BEFORE THE FEDERAL ELECTION COMMISSION
In the matter of
Dole for President, Inc. and Robert J. Dole, as treasurer; Dole/Kemp 96, Inc., and Robert J. Dole, as treasurer; Republican National Committee and Alec Poitevint, as treasurer; Senator Robert J. Dole |
MURs 4553 and 4671 |
The Clinton/Gore 96 Primary Committee, Inc., and Joan Pollitt, as treasurer; The Democratic National Committee, and Carol Pensky, as treasurer; President William J. Clinton; and Harold M. Ickes, Esquire |
MUR 4713 |
The Clinton/Gore 96 Primary Committee, Inc., and Joan Pollitt, as treasurer; The Democratic National Committee, and Carol Pensky, as treasurer; President William J. Clinton; Vice President Albert Gore, Jr.; and Clinton/Gore 96 General Committee, Inc., and Joan Pollitt, as treasurer |
MURs 4407 and 4544 |
SUPPLEMENTAL STATEMENT OF REASONS
COMMISSIONER SCOTT E. THOMAS
I write this supplemental statement to address certain arguments proffered by my
colleagues, Commissioners Sandstrom and Elliott. The
underlying Matters Under Review (MURs) were perhaps the FECs greatest
test to date. The FEC deadlocked 3-3 on the
most significant issuewhether most of the RNC and DNC ads were in-kind contributions
to the Dole/Kemp and Clinton/Gore campaigns.[1]
Because this question is now subject to judicial review, at least as to the DNC
ads,[2]
it is especially important that the legal analysis of those commissioners voting not to
proceed be carefully scrutinized. If found
contrary to law or arbitrary and capricious, there is some possibility that the FECs
dismissal of these cases will be reversed.[3]
I. The significance of the prior votes
in the audits regarding repayment of public funds
First, I must address the argument
put forward by Commissioner Sandstrom that the FECs earlier 6-0 vote in the public
funding repayment context somehow should govern the result in these MURs.[4] In law and in fact, the two determinations were
very different.
As I explained in my Statement for the Record in Audits of Clinton/Gore and
Dole/Kemp Campaigns dated December 28, 1998 (attached), the vote in the repayment setting
dealt only with recoupment of public funds,
and reflected vastly different commissioner viewpoints.
Most significantly, three of my colleagues had indicated by a preceding vote that
they would not approve any repayment whatsoever stemming from excess candidate spending in
the primary, no matter how clearly the spending involved activity coordinated with party
operatives and no matter how clearly the ads were intended to promote a particular
candidates election or defeat.[5] Thus, before any actual repayment vote, there was
simply no way to get the four votes needed to
order any repayment of public funds associated with excess primary spending caused by the
party ads.
As Acting Chairman at the time, I suggested that rather than waste days, perhaps
weeks, analyzing each ad separately to allow for a string of futile votes on whether any
particular ad would generate a repayment of public funds, commissioners should proceed to
a single vote to reject the Audit Divisions repayment recommendation which covered all the ads.
Commissioners who believed none of the ads could generate a repayment under the
public funding statute, like my three Republican colleagues, could vote to reject the
recommendations for that reason. Commissioners
like myself, who believed that some but not all
of the ads should generate a repayment, likewise could vote to reject the auditors
recommendations because they lumped all the
ads together. This approach was adopted by my
colleagues, and it is the basis for the 6-0 vote rejecting the auditors repayment
recommendations.
The commissioners underscored their desire to leave any determination about whether
the ads constituted in-kind contributions for the MUR track. Each audit report was revised to state: [T]he Commission directed the Audit Division
to revise the portion of the report relating to party ads to clarify that the Commission
has not reached any conclusion regarding the Audit Divisions in-kind contribution
analysis, and to indicate that Commissioners may submit statements for the record. The bottom line, therefore, is that the voting in
the audit track regarding repayment did not in fact govern whether the party ads
constituted in-kind contributions, and should not be interpreted as having done so. The voting in the MUR track was the real deal.
II. The limited holding in Advisory
Opinion 1995-25
Next, I wish to address Commissioner
Sandstroms argument that Advisory Opinion 95-25, 2 Fed. Elec. Camp. Fin. Guide
(CCH), ¶ 6162, ruled definitively that ads similar to those at issue here were not
attributable to any contribution or coordinated expenditure limit.[6] To the contrary, the commissioners involved went
out of their way to caution that the opinion did not rule on that point. Because the request of the Republican National
Committee was deliberately vague on whether any particular ad text proffered would in fact
be used, the Commission was very particular in emphasizing that it was issuing no opinion
about whether the planned activity of the RNC would constitute an electioneering
message[7]
and hence a coordinated expenditure by the RNC. The FECs ruling was confined to the
question of whether the RNCs activity, as generally described, would require
allocation as partly federal and partly non-federal. [8]
The Commission expressly noted it was relying on the requestors legal
representation that no ads would contain an electioneering message and expressly advised
it was not characterizing any particular ads as containing an electioneering message:
The Commission relies on your statement
that those advertisements that mention a Federal Candidate or officeholder will not
contain any electioneering message. In view
of this representation, the Commission does not
express any opinion as to what is or is not an electioneering message by a political
party committee.
2 Fed. Elec.
Camp. Fin. Guide (CCH), ¶ 6162 at 12,108 (emphasis added).
To drive home the point that it was only addressing the general question of whether
legislative advocacy media advertisements that focus on national legislative
activity and promote the [party] should be considered as made in connection with both
Federal and non-federal elections, the Commissions affirmative conclusion
ended with the proviso, unless the ads would qualify as coordinated expenditures on
behalf of any general election candidates of the Party under 2 U.S.C. § 441a(d). Id. at
12,109. This clearly contrasted the central
holding of the opinion with the unresolved question about the status of any particular ad
as a contribution or coordinated expenditure.
The foregoing demonstrates that the FEC in no way determined or
approved anything about any particular ad in Advisory Opinion 1995-25. Accordingly, no precedent regarding application of
the contribution or coordinated expenditure limits should be gleaned from that opinion.
That said, Commissioner Sandstrom demonstrates a valid point: there probably were and are some election law
attorneys and other political practitioners who missed the crucial distinctions the FEC
built into Advisory Opinion 1995-25. While
that perhaps justifies a reliance on counsel defense or mitigation of some
sort, it does not alter the true state of the law.
III. The courts have not required
express advocacy for coordinated expenditures.
Last, I must address Commissioner Elliotts asserted belief that Buckley v. Valeo (Buckley),[9] FEC v. Massachusetts Citizens for Life (MCFL),[10] and a string of other cases
cited in her June 23 Statement of Reasons[11] somehow hold that
coordinated expenditures must rise to the level express advocacy to be validly
limited. It is a view that does not withstand
scrutiny.
The part of Buckley on which
Commissioner Elliott relies, and all the other cases she cites except two, deal with independent or non-coordinated communications. Only in that realm has the express
advocacy concept been imposed. See Statement for the Record in Audits of 1996
Clinton/Gore and Dole/Kemp Campaigns by Commissioners Thomas and McDonald dated July 1999
(attached) at 7, 8.[12]
In the only case cited by Commissioner Elliott where ads coordinated with a
candidate were at issue, the court held emphatically that the express advocacy
standard was not applicable. FEC v.
Christian Coalition Inc., 52 F. Supp.2d 45 (D.D.C. 1999). The court said:
[I]mporting the express advocacy standard into § 441bs
contribution prohibition would misread Buckley
and collapse the distinction between contributions and independent expenditures in such a
way as to give short shrift to the governments compelling interest in preventing
real and perceived corruption that can flow from large campaign contributions. 52 F. Supp.2d at 88. The court referred to the position espoused herein
by Commissioner Elliott as untenable and fanciful. 52 F. Supp.2d at 87 and n. 50. I would not use such pejorative phrasing, but only
note that the courts simply dont agree.
As for the other case cited by Commissioner Elliott where activity coordinated with
a candidate was involved, Orloski v. FEC,[13]
the court made clear that the apparent FEC policy of using the express
advocacy test, among others, in the context of federal officeholder community events
was neither statutorily nor constitutionally required.
The fact that the FEC at one time chose to use the express advocacy
test in that limited situation is of no relevance in the MURs at hand.[14]
Commissioner Elliotts stated view herein is at odds with some of her own
votes. If her view is that even coordinated
ads must rise to the level of express advocacy in order to be regulable, then
her votes in MUR 3918 (law firm ads referencing Senate candidate Joel Hyatt with the
phrase, Hyatt Legal Servicesserving the people of Ohio) and MUR 4116 (
radio ads paid for by the National Council of Senior Citizens Political Action Committee
challenging Senate candidate Ollie Norths statement that Social Security should be
scrapped) are inconsistent. In both of those
cases she voted to find probable cause that the coordinated ads were illegal in-kind
contributions even though no express advocacy was included.[15] I would argue that her votes in those MURs reflect
a more accurate assessment of the law than her stated position herein.
IV. Conclusion
It is unusual for a commissioner to issue a supplemental statement commenting on
the statement of another colleague. I have
not taken any of the statements attributed to me personally, and I do not intend any of
the comments herein to be taken personally. This
is all purely legal argument, in my view. Only
because it involves very high stakes interpretations of federal campaign finance law do I
feel the need to further explicate the topic.
6/28/00
/ s /
____________________
________________________________
Date
Scott E. Thomas
Commissioner
Attachments: 12/23/98 Vice Chairman Thomas Statement for the Record
in Audits of Clinton/Gore and Dole/Kemp Campaigns
7/2/99 Chairman Thomas and Commissioner McDonalds Statement
for the Record in Audits of 1996 Clinton/Gore and Dole/Kemp Campaigns
[1] See Statement of Reasons of Commissioner Scott E. Thomas dated May 25, 2000 for a description of the various allegations, recommendations, and votes.
[2] One of the complainants filed a suit challenging the FECs dismissal of the allegations relating to the DNC and Clinton/Gore campaign. Fulani v. FEC, Civ. Action No. 1:00CV01018 (WBB) (D.D.C., filed May 8, 2000).
[3] See 2 U.S.C. § 437g(a)(8).
[4] In a Money & Politics (BNA) article dated June 5, 2000, Commissioner Sandstrom was quoted as saying my vote in the MURs was inconsistent with my earlier vote in the repayment context. In his Statement of Reasons issued June 21, 2000, at footnote 19, Commissioner Sandstrom wrote it was self evident that the commissioners vote regarding the party ads in the repayment track presaged the treatment of the ads in the MUR track.
[5] This reflected the view of Commissioners Elliott, Mason, and Wold that the primary matching fund statute did not contemplate any repayment of public funds corresponding to excessive spending by the candidate. See Agenda Documents 98-92 and 98-92A. I noted in my Statement (attached) that this was the first time in six presidential cycles such an argument had surfaced, that it ran counter to long-standing Commission interpretation of the statute through regulation (11 C.F.R. § 9034.4(b) provides, An expenditure which is in excess of any of the limitations under 11 C.F.R. Part 9035 shall not be considered a qualified campaign expense.), and that several courts had upheld the Commissions interpretation.
[6] Referring to one of the ad texts submitted by the advisory opinion requestor, the Republican National Committee (RNC), Commissioner Sandstrom states the Commission determined [it] did not contain an electioneering message [emphasis added]. Statement of Reasons of Commissioner Karl J. Sandstrom at 6. He later characterizes the various texts submitted by the requestor as approved. Id. at 7.
[7] The electioneering message phrase was a shorthand reference to the underlying statutory provisions governing whether a particular party communication should be treated as an in-kind contribution under the contribution limits (see, e.g., 2 U.S.C. § 441a(a)(2)(A)) or as a coordinated expenditure under the party-specific limits at 2 U.S.C. § 441a(d). This phrasing was eliminated from the campaign finance lexicon by the June 24, 1999 Statement for the Record filed by Commissioners Sandstrom, Elliott, Mason, and Wold in connection with the Dole/Kemp and Clinton/Gore audit determinations. See Statement for the Record of Commissioners Thomas and McDonald dated July 6, 1999 (attached). At the time Advisory Opinion 1995-25 was issued, however, the legally correct way to describe whether an ad should count toward a particular limit was according to whether it mentioned a clearly identified candidate and contained an electioneering message.
[8] The Commission was aware that the RNC and the Democratic National Committee (DNC) were playing a game of cat and mouse regarding this advisory opinion request. Apparently, because the RNC wished to file a complaint regarding the DNCs use of purely soft money to pay for some of its ads in the 1993-94 time frame, it sought an advisory opinion to ascertain whether the Commission would most likely treat the 1993-94 activity as a violation. Because the original request did not include any specific proposed text, the Commission asked for an example of an ad to facilitate analysis. Though the RNC provided three texts, it specifically represented that none of the ads served as the basis for the advisory opinion request. Because of this vagueness, and because of the importance of nonetheless giving some guidance on the overriding question of federal/non-federal allocation, the Commission carefully included language limiting the scope of its opinion. Incidentally, after receiving Advisory Opinion 1995-25, the RNC indeed filed a complaint regarding the DNCs 1993 activity, then sued the FEC when it failed to muster enough votes to settle the matter with a conciliation agreement, then withdrew its suit, and then filed a new suit claiming the FECs regulations unconstitutionally deprived it of the opportunity to use exclusively soft money to pay for what it characterized as issue ads. See FEC Record, Vol. 23, Number 9, p. 1; Vol. 24, Number 6, p. 4; Vol. 24, Number 6, p. 1.
[9] 424 U.S. 1 (1976).
[10] 479 U.S. 238 (1986).
[11] See p. 3, footnote 10, of Commissioner Elliott Statement.
[12] In Buckley, the Court could not have been clearer: [C]oordinated expenditures are treated as contributions rather than expenditures under the Act. 424 U.S. at 46, 47. In MCFL, the Court specified that its express advocacy construction need only apply to the provision in 2 U.S.C. § 441b that directly regulates independent spending. 479 U.S. at 249.
[13] 759 F.2d 156 (D.C. Cir. 1986).
[14] Commissioner Elliott notes that the Orloski court said, Under the Act this type of donation is only a contribution if it first qualifies as an expenditure . . . . 759 F.2d at 163. This is inaccurate. The statute defines contribution as any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office. 2 U.S.C. § 431(8)(A)(i). There is no dependence on the expenditure definition. That said, because the term expenditure is defined very similarly at 2 U.S.C. § 431(9)(A)(i), virtually every contribution would qualify as an expenditure. There is further overlap because, as Commissioner Elliott notes, and as the Supreme Court has noted (see n. 12, supra), a coordinated expenditure is to be treated as a contribution. See 2 U.S.C. § 441a(a)(7)(B)(i). But the term expenditure is much broader in that it includes mundane operating expenditures of political committees, as well as independent, non-coordinated outlays that would fall under the reporting provision at 2 U.S.C. § 434(c) or the ban at 2 U.S.C. § 441b only if they contain express advocacy.
[15] See certifications of vote dated March 11, 1997 in MUR 3918 and December 9, 1997 in MUR 4116.