FEC Urged to Reject Senator Lee’s Attempt to Create a “Super Leadership PAC” in Comments Filed by Campaign Legal Center & Democracy 21

Today the Campaign Legal Center and Democracy 21, filed comments with the Federal Election Commission (FEC), urging the Commission to reject an advisory opinion request  submitted by the Constitutional Conservatives Fund PAC (“CCF”), Senator Michael Shumway Lee’s (R-UT) Leadership PAC seeking to fundraise in a manner clearly prohibited by existing law.

Senator Lee’s Leadership PAC asks the Commission (AOR 2011-21) whether it can raise unlimited contributions from corporations, labor unions and individuals to use for “independent expenditures” supporting or opposing other federal candidates.  In other words, Senator Lee’s Leadership PAC asks the FEC if it can fundraise like a Super PAC.

“This is an easy question, which the Commission should answer with an unequivocal no,” said Campaign Legal Center FEC Program Director Paul S. Ryan. 

The “soft money” prohibition of the Bipartisan Campaign Reform Act of 2002 (BCRA) clearly states that a federal candidate or officeholder, or an entity directly or indirectly established, financed, maintained or controlled by a candidate or officeholder, shall not solicit, receive, direct, transfer, or spend funds in connection with a federal election unless the funds are subject to the limitations, prohibitions, and reporting requirements of the law.

“By its own admission,” Ryan said, “CCF is a Leadership PAC established by Senator Lee.  Therefore, it falls squarely within the BCRA soft money ban.  As such, CCF, like Senator Lee himself, may only solicit or receive contributions up to $5000 from individuals and federal PACs, and may not solicit or receive any corporate or union funds.”

“The answer to the Advisory Opinion Request submitted by Senator Mike Lee (R-UT) to the FEC is open and shut:  the federal campaign finance laws clearly and unequivocally prohibit the Leadership PAC of a Member of Congress from soliciting or receiving unlimited contributions,” said Democracy 21 President Fred Wertheimer. “Senator Lee’s Leadership PAC is flatly prohibited by law from raising unlimited contributions and Senator Lee should abandon this effort.”

The heart of the argument made by CCF is that recent court decisions permit federal PACs to accept unlimited contributions from individuals, corporations and unions so long as such contributions are used only for independent expenditures.  But these cases, which gave birth to Super PACs, apply only to PACs that are not established by federal candidates or officeholders.  These cases are inapplicable to CCF, which is established by a federal officeholder.

The FEC has already recognized precisely this distinction earlier this year, when two Super PACs, Majority PAC and House Majority PAC, sought an advisory opinion as to whether federal candidates and officeholders are permitted to solicit unlimited individual, corporate, and union contributions on their behalf.  By a unanimous 6-0 vote, the Commission correctly advised the Super PACs that the BCRA soft money ban was upheld by the Supreme Court in McConnell v. FEC and remains valid since it was not disturbed by either Citizens United or SpeechNow.

The Campaign Legal Center and Democracy 21 urged the FEC to reaffirm its opinion that all federal candidates, officeholders and committees they established—including Senator Lee’s Leadership PAC, CCF—are prohibited from raising or spending funds in connection with a federal election unless the funds are subject to the limitations, prohibitions, and reporting requirements of federal law.

The Campaign Legal Center took the lead in preparing these comments.