FEC Makes Wrong Decision on 527s

CENTER FOR COMPETITIVE POLITICS

PRESS RELEASE: December 13, 2006

Media Contact:   Bradley A. Smith (614) 236-6317 or (540) 287-8954

                       Stephen M. Hoersting (703) 682-9359

 

 

 

Arlington, Va. – “Today the FEC unwisely forced political committee status on independent organizations exercising their First Amendment rights of speech and association.  This decision, if not overturned, will convert thousands of citizens organizations into highly regulated ‘political committees,’” said Stephen M. Hoersting, Executive Director of the Center for Competitive Politics (“CCP”).  Hoersting was commenting on the FEC’s release of enforcement cases against the League of Conservation Voters 527 and 527II, MoveOn.org Voter Fund, and Swift Boat Veterans and POWS for Truth, in which these prominent "527" organizations agreed, for purposes of settlement, to pay civil penalties and register with the Federal Election Commission as “political committees.”

 

“The FEC’s probe into the understandings of donors is constitutionally objectionable.  The relevant inquiries are whether there is coordinated activity or express advocacy to the general public.  Without either, and no matter what the Commission believes is the donor’s understanding of an organization’s purpose, there is not enough to overcome the Supreme Court’s admonition that individual donations to a group engaged in wholly independent activity cannot be limited,” said Hoersting, noting that scholars such as Columbia Law Professor Richard Briffault have reached the same conclusion.  “BCRA opponents and sponsors alike agreed at the time that BCRA would create a vacuum to be filled by outside organizations,” Hoersting said, “and the FEC pretends to forget that history as it pursues these independent organizations.”

 

“It is also troubling that the Commission appears to be resuscitating a suspect definition of ‘express advocacy’ to pursue these organizations, a definition found unconstitutional by several courts of appeals and specifically enjoined by the Fourth Circuit” added CCP Chairman Bradley A. Smith, former Chairman of the Federal Election Commission who also teaches law at Capital University Law School in Columbus, Ohio, and is of counsel to Vorys, Sater, Seymour and Pease, “The Commission’s alternate definition of express advocacy is a ‘totality of the circumstances’ test that offers no meaningful protection to speakers and is unfaithful to the Buckley opinion the U.S. Supreme Court recently affirmed in Randall v. Sorrell.”

 

In its opinion in McConnell v. FEC, upholding the McCain-Feingold campaign finance law, the Supreme Court rejected the notion that the law regulated all 527s, writing, “BCRA imposes numerous restrictions on the fundraising abilities of political parties, of which the soft-money ban is only the most prominent. Interest groups, however, remain free to raise soft money to fund voter registration, GOTV activities, mailings, and broadcast advertising (other than electioneering communications).”  540 U.S. 93, 187-188 (2003)(emphasis added).  No one should have been surprised that this is precisely what happened in the election cycle of 2004, and the FEC should not be attempting to “fix” the matter without statutory directive or a holding from the Court.

The Center for Competitive Politics is a non-profit organization founded in 2005 by Smith and Hoersting, a campaign finance attorney and former General Counsel to the National Republican Senatorial Committee.  CCP’s mission, through legal briefs, studies, historical and constitutional analyses, and media communication, is to educate the public on the actual effects of money in politics, and the results of a more free and competitive electoral process.

 

The FEC’s announcement is available at http://www.fec.gov/press/press2006/20061213murs.html

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