February 1, 1999
Ms. Susan E. Propper
Assistant General Counsel
Federal Election Commission
999 E Street, N.W.
Washington, D.C. 20463
Re: Proposed Presidential Public Funding Rules
Comments of the Brennan Center for Justice at NYU School of Law
Dear Ms. Propper:
The Brennan Center for Justice at New York University School of Law submits the following comments on the Commission’s proposed changes to the rules governing publicly financed Presidential primary and general election candidates.
Introduction: The Need for Rule-Making
In the 1996 Presidential election, President Clinton and Senator Dole each chose to participate in a voluntary public funding scheme. The premise of the public funding scheme is a simple one – in exchange for a direct government grant of $61.82 million for the general election, the candidate agrees to forgo any and all additional fund-raising for his Presidential general election campaign. Similarly, in regard to the primaries, in exchange for the government’s agreement to match the first $250 of each eligible contribution received, the candidate agrees to limit his campaign spending in all primaries to $30.91 million.
The thorough and professional audit reports prepared by the Federal Election Commission staff make it abundantly clear that both the Clinton and Dole campaigns blatantly violated their agreements with the government. We strongly disagree with the conclusion of the Commission to disregard the audit recommendations reached by its non-partisan staff members. We hope, however, that the Commission’s decision to disregard the audit reports does not reflect an endorsement of the Clinton and Dole campaigns’ 1996 electioneering action, but instead reflects the Commission’s belief that the law in this area is less than crystal clear. We believe that the proposed rule-making is an important step towards ensuring that, at least for the future, this type of illegal conduct will neither be repeated nor condoned. If Presidential candidates choose voluntarily to participate in the public funding system established by Congress, they must abide by the spending limits that come with the generous public subsidy.
Proposed rule on coordination between publicly funded
Presidential candidates and their political parties
If the integrity of the Federal Election Campaign Act is to be maintained, it is absolutely essential that the Commission adopt workable rules that will prohibit political parties from coordinating their electioneering activities with Presidential candidates. Unfortunately, the proposed rules do not adequately achieve that objective.
The Commission should promulgate a rule that any advertising by a political party which clearly identifies a Presidential candidate will be considered to be an expenditure on behalf of the party’s candidate. There should be no exceptions to this rule. The identification of a candidate by a political party, standing alone, should be sufficient to bring the expenditure within the FEC’s regulatory ambit. As the Supreme Court in Buckley noted, expenditures by candidates and political parties “fall within the core area sought to be addressed by Congress. They are, by definition, campaign related.” Buckley v. Valeo, 424 U.S. 1, 79 (1976).
The exception provided in the notice of proposed rule-making, although well-intentioned, would in practice eviscerate the effectiveness of the rule. The exception would allow political parties to identify candidates in theirs ads if: (1) the advertisement is focused on a legislative or public policy issue, (2) the advertisement is addressed to an audience affected by the policy, and (3) mention of the candidate is incidental and related to the candidate’s role as sponsor, proponent, or leading opponent to the proposal. (Examples provided in the notice of proposed rule-making include “the President’s plan” or “the Smith bill.")
This exception, although presumably intended to be narrow, doubtless would be stretched by the candidates and parties well beyond its intended scope. For example, the following commercial, paid for by the Democratic National Committee during the 1996 campaign, would arguably be permissible under the exception outlined in the notice of proposed rule-making:
Remember recession – jobs lost? The Dole-GOP Bill tries to deny nearly one million families unemployment benefits. Higher interest rates – ten thousand unemployed with a Dole Amendment. Republicans try to block more job training today. We make more autos than Japan, record construction, jobs, mortgage rate down. Ten thousand new jobs. More women owned companies than ever. The President’s plan – education, job training, economic growth – for a better future.
The Republican Party ran similar ads in support of Bob Dole. As this example demonstrates, it is not difficult to design electioneering ads that focus on a public policy issue and that praise or excoriate a Presidential candidate by labeling the described policy proposal as “the President’s plan” or “the Dole plan.” If the 1996 election teaches us anything, it is that the Presidential candidates and the political parties will fully exploit any possible loophole – perceived or real. The only way to prevent blatant electioneering by political parties on behalf of their Presidential nominees is to prohibit them from running advertisements that identify a Presidential candidate.
Additionally, the Commission should promulgate a rule providing that spending by a political party for salary, travel and expenses of employees who, during the same election cycle have been employees of publicly funded Presidential campaign, shall be considered to be expenditures in behalf of the Presidential candidate. In the past, this has been an area of significant abuse. For example, in the 1996 election, Joanna Coe, who served as Bob Dole’s chief fundraiser during the primaries, moved to the RNC once Dole had reached his primary fundraising limit. While employed by the RNC, Ms. Coe was responsible for raising the party’s “soft money,” which was later used to promote the Dole candidacy.
It is appropriate, as the Commission suggests, to provide an exception to the above-rule for employees who worked for a Presidential candidate whose candidacy is no longer active. However, we believe that an exception for an employee whose “duties are substantially different than those performed for the Presidential candidate” is open to possible misinterpretation and abuse. For example, is the raising of large “soft money” contributions substantially different from the raising of small “hard money” contributions? We suggest that the Commission adopt stronger language, which would provide an exception only if the employee’s duties are “wholly unrelated to and different from those performed for the Presidential candidate.”
Finally, we believe that spending by a political party for polling, media production or consulting services should be considered to be coordinated expenditures on behalf of a Presidential candidate in the circumstances specified in the proposed rule. We also agree with the Commission’s recommendation to provide relief for presumptive nominees who have reached their spending limits prior to the end of the primary season. The national political party committees should be permitted to raise and spend funds on behalf of their presumptive nominee when the identity of the nominee is clear. As long as these expenditures count against the party’s general election coordinated spending limit, then the intent of FECA will not be subverted. This flexible approach is a reasonable accommodation to current political reality.
Glenn J. Moramarco
Brennan Center for Justice
at NYU School of Law