WASHINGTON (CN) – Federal campaign finance rules have become so onerous that they now impose unconstitutional barriers to honest electioneering, the Republican Party of Louisiana claims in a lawsuit.
In an Aug. 3 complaint, the party, joined by two of its parish executive committees, say that the Federal Election Committee’s Bipartisan Campaign Reform Act of 2002, which restricts federal election activity, is unnecessarily rigid and violates the First Amendment.
Under the act, federal funds must be used for federal elections.
The act requires that every entity wanting to contribute money to a candidate first establish a federal account and report on the account monthly as a federal political committee.
“And local committees wanting to send a single email in a federal-election-activity period merely exhorting registration or voting, 11 C.F.R. 100.24(a)(2)(i)(A) and (3)(i)(A), must first establish a federal fund to pay costs attributable to the email,” (39) the lawsuit says.
That means that local groups cannot so much as suggest local citizens “get out and vote” without first establishing a federal fund, according to the lawsuit.
Also, in order to qualify as a federal elections entity, all mailings must briefly urge voters to register to vote.
So, for instance, “Vote for O’Malley” would not be considered a federal voting activity, but “Vote for O’Malley. Remember to Register to Vote,” would.
“Under McCain-Feingold, employees who work more than 25 percent of their time in connection with federal elections must be paid exclusively with federal funds,” the lawsuit says.
“However, the FEC has interpreted this statute to not only include federal activity but also ‘federal elections activities,'” the complaint continues. “Therefore, merely working on generic or non-federal activity has triggered federal payroll requirements. For example, if a state party hires employees to go door-to-door to do a voter identification project for a state or local candidate, the employees must be paid exclusively with federal funds. This has created a disincentive for party committees to engage in non-federal voter ID or non-federal-get-out-and-vote projects, even if there are no competitive federal races for the provision to include ‘federal election activities.'”
Two of the filing entities – the Jefferson Parish and Orleans Parish Republican executive committees – don’t currently participate in federal election activity because of the “complexity and burden of compliance, including creating a federal account to fund such activity,” the lawsuit says.
The Republican Party of Louisiana wants to send mail to conservative democrats and independents, urging them to register as Republicans in upcoming elections but only if it can do so without violating FEC regulation.
But if that is to happen, time is of the essence, the plaintiffs say.
“Given recurring elections, the time required to resolve such litigation, and the ongoing restrictions, it is likely that situations similar to those described here will recur without opportunity for full litigation. So if litigation is not concluded before federal-election-activity periods related to 2016 elections end, this case will not be moot because it will be capable of repetition not yet evading review,” the lawsuit says.
Plaintiffs say they face threat of “civil enforcement and prosecution” if they proceed with planned activities without complying with challenged provisions, absent requested relief.
The only reason to limit independent activity is to prevent corruption, plaintiffs say, and clearly that is not the parties’ interest here.
“For example, if a state-committee employee works 26 percent of her salaried time in a month on federal election activities, then the state committee must pay 100 percent of her salary from federal funds (instead of the usual allocation between federal and nonfederal funds). But federal election activity encompasses merely soliciting or encouraging registration or voting by internet communications for which there is no cognizable quid-pro risk. So, triggering the 100 percent federal-funds mandate based on 26 percent of such activity is unjustified,” the complaint says.
The plaintiffs ask that federal rules governing election communications and contributions be declared unconstitutional, and that the Federal Elections Commission be barred from enforcing the Ban (U.S.C. 30125(b)), Fundraising Restriction (52 U.S.C. 30125(c)) and Reporting Requirement (52 U.S.C. 30105(e)(2)).
They are represented by James Bopp Jr. of the Bopp Law Firm PC in Terre Haute, Indiana.
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