The Federal Election Commission (“Commission”) released an interesting advisory opinion request from the National Democratic Redistricting Trust (the “Trust”) seeking confirmation that Democratic Members of Congress may raise funds for the organization without running afoul of the soft money ban applicable to federal candidates and officeholders. The advisory opinion request has been identified as AOR 2010-13.
At the outset, I wish to state that this request has merit and appears to build on previous advisory opinion requests approved by the Commission. However, it appears unlikely that, given the Commission’s history, that it will approve the advisory opinion request without receiving more information from the requesters. Absent from the usual mix of FEC requests are the Trust’s organizational documents, the identity of the individuals who will administer the Trust, or the beneficiary of the Trust. It is also unclear from the request whether either of the individuals who will administer the Trust are registered federal lobbyists or foreign agents. The Commission, since BCRA went into effect, has asked for this information so it can determine whether federal officeholders and candidates may solicit funds for the Trust without running afoul of the soft money prohibition.
Such a request should not come as a surprise at this point. This is the first cycle for redistricting under BCRA. Litigation in almost every state is inevitable. Members, who have a natural interest in the redistricting process and the final shape of the maps, are seeking ways to be involved in the redistricting. Interestingly, the current House Rules are specific in allowing pro bono legal services for suits challenging federal laws, but redistricting maps are state laws.
The FEC Advisory Opinion Request
According to the request, “individuals who are not Members of Congress have established the Trust for the purpose of raising funds to spend on legal fees associated with the legislative redistricting process that follows the 2010 census.” AOR 2010-13 at 1. The request also states that the Trust will finance “litigation relating to reapportionment.” Id. at 3. Counsel represented to the Commission that the Trust is not a corporation, and that it has a “trustee who is a private citizen that is not a Member of Congress, and it has an executive director who is also a private citizen that is not a Member of Congress.” Id. at 4. The Trust will “work in concert with like-minded individuals, organizations and committees that will act for the purpose of influencing the redistricting process or elections, but will not itself fund such activities.” Id. (emphasis added).
House Legal Expense Fund Regulations
The Trust appears to be modeled after the Legal Defense Trusts provided for under the House Legal Expense Fund Regulations (“LEFR”). See House Ethics Manual (2008) at 394. The LEFR provides for the following requirements, among others, for a Legal Expense Trust:
- The Trustee shall not have any family, business or employment relationship with the trust’s beneficiary;
- Within one week of the House Ethics Committee’s approval of the trust document, the beneficiary is required to file a copy of the trust document with the Legislative Resource Center for public disclosure.
Id. at 395. While the Trust does not appear to be the type of trust subject to the LEFR, the LEFR’s disclosure requirements appear to provide some guidance concerning the type of information the Commission should request before rendering a decision in this matter.
I have no doubt that someone at the Commission will request the information listed above from the Trust so that the public record is complete.
Pro-Regulation Groups Soft Money Redistricting Organization
It will be interesting to see the reaction from the pro-regulation groups to this request. The Democrats and the pro-regulation groups are “like-minded” organizations when it comes to the issue of redistricting. The pro-regulation groups established a soft-money umbrella organization called Americans for Redistricting Reform to finance their redistricting activities. Member organizations of this soft money group include the Brennan Center, Campaign Legal Center, Common Cause, Public Citizen and other organizations that have spent untold sums of soft money advocating strict campaign finance limits for federal officeholders, candidates and political party committees. It’s also worth noting that the Brennan Center, Common Cause, and Campaign Legal Center (representing other parties as friends of the court) are opposing the Republican National Committee’s lawsuit to raise funds from the same types of sources and in the same amounts for redistricting purposes as the pro-regulation groups.
The Trust’s advisory opinion request would be a moot point if the federal court of appeals for the DC Circuit holds that the national political parties are permitted to raise funds from the same types of sources and in the same amounts as the pro-regulation, soft money, lobbying groups. It’s time to liberate the national party committees so that they may fully participate in the redistricting process.