The Federal Election Commission endured a four hour session on Thursday, October 29. Among the topics discussed were a resolution for the Repledge advisory opinion request, a request from Senate Majority PAC and House Majority PAC seeking to clarify the legal limits of would-be candidates and Super PACs during the testing the waters period, and a heated discussion about Commissioner Lee Goodman’s proposal to provide regulatory relief for state and local parties.
But first, the session opened with the debut of the Commission’s new website. You can check it out here.
Afterwards, the Commission began to address the advisory opinion requests on the agenda. After tabling the Repledge request until noon, the Commission addressed the AO request from Senate Majority PAC and House Majority PAC. Counsel for the requestors, Marc Elias, Jonathan Berkon and Rachel Jacobs, were present at the session. The request seeks to clarify three areas of the law. First, the request asked for clarification regarding “pre-candidacy” activities between individuals contemplating federal candidacy and federal Super PACs. Second, the request asked for clarification of the “testing the waters” (“TTW”) exemption under federal regulations, which allows individuals contemplating candidacy to raise and spend funds without registering and reporting with the FEC as long as they are “for the purpose of determining whether an individual should become a candidate.” Specifically, the requestors sought clarification about the type of conduct that triggers federal candidacy such that the TTW exemption no longer applies. Third, the requesters asked for clarification about the definition of “agent” under federal regulations and whether federal regulations require that a minimum number of expected attendees attend a Super PAC event such that a candidate can permissibly speak, attend, or be featured as a special guest for the event. The Commission issued two draft advisory opinions on Wednesday, October 28 that were largely similar in substance except for their responses to the last two questions asked by the requesters.
Commissioner Goodman began the discussion by asking Mr. Elias whether the FEC even has jurisdiction over pre-candidates during the TTW period. He noted that the Commission has some jurisdiction over this period, but only once the individual formally announces his or her candidacy. Commissioner Goodman felt that the statute only applies to candidates and it is outside the Commission’s jurisdiction to regulate activities prior to an individual becoming a candidate for federal office. He felt that the TWW activities created jurisdiction retroactively, which is outside the scope of the FEC’s authority. Commissioner Ellen Weintraub disagreed with Commissioner Goodman’s concerns. She did not believe that jurisdiction was retroactive. Instead, she noted that she believes the TTW period acts more as a protection and allows an individual to have relative freedom in determining whether to run. Commissioner Weintraub explained that the FEC has jurisdiction to regulate TWW activities because TTW is an exception to the definition of contribution and the FEC’s jurisdiction covers when individuals raise and spend contributions. Mr. Elias expressed concern about the conduct occurring during the TTW period. He pointed out that the rules for actions during this time are unclear but that his clients are seeking guidance under the current law and regulations, which cover TTW activities . Among other issues, the advisory opinion request asked if potential candidates could assist with forming a Super PAC and if contributions to that Super PAC counted towards the limits that could be upheld retroactively under the TTW exemption. Chair Ann Ravel also mentioned that the answers to some of Mr. Elias’ questions would be better answered by a rulemaking, and the FEC may not use advisory opinions to create rules. In particular, she was referring to the definition of “agent” under federal regulations, and on which the requesters sought clarification in their request.
Before seeking Mr. Elias’ opinions on the two drafts, Commissioner Caroline Hunter revealed that the Commission would not be voting on the drafts during the session. Mr. Elias asked why this was the case, given that the drafts were nearly identical except for the answers to questions 11 and 12. Vice Chair Matthew Petersen noted that the drafts were only released the preceding day and that the AO request addressed “complex and timely” questions. Further, the Commission wanted an opportunity to ask requesters’ counsel questions prior to voting on the drafts. Chair Ravel told Mr. Elias that he could expect his request to be further addressed at the next meeting of the Commission on November 10, 2015. Several commissioners indicated that they did not know where their colleagues stood on the issues in the request. Commissioner Weintraub signaled to Mr. Elias that just because the drafts were similar did not mean that there was consensus on the Commission.
After a quick break the Commission reconvened to discuss the Repledge advisory opinion request. The issue had been delayed several times due to issues with the language in Draft C. As Commissioner Goodman put it, the disagreement was not whether the answer to the question was yes, but rather how the Commission came to yes. Despite the consensus, the Commission failed to approve a draft and therefore could not issue a formal advisory opinion.
Next, the FEC addressed an advisory opinion request submitted on behalf of 21st Century Fox. The Commission unanimously approved the draft and issued a formal opinion.
One of the last topics discussed was Commissioner Goodman’s proposal to provide state and local parties regulatory relief. Commissioner Goodman’s proposal argued that legal reform is necessary and could help strengthen state and local political parties. Among his suggestions were allowing parties to access candidate materials for coordinated communications, expanding freedom to engage in volunteer activities, and allowing political parties to register voters and further engage in get-out-the-vote activities. He stressed that this was a bipartisan effort and one that would make small yet meaningful changes that would provide great relief to the local parties. The discussion became contentious when Commissioner Weintraub suggested adding Super PAC limitations to the proposal. The Republican commissioners revealed their frustration with the Democratic commissioners’ desire to make sweeping changes rather than incremental ones. In turn, the Democratic commissioners signaled that they were not willing to support the proposal. Clearly frustrated, Commissioner Goodman requested that the Commission table the proposal until the next meeting. The request was granted.
The Commission next meets on November 10.