Beyond Silly—What the Courts and 

the FEC Have Done to Congressional 

Reform Attempts 

Scott E. Thomas 

Federal Election Commission 

 September 2002 
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Introduction

In this outline are presented some of the more peculiar 

aspects of current federal campaign finance law as it relates 

to corporations. Some involve rather odd analysis by the 

courts. Others involve strange actions by FEC 

commissioners. The net result is a crazy quilt of legal 

provisions that greatly depart from the intent of Congress and 

make the PLI seminar a must. 

I. “Quid pro quo” free zone. 

In Buckley v. Valeo, 424 U.S. 1 at 39-51 (1976) 

(“Buckley”), the Supreme Court overturned a $1,000 

independent expenditure limit on the theory that there 

was little danger of “quid pro quo” arrangements if 

there was no coordination before the independent 

expenditure occurred. 

A. While there might be some independent 

spenders who can resist taking credit for 

helping a candidate, surely the vast majority 

of such persons will be sure to let the

candidate know after the fact how helpful 
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their “independent expenditure” was. Even if 

no effort is made to so inform the candidate, 

the candidate almost always will know who 

has made such expenditures. And the 

candidate will know the same thing may 

happen in the next election—perhaps in favor 

of the opponent! Is the danger of “quid pro 

quo” really different?

B. In spite of the negligible difference, in the real 

world, between coordinated expenditures and 

independent expenditures, campaign finance 

regulation still largely rests on this Supreme 

Court analysis. Thus, at least some persons 

(individuals and PACs) may make unlimited 

independent expenditures and then feel free to 

seek “quid” from candidates/officeholders 

after the fact based on such expenditures. 

II. Treating “independent expenditures” by 

corporations differently. 

In FEC v. Massachusetts Citizens for Life, 479 U.S. 

238 at 248-249 (1986) (“MCFL”), and Austin v.

Michigan Chamber of Commerce, 494 U.S. 652 at 

657-661 (1990) (“Austin”), the Supreme Court ruled 

that non-coordinated “express advocacy” 

expenditures by corporations can be flatly prohibited. 

A. Thus, while individuals and PACs may make 

unlimited independent “express advocacy” 

communications, corporations may not make 

any. 

B. The Court has rationalized this on the ground 

that corporations are commercial entities that 

can gather and spend enormous sums and 
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thereby have a disproportionate, distorting 

influence in the political marketplace. MCFL, 

479 U.S. at 256-259; Austin, 494 U.S. at 659, 

660. 

C. One might ask why there is little risk of “quid 

pro quo” in the case of a $1 million corporate 

executive or PAC independent expenditure, 

but an unacceptable risk in the case of a $1 

million corporate independent expenditure. 

Or, one might ask why there is a 

disproportionate, distorting influence in the 

political marketplace by a $1 million 

corporate independent expenditure, but not by 

a $1 million independent expenditure by a 

corporate executive or PAC. 

III. Reading “express advocacy” so narrowly that the 

statute is meaningless. 

In upholding the “independent expenditure” reporting 

provision, 424 U.S. at 74-82, Buckley narrowed it to 

reach only “express advocacy.” Later, in MCFL, the 

Court ruled that independent expenditures by 

corporations are only prohibited under 2 U.S.C. 

§ 441b if the communication involved rises to the 

level of “express advocacy.” 479 U.S. at 248, 249. 

Some are reading this term so narrowly that virtually 

anyone can avoid its reach. 

A. Congress used this test to redraft the statute in 

1976. Thus, the “independent expenditure” 

reporting provisions at 2 U.S.C. 

§ 434(b)(6)(B)(iii) and (c) (relying on the 

definition at 2 U.S.C. § 431(17)) and the 

disclaimer provisions at 2 U.S.C. § 441d 

incorporate the “express advocacy” rule. 
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B. In an early test the FEC brought an 

enforcement case against a tax cut group that 

had issued a Fall ’76 pamphlet criticizing the 

voting record of an incumbent congressman 

and urging readers to “let him know how you 

feel.” An angry 2nd Circuit held the pamphlet 

to fall outside the “express advocacy” realm,

and one judge labeled the FEC’s position 

“perverse.” FEC v. Central Long Island Tax

Reform Immediately Committee, 616 F.2d 45 

at 52 (2nd Cir. 1980)(Chief Judge Kaufman 

concurring). 

