While Stephen Colbert got all the attention at the FEC today (link to commission audio), the more important substantive decision was the unanimous vote of the FEC to prevent the reopening of a soft money loophole in campaign finance law. It’s not every day (in fact, it’s usually not any day) that the FEC’s actions get praise from Fred Wertheimer.
What happened and why?
Here’s the back story: Jim Bopp announced the formation of a Republican “super PAC”–a political committee which does not make any contributions directly to federal candidates, and which, thanks to recent court and FEC rulings may take unlimited contributions (from individuals, corporations, and labor unions) to be spent on independent ads supporting or opposing federal candidates. What made Bopp’s proposal unique is that he would use Republican officeholders to raise unlimited sums for the Super PAC. It would not only create a “shadow” Republican party—it would get elected officials back in the business of raising unlimited sums from corporate, union, and wealthy contributors, effectively reversing the “soft money ban” put in place by McCain-Feingold. Not only did the Supreme Court uphold that ban in McConnell v. FEC (in a portion of the opinion not touched by Citizens United), even Justice Kennedy voted to uphold key parts of the ban on elected officials soliciting unlimited funds to benefit their political parties.
Democratic lawyers, including Marc Elias, in a savvy move, then filed an Advisory Opinion request, asking the FEC to rule on whether such unlimited fundraising is legal, or whether such solicitations need to be within the $5,000 limit for PACs which are not “super-PACs.” So Elias got the FEC to rule on whether Bopp’s plan is legal.
Today the FEC voted on that advisory opinion request, saying that elected officials may not raise unlimited funds for super-PACs. I have not seen any news reports yet, but Sean Parnell tweets that the Commission, on a 6-0 vote, approved a revised version of Draft A to AO request 2011-12. It’s a good thing too, because it really would have eviscerated the soft money limits.
I think Jim Bopp’s proposal was a bridge too far, even for the three FEC Commissioners. Not only would there have been a public outcry, but I imagine the issue would have ended up in the courts, and created great uncertainty as the 2012 election season gets into full swing. It reminds me of when Judge Kavanaugh rejected a lawsuit by Bopp seeking to end the soft money limits. Judge Kavanaugh, no friend of campaign finance regulation, said that the time may come when the Supreme Court would overturn McConnell and hold the soft money limits clearly imposed by Congress as unconstitutional. But until then he was bound by Congress and the Court.
So the three Republican commissioners deserve great praise today for their vote in this case, but I have low expectations going forward, given the Commissioners’ recent votes in coordination and disclosure cases, as well as their position on the post-Citizens United rulemaking.