The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Saturday, October 02, 2004

FEC and recount expenses - again

When I left my tentative explorations yesterday, I'd arrived back at the previous, 2002, request for an FEC opinion on the legal position of recount funds [1].

The request, made by the Congressional campaign committees, was a narrow one: it only applied to recounts for the 2002 general election (on November 5), which fell the day before the effective date of McCain Feingold (the BCRA). The concerns were essentially transient - to do with the effect of BCRA on the 2002 election alone.

(Unlike the recent request of the Kerry campaign - discussed yesterday - which asked a general question on the application of the law to recount funds - which the FEC gladly sidestepped!)

The 2002 request concerned both funds set up by the committees themselves, and by Federal candidates. In relation to funds set up by the committees (p4a), the request specifically related to expenses defrayed [2] in the period from November 3 to December 31 2002. In relation to candidates' own recount fundraising entities (p5), the request applied to funds raised and spent before, on or after November 6.

Bizarrely, the FEC chose to issue (on November 12) two draft opinions for consultation: Draft A opined that the BCRA did apply to 2002 recount funds, in relation to moneys raised after November 6; Draft B said that it did not. In issuing the drafts, the FEC said it was leaning towards adopting Draft A.

Having seen the writing on the wall - and, perhaps, realising that there would be no great amount of recount expenditure in relation to the 2002 election - the committees withdrew their request, so the FEC did not make a ruling then.

Draft A is useful (p6ff) for tracing the legislative framework before and after the enactment of BCRA. Under the old law, most rules on contributions only applied to payments
for the purpose of influencing a Federal election
So it could have been argued that, since recount expenditure doesn't influence an election - the votes, by definition, have already been cast by the time recount spending starts - the regulations did not apply to it.

In fact, the old regulations [3] (11 CFR 100.91 and 100.151.4) exempted recount contributions and expenditure in a different way: by deeming them not to be contributions and expenditure within the meaning of the Act [4].

The reason given for these regulations - as quoted in Draft A - is that
though they [recounts and election contests] are related to elections, [they] are not Federal elections as defined by the Act.

(Presumably, the argument is that recount expenditure could be said to influence the recount, though not the election whose results are being recounted.)

Draft A (p11) looks at two opinions given on the old law, AO 1978-92 and AO 1998-26, that confirm these rules as applicable to recount funds.

On p7, Draft A turns to look at the changes wrought by the BCRA: all the funds raised by party committees are henceforth subject to FECA [5] regulation; under §402(b)(2) of BCRA, we get a grandfather clause [6], such that
any funds not subject to the limitations, prohibitions, and reporting requirements of the Act that are received by the national committee of a political party prior to November 6, 2002, may be used prior to January 1, 2003 for the purpose of "paying expenses or retiring outstanding debts or paying for obligations that were incurred solely in connection with any runoff election, recount, or election contest resulting from an election held prior to November 6, 2002"

Candidates' recount funds, Draft A points out (p9), benefit from no such grandfather clause.

Draft A proposed these rulings:
  1. If the committees set up separate entities before November 6 [7] limited to raising contributions for recount expenditure, any funds raised before that date would be free of BCRA restrictions - even, I infer, if spent after December 31. The committee's own recount funds would be subject to the BCRA grandfather.

  2. Separate entities set up by candidates for meeting recount expenditure would be subject to BCRA restrictions from November 6 onwards.

    However - silver lining! - in calculating the dollar limits on contributions to such entities, contributions made for general election expenditure would be ignored. (Because, under the regulations - see above - amounts given to recount entities are not contributions [8].)

Neither Draft mentions GELACs.

A comment on Drafts A and B from the Center for Responsive Politics mentions the possibility of a §501(c) organisation raising funds for recount purposes (p4): the candidate would be barred by BCRA from soliciting funds for such an operation (they would be in connection with the election concerned) [9].

[Which raises the possibilities of third party action on recounts: what about 527s like MoveOn shouldering some of the cost? There may be some expenses that can only be incurred by the candidate - legal costs in filing and arguing motions, say (though presumably a lot of lawyers' time will be provided pro bono.). But 527s could do some of the heavy lifting in providing and taking care of volunteers.]

What happens next? It's open to BC04 to request an opinion of their own on the subject of the applicability of BCRA to recount expenses - but, to judge from both the FEC's recent opinion, and the favoured Draft A from 2002, its mind seems made up on the point [10].

A challenge before the courts - the DC Circuit, from memory, it would be - would run into our old friend the Chevron doctrine previously discussed in relation to FCC rulings (March 25): the Federal courts give a large - but not unlimited - degree of deference to opinions issued by Federal regulators on the interpretation of laws they are delegated by Congress to enforce.

Interesting times, indeed.

  1. The paperwork available here (as PDF files), except for the original request letter. (The file called Advisory Opinion Request (AOR) 2002-13 is in fact a supplementary letter from the committees dated October 30 2002, in response to a request from the FEC for clarification on certain points.) Since the essence of the request is repeated in the draft FEC opinions, I'm not sure whether anything is lost through not having sight of the original, October 22, request.

  2. Clearly, some expenses will be paid in cash whilst others will be invoiced and paid some time after they were incurred. According to Draft A (p4), the committees asked
    whether the National Congressional Campaign Committees' recount entities may spend these recount funds from November 6 through December 31, 2002, to pay expenses, retire debts, or pay for obligations incurred in connection with a recount resulting from the November 5 elections.
    What if a law firm did work in November which was billed in December, but only paid for in January?

    This timing question arises also, in a different form, in relation to the use of GELACs to meet recount expenses - see yesterday's piece.

  3. For the text of Federal Regulations, use this page.

  4. Recount funds were not entirely free of restrictions: the regulations mentioned apply the rules barring foreign and corporate contributions to such funds. This - as I understand it - is because the rules barring foreign and corporate gifts applied to contributions made in connection with an election - which was much wider than the influence test to which other restrictions (eg, dollar limits) on contributions were subject.

  5. Federal Election Campaign Act of 1975 - everyone seems to use the US Code references where applicable, so I do too.

  6. What about expenses incurred in the grandfather period, invoiced and paid after December 31? (See my note 2 above.)

  7. Not overly helpful, timing-wise!

  8. Just looking at Kerry's GELAC contributions page, there is nothing on way the dollar limits work: in fact, if Kerry accepted $2,000 from a guy who had already contributed $2,000 for the general, would that be within the rules?

  9. A 501 would presumably have to be careful not to jeopardise the primary purpose that gives it its tax-exempt status.

  10. The Kerry campaign might ask for clarification of the recent ruling, to make sure that it meant that expenditure incurred in the month following the November 2 election could be met from the GELAC - see yesterday's piece.

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