C. In MCFL, supra, decided six years later, the 

Supreme Court found a September ‘78 

publication to be “express advocacy” where it 

identified certain candidates as ‘pro-life’ and 

then urged readers to vote ‘pro-life.’ 479 U.S. 

at 249, 250. The Court so held even though 

the publication said, “This special edition does 

not represent an endorsement of any particular 

candidate.” 

D. In the 9th Circuit, a newspaper ad criticizing 

candidate Jimmy Carter’s 1980 campaign 

practices and urging “Don’t Let Him Do It” 

was found to be “express advocacy.” FEC v.

Furgatch, 807 F.2d 857 (9th Cir. 1987), cert. 

denied, 484 U.S. 850 (1987). 

E. The FEC, meanwhile, fumbled a few 

enforcement cases. For example, in MUR 

3162 (closed 6/4/91) the FEC split 3-3 on 

whether a flyer distributed the week before the 

general election by a group called Citizens for 

Informed Voting in the Commonwealth, 
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comparing opposing candidates in several 

federal races and rating them from “very bad” 

to “excellent,” was “express advocacy.” See 

also, Thomas and Bowman, Is Soft Money 

Here to Stay Under the “Magic Words” 

Doctrine,? STANFORD LAW & POLICY 

REVIEW, Vol. 10:1 (1998). 

F. The FEC finally promulgated a regulation 

defining “express advocacy.” It uses a 

‘reasonable person’ test. It reaches 

communications that “when taken as a whole 

and with limited reference to external events, 

such as the proximity to the election, could 

only be interpreted by a reasonable person as 

containing advocacy of the election or defeat 

of one or more clearly identified candidate(s) 

. . . .” 11 C.F.R. § 100.22(b). 

 

G. The 1st Circuit held this interpretation to be 

unconstitutional. Maine Right to Life

Committee, Inc. v. FEC, 98 F.3d 1 (1st Cir. 

1996), cert. denied, 118 S. Ct. 52 (1997). The 

4th Circuit has indicated it too finds the 

‘reasonable person’ approach unconstitutional. 

Virginia Society for Human Life v. FEC, 263 

F.3d 379 (2001). The 8th Circuit likewise held 

an identical state provision unconstitutional. 

Iowa Right to Life Committee, Inc. v. 

Williams, 187 F.3d 963 (8th Cir. 1999). These 

courts all indicated that so- called ‘magic 

words’ like those referenced in a footnote in 

Buckley (“vote for,” “elect,” “support,” “cast 

your ballot for,” “Smith for Congress,” “vote 

against,” “defeat,” “reject”), 424 U.S. at 44, 

n. 52, must be present to find “express 

advocacy.” 
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H. By split votes, the FEC has twice denied 

petitions to rescind its regulation in light of 

the foregoing judicial divergence. 63 Fed. 

Reg. 8363 (2/19/98); 64 Fed. Reg. 27478 

(5/20/99). This follows standard agency 

practice of seeking review of a regulation in 

several circuits in order to facilitate Supreme 

Court resolution of a difficult issue. See

United States v. Mendoza, 464 U.S. 154 

(1984). 

I. As things stand, the FEC’s definition of 

express advocacy applies in federal circuits 

other than the 1st, 4th, and 8th. Tell your 

clients to get a good map. The FEC can bring 

enforcement actions where the respondent “is 

found, resides, or transacts business.” 

2 U.S.C. § 437g(a)(6)(A). 

J. Before getting too nervous, however, note that 

the FEC in two fairly recent enforcement 

cases split 3-3 on treating rather obvious 

campaign advocacy as “express advocacy.” 

