Two new draft Advisory Opinions from the FEC's legal staff leave open the possibility that the commission will allow candidates and party officers to raise money — possibly without limits — for Super PACs.
The opinions, which were posted on the Federal Election Commission's website Tuesday and which are expected to be voted on by the commissioners Thursday, differ from a draft posted last week. That draft said candidates could appear at Super PAC fundraisers but could not solicit unlimited contributions. It did not address the possibility of raising limited amounts.
One of the drafts posted Tuesday, a revision of last week's opinion, would let candidates solicit contributions for the groups of up to $5,000 from individuals and other PACs. ($5,000 is the current calendar-year limit for individual contributions to any political action committee.)
In the past week, Sen. Harry Reid of Nevada and Rep. Nancy Pelosi of California, both Democrats, have begun raising money for, respectively, Majority PAC and House Majority PAC — the two Super PACs that asked the FEC for an advisory opinion on candidate fundraising. Both legislators are limiting their solicitations to $5,000 per contributor.
The other draft Advisory Opinion goes much further. It would allow candidates to solicit unlimited contributions for Super PACs from individuals, corporations and labor unions.
The two drafts give differing views of the same federal statute that governs campaign finance law. Both include the following line:
Federal officeholders and candidates, their agents, and entities directly or indirectly established, financed, or maintained, or controlled by, or acting on behalf of, Federal officeholders and candidates, may not raise or spend funds in connection with an election for Federal office, "unless the funds are subject to the limitations, prohibitions, and reporting requirements of the Act." 2 U.S.C. 441i(e)(1)(A); 11 CFR 300.61
However, while the first draft interprets the statute as barring federal candidates and party officers from soliciting unlimited contributions for Super PACs (because such money would not be "subject to the limitations" of the law), the second draft says such contributions are in fact subject to those limitations and should be considered "Federal funds," just like any other money contributed to candidates and political committees — as opposed to "soft money," which candidates and party officers can't solicit.
The draft Advisory Opinions are a response to a request by Majority PAC (formerly called Commonsense Ten), which aims to help elect Democrats to the Senate, and a counterpart for House races, House Majority PAC. Their request was made after Republican Super PAC, led by campaign finance lawyer James Bopp Jr., registered with the FEC and stated its plans to have candidates and party officers solicit unlimited contributions for it.
In a comment on the Advisory Opinion request, Bopp defended the plans of all three groups, saying contributions solicited for a Super PAC should be considered "federal funds." He echoed that opinion in an interview this week with OpenSecrets:
OpenSecrets Blog: What is the distinction for you between soft money and hard money?
Bopp: I prefer the phrase federal and non-federal, and that is of course what is applicable under federal law. Candidates cannot raise non-federal funds. They can raise federal funds. Federal funds are just what is regulated under the Federal Elections Act. Super PACs are federal political action committees, so they would be subject to federal law.
Super PACs, or independent-expenditure-only committees, were created as a result of Citizens United v. FEC and a subsequent ruling, SpeechNow.org v. FEC. The groups can raise unlimited amounts from individuals, corporations and labor unions to influence federal elections as long as they do not contribute to or coordinate spending with candidates.