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Michael C. Dorf Direct Dial (312) 781-2806 E-Mail [email protected]

March 1, 2021

To: Hon. Robin Kelly

From: Michael C. Dorf

Re: Service as Party Chair

You have asked me to review and comment on the February 28, 2021 memo prepared by Brian Svoboda of the Perkins Coie law firm to Karen Yarbrough, Acting Chair of the Democratic Party of Illinois (“DPI”) concerning the ability of a federal officeholder or candidate to serve as the Chair of the DPI.

As detailed below, there is no legal obstacle to Congresswoman Robin Kelly serving as Chair of the Democratic Party of Illinois.

Initially, I have worked with Mr. Svoboda and other members of his firm over the years and respect his work. I believe, however, that he has not been given all the relevant facts by his client and therefore some of his conclusions may be misguided.

DPI controls three types of accounts. The first is the federal account, also known as the “hard money” account, contributions to which are subject to limitations and restrictions established pursuant to the Federal Election Campaign Act and the regulations promulgated by the Federal Election Commission. The second is the nonfederal or “soft money” account, contributions to which are subject to the limitations and restrictions established under the Illinois Election Code. The third account is known as the “Levin Funds” account. This is a hybrid category available to political party committees, the funds of which may be used for financing the nonfederal portion of generic party activities, such as voter registration and get-out-the-vote activity. For purposes of this memo, we can disregard the Levin Funds account and focus on the hard and soft money restrictions.

Hon. Robin Kelly March 1, 2021 Page 2

Federal officials such as yourself may assist in raising funds for all three types of accounts, but with limitations. The most relevant restriction is the one set forth in 11 C.F.R. 300.62, which states that “A person described in 11 CFR 300.60 [ i.e. a federal official or candidate, or an entity directly or indirectly controlled by such official or candidate] may solicit, receive, direct, transfer, spend, or disburse funds in connection with any non-Federal election, only in amounts and from sources that are consistent with State law, and that do not exceed the Act's contribution limits or come from prohibited sources under the Act.”

In its most basic interpretation, Section 300.62 would prevent you from raising or spending soft money in state and local elections. In addition, the DPI would be prohibited from spending soft money to the extent that you directly or indirectly “controlled” DPI. Your ability to raise and spend hard money under the federal guidelines would not be restricted.

We have acknowledged from the beginning of your campaign for DPI Chair that Section 300.62 would limit the full exercise of powers ordinarily given to the Chair of a party committee. However, we have also recognized that a fundamental premise of your campaign is the rejection of the autocratic model that has constituted DPI’s governance for many years, and that, instead, you have called for a more inclusive decision making model which, for the first time, would empower the members of the State Central Committee with true decision making authority. Pursuant to this philosophy of governance, I believe that policies and procedures can be constructed to permit you to serve as Chair within the provisions of federal law. These will include the delegation by you to others of certain spending authority as well as the erection of firewalls for designated activities to ensure that you are not directly or indirectly controlling decision making in those activities. Your ability to raise funds for use in state and local elections will be limited, but your ability to ascend the “bully pulpit” to advocate for Democratic policies, principles, and candidates on behalf of DPI should not be impinged.

The ability of a Representative of Congress to serve as a party chair is not unprecedented. In Georgia, for example, Congresswoman Nikema Williams (D.GA) served as Chair of the Georgia Democratic Party as a federal candidate and continues to serve now as a federal elected official.

I previously recommended that, once we have set forth the proposed new decision making structure for DPI, we seek an advisory opinion from the FEC with a set of questions and a list of proposed activities for you as Chair. On this course of action, both Mr. Svoboda and I agree. Getting the FEC’s imprimatur will resolve any possible ambiguity in the regulations and will provide a safe harbor for DPI.

I would be pleased to provide further information or respond to any questions.