See Thomas Statements of Reasons in MUR 

4922 (Suburban O’Hare Commission) and 

MUR 4982 (Republicans for Clean Air), 

www.fec.gov/members/Thomas. 

IV. Special exception for special corporations. 

In MCFL, supra, the Supreme Court carved an 

exception to 2 U.S.C. § 441b for certain non-profit 

ideological corporations—ones like Massachusetts 

Citizens for Life—whereby unlimited noncoordinated “express advocacy” communications can 
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be sponsored. 479 U.S. at 263, 264. The Court noted 

several “essential” features of MCFL: (1) it was 

formed for the express purpose of promoting political 

ideas and cannot engage in business activities; (2) it 

had no shareholders or other persons affiliated so as 

to have a claim on its assets or earnings; and (3) it 

was not established by a business corporation or labor 

union and had a policy against accepting 

contributions from these entities. 

A. The FEC implemented this part of the MCFL

ruling with a regulation defining “qualified 

nonprofit corporation” and exempting 

independent expenditures by such entities. 

11 C.F.R. § 114.10. The FEC’s regulation 

interprets the Supreme Court allowance to 

apply only to 501(c)(4) organizations that 

offer no benefits like credit cards or insurance 

policies and that can prove they do not accept 

any donations from business corporations or 

labor organizations or prove they have a 

policy to that effect. 11 C.F.R. § 114.10(c). 

The strict rule precluding any donations from

business corporations or labor organizations 

has landed in several courts. 

B. This regulation was challenged in Minnesota

Citizens Concerned for Life v. FEC, 113 F. 3d 

129 (8th Cir. 1997). The court struck the FEC 

regulation as violative of the First 

Amendment rights of certain nonprofit 

corporations. In essence, the 8th Circuit 

believed the MCFL exemption should extend 

to organizations that undertake an 

“insignificant” amount of business activity or 

that accept an “insignificant” amount of 

donations from business corporations. 
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C. Although not dealing with the FEC’s 

regulation, the 2nd Circuit in FEC v. Survival

Education Fund, Inc., 65 F. 3d 285 (2nd Cir. 

1995), earlier had interpreted MCFL in a 

similar way. The court found no violation of 

§ 441b where there had been no showing the 

organization received a “significant” amount 

of funding from business corporations. 

D. Last year, the D.C. Circuit distinguished 

between corporate receipts of $1,000 in a year 

and corporate receipts of $7,000 in a year, 

extending MCFL protection in the former 

situation (because “de minimis”) but not in the 

latter. FEC v. National Rifle Association of

America, 254 F.3d 173 (D.C. Cir. 2001). 

E. The 4th Circuit recently held the regulation 

unconstitutional as applied to North Carolina 

Right to Life Inc. Beaumont v. FEC, 278 F.3d 

(4th Cir. 2002). Note, this decision overturned 

the constitutionality of the prohibition of

corporate contributions as well as the 

prohibition of corporate independent 

expenditures as applied to North Carolina 

Right to Life. Note further, there were only 

two commissioners willing to vote to seek 

Supreme Court review of this decision. This 

is the first time in the history of the FEC that 

commissioners were not willing to defend the 

constitutionality of a statutory contribution 

restriction. Stay tuned to this one, as it could 

have far-reaching ramifications. 

F. The FEC thus far has declined to rescind the 

regulation at 11 C.F.R. § 114.10(c), again 
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relying on the standard agency practice of 

defending an approved regulation in several 

circuits in order to generate definitive 

interpretation by the Supreme Court. 63 Fed. 

Reg. 29358 (May 29, 1998). The FEC relied 

also on the Supreme Court’s ruling in Austin, 

supra, where a state statute like § 441b 

withstood challenge “[b]ecause the Chamber 

accepts money from for-profit corporations 

[and] could, absent application of [the state 

corporate expenditure prohibition], serve as a 

conduit for corporate political spending.” 494 

U.S. at 664. Thus, outside the 8th , 2nd , 4th , 

and D.C. Circuits, the FEC can continue to 

apply its regulation rigidly. Get out that map 

again. 

