thomas's statement of reasons II

I write this supplemental statement to address certain arguments proffered by my colleagues, Commissioners Sandstrom and Elliott. The underlying Matters Under Review (“MURs”) were perhaps the FEC’s greatest test to date. The FEC deadlocked 3-3 on the most significant issue—whether most of the RNC and DNC ads were in-kind contributions to the Dole/Kemp and Clinton/Gore campaigns.^[1]

Because this question is now subject to judicial review, at least as to the DNC ads,^[2] it is especially important that the legal analysis of those commissioners voting not to proceed be carefully scrutinized. If found contrary to law or arbitrary and capricious, there is some possibility that the FEC’s dismissal of these cases will be reversed.^[3]

I. The significance of the prior votes in the audits regarding repayment of public funds

First, I must address the argument put forward by Commissioner Sandstrom that the FEC’s earlier 6-0 vote in the public funding repayment context somehow should govern the result in these MURs.^[4] In law and in fact, the two determinations were very different.

As I explained in my Statement for the Record in Audits of Clinton/Gore and Dole/Kemp Campaigns dated December 28, 1998 (attached), the vote in the repayment setting dealt only with recoupment of public funds, and reflected vastly different commissioner viewpoints. Most significantly, three of my colleagues had indicated by a preceding vote that they would not approve any repayment whatsoever stemming from excess candidate spending in the primary, no matter how clearly the spending involved activity coordinated with party operatives and no matter how clearly the ads were intended to promote a particular candidate’s election or defeat.^[5] Thus, before any actual repayment vote, there was simply no way to get the four votes needed to order any repayment of public funds associated with excess primary spending caused by the party ads.

As Acting Chairman at the time, I suggested that rather than waste days, perhaps weeks, analyzing each ad separately to allow for a string of futile votes on whether any particular ad would generate a repayment of public funds, commissioners should proceed to a single vote to reject the Audit Division’s repayment recommendation which covered all the ads. Commissioners who believed none of the ads could generate a repayment under the public funding statute, like my three Republican colleagues, could vote to reject the recommendations for that reason. Commissioners like myself, who believed that some but not all of the ads should generate a repayment, likewise could vote to reject the auditors’ recommendations because they lumped all the ads together. This approach was adopted by my colleagues, and it is the basis for the 6-0 vote rejecting the auditors’ repayment recommendations.

The commissioners underscored their desire to leave any determination about whether the ads constituted in-kind contributions for the MUR track. Each audit report was revised to state: “[T]he Commission directed the Audit Division to revise the portion of the report relating to party ads to clarify that the Commission has not reached any conclusion regarding the Audit Division’s in-kind contribution analysis, and to indicate that Commissioners may submit statements for the record.” The bottom line, therefore, is that the voting in the audit track regarding repayment did not in fact govern whether the party ads constituted in-kind contributions, and should not be interpreted as having done so. The voting in the MUR track was the real deal.

Next, I wish to address Commissioner Sandstrom’s argument that Advisory Opinion 95-25, 2 Fed. Elec. Camp. Fin. Guide (CCH), � 6162, ruled definitively that ads similar to those at issue here were not attributable to any contribution or coordinated expenditure limit.^[6] To the contrary, the commissioners involved went out of their way to caution that the opinion did not rule on that point. Because the request of the Republican National Committee was deliberately vague on whether any particular ad text proffered would in fact be used, the Commission was very particular in emphasizing that it was issuing no opinion about whether the planned activity of the RNC would constitute an “electioneering message”^[7] and hence a coordinated expenditure by the RNC. The FEC’s ruling was confined to the question of whether the RNC’s activity, as generally described, would require allocation as partly federal and partly non-federal.^[8]

The Commission expressly noted it was relying on the requestor’s legal representation that no ads would contain an electioneering message and expressly advised it was not characterizing any particular ads as containing an electioneering message:

The Commission relies on your statement that those advertisements that mention a Federal Candidate or officeholder will not contain any electioneering message. In view of this representation, the Commission does not express any opinion as to what is or is not an electioneering message by a political party committee.

To drive home the point that it was only addressing the general question of whether “legislative advocacy media advertisements that focus on national legislative activity and promote the [party] should be considered as made in connection with both Federal and non-federal elections,” the Commission’s affirmative conclusion ended with the proviso, “unless the ads would qualify as coordinated expenditures on behalf of any general election candidates of the Party under 2 U.S.C. � 441a(d).” Id. at 12,109. This clearly contrasted the central holding of the opinion with the unresolved question about the status of any particular ad as a contribution or coordinated expenditure.

