Posted on 02/25/2004 6:43:42 AM PST by Valin
The Michigan Department of State is offering the following general information regarding McConnell v Federal Election Commission, the recent U.S. Supreme Court decision upholding most provisions of the federal Bipartisan Campaign Reform Act of 2002 (BCRA). However, the department has no authority to interpret federal campaign law and cannot answer specific questions regarding the BCRA. Candidates or members of committees that have questions are encouraged to seek the counsel of an election attorney or contact the Federal Election Commission (FEC) at (800) 424-9530 or www.fec.gov.
IMPACT ON THE MICHIGAN CAMPAIGN FINANCE ACT
Nothing in BCRA or the Supreme Court’s decision in McConnell appears to affect the Michigan Campaign Finance Act (MCFA), or the duties of any state or local filing official.
WHICH ASPECTS OF CAMPAIGN FINANCE DOES BCRA IMPACT?
BCRA, as upheld by McConnell, concerned two major issues: The regulation of "soft money," including its use by state and local candidates, and the regulation of "issue advertising." Within the context of the federal law, certain state party activities that benefit federal candidates; state and local candidate communications concerning federal candidates; and electioneering communications are strictly regulated or prohibited.
SOFT MONEY
BCRA limits many political party activities that traditionally have been financed by "soft money." Soft money is money that, before BCRA, was raised by political parties without limitation as to source or amount under the Federal Election Campaign Act (FECA).
"Hard money," by comparison, is money that is subject to the contribution limits and disclosure provisions of FECA. For example, an individual may contribute a maximum of $2,000 per election to a candidate for president of the United States. While corporations and labor organizations are prohibited from contributing "hard money" to candidates for federal office, their political action committees are not.
Prior to BCRA, corporations and unions often made large soft money donations to political parties. Soft money was used to fund certain state party activities that also benefited federal candidates. For example, a national political party could run an advertisement in Michigan that extolled the virtues of an associated state political party. Presumably, this advertisement would aid the party’s state and federal candidates in Michigan. This advertisement would be financed with a combination of federal hard money and soft money according to a formula devised by the FEC.
BCRA now prohibits political parties from using soft money to fund many party-building activities. Political parties (including federal, state, and local parties) are now prohibited from spending any funds, other than federal hard dollars, to influence an election where a federal candidate is on the ballot. This means traditional party-building activities such as voter registration drives (within 120 days of a federal election) and get-out-the vote campaigns are generally prohibited, unless financed by federal hard dollars.
STATE AND LOCAL CANDIDATES
BCRA also strictly regulates state and local candidate communications concerning federal candidates. A state or local candidate may not spend more than $1,000 in communications that support or oppose a federal candidate, unless the funds are hard dollars raised pursuant to BCRA. For example, a city council candidate could not spend more than $1,000 to create or distribute a communication that supported or opposed a presidential candidate or U.S. senator. This prohibition includes communications that seek to link a state or local candidate to a federal candidate. For example, a communication that said, "State Senator Smith and Congressman Jones—both are good for Michigan" is prohibited.
ISSUE ADS
Issue advertisements have become quite common during the last several election cycles. Issue advertisements support or oppose a candidate, but do not expressly advocate action. Issue ads cannot ask the listener to "vote for" or "vote against" a candidate’s election or defeat. Often, these ads would request that the viewer "Call Senator Smith and tell him to stop polluting our rivers," or some similar action. These ads were often financed by corporations or unions, and were generally exempt from FECA’s regulations.
This distinction between issue ads and election ads (those that contain words of express advocacy) was imposed by the federal courts because FECA lacked clear-cut standards differentiating between communications designed to influence elections and those that were political – but presumably not designed to influence elections.
Congress believed that issue ads should not be exempt from FECA’s disclosure requirements and spending limitations simply because they did not contain words of express advocacy.
To this end, BCRA creates the standard of "electioneering communication." Electioneering communication is defined as any television or radio broadcast that runs 60 days before the general election (or 30 days before the primary) and references a federal candidate by name or likeness. Corporations and unions are prohibited from paying for electioneering communications, except through their political action committees, which requires them to use federal hard dollars.
In addition, BCRA requires aggregate expenditures for electioneering communications of more than $10,000 to be reported within 24 hours.
The Supreme Court upheld the electioneering communication standard in McConnell. Why did the court abandon the express advocacy test? Because Congress supplied the required clear-cut standards by informing political participants of exactly which ads, run at exactly which times, using which media, constitute electioneering communications.
ELECTIONS IN MICHIGAN
BCRA does not require Michigan to adopt the electioneering communication standard in MCFA elections. Michigan continues to use the express advocacy test. The MCFA’s definition of "contribution" and "expenditure" are very similar to the FECA language upon which the Supreme Court imposed the express advocacy test. If the definitions and requirements of MCFA change, the department will reassess this interpretation.
CONCLUSION
The Bipartisan Campaign Reform Act (BCRA) does not appear to affect the duties of any local filing official, nor does it change any aspect of Michigan’s campaign finance law. However, state and local candidates and committees are subject to BCRA’s criminal penalties if they engage in activities that are deemed to influence a federal election. We recommend that you advise state and local candidates and committees that have BCRA questions to seek the advice of an experienced election attorney or contact the Federal Election Commission at (800) 424-9530 or www.fec.gov.
This is what needs to be repealed YESTERDAY.
Please ask your Representative to support H.R. 3801!
Thank you again, my friend, for keeping this issue in front of the FR community.
John / Billybob
Sabato is not the sharpest knife in the drawer, but he is gairly bright, and fairly honest, and not grossly misleading in his public comments. How's that for damning with faint praise?
John / Billybob
Well, some of the names of the other poly scientists regularly appearing on tv escape me...but Sabato is the most appealing, and certainly no knee-jerk liberal.
I will second that. THANK YOU, Valin.
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