V. Just about everybody can qualify as a “member.” 

In Chamber of Commerce of the United States v. 

FEC, 69 F.3d 600 (D.C. Cir. 1995), the FEC’s former 

regulation defining “member” for purposes of exempt 

member communications under 2 U.S.C. § 

431(9)(B)(iii) was held to be an unreasonable 

interpretation of the statute as it applied to the 

Chamber’s claimed members and some of the 

American Medical Association’s claimed members. 

The court was troubled by the part of the former 

regulation that required these two organizations’ 

“members” to have the right to vote for at least one 

person on the respective governing body. In 

response, by a split vote, the FEC broadly revised its 

“member” rules and, going well beyond what was 

needed to comply with the court case, opened up the 

term to virtually anyone an organization wants to call 

a member. See 64 Fed. Reg. 41266 (7/30/99) for 
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history, explanation and justification, and final rules, 

now codified at 11 C.F.R. §§ 100.8(b)(4)(iv) and 

114.1(e)(1). 

A. Whereas before, a person paying dues of as 

little as a penny per year also must have had 

some right to participate in the governance of 

the organization, now such person only need 

pay the one penny per year dues. There is no 

minimum amount of dues and no need to 

participate in governance in any way. 

B. Whereas before, to qualify as a “member” 

without paying any dues, a person would have 

required very substantial rights to vote in 

governance of the organization (voting on all 

board members), now such person need only 

have the right to participate in “aspects of the 

organization’s governance” similar to 

showing approval of the budget. Not only is 

this unclear; it potentially makes 

“membership” open to anyone the 

organization can show has some “approval” 

rights. 

C. With the ability to claim as “members” 

virtually anyone willing to pay a penny a year 

or anyone given some “approval” rights, the 

broad prohibition at 2 U.S.C. § 441b is in 

danger of being swallowed by the 

membership communication exception. 

VI. Proving something to be “coordinated” is 

becoming harder; spending unlimited amounts is 

thus becoming easier. 

 
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A. In Buckley, supra, the Supreme Court noted 

the potential for evasion of the contribution 

limits “by the simple expedient of paying 

directly for media advertisements or for other 

portions of the candidate’s campaign 

activities.” 424 U.S. at 46. The Court 

observed, “such controlled or coordinated 

expenditures are treated as contributions . . . 

under the Act.” Id. In the 1976 Amendments, 

Congress set forth its definition of 

coordination at 2 U.S.C. §§ 431(17) and 

441a(a)(7)(B)(i). The latter provides: 

[E]xpenditures made by any person in 

cooperation, consultation, or concert, with, or 

at the request or suggestion of, a candidate, 

his authorized political committees, or their 

agents, shall be considered to be a 

contribution to such candidate.” 

B. The FEC in 1980 implemented this statutory 

concept of coordination at former 11 C.F.R. 

§ 109.1(b)(4) and (d). Certain presumptions 

of coordination were created, e.g., where the 

expenditure is undertaken by or through 

someone authorized by the candidate’s agents 

to raise or expend funds, or someone who has 

received compensation from the candidate’s 

campaign or the candidate’s agent. See

FEC v. National Conservative Political Action 

Committee, 647 F. Supp. 987 (S.D.N.Y. 1986) 

(in-kind contribution found where same

consultant used by candidate’s campaign). 

C. In Colorado Republican Federal Campaign

Committee v. FEC, 518 U.S. 604 (1996), 

dealing with ads attacking the other party’s 

likely nominee, the Supreme Court 
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invalidated the FEC’s presumption of 

coordination between a state party committee 

and its candidates where the party had not yet 

even nominated a candidate for the general 

election. In so doing the Court noted that 

independent spending is “developed . . . not 

pursuant to any general or particular 

understanding with [the candidate or the 

candidate’s agents].” Though this was not a 

corporate spending case, the question 

remaining is whether the Supreme Court 

ultimately will require some sort of

“understanding” in order to find coordination 

in the corporate spending context. Will there 

have to be an understanding regarding 

particular ads to be run on particular days? 

