Monday, July 6, 2001
Contact: James Bopp, Jr., General Counsel
Phone: 812/232-2434; Fax: 812/235-3685
Email: madisoncenter@aol.com

Recently, James Bopp, Jr. submitted on behalf of the Madison Center two sets of written comments to the Federal Election Commission on proposed rulemaking.

The first comments, submitted on May 7, dealt with the FEC's proposed definition of "Political Committee," which would have broad ramifications, requiring numerous citizen groups that are not currently registered as political committees to do so and making previously unregulated contributions/expenditures count against contribution limits and as triggers for reporting requirements. The comments noted that the proposed regulations violated the constitutionally-mandated "major purpose" and "express advocacy" tests, both of which protect citizen groups from such overreaching legislation. The comments set out these two constitutional benchmarks in detail.

The second comments, submitted June 8, commented on the FEC's proposal to require that "independent expenditures" (i.e., communications to the public expressly advocating the election or defeat of a clearly identified candidate that are not coordinated with a candidate) be considered

"made" when any contract or agreement is made for an independent expenditure. Both Congress and the public (and the FEC until now) have understood that an independent expenditure is made when it is communicated (e.g., when it is broadcast, not when broadcast time is arranged). Ironically, the statute that the FEC claims gives it authority to make such a new rule only authorized it to make arrangements for the faxing and emailing of certain reports and did not authorize any change in when independent expenditures are considered to be made. The comments noted that the rulemaking therefore lacked authority, then demonstrated how the proposed rule was impractical in the real world of last-minute independent expenditure decisions (where, e.g., broadcast time is arranged and then not used) and created opportunity for opposing candidates to interfere with broadcasting arrangements (providing several examples from real life).

Copies of the May 7 comments and June 8 comments (without attachments) are available in PDF format by clicking on the underlined text in this sentence. They may also be obtained by email in WordPerfect format (or in printed form, with attachments) by request to madisoncenter@aol.com.