Socialist Workers Exemption From FEC Rules Debated

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By Kenneth P. Doyle

A unique, decades-old exemption from campaign finance disclosure rules enjoyed by the Socialist Workers Party would end if the Federal Election Commission approves a draft advisory opinion set to be considered March 9.

A request for an advisory opinion (AO 2016-23) to extend the disclosure exemption was submitted late last year by lawyers for the party, known as the SWP, and its national campaign committee. But, the only draft response released by the FEC, so far, would deny what previously has been almost routine renewal over four decades of the party’s exemption from disclosure rules.

It takes the votes of at least four FEC commissioners to approve an advisory opinion, and there is a vacancy on the six-seat commission due to the recent departure of Democrat Ann Ravel. Alternative FEC drafts responding to the SWP request could surface before the open commission meeting scheduled for March 9.

The SWP, a minor party that says it wants to abolish capitalism, raises relatively little money and has fielded only a few, universally unsuccessful candidates. The party has been exempted from disclosure of its donors and vendors due to evidence in past years of threats to its supporters.

Success of Sanders Cited

The party’s lawyers maintain that such threats continue, but the draft ruling on the FEC’s meeting agenda 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.”

Among the pieces of evidence cited by the FEC draft was the fact that Vermont Sen. Bernie Sanders, an independent who has identified himself as a “democratic socialist,” raised over $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 written comments responding to the draft, lawyers for the SWP maintained that it is a tiny party with very little support, which remains vulnerable to threats and harassment. References to the success of Sanders’s campaign are irrelevant, the SWP lawyers added, 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,” said a 23-page comment letter filed with the FEC last month by SWP attorneys Michael Krinsky and Lindsey Frank of the New York firm Rabinowitz, Boudin, Standard, Krinsky & Lieberman.

Exemption Renewed in 2013

The SWP advisory opinion was set to be considered in January at the FEC’s first open meeting scheduled for 2017, but a vote was postponed. The FEC last approved the waiver of disclosure for the SWP in 2013 in an advisory opinion that said the party’s campaign committees weren’t required to disclose donors and vendors in the same way as all other FEC-registered political committees.

The 2013 exemption was renewed by a 4-1 vote of the commissioners after they debated whether the special disclosure exemption was outdated. FEC officials suggested the SWP had shrunk in size and notoriety, and no longer faced the kind of unusual threats and harassment that existed in earlier periods of American history.

Attorneys for the SWP noted that the disclosure issue was litigated years ago, resulting in court rulings in the 1970s which held that the party’s supporters needed special protection.

In the 2013 vote, Democratic FEC Commissioner Ellen Weintraub joined the three FEC Republican commissioners to approve an advisory opinion extending the party’s disclosure exemption through 2016. Steven Walther, a political independent who holds a Democratic seat on the FEC, voted against the exemption, suggesting that it was no longer justified. Walther now holds the FEC’s chairmanship, which passes each year to a new commissioner.

The party’s disclosure exemption has been in effect since a key court ruling in 1979—three years after the landmark Supreme Court decision in Buckley v. Valeo. In Buckley, the high court generally upheld campaign contribution rules, including disclosure of contributors, but said that specific organizations facing a severe risk of harassment could be exempt from full disclosure to protect First Amendment rights.

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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