See Thomas and Bowman, Coordinated 

Expenditure Limits: Can They be Saved?, 

CATHOLIC UNIV. LAW REVIEW, Vol. 49, 

No. 1 (1999). 

D. Courts routinely have upheld FEC decisions 

to drop enforcement cases where evidence of 

coordination was weak. See Common 

Cause v. FEC, 655 F. Supp. 619 (D.D.C. 

1986), rev’d. on other grounds, 842 F. 2d 436 

(D.C. Cir. 1988) (absence of evidence of 

direct requests or scheming between Reagan 

campaign and several committees); Common

Cause v. FEC, 715 F. Supp. 398 (D.D.C. 

1989), rev’d. on other grounds, 906 F. 2d 705 

(D.C. Cir.) (1990) (no evidence that common 

vendors or officials actually were used to 

coordinate expenditures with Republican 

Senate candidate). Though these cases did not 

deal with corporate spending, their rejection 
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of implied coordination probably would apply 

in such circumstances. 

E. When revising its regulations in 1995 to 

incorporate the “express advocacy” test, the 

FEC also attempted to clarify the degree of 

coordination allowable with candidates or 

parties when undertaking candidate 

appearances (11 C.F.R. § 114.4(b)(1)(vii)), 

generic voter registration or get-out-the-vote 

communications (11 C.F.R. § 114.4(c)(2)), 

distribution of official voter information 

(11 C.F.R. § 114.4(c)(3)(v)), voting records 

(11 C.F.R. § 114.4(c)(4)), voter guides 

(11 C.F.R. § 114.4(c)(5)(i) and (ii)), 

endorsements (11 C.F.R. § 114.4(c)(6)(ii)), 

and registration or get-out-the-vote drives 

(11 C.F.R. § 114.4(d)(1)). 

F. In Clifton v. FEC, 114 F. 3d 1309 (1st Cir. 

1997), cert. denied, 522 U.S. 1108 (1998), the 

1st Circuit overturned certain aspects of the 

FEC’s regulations concerning voting records 

(showing how legislators voted) and voter 

guides (comparing candidates on issues). The 

court held that “mere inquiries” to candidates 

about their legislative votes do not taint the 

independence of a voting record, and nonwritten contacts with candidates about their 

positions on issues do not necessarily taint the 

independence of voter guides. Left unclear, 

unfortunately, is just what does constitute 

impermissible coordination. The FEC has 

received a petition to rescind its voting record 

and voter guide regulations, but has not yet 

acted on it. 64 Fed. Reg. 46319 (8/25/99). 
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G. One U.S. district court provided its own 

theory of coordination when dealing with 

certain Christian Coalition activities 

undertaken in the 1990, 1992, and 1994 

election cycles. The FEC, acting on a 

complaint, filed suit alleging some

communications were coordinated and hence 

prohibited in-kind corporate contributions. In 

five instances the court found insufficient 

evidence of coordination. In one instance, 

involving the 1994 Oliver North Senate race, 

the court declined to rule on summary 

judgment. FEC v. Christian Coalition, Inc., 

52 F.Supp.2d 45 (1999). 

1. The court seemed to require either a 

request or suggestion from the 

candidate’s operatives, exercise of 

control over the communication by the 

candidate’s operatives, or “substantial 

discussion or negotiation between the 

campaign and the spender about such 

things as the contents, timing, location, 

mode, intended audience, or volume of 

the communication.” 52 F.Supp.2d at 

92. 

2. By a split vote the FEC declined to 

appeal, even though the district court 

gave no consideration to the FEC’s 

existing regulations defining 

coordination at 11 C.F.R. § 109.1 

(b)(4). See Thomas and Bowman, 

Obstacles to Effective Enforcement of

the Federal Election Campaign Act, 

WASH. COLL. OF LAW ADMIN. 

LAW REV., Vol. 52, No. 2 (2000). 
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H. The FEC in 2001 revised its coordination 

regulations as they relate to public 

communications paid for by persons other 

than party committees. See current 11 C.F.R. 

