September 2004 Record.Indd
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September 2004 Federal Election Commission Volume 30, Number 9 Table of Contents Regulations Court Cases Regulations 1 Political Committee Rules Political Committee Rules Wisconsin Right to Life, Approved Approved Inc. v FEC 4 Rulemaking Petition On August 19, 2004, the Commis- On August 17, 2004, the U.S. sion approved final rules that may District Court for the District of Court Cases require more so-called 527 organiza- 1 Wisconsin Right to Life, Inc. v Columbia denied Wisconsin Right tions to register and report with the to Life, Inc.’s (WRTL) motion for FEC FEC, beginning in 2005. In general, 3 LaRouche’s Committee for a New a preliminary injunction that would Bretton Woods v FEC the new regulations: have exempted certain WRTL broad- 3 New Litigation • Expand the definition of contribu- cast ads from the ban on corporate tion to include funds received as funding of electioneering communi- 4 Nonfilers a result of a communication that cations. indicates any portion of those funds 4 Advisory Opinions Background will be used to support or oppose WRTL had filed suit in the U.S. Public Funding the election of a clearly identified federal candidate; and District Court for the District of 7 Public Funding for Kerry-Edwards Columbia on July 26, 2004, asking 8 Matching Fund Certifications • Define the types of costs that feder- al PACs may allocate between their the court to find the prohibition on the use of corporate funds to pay 8 Publications federal and nonfederal accounts, and modify the allocation methods for electioneering communications unconstitutional as applied to certain Administrative Fines they must use. 9 Fines Assessed grass-roots lobbying activities, The Commission is finalizing the including three specific advertise- Outreach Explanation and Justification that ments that were attached to WRTL’s 10 Reporting Roundtables will accompany the final rules, and complaint. The plaintiffs also asked will publish both in the Federal Reg- the court to preliminarily and perma- Information ister and on the FEC website, www. nently enjoin the Commission from 10 IRS 527 Disclosure Initiative fec.gov. A complete summary of the enforcing this prohibition against new rules will appear in the October WRTL for any of these communica- 10 Index Record. tions. —Elizabeth Kurland On July 29, the court granted the plaintiff’s unopposed motion to have the case heard by a three-judge (continued on page 4) (continued on page 2) Federal Election Commission RECORD September 2004 Court Cases and 11 CFR 100.29. Corporations substantial likelihood of success on (continued from page 1) may not make electioneering com- the merits; (2) WRTL would suffer panel, and also granted its motion to munications using their general trea- irreparable harm in the absence of an expedite proceedings on the request sury funds.2 2 U.S.C. §§441b(a)-(b) injunction; (3) an injunction would for a preliminary injunction.1 and 11 CFR 114.2 and 114.14. not cause substantial injury to other Under the Federal Election The Plaintiff’s grass-roots lob- parties; and (4) the public interest Campaign Act (the Act) and Com- bying efforts involve broadcast ads would be furthered by the injunc- mission regulations, an electioneer- paid for by WRTL asking Wisconsin tion. ing communication is defined, with listeners to contact U.S. Senators Substantial likelihood of success some exceptions, as any broadcast, Kohl and Feingold and to ask them on the merits. In McConnell v FEC, cable or satellite communication that to vote against anticipated filibusters 124 S. Ct. 619 (2003), the Supreme refers to a clearly identified federal of federal judicial nominees. Sena- Court upheld the electioneering candidate and is publicly distributed tor Feingold is up for re-election this communication provisions of the for a fee within 60 days before the year, and some of the intended ads BCRA in their entirety. Further- general election or 30 days before will run during the electioneering more, the reasoning of the court left a primary election or a nominating communications periods for Wiscon- no room for the kind of “as applied” convention for the office sought by sin’s primary and general elections. challenge brought by WRTL. The the candidate. 