The foregoing demonstrates that the FEC in no way “determined” or “approved” anything about any particular ad in Advisory Opinion 1995-25. Accordingly, no precedent regarding application of the contribution or coordinated expenditure limits should be gleaned from that opinion.

That said, Commissioner Sandstrom demonstrates a valid point: there probably were and are some election law attorneys and other political practitioners who missed the crucial distinctions the FEC built into Advisory Opinion 1995-25. While that perhaps justifies a ‘reliance on counsel’ defense or mitigation of some sort, it does not alter the true state of the law.

III. The courts have not required “express advocacy” for coordinated expenditures.

Last, I must address Commissioner Elliott’s asserted belief that Buckley v. Valeo (“Buckley”),^[9] FEC v. Massachusetts Citizens for Life (“MCFL”),^[10] and a string of other cases cited in her June 23 Statement of Reasons^[11] somehow hold that coordinated expenditures must rise to the level “express advocacy” to be validly limited. It is a view that does not withstand scrutiny.

The part of Buckley on which Commissioner Elliott relies, and all the other cases she cites except two, deal with independent or non-coordinated communications. Only in that realm has the “express advocacy” concept been imposed. See Statement for the Record in Audits of 1996 Clinton/Gore and Dole/Kemp Campaigns by Commissioners Thomas and McDonald dated July 1999 (attached) at 7, 8.^[12]

In the only case cited by Commissioner Elliott where ads coordinated with a candidate were at issue, the court held emphatically that the “express advocacy” standard was not applicable. FEC v. Christian Coalition Inc., 52 F. Supp.2d 45 (D.D.C. 1999). The court said: “[I]mporting the ‘express advocacy’ standard into � 441b’s contribution prohibition would misread Buckley and collapse the distinction between contributions and independent expenditures in such a way as to give short shrift to the government’s compelling interest in preventing real and perceived corruption that can flow from large campaign contributions.” 52 F. Supp.2d at 88. The court referred to the position espoused herein by Commissioner Elliott as “untenable” and “fanciful.” 52 F. Supp.2d at 87 and n. 50. I would not use such pejorative phrasing, but only note that the courts simply don’t agree.

As for the other case cited by Commissioner Elliott where activity coordinated with a candidate was involved, Orloski v. FEC,^[13] the court made clear that the apparent FEC policy of using the “express advocacy” test, among others, in the context of federal officeholder community events was neither statutorily nor constitutionally required. The fact that the FEC at one time chose to use the “express advocacy” test in that limited situation is of no relevance in the MURs at hand.^[14]

Commissioner Elliott’s stated view herein is at odds with some of her own votes. If her view is that even coordinated ads must rise to the level of “express advocacy” in order to be regulable, then her votes in MUR 3918 (law firm ads referencing Senate candidate Joel Hyatt with the phrase, “Hyatt Legal Services—serving the people of Ohio”) and MUR 4116 ( radio ads paid for by the National Council of Senior Citizens Political Action Committee challenging Senate candidate Ollie North’s statement that Social Security should be scrapped) are inconsistent. In both of those cases she voted to find probable cause that the coordinated ads were illegal in-kind contributions even though no “express advocacy” was included.^[15] I would argue that her votes in those MURs reflect a more accurate assessment of the law than her stated position herein.

It is unusual for a commissioner to issue a supplemental statement commenting on the statement of another colleague. I have not taken any of the statements attributed to me personally, and I do not intend any of the comments herein to be taken personally. This is all purely legal argument, in my view. Only because it involves very high stakes interpretations of federal campaign finance law do I feel the need to further explicate the topic.

^[1] See Statement of Reasons of Commissioner Scott E. Thomas dated May 25, 2000 for a description of the various allegations, recommendations, and votes.

^[2] One of the complainants filed a suit challenging the FEC’s dismissal of the allegations relating to the DNC and Clinton/Gore campaign. Fulani v. FEC, Civ. Action No. 1:00CV01018 (WBB) (D.D.C., filed May 8, 2000).

^[3] See 2 U.S.C. � 437g(a)(8).

^[4] In a Money & Politics (BNA) article dated June 5, 2000, Commissioner Sandstrom was quoted as saying my vote in the MURs was “inconsistent” with my earlier vote in the repayment context. In his Statement of Reasons issued June 21, 2000, at footnote 19, Commissioner Sandstrom wrote it was “self evident” that the commissioners’ vote regarding the party ads in the repayment track presaged the treatment of the ads in the MUR track.