§§ 100.23 and 109.1(a), (b)(4); 65 Fed. Reg. 

76146 (12/6/00); 66 Fed. Reg. 23537 (5/9/01). 

These new rules follow closely the approach 

of the district court in FEC v. Christian 

Coalition, Inc., supra. (Note: Section 214 of 

the Bipartisan Campaign Reform Act 

overturns the FEC’s new coordination 

regulations after the 2002 election cycle and 

specifies that new regulations are not to 

require “agreement or formal collaboration.”) 

VII. The opportunity to get ‘soft money’ donations to 

the parties in ways that will help specific 

candidates has grown dramatically in recent 

election cycles. 

A. The ‘coordinated expenditure’ limits for party 

spending on behalf of particular House and 

Senate candidates were upheld as 

constitutional in FEC v. Colorado Republican

Federal Campaign Committee, 533 U.S. 431 

(2001). To the extent coordinated party 

communications count toward these limits, 

only federally permissible funds (‘hard 

money’) may be used. 2 U.S.C. § 441a(d); 

11 C.F.R. § 102.5(a). 

B. The FEC has badly mangled the law in this 

area. Until fairly recently, the FEC would 

treat party ads as subject to the ‘coordinated 

expenditure’ limits if they mentioned a 

clearly-identified candidate and contained an 
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“electioneering message.” The 

“electioneering message” phrase was linked to 

Supreme Court language describing activity 

“designed to urge the public to elect a certain 

candidate or party.” U.S. v. United Auto 

Workers, 352 U.S. 567, 587 (1957). The FEC 

had found several party ads to be subject to 

the ‘coordinated expenditure’ limits: 

1. Republican Party ads criticizing 

particular Democratic presidential 

candidates and saying “Vote 

Republican.” Advisory Opinion 1984-

15, Fed. Elec. Camp. Fin. Guide 

(CCH) ¶ 5766; 

2. Democratic Party mailer claiming oil 

spills could be in future if particular 

congressman has his way, saying 

“Don’t be fooled by Republican 

rhetoric,” and ending with “Let 

Congressman X know how you feel.” 

Advisory Opinion 1985-14, Fed. Elec. 

Camp. Fin. Guide (CCH) ¶ 5819; 

3. Colorado Republican Party ad saying 

Senate candidate Tim Wirth had a 

right to run for the Senate, but not to 

lie. MUR 2186, later the subject of 

Colorado Republican Federal 

Campaign Committee v. FEC, 518 

U.S. 604 (1996). 

C. In connection with compliance cases 

involving the notorious RNC-financed ads and 

DNC-financed ads in the 1996 election cycle, 

the FEC split 3-3 on treating such ads as 
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subject to the contribution or coordinated 

expenditure limits. See various commissioner 

Statements of Reasons in MURs 4553 & 

4671, 4713, and 4407 & 4544 at 

www.bna.com/moneyandpolitics. These split 

votes were preceded by the issuance in the 

audit stage of a Statement for the Record by 

four commissioners saying the “electioneering 

message” phrase was inappropriate and too 

vague. See Mason et al. Statement of Reasons 

in the Audits of Dole for President and 

Clinton/Dole Committees, 

www.fec.gov/members/Mason; see also

Thomas Statement for the Record in Audits of 

Clinton/Gore and Dole/Kemp (dissent), 

www.fec.gov/members/Thomas. Having left 

unclear what the legal analysis then should be, 

this Statement provided a basis for some to 

argue that the law was simply too unsettled to 

enforce at all. 

D. If the FEC had found that the RNC and DNC 

ads in 1996 were in fact subject to the 

coordinated expenditure limits, there would 

have been some restraint in the 2000 election 

cycle. Even with little or no penalty assessed 

for what happened in 1996, such an 

interpretation would have put the brakes on 

the massive amounts of ‘soft money’ raised 

and spent for many party ads clearly 

promoting a particular candidate. While a suit 

challenging the FEC’s dismissal of these 

MURs has been filed (Fulani v. FEC, No. 