2 U.S.C. §434(f)(3) According to WRTL, because Supreme Court expressly stated their ads express an opinion on that it upheld all applications of the pending Senate legislative activity, primary definition of electioneering 1 urge listeners to contact their Sena- communication, suggesting little The Bipartisan Campaign Reform Act likelihood of success for an “as of 2002 (BCRA) provides for such expe- tors and do not refer to any politi- dited review of constitutional challenges cal party or support or attack any applied” challenge to a particular to its provisions. See BCRA 403, 116 candidate, they constitute bona fide application of that definition. This Stat. at 113-114. grass-roots lobbying. They argue deliberate upholding of “all ap- that these ads are not the “functional plications” stands in contrast to the equivalent of express advocacy,” court’s explicit acknowledgment that and, thus, there is no constitutional other parts of the statute, which it Federal Election Commission justification for the prohibition on also upheld, might be subject to “as 999 E Street, NW corporate payments for these ads applied” challenges in the future. Washington, DC 20463 or for requiring the ads to be paid Plaintiff would suffer irrepa- 800/424-9530 for through a political action com- rable harm if an injunction is not 202/694-1100 mittee. See McConnell v FEC, 124 granted. The court concluded that 202/501-3413 (FEC Faxline) S. Ct. at 696. WRTL asserts that the actual limitation on WRTL’s 202/219-3336 (TDD for the in this instance the prohibition on freedom of speech is not nearly as hearing impaired) corporate-sponsored electioneering great as WRTL had argued. WRTL communications unconstitutionally is not precluded from forwarding its Bradley A. Smith, Chairman message or from exposing the public Ellen L. Weintraub, Vice Chair burdens the rights of free speech, free association and petitioning the to the advertisements at issue. The David M. Mason, Commissioner BCRA does not prohibit the speech Danny L. McDonald, government—all in violation of the First Amendment. in question, it only requires that Commissioner corporations and labor organizations Scott E. Thomas, Commissioner Michael E. Toner, Commissioner District Court Decision engaging in such speech channel The three-judge court rejected their spending through PACs. In James A. Pehrkon, Staff Director WRTL’s motion for a preliminary McConnell, the Supreme Court Lawrence H. Norton, General noted that corporations remain free Counsel injunction, finding that it did not demonstrate that: (1) WRTL had a to organize and administer separate Published by the Information segregated funds (PACs) for the Division purpose of financing electioneering Greg J. Scott, Assistant Staff 2 Commission regulations provide an communications. Director exception allowing “qualified nonprofit An injunction would not cause Amy Kort, Editor corporations” to pay for electioneering substantial injury to other parties. Meredith Trimble, Associate communications. 11 CFR 114.2(b)(2). It is the statutory duty of the FEC Editor However, WRTL alleges that it does not to enforce the BCRA. To the extent http://www.fec.gov meet the definition of a qualified non- the injunction is entered, the FEC profit corporation. 11 CFR 114.10. 2 September 2004 Federal Election Commission RECORD could not properly perform this duty, New Litigation to the U.S. Treasury for expenditures which is a substantial injury to the that were not permissible conven- FEC. FEC v Reform Party of the USA tion expenses or were not properly Public interest would be furthered On July 21, 2004, the Federal documented. 11 CFR 9008.7(a) and by the injunction. The Supreme Election Commission (FEC) filed an 9008.10. The RPUSA submitted Court has determined that the provi- action with the U.S. District Court a timely request for administrative sions of the BCRA serve compelling for the Northern District of Florida review of the repayment determi- government interests. McConnell, to collect $333,558 from the Re- nation, and after review, the FEC 124 S. Ct. at 695-96. As a result, in- form Party of the United States of upheld the repayment determination. terference with executing the BCRA America (RPUSA or Party) and its The RPUSA requested reconsidera- by enjoining its enforcement does treasurer, William D. Chapman, Sr., tion of the FEC’s repayment deter- not further the public interest and the Reform Party 2000 Conven- mination, which the FEC rejected as The district court further ordered tion Committee and its treasurer, untimely. The RPUSA then filed a all parties to file appropriate supple- Gerald M. Moan. The suit arises petition for review in the U.S. Court mental memoranda addressing the from a final determination by the of Appeals for the District of Colum- potential dismissal of the matter, and FEC regarding the financing of the bia Circuit, which the D.C. Circuit denied WRTL’s subsequent request RPUSA’s 2000 Presidential nomi- dismissed as untimely. to enter an injunction while WRTL nating convention, during which Court complaint. In its court pursued an appeal. the Party spent some of the public complaint, the FEC asserts that the money grant it received to pay for repayment determination is now Appeal convention expenditures not permit- “final and conclusive” and the merits WRTL has appealed the district ted by law. of the repayment determination are court’s decision to the U.S. Court of Background. Under the Presi- not subject to judicial review. The Appeals for the District of Columbia dential Election Campaign Fund Act defendants have not paid any of Circuit, and has requested an injunc- (the Fund Act), the national party the $333,558 debt.