Election Law Questions… for Prof. Hasen (and his students)

The matter of split votes at the Federal Election Commission is cropping up everywhere, and spilling onto the pages of national newspapers.  The phenomenon is cast everywhere and always as a problem with the Commission’s Republicans, never a problem with its Democrats.  The FEC, apparently, is the only place where it takes fewer than two to tango.

Election Law Professor Rick Hasen has all but invited national press scrutiny of the voting.  He has at every turn spun events to cast ominous predictions of a commission now unwilling to hamstring protected issue advocacy near the 2010 elections by stretching the concept “political committee,” as issue advocates had been hamstrung in cycles past.  Prof. Hasen, obviously bothered by the Commission’s voting, recently said he was sorry that Commissioner Ellen Weintraub, soon to step down from her post upon the swearing in of her replacement John Sullivan, will not be on hand to “keep an eye on” the agency.  Surely other eyes, all over the District, were rolling upon the reading of that statement.

Much as we like her, Commissioner Weintraub seemed during her tenure to fancy herself a kind of Kenesaw Mountain Landis: a commissioner uniquely suited to know what ails Washington and just how to fix it.  Little wonder she’ll be missed by Professor Hasen.  Supreme Court cases never seemed quite on point for the FEC matter at hand, regulations were often close but lacking, and, yet, the code book wasn’t her Bible.  She once announced in a public session that President Bush “broke his bargain” with the American People by agreeing to limit his campaign spending to a publicly funded allotment then “accepting” an additional $48 million “contribution” in the form of hybrid ads from the Republican National Committee.  Weintraub believed that John Kerry, also publicly funded, had “accepted” a similar though less expensive “contribution” from the DNC.

This was news to the veterans in the compliance shops around town, who defended the ads and payments by explaining that a hybrid ad is one for which each committee mentioned pays its fair share according to allocation formulas, and that a contribution can arise only where one committee fails to pay its share of something.  The election bar even explained that there were eight open-seat Senate contests that election cycle and multiple competitive House races that the national committees believed would benefit from being mentioned along side their Republican and Democratic presidential contenders, respectively.  This is why the national parties paid for half of the ads while the Presidential campaigns paid the other half.  The explanations didn’t persuade Commissioner Weintraub, for she knew precisely what the national party committees were really intending to do.

This ability to spot and “fix” what political actors are really up to, however, is not the tack a nation wants taken by its speech regulators.  Where speech is implicated, and the speech individually and via group association concerns who should hold power in our country the next 2, 4, and 6 years, the job of regulator is better suited to those who run bright lines drawn by courts, steer clear of what the Court calls “the shoals of vagueness,” and avoid drifting into overbreadth.

Such considerations and settled law should determine who has the better argument in any split vote at the Commission.

But let us leave aside such high-minded considerations for the time being.  We’re now wondering about more practical considerations, though still related to the matter of split votes at the Commission.  Specifically, we’re wondering how Professor Hasen would grade the efforts of election law students who answered exam hypotheticals in a manner opposite the Republican Commissioners.

Question 1.  Flying to a fundraiser.  In the Romney for President, Inc., matter (MUR 5937), the Democratic commissioners voted to find a violation against an individual who chartered a plane to fly him, friends, and family members to a Romney fundraising event.  The Republicans disagreed stating that “an individual’s travel expenses may be subject to the Act’s limits, prohibitions, and reporting requirements only if a campaign specifically requests or authorizes the travel” (which the campaign did not do) rather than issues an invitation to the event.  Supplemental Statement of Republicans at 2.

In fact, the question is a good one for lay persons and law students alike:  When supporters or unpaid volunteers show up to an invitation-only campaign rally or a political fundraiser, do they tally up the cost of gasoline, air fare, limo expense, or Metro fare used to transport themselves to the event?  Do they have the campaign report it to the Federal Election Commission as a contribution made to the candidate, or deduct it from the amount they would give before making a maximum contribution?  How many points out of a possible ten would be awarded an election law student who answered yes to these questions?

The Republicans answered that “requesting attendance is not the same as requesting travel” and noted a distinction between acting on behalf of a candidate, which triggers the computation and reporting of a contribution, and acting in behalf of a candidate, which does not.  They cited a Supreme Court case, directly on point.  They even cited the dictionary, which is worth quoting (emphasis in original):

Traditionally, in behalf of and on behalf of have distinct senses.  In behalf of means “for the benefit of,” as in We raised money in behalf of earthquake victims.  On behalf of means “as an agent of, on the part of,” as in The guardian signed the contract on behalf of the minor child.  The two senses are often confused even by reputable writers.

Supplemental Statement of Republicans at 3, quoting American Heritage Collegiate Dictionary.

Question 2.  Investing campaign funds in a movie.  Just today the BNA reports that “The Federal Election Commission appeared deadlocked June 18” on whether to allow “the campaign of Sen. John Kerry (D-Mass.) to provide financial backing for a documentary film about veterans of the Iraq War.”  BNA reports that the “FEC Republicans … argued … for approval of an advisory opinion (AO 2009-11) requested by the senator and his campaign committee…. The FEC Democrats, on the other hand, indicated they viewed the proposed film project as an impermissible ‘personal use’ of campaign money that should not be approved by the commission.”

