On May 19, 2009, Majority PAC and House Majority PAC, two Super PACs established to make independent expenditures in support of Senate and House Democratic candidates, submitted an Advisory Opinion request to the FEC.
In the request the pro-Democratic PACs asked the FEC for an advisory opinion on whether it would in fact be legal for federal officeholders and candidates to raise unlimited contributions for their Super PACS. The Advisory Opinion request also states that “if the Commission does not find that such solicitations violate 2 U.S.C. Section 441i, the PACs plan to ask covered officials to make such solicitations on their behalf.”
Supporters of the Super PAC solicitation scheme argue that the scheme is allowed by the decision of the D.C. Circuit Court of Appeals in Speech Now v. FEC, which permits PACs making only independent expenditures to raise funds not subject to contribution limits.
However, even though it is permissible under the SpeechNow ruling for a Super PAC to raise unlimited funds, it is not permissible for federal officeholders and candidates to solicit such funds.
We believe the only possible correct result in the FEC Advisory Opinion Request is for the Commission to hold that the solicitation of unlimited contributions by federal officeholders and candidates is prohibited by law.
The statute prohibiting federal officeholders and candidates from soliciting unlimited funds was upheld by the Supreme Court in McConnell v. FEC (2003) and there is nothing in subsequent court decisions, including the Citizens United decision, which undermines the McConnell decision on this issue.
The solicitation prohibition was not challenged or litigated in SpeechNow. Indeed, the group SpeechNow made clear in litigating the question of whether it could raise unlimited contributions that it would operate wholly independently of federal candidates, officeholders and political party committees.
The court in SpeechNow did not consider and certainly did not authorize federal candidates and officeholders to solicit unlimited contributions for a PAC making independent expenditures in federal elections. There is nothing in the court’s opinion to suggest that such solicitations are legal.
In the McConnell case, Justice Anthony Kennedy, who otherwise dissented in McConnell, said in defending the solicitation ban that it was the one provision that “satisfies Buckley’s anticorruption rationale and the First Amendment guarantee.” Justice Kennedy explained:
The making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the payment (by granting his request). Rules governing candidates’ or officeholders’ solicitation of contributions are, therefore, regulations governing their receipt of quids. This regulation fits under Buckley’s anticorruption rationale.”
In summary, any federal officeholder or candidate who solicits unlimited contributions for the Republican Super PAC, Majority PAC, House Majority PAC or any other Super PAC would be violating the law.
We expect that our organizations, and others, will take all steps available to ensure the law is enforced.
Trevor Potter Fred Wertheimer
President, Campaign Legal Center President, Democracy 21