FEC Mulls How Much Harassment Is Enough for Disclosure Exemption

By Kenneth P. Doyle

Lawyers for the Socialist Workers Party said the party shouldn’t have to show the party faces “serious” threats of harassment and reprisals in order to be exempt from Federal Election Commission disclosure rules.

Extensive written comments filed by party lawyers ahead of an April 20 FEC open meeting sought to persuade the commissioners they should extend the party’s unique, decades-old exemption from campaign finance law requirements to disclose donors and vendors. The fringe party’s long history of persecution should be enough for a continued waiver from having to disclose, the comments said, despite arguments that recent incidents have been few and relatively minor.

The party, known as the SWP, says it wants to abolish capitalism and promote the rights of workers. The party raises relatively little money and has fielded only a few, universally unsuccessful candidates.

An initial draft response to the SWP advisory request, released by the FEC earlier this year, would deny what previously had been almost routine renewal over nearly 40 years of the party’s exemption from disclosure rules. The initial draft said there were too few incidents of harassment of the SWP in recent years to justify the exemption.

Competing Drafts

A more recent draft advisory opinion, however, would extend the FEC disclosure waiver. The competing drafts have raised questions about whether the FEC will be able to approve by the required four-vote majority the advisory opinion (AO 2016-23) requested the SWP. The six-member FEC traditionally is composed of three members recommended by Democrats and three Republicans, but one of the Democratic seats currently is vacant.

The FEC is set to consider the SWP advisory opinion request at its next open meeting, the first it has held in nearly a month.

The only other item on the meeting agenda is commission approval of staff findings in a long-pending audit report for the Colorado Republican Committee. One audit finding was that the state party committee violated FEC reporting requirements because it had an undisclosed bank account that collected and spent nearly $90,000 in 2012.

Last-Ditch Effort to Preserve Waiver

The SWP lawyers’ comment letter made a last-ditch argument to preserve the party’s disclosure exemption, saying the courts and the FEC have never required the applicant to provide evidence of “serious” harassment and reprisal, but rather only that they establish “a reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment or reprisals from either Government officials or private parties.”

The letter, sent on behalf of the SWP by attorneys Michael Krinsky and Lindsey Frank of the New York law firm Rabinowitz, Boudin, Standard, Krinsky & Lieberman, said that a new requirement to show serious threats of harm would “add an additional hurdle that would make it significantly more difficult for minor political parties to obtain exemption and thus would further chill the exercise of important First Amendment rights.”

The FEC has delayed several times its consideration of SWP advisory opinion request, following release of the initial draft response denying renewal of the party’s disclosre exemption.

The FEC’s initial draft ruling on the Socialist Workers Party request argued that “the public interest would be served by disclosure of SWP’s contributors and vendors.” The draft said the the SWP “has not demonstrated a reasonable probability that disclosing its contributors and vendors will subject those persons to threats, harassment, or reprisals.”

FEC Draft Cited Sanders

Among the pieces of evidence cited by the FEC draft was the fact that Sen. Bernie Sanders (I-Vt.), who has identified himself as a “democratic socialist,” raised more than $230 million in campaign contributions during his 2016 race for the Democratic presidential nomination. Sanders’s ability to raise so much money “calls into question the SWP’s qualification for a reporting exemption,” the FEC draft said.

In earlier written comments responding to the draft, the SWP lawyers said the success of the Sanders campaign was irrelevant because the senator’s views have nothing to do with the principles of the Socialist Workers Party.

“The SWP’s definite and publicized viewpoints, including its advocacy for the abolition of capitalism in the United States and the establishment of a workers’ government to achieve socialism, are so obviously distinct from those of Senator Sanders and, unlike the viewpoints of Senator Sanders, the SWP’s unique viewpoints have provoked repeated acts of hostility, both governmental and private.”

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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