That is the question: Does investing in a movie with campaign funds convert the funds to the personal use of Sen. Kerry or any person in violation of 2 U.S.C. § 439a?

BNA continued: “Democratic commissioners pointed out that FEC rules and precedents allow campaign funds to be invested but… [Commissioner] Walther said that, if the FEC grants every advisory opinion request simply because a proposal is not specifically prohibited by commission rules, ‘when do we ever say no’ to a requester.”  This is certainly an interesting approach to the law, as a friend to CCP reminds us that “Whatever is not forbidden on our blessed shores is permitted,” Thorne v. Jones, 765 F.2d 1270, 1274 (5th Cir. 1985).  So odd is this statement that we’d bet the report of Commissioner Walther’s statement is lacking some context.  But according to BNA, Walther did “suggest[] he could not support letting Kerry use campaign money to fund production of a movie because that was not what contributors to his campaign intended their money to be used for.” (emphasis added).

Walther seems to believe that the government acts as a fiduciary for campaign donors; makes guesses about their reasons for associating with the candidate, and ensures that they get what they bargained for—all the while skeptical of the citizen’s ability to boycott Kerry, or to ask for a refund if they do not like the way he spends campaign funds.  But Professor Hasen’s law students should be told that federal campaign law has long recognized wide latitude in the use of campaign funds, with the exception of Presidential Public Funding (taxpayer funds), a scenario inapplicable to the Kerry AO.  (Kerry has now refunded to the treasury any unused taxpayer funds from his 2004 Presidential bid).  An analogous provision exists in communications law, 47 U.S.C. § 315(a).  Broadcast stations may not censor or refuse to run a candidate’s use of airtime, for any purpose, no matter the authenticity of the ad or its potential to defame.  The personal-use prohibitions of campaign law exist to ensure that the contribution, already set at an amount below the ability to cause corruption or its appearance in the candidate, nonetheless does not advance the candidate’s personal pecuniary interests.  Otherwise, the candidate may spend funds for “any lawful purpose.”

Question 3.  May a client waive attorney client privilege?  Professor Hasen is “Wow[ed]” that in publicizing a recommendation of the Office of General Counsel, the Republican Commissioners may have waived attorney-client privilege without first giving their colleagues an opportunity to consider the matter (with regard to a FOIA request by the Campaign Legal Center) in closed session.  Does a client have authority to waive privilege?  May he do so without the consent of his brethren?

Students should know that privilege belongs to the client.  They should also be told that the FEC, as sole civil enforcer of the nation’s campaign finance laws, is, by virtue of its ability to conciliate with respondents, a quasi-adjudicatory agency.  When the Commissioners are given a recommendation by its Office of General Counsel in an enforcement matter, the information in the recommendation is a basis for an agency decision, and possibly not the subject of privilege at all.

But to tell you the truth, on this question, we’re more interested in the substance of the OGC recommendation and less in who disclosed it, or how, or even in how Hasen would score his students’ answers on an exam.  So, what was the recommendation?  To 1) lay off the November Fund by, 2) accepting its signed conciliation agreement.

The Republicans took the first recommendation and rejected the second, resulting in another 3-3 vote at the Commission that disturbed Professor Hasen.  What is the import of the OGC recommendation?  Its text is included below.*  For readers missing its import, it was essentially this:  Hey Commissioners, our political-committee construct may be unconstitutional—and pressing a case against an organization like the November Fund, which didn’t advocate the election or defeat of any federal candidate, will probably prove it.

We think this discovery is more important than Hasen’s concern for intra-agency etiquette.  And besides, had the Republicans taken up the matter of disclosing the recommendation to the Campaign Legal Center in response to its FOIA request, or to any other member of the public, in closed session, as Commissioners Weintraub and Bauerly had suggested they do, the question of its release would likely have resulted in another split vote—which would have only troubled Professor Hasen further.

* Here is the language of the footnote drafted by the Republican Commissioners:  “In the Third General Counsel’s Report for MUR 5541, in an effort to support its recommendation to ‘[a]ccept the attached conciliation agreement with the November Fund and Bill Sittman, in his official capacity as treasurer,’ OGC stated that the Commission ought to accept that agreement, inter alia:

‘Because this matter [the November Fund and U.S. Chamber of Commerce] arose from the 2004 election cycle when the political committee status of 527 organizations was still being debated and there was some confusion among the regulated community about the applicable law, there is a certain amount of litigation risk involved in pursuing the November Fund and the Chamber in district court litigation. This risk is particularly enhanced in this case, where the political committee status threshold was reached solely as a result of contributions received in response to solicitations, and not as a result of The November Fund making expenditures. The fact that the Chamber is the only donor to a 527 organization thus far that the Commission has found reason to believe violated the law in connection with its contributions further adds to the litigation risk with regard to the Chamber.’”