1:00CV01018 (WBB) (D.D.C., filed 5/8/00)), 

it has yet to be resolved. 
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E. Currently, party committees are required to 

allocate generic voter drive advertisements 

(11 C.F.R. § 106.5(a)(2)) and legislative ads 

that promote the party (Advisory Opinion 

1995-25, Fed. Elec. Camp. Fin. Guide (CCH) 

¶ 6162). This means that a certain percentage 

of federally regulated funds (‘hard money’) 

must be used for such communications, e.g., 

65% by a national party committee in a 

presidential election cycle. At the same time, 

though, ‘soft money’ may be used to pay for 

the rest. The ads used by the parties in the 

1996, 1998, and 2000 cycles usually were 

allocated under these guidelines. A long 

pending suit challenges this allocation 

requirement and seeks a declaratory ruling 

that party committees should be able to use 

‘soft money’ alone to pay for ads that could 

be characterized as ‘issue ads.’ Republican 

National Committee v. FEC, No. 98-CV-1207 

(WBB) (D.D.C., filed 1998). A motion for a 

preliminary injunction was denied by the 

District Court, mem. op. 6/25/98, and by the 

Court of Appeals, No. 98-5263 (D.C. Cir. 

mem. op., 11/6/98). This suit has been placed 

on hold while the soft money and 

“electioneering communication” provisions of 

the Bipartisan Campaign Reform Act of 2002 

are litigated. If this suit is revived and 

successful, not only would the coordinated 

expenditure limits be undermined by ‘issue 

ads’ that criticize or praise particular 

candidates; the allocation rules would be 

undermined, and the parties (perhaps at the 

state and local level only) would come to rely 

on ‘soft money’ even more. 
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VIII. What will the FEC do with the Bipartisan 

Campaign Reform Act of 2002?

A. Starting with the 2004 election cycle, the 

statute tries to prevent federal officeholders 

from soliciting soft money. 

1. The FEC has ruled that suggesting a 

soft money donation be made is not 

solicitation. See Prohibited or 

Excessive Contributions: Non-Federal 

Funds or Soft Money, Final Rules and 

Explanation and Justification, 67 Fed. 

Reg. 49064, 49086 (July 29, 2002). 

2. Further, it has ruled that although such 

officials may not solicit soft money 

before or after a state party event, they 

may do so at the event itself. Id. at 

49107, 49108. 

B. The statute tries to prevent agents of federal 

officeholders from soliciting soft money. 

1. The FEC has ruled that a person who 

is an agent of a federal officeholder 

may nonetheless solicit soft money if 

he or she also is an agent of the state 

party and could be said to be soliciting 

the soft money on behalf of the state 

party. Id. at 49083. 

2. The FEC has ruled that apparent 

authority is not an adequate basis for 

finding an agency relationship. Id. at 

49082. (If President Nixon had told 
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his biggest donors, “Maurice Stans is 

my soft money guy,” would such 

apparent authority not suggest liability 

for Stan’s subsequent soft money 

solicitations?) 

C. These are not signs that the FEC will apply 

the law rigorously. For corporations wishing 

to be free of soft money pitches, it seems that 

things will stay largely the same. 

D. The statute tries to prevent corporations and 

unions from funding radio or TV ‘issue ads’ if 

a federal candidate is mentioned, the ad is run 

within 30 days of a primary or within 60 days 

of a general, and, for House or Senate races, 

the ad reaches at least 50,000 of the relevant 

electorate. 

1. Indications are that several 

commissioners will seek to carve at 

least some exceptions. For example, 

grassroots legislative ads that do not 

promote, support, attack, or oppose a 

mentioned candidate may be allowed. 

Beyond that, there is room for 

mischief. 

2. This part of the rulemaking was 

pending as of this writing, and the 

tentative plan was to allow public 

comment on draft rules from August 

1-21, 2002. It currently is scheduled 

to be finalized at an FEC meeting on 

September 26, 2002.