^[5] This reflected the view of Commissioners Elliott, Mason, and Wold that the primary matching fund statute did not contemplate any repayment of public funds corresponding to excessive spending by the candidate. See Agenda Documents 98-92 and 98-92A. I noted in my Statement (attached) that this was the first time in six presidential cycles such an argument had surfaced, that it ran counter to long-standing Commission interpretation of the statute through regulation (11 C.F.R. � 9034.4(b) provides, “An expenditure which is in excess of any of the limitations under 11 C.F.R. Part 9035 shall not be considered a qualified campaign expense.”), and that several courts had upheld the Commission’s interpretation.

^[6] Referring to one of the ad texts submitted by the advisory opinion requestor, the Republican National Committee (RNC), Commissioner Sandstrom states “the Commission determined [it] did not contain an electioneering message [emphasis added].” Statement of Reasons of Commissioner Karl J. Sandstrom at 6. He later characterizes the various texts submitted by the requestor as “approved.” Id. at 7.

^[7] The “electioneering message” phrase was a shorthand reference to the underlying statutory provisions governing whether a particular party communication should be treated as an in-kind contribution under the contribution limits (see, e.g., 2 U.S.C. � 441a(a)(2)(A)) or as a coordinated expenditure under the party-specific limits at 2 U.S.C. � 441a(d). This phrasing was eliminated from the campaign finance lexicon by the June 24, 1999 Statement for the Record filed by Commissioners Sandstrom, Elliott, Mason, and Wold in connection with the Dole/Kemp and Clinton/Gore audit determinations. See Statement for the Record of Commissioners Thomas and McDonald dated July 6, 1999 (attached). At the time Advisory Opinion 1995-25 was issued, however, the legally correct way to describe whether an ad should count toward a particular limit was according to whether it mentioned a clearly identified candidate and contained an “electioneering message.”

^[8] The Commission was aware that the RNC and the Democratic National Committee (DNC) were playing a game of ‘cat and mouse’ regarding this advisory opinion request. Apparently, because the RNC wished to file a complaint regarding the DNC’s use of purely ‘soft money’ to pay for some of its ads in the 1993-94 time frame, it sought an advisory opinion to ascertain whether the Commission would most likely treat the 1993-94 activity as a violation. Because the original request did not include any specific proposed text, the Commission asked for an example of an ad to facilitate analysis. Though the RNC provided three texts, it specifically represented that none of the ads served as the basis for the advisory opinion request. Because of this vagueness, and because of the importance of nonetheless giving some guidance on the overriding question of federal/non-federal allocation, the Commission carefully included language limiting the scope of its opinion. Incidentally, after receiving Advisory Opinion 1995-25, the RNC indeed filed a complaint regarding the DNC’s 1993 activity, then sued the FEC when it failed to muster enough votes to settle the matter with a conciliation agreement, then withdrew its suit, and then filed a new suit claiming the FEC’s regulations unconstitutionally deprived it of the opportunity to use exclusively ‘soft money’ to pay for what it characterized as “issue ads.” See FEC Record, Vol. 23, Number 9, p. 1; Vol. 24, Number 6, p. 4; Vol. 24, Number 6, p. 1.

^[9] 424 U.S. 1 (1976).

^[10] 479 U.S. 238 (1986).

^[11] See p. 3, footnote 10, of Commissioner Elliott Statement.

^[12] In Buckley, the Court could not have been clearer: “[C]oordinated expenditures are treated as contributions rather than expenditures under the Act.” 424 U.S. at 46, 47. In MCFL, the Court specified that its “express advocacy” construction need only apply to the provision in 2 U.S.C. � 441b “that directly regulates independent spending.” 479 U.S. at 249.

^[13] 759 F.2d 156 (D.C. Cir. 1986).

^[14] Commissioner Elliott notes that the Orloski court said, “Under the Act this type of ‘donation’ is only a ‘contribution’ if it first qualifies as an ‘expenditure’ . . . . 759 F.2d at 163. This is inaccurate. The statute defines “contribution” as “any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office.” 2 U.S.C. � 431(8)(A)(i). There is no dependence on the “expenditure” definition. That said, because the term “expenditure” is defined very similarly at 2 U.S.C. � 431(9)(A)(i), virtually every “contribution” would qualify as an “expenditure.” There is further overlap because, as Commissioner Elliott notes, and as the Supreme Court has noted (see n. 12, supra), a coordinated “expenditure” is to be treated as a “contribution.” See 2 U.S.C. � 441a(a)(7)(B)(i). But the term “expenditure” is much broader in that it includes mundane operating expenditures of political committees, as well as independent, non-coordinated outlays that would fall under the reporting provision at 2 U.S.C. � 434(c) or the ban at 2 U.S.C. � 441b only if they contain “express advocacy.”

^[15] See certifications of vote dated March 11, 1997 in MUR 3918 and December 9, 1997 in MUR 4116.