask for an advisory opinion, although he has submitted a comment to the FEC in support of the request.
The courts have recently been kind to these types of challenges to campaign finance regulations. The creation of Super PACs resulted from a deadlocked FEC vote on an advisory opinion from the group SpeechNow.org seeking to raise unlimited funds.
Another campaign finance issue winding its way through the courts after a deadlocked FEC vote is the Carey v. FEC case. The case revolves around a Super PAC -- the National Defense PAC run by Rear Adm. James Carey -- that asked the FEC whether it could operate a separate, segregated fund of limited contributions to be distributed to candidates for office. Super PACs are organized as independent expenditure-only committees and are currently barred from raising funds to contribute to office seekers. A judge on the U.S. District Court for the District of Columbia recently ruled in National Defense PAC's favor, allowing it to create a segregated fund for limited contributions along with operating as a Super PAC receiving unlimited funds. (Correction: National Defense PAC is actually a non-connected PAC seeking to also act as a Super PAC by raising unlimited funds in a segregated account.)
The Campaign Legal Center, the Brennan Center for Justice and Americans for Campaign Finance Reform all submitted comments to the FEC opposing the approval of the advisory request. Their argument is that the Bipartisan Campaign Reform Act, commonly known as McCain-Feingold, forbids federal office holders from soliciting any funds that are not subject to contribution limits.
The three opinions can be found below: