AO 2010-03: Members of Congress may solicit nonfederal funds for redistricting trust

The activities of a trust established to raise funds for pre-litigation and litigation costs arising from the next redistricting process are not considered to be in connection with an election. Therefore, Members of Congress may solicit funds on behalf of the trust outside the limitations and source prohibitions of federal law.

Background

The National Democratic Redistricting Trust (the Trust) was established by individuals, not Members of Congress, to raise funds to pay for the pre-litigation and litigation costs of the next legislative redistricting process. The Trust is run by a trustee and an executive director, neither of whom are Members of Congress. The Trust is not directly or indirectly established, financed, maintained or controlled by any Member of Congress, any authorized candidate committee or any national, state, district or local party committee.

The Trust does not seek to fund attempts to directly influence elections. No funds raised will be used to pay for communications that expressly advocate the election or defeat of any clearly identified candidate for office. The solicitations of funds will not expressly advocate the election or defeat of any clearly identified candidate.

The Trust asked if Members of Congress could solicit funds on its behalf. These solicitations would request funds that do not comply with the amount limitations or source prohibitions of the Federal Election Campaign Act (the Act). Solicitations by Members of Congress would not advocate the election or defeat of any candidate for office.

Analysis

The Bipartisan Campaign Reform Act of 2002 (BCRA) and Commission regulations prohibit federal candidates and officeholders from soliciting, receiving, directing, transferring or spending any funds in connection with an election for federal office unless such funds are subject to the limitations, prohibitions and reporting requirements of the Act. 2 U.S.C. § 441i(e)(1)(A); 11 CFR 300.61. BCRA and the Commission’s regulations also prohibit federal candidates and officeholders from soliciting, receiving, directing, transferring or spending any funds in connection with an election other than an election for federal office unless the funds are consistent with the Act’s amount limitations and source prohibitions. 2 U.S.C. § 441i(e)(1)(B); 11 CFR 300.62.

To determine whether Members of Congress can solicit nonfederal funds on behalf of the Trust, the key question is whether the federal candidate or officeholder is soliciting funds in connection with an election, be it a federal or nonfederal election. If the funds being solicited are not raised or spent in connection with an election, they do not fall under the scope of 2 U.S.C. § 441i(e). Since the passage of BCRA, the Commission has addressed the issue of whether certain activities are considered to be in connection with an election. The Commission cited AO 2005-10, in which the Commission found that federal candidates and officeholders were not prohibited from raising funds for committees formed solely to support or oppose ballot measures, including a ballot measure specifically related to redistricting. The committees, as described by the AO requester, were not established, financed, maintained or controlled by a federal candidate, officeholder or anyone acting on their behalf, or by any party committee. No federal candidates appeared on the same ballot as the ballot measure.

The Commission also cited AO 2003-15, in which the Commission found that a federal candidate’s costs for defending against a lawsuit seeking a special general election were not in connection with any election.

In this case, the Trust seeks to engage in litigation over the redistricting process that will govern how the electoral process is conducted in the future. BCRA does not directly address whether redistricting activities are considered to be activities “in connection with” elections. The Commission determined that, although the outcome of redistricting can have political consequences, funds raised and spent on the litigation process surrounding redistricting are not “in connection with” the actual elections.

The Commission concluded that donations to the Trust for the sole purpose of paying the pre-litigation and litigation costs associated with reapportionment and redistricting legal matters are not in connection with any election under 2 U.S.C. § 441i(e)(1)(A) and (B). Therefore, the funds are not subject to the limitations and prohibitions of the Act and, accordingly, a Member of Congress may solicit unlimited funds on behalf of the Trust for the purposes of paying the legal expenses associated with the Trust’s redistricting efforts.

AO 2010-03: Date issued: May 7, 2010; Length: 5 pages