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Blog
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Welcome to the Holtzman Vogel Law Blog. We aim to keep you
up to date on important legal developments and other items of interest. On this
blog, we'll track developments in the news and changes to the rules and regulations
affecting political committees, corporate PACs, trade associations, non-profit groups
and advocacy organizations. We'll also keep you updated on the lobbying and ethics
arena. The Law Blog is designed to supplement our regular newsletter.
On behalf of the Holtzman Vogel team, I hope you find this site helpful and interesting.
And we hope you'll become a regular visitor. (If you'd like to receive our newsletter,
please click here to sign up.)
Jill Holtzman Vogel
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Thursday, August 12, 2010
Do Internet Search Engine Text Ads Require A Disclaimer?
Do Google's "text ads" -- the paid advertisements that show up on your computer screen when you use Google's search engine -- require a disclaimer? Google has asked the FEC for an answer.
Google's advisory opinion request notes that "text ads" use up to 25 characters in the title, and up to 70 additional characters in the body of the advertisement. The purpose of a "text ad" is to get the viewer to click on its link and visit a separate web page.
The request seeks FEC confirmation that "text ads" are exempt from the full federal disclaimer requirements under the "small item" exemption (which historically has applied to items such as bumper stickers and buttons). A second exemption, likely also relevant in this matter, applies where including a disclaimer would theoretically be possible, but would be "impracticable."
As for current practice, many candidates pay for search engine text ads, and rarely is a "paid for by" disclaimer included.
Click here to read the entire post.
Friday, July 23, 2010
FEC Provides Guidance to "Independent Expenditure Committees"
The FEC approved two advisory opinions yesterday, providing guidance to entities that wish to raise and spend unlimited sums to make independent expenditures. These new "independent expenditure committees" are the result of recent court decisions, including Citizens United v. FEC, and SpeechNow.org. v. FEC.
"In Advisory Opinion 2010-09 (Club for Growth), the Commission concluded that Club for Growth — a 501(c)(4) corporation — could establish and administer a political committee that will make only independent expenditures, that will register and report with the Commission, and that will solicit unlimited contributions solely from individuals in the general public, including contributions given for specific independent expenditures.
In Advisory Opinion 2010-11 (Commonsense Ten), the Commission concluded that Commonsense Ten, a registered nonconnected political committee that intends to make only independent expenditures, and that will report the contributions it accepts and the independent expenditures it makes, may solicit and accept unlimited contributions from individuals, political committees, corporations and labor organizations for the purpose of making independent expenditures."
Click here to read the entire post.
Friday, June 11, 2010
FEC Concludes That Documentary Films Produced by Citizens United are Entitled to Media Exemption
Yesterday, the FEC voted 4-1 to approve Advisory Opinion 2010-08, concluding that Citizens United was entitled to the "media exemption" for its documentary film productions. The group's other activities are not exempt under the Advisory Opinion. (The Commissioners approved Draft A, available here.)
What does this mean? It means that the group's movies, such as Hillary: The Movie, are not subject to any campaign finance regulations. If you recall, the Supreme Court concluded in Citizens United v. FEC that Hillary: The Movie could be disseminated by Citizens United using corporate funds. However, the Court also concluded that the movie could still be subject to various disclosure requirements. Under the FEC's new determination, because the media exemption applies, Citizens United will not be required to include any "paid for by" disclaimers on their movies (or advertisements for their movies), and they will not be required to report the movies' costs and funding sources to the FEC. In addition, questions of coordination with candidates are now irrelevant, as are questions of content (e.g., is there express advocacy?). Simply put, Citizens United's political documentary movies will be treated just like a New York Times editorial, a Bill Moyers PBS production, or a Michael Moore film.
We previously noted the Advisory Opinion Request here.
The FEC's press release is here.
Commissioner Walther's dissenting statement is here.
Click here to read the entire post.
Friday, May 28, 2010
CQ Politics: FEC Deadlocks on Soft Money
CQ Politics has this report on yesterday's 3-3 split at the FEC on an advisory opinion concerning federal candidate and officeholder fundraising for a ballot initiative committee.
From the report: "The fourth time was not the charm: the Federal Election Commission could not agree Thursday on whether members of Congress could raise unlimited funds for organizations pushing state ballot initiatives. On three separate previous occasions, the FEC issued various opinions on whether federal candidates could raise soft money for such groups and each time the agency reached different decisions....The sticking point was whether soliciting on behalf of a state ballot or proposition would be considered raising money for an election. Republicans supported allowing federal candidates to raise unlimited funds for state balloting initiative organizations while Democrats stood opposed to any such lawmaker unlimited third-party fundraising."
Click here to read the entire post.
Sunday, May 16, 2010
New York Times editorial on FEC Redistricting Decision
Last week, the FEC gave federal officeholders the green light to raise funds not subject to the limits and prohibitions of campaign finance law ( i.e., "soft money") for their parties' redistricting efforts. (See here.)
Unsurprisingly, the New York Times editors denounced the decision. The Times editorial, though, gives us an interesting glimpse into the mindset of the FEC's harshest critics. It turns out that the real problem with the FEC is that it has never lived up to its reason for being: according to the Times, "The F.E.C. was created to protect the public interest in elections."
So, what is the role of the FEC? Is it supposed to enforce and administer the campaign finance laws, as they are written, making policy judgments to the extent that is required because Congressional instructions ( i.e., the statute) are unclear? Or is the FEC supposed to serve as some sort of "public interest" watchdog, protecting us all from "party insiders" so that we don't have to be "cynical" about the election process? The New York Times says it's the latter. Or perhaps it's nothing more than a "good rant," as Allison Hayward suggests.
