Today the FEC will consider an alternative draft of AO 2006-30 (ActBlue). CCP considers this most recent draft to be a substantial improvement over the original (discussed here) and has urged the Commission to adopt it. I’ll be attending this open meeting and will report back this afternoon on the Commission’s decision.
If the debate during last week’s meeting is any indication, the vote may split 3-3, with Chairman Toner, Commissioner von Spakovsky, and Commissioner Walther voting in favor of the alternative draft. CCP hopes that its most recent comments will convince at least one of the remaining Commissioners that the benefits of adopting the alternative draft–promoting innovation, facilitating hard-dollar fundraising, and interpreting Commission regulations according to their plain meaning–far outweigh the potential harms, which thus far have amounted to rather vague concerns about “opening the door” to ill-defined “future abuse.”
This morning the Commission adopted the alternative draft by a vote of 4-2, with the support of Chairman Toner, Vice Chairman Lenhard, Commissioner von Spakovsky, and Commissioner Walther. Vice Chairman Lenhard had expressed cautious support for the original draft last week and, in supporting the alternate draft, made quite clear that he considered both drafts to be plausible interpretations of the Commission’s regulations. This sentiment was echoed by Chairman Toner, while we at CCP believe that finding Commission jurisdiction over ActBlue’s fundraising plan is inconsistent with the Act and the Commission regulations.
In CCP’s most recent comments to the Commission, I described the Office of General Counsel’s original interpretation as “in effect, interpreting a regulation that requires ‘received’ ‘contributions’ to be forwarded to ‘candidates’ to also require un-received non-contributions to be forwarded to non-candidates.” The funds in this case were “un-received” because receipt is, in part, defined by relinquishment of donor control, which in ActBlue’s case does not occur completely until the moment a prospective candidate became a true “candidate”. The funds were potentially “non-contributions” because non-candidates have the right to use funds they receive for “testing the waters” and Commission regulations explictly exclude such funds from the definition of “contribution”. As such, when a prospective candidate receives money, it is impossible to know whether the money is a contribution or “testing the waters” funds until one knows what the prospective candidate is going to do with it (this was a particularly knotty problem, which the Commission successfully avoids under the plan adopted today). Finally, it was undisputed that “potential candidates” are not “candidates” within the meaning of the Act or Commission regulations.
In extending these terms to include their opposites, the original draft stretched existing regulations to cover a situation that, as Commissioner Mason noted, was not contemplated by either the regulations or Congress. It seems to us that when an activity has not been addressed by either statute or regulation, that activity is legal, regardless of whether regulating it might be a good idea. When individuals discover these islands of freedom in a sea of regulation, they should be allowed to enjoy them, free from interference, until there is a valid law or regulation to the contrary.
All of that said, and despite whatever disagreement we may have with why individual Commissioners chose to support the alternative draft, we applaud the Commission for making the right choice and allowing ActBlue to proceed with its fundraising plan. We hope that the Commission will show similar favor to future innovations.