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      FEC Record: Regulations
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      Commission holds hearing on McCutcheon Advance Notice of Proposed Rulemaking (2015)

FEC Record: RegulationsCommission holds hearing on McCutcheon Advance Notice of Proposed Rulemaking (2015)March 3, 2015 The Commission held a public hearing on February 11, 2015, to receive input on possible changes to its rules in light of the Supreme Court’s April 2014 decision in *McCutcheon, et al. v. FEC*. Nearly 60 people including campaign finance law experts, political party and nonprofit organization representatives, and grassroots organizers testified at the hearing. Their testimony supplemented the more than 32,000 written comments received in response
    to an Advance Notice of Proposed Rulemaking (ANPRM) the Commission published on October 17, 2014 (79 *Fed. Reg.* 62361).  **Background** Prior to the *McCutcheon* decision, the Federal Election Campaign Act (the Act) limited not only the amount an individual could contribute to a particular candidate or political committee, but also the aggregate amount an individual could contribute
        to all candidates and committees combined, during a two-year election cycle. See 52 U.S.C. § 30116(a)(3) (formerly 2 U.S.C. § 441a(a)(3)). In *McCutcheon*, the Supreme Court found the aggregate limits unconstitutional.  In response to the Court’s decision, the Commission removed the aggregate limits from its regulations, and published an ANPRM seeking public comment on whether
    to begin a rulemaking to revise other regulations or practices in response to certain language in the *McCutcheon* decision. The Commission specifically identified the on regulations on earmarked contributions, 11 CFR 110.6; affiliation, 11
    CFR 100.5; joint fundraising, 11 CFR 102.17; and disclosure, 11 CFR 104. (For a summary of the ANPRM, see this *Record* article.)  **Hearing testimony** Some who testified at the public hearing opposed any additional rulemaking in response to the McCutcheon decision, but others welcomed the possibility of new regulations, characterizing them as an opportunity for the agency to close loopholes and
    increase the transparency of campaign financing.  Those opposed to new rules argued, among other things, that political committees are already overregulated and that any new requirements should be imposed by Congress, rather than the Commission, and that any new regulations covering certain communications
    over the internet might chill speech. One of those witnesses, John R. Phillippe Jr., chief counsel for the Republican National Committee, told the Commission, “Your *McCutcheon*-related work is complete ... It was Congress, not the Commission, that the Court primarily addressed in its
    decision.” Others testifying in opposition to additional regulation included four former FEC Commissioners: David M. Mason, Donald F. McGahn, Bradley A. Smith and Hans A. von Spakovsky. Among supporters of new regulations, representatives from several public interest groups testified that the Commission should begin by clearly defining and enforcing existing regulations that they believe would limit “dark money.” They included Paul Ryan
    from the Campaign Legal Center, Stephen Spaulding of Common Cause, and Elisabeth MacNamara of the League of Women Voters. Daniel Smith of the U.S. Public Interest Research Group focused on joint fundraising committees and Super PACs which he said skirt the contribution limits because they “accept larger contributions and are able to funnel these increased contributions to
    the intended candidate.” Former Commissioner McGahn specifically opposed any new regulations for joint fundraising committees, saying they “are merely ways to ensure compliance.” On the topics of affiliation and earmarking, proponents of more regulation included counsel for Democracy 21 Donald Simon. Simon used his testimony to draw connections between large candidate-specific Super PACs and the candidates they support, arguing
    that these groups’ independent expenditures are “legal fiction.” Dan Backer, of Conservative Action Fund, disagreed with Mr. Simon, and testified that new regulations in these areas “are largely outside the Commission’s authority to implement, and are simply not called for by the holding in *McCutcheon*.” Witnesses calling for new rules to require organizations to disclose their contributors included Daniel Weiner of the Brennan Center for Justice, Stephen Spaulding of Common Cause, and Jay Costa of CounterPAC. “Currently, corporations of all types, including trade associations, non-profit advocacy groups, as well as unions, and wealthy individuals can make unlimited secret contributions into efforts seeking to elect or defeat federal candidates,” said Elisabeth
    MacNamara of the League of Women Voters, decrying “secret money” in America''s elections. “Voters have the right to know who is making unlimited expenditures and influencing elections.” Opponents, including Andrew Langer, Institute for Liberty; Shaun McCutcheon, a plaintiff of the Supreme Court case; and former Commissioner von Spakovsky warned that new disclosure rules would have a chilling effect on free speech. Attorney James Bopp, Jr., of the James Madison Center for Free Speech, testified that increased disclosure could lead to the potential harassment and intimidation of a committee’s contributors by those who misuse the information. “We''ve been able to document over 250 incidents that include what the *New York Times* described as ‘an ugly specter of intimidation,’” said Bopp, a lawyer who represented plaintiffs in the three cases of *Citizens United v. FEC*,
    *Wisconsin Right to Life (WRTL) v. FEC* and *McCutcheon, et al. v. FEC*. “That is there were death threats, physical assaults
    and threats of violence, vandalism, and threats of destruction of property, arson and threats of arson, angry protests, lewd demonstrations, intimidating emails and phone calls ... .” **Additional Information**
     Links to the audio and video recordings of the hearing and to the written comments received can be found on the Commission’s *McCutcheon* hearing page. **Resources:** *McCutcheon et al v. FEC* litigation page
 Author
          Alex Knott


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This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. 30101 et seq.), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions.


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