Commission holds hearing on McCutcheon Advance Notice of Proposed Rulemaking (2015)
The Commission held a public hearing on February 11, 2015, to receive input on possible changes to its rules in light of the Supreme Court’s April 2014 decision in McCutcheon, et al. v. FEC.
Nearly 60 people including campaign finance law experts, political party and nonprofit organization representatives, and grassroots organizers testified at the hearing. Their testimony supplemented the more than 32,000 written comments received in response to an Advance Notice of Proposed Rulemaking (ANPRM) the Commission published on October 17, 2014 (79 Fed. Reg. 62361).
Background
Prior to the McCutcheon decision, the Federal Election Campaign Act (the Act) limited not only the amount an individual could contribute to a particular candidate or political committee, but also the aggregate amount an individual could contribute to all candidates and committees combined, during a two-year election cycle. See 52 U.S.C. § 30116(a)(3) (formerly 2 U.S.C. § 441a(a)(3)). In McCutcheon, the Supreme Court found the aggregate limits unconstitutional.
In response to the Court’s decision, the Commission removed the aggregate limits from its regulations, and published an ANPRM seeking public comment on whether to begin a rulemaking to revise other regulations or practices in response to certain language in the McCutcheon decision. The Commission specifically identified the on regulations on earmarked contributions, 11 CFR 110.6; affiliation, 11 CFR 100.5; joint fundraising, 11 CFR 102.17; and disclosure, 11 CFR 104. (For a summary of the ANPRM, see this Record article.)
Hearing testimony
Some who testified at the public hearing opposed any additional rulemaking in response to the McCutcheon decision, but others welcomed the possibility of new regulations, characterizing them as an opportunity for the agency to close loopholes and increase the transparency of campaign financing.
Those opposed to new rules argued, among other things, that political committees are already overregulated and that any new requirements should be imposed by Congress, rather than the Commission, and that any new regulations covering certain communications over the internet might chill speech.
One of those witnesses, John R. Phillippe Jr., chief counsel for the Republican National Committee, told the Commission, “Your McCutcheon-related work is complete … It was Congress, not the Commission, that the Court primarily addressed in its decision.”
Others testifying in opposition to additional regulation included four former FEC Commissioners: David M. Mason, Donald F. McGahn, Bradley A. Smith and Hans A. von Spakovsky.
Among supporters of new regulations, representatives from several public interest groups testified that the Commission should begin by clearly defining and enforcing existing regulations that they believe would limit “dark money.” They included Paul Ryan from the Campaign Legal Center, Stephen Spaulding of Common Cause, and Elisabeth MacNamara of the League of Women Voters.
Daniel Smith of the U.S. Public Interest Research Group focused on joint fundraising committees and Super PACs which he said skirt the contribution limits because they “accept larger contributions and are able to funnel these increased contributions to the intended candidate.”
Former Commissioner McGahn specifically opposed any new regulations for joint fundraising committees, saying they “are merely ways to ensure compliance.”
On the topics of affiliation and earmarking, proponents of more regulation included counsel for Democracy 21 Donald Simon. Simon used his testimony to draw connections between large candidate-specific Super PACs and the candidates they support, arguing that these groups’ independent expenditures are “legal fiction.”
Dan Backer, of Conservative Action Fund, disagreed with Mr. Simon, and testified that new regulations in these areas “are largely outside the Commission’s authority to implement, and are simply not called for by the holding in McCutcheon.”
Witnesses calling for new rules to require organizations to disclose their contributors included Daniel Weiner of the Brennan Center for Justice, Stephen Spaulding of Common Cause, and Jay Costa of CounterPAC.
“Currently, corporations of all types, including trade associations, non-profit advocacy groups, as well as unions, and wealthy individuals can make unlimited secret contributions into efforts seeking to elect or defeat federal candidates,” said Elisabeth MacNamara of the League of Women Voters, decrying “secret money” in America''s elections. “Voters have the right to know who is making unlimited expenditures and influencing elections.”
Opponents, including Andrew Langer, Institute for Liberty; Shaun McCutcheon, a plaintiff of the Supreme Court case; and former Commissioner von Spakovsky warned that new disclosure rules would have a chilling effect on free speech.
Attorney James Bopp, Jr., of the James Madison Center for Free Speech, testified that increased disclosure could lead to the potential harassment and intimidation of a committee’s contributors by those who misuse the information.
“We''ve been able to document over 250 incidents that include what the New York Times described as ‘an ugly specter of intimidation,’” said Bopp, a lawyer who represented plaintiffs in the three cases of Citizens United v. FEC, Wisconsin Right to Life (WRTL) v. FEC and McCutcheon, et al. v. FEC. “That is there were death threats, physical assaults and threats of violence, vandalism, and threats of destruction of property, arson and threats of arson, angry protests, lewd demonstrations, intimidating emails and phone calls … .”
Additional Information
Links to the audio and video recordings of the hearing and to the written comments received can be found on the Commission’s McCutcheon hearing page.
Resources:
- McCutcheon et al v. FEC litigation page