Saturday, May 08, 2010
FEC Allows "Soft Money" Fundraising For Redistricting Efforts
For the first time since BCRA became effective in November 2002, federal officeholders have the FEC's approval to raise funds not subject to the limits and prohibitions of campaign finance law (i.e., "soft money") for their parties' redistricting efforts.
The FEC issued Advisory Opinion 2010-03 to the National Democratic Redistricting Trust, unanimously concluding that "the Trust's proposed activities are not in connection with an election and therefore Members of Congress may solicit funds on behalf of the Trust that do not comply with the Act‟s amount limitations and source prohibitions." In a series of prior Advisory Opinions, the FEC had declined to conclude that redistricting matters were not "in connection with an election." (Several Democratic Commissioners previously took the position that such matters are "in connection with an election.")
However, in the new opinion, the six Commissioners state, "not all activities that may have some indirect effect on elections are encompassed by the 'in connection with' standard of BCRA." (This statement is a rejection of a position long-taken by the pro-regulatory, campaign finance "reform" voices.)
The FEC further explains, " The Trust seeks to engage in litigation over the electoral process that will govern how future elections are conducted, but its activities will not be a means to participate in those elections. BCRA does not explicitly address whether redistricting activities are 'in connection with' elections. Although the outcome of redistricting litigation often has political consequences, the Commission concludes that spending on such activity is sufficiently removed that it is not 'in connection with' the elections themselves."
The bottom line? "[A] Member of Congress may solicit unlimited funds on behalf of the Trust to defray the legal expenses associated with the Trust's redistricting efforts."
The New York Times reports here. The Washington Post reports here.
The Campaign Legal Center, whose arguments the FEC rejected, objects to the AO here. (The CLC's post notes that the group's Executive Director, Gerald Hebert, did not participate in the CLC's efforts to urge the FEC to reject the advisory opinion request. Mr. Hebert "served as General Counsel to IMPAC 2000, the National Redistricting Project for Congressional Democrats.")
Click here to read the entire post.
Thursday, April 29, 2010
CQ Politics: FEC Delays Redistricting Ruling
CQ Politics reports " A deadlocked Federal Election Commission has postponed a decision on whether members of Congress can raise soft money for a partisan redistricting committee. They’ll try again May 7. At issue is whether the National Democratic Redistricting Trust will be banned from raising uncapped 'soft money' with the help of federal lawmakers and candidates. The commission’s Republicans said they favored allowing that kind of fundraising."
We previously noted the NDRT advisory opinion request here and here.
Click here to read the entire post.
Tuesday, April 27, 2010
CQ Politics: FEC Leaves Redistricting Question Open
From CQ Politics: "The Federal Election Commission is keeping its options open as it heads into a Thursday meeting when it is slated to decide whether members of Congress can raise soft money for a partisan redistricting committee. On Monday, the FEC released two opposing draft advisory opinions - one that would allow and one that would forbid - the National Democratic Redistricting Trust from using federal lawmakers and candidates to raise unlimited funds for the organization."
Click here to read the entire post.
Thursday, November 05, 2009
Columbus Dispatch: FEC votes to render no opinion on Brunner campaign plan
From the Columbus Dispatch: "Calling the facts presented to them confusing and a 'moving target,' Federal Election Commission officials today said they can't give an opinion in a case involving how Democrat Jennifer Brunner's U.S. Senate campaign dealt with property from her defunct Ohio secretary of state campaign committee. The unanimous decision to not render an opinion, one requested by the Brunner Senate campaign, was reached by the bipartisan, six-member commission at a public meeting here this morning." Secretary of State Brunner's request (AOR 2009-25) generated four draft responses before the FEC finally threw in the towel.
Click here to read the entire post.
Tuesday, October 20, 2009
Republican Commissioners Issue Concurring Opinion in Black Rock AO (FEC Advisory Opinion 2009-13)
The Federal Election Commission's Republican Commissioners issued a concurring opinion in the recently decided AO 2009-13 (Black Rock Group).
Click here to read the entire post.
Tuesday, September 29, 2009
FEC Finally Approves Black Rock AO, Political Committee Question Remains Unanswered
After several delays, the FEC finally approved an Advisory Opinion response in the Black Rock matter (AO 2009-13). The ruling permits single-member LLCs to utilize the services of a consulting firm to make independent expenditures. The FEC was unable to decide, however, if these single-member LLCs could work together and share information when formulating their independent expenditures. In refusing to decide this question, the FEC ignored the recent EMILY's List court decision, and the advice of 11 Democratic election lawyers.
Click here to read the entire post.
Friday, June 26, 2009
Recap of Yesterday's FEC Meeting
The Commissioners split yesterday on Senator John Kerry's request to "invest" campaign funds and become a movie producer. No opinion will be issued. They voted 4-2 to approve a request by Norm Coleman to use campaign funds to pay legal fees related to Senate Ethics Committee investigations and certain lawsuits. On a 4-1 vote, the Commissioners voted to allow Representataive Neugeberger to use a boat for campaign purposes, but limited that use because the boat is formally owned by a LLC. The Commissioners also adopted new procedures authorizing limited oral hearings during the consideration of Advisory Opinions and Audit Reports.
Click here to read the entire post.
Sunday, June 21, 2009
FEC OKs Rep. Visclosky's Request To Use Campaign Funds to Pay For PMA Group Invesigation Defense
The FEC approved Advisory Opinion 2009-10 last week. The Commissioners approved Representative Visclosky's request to use campaign funds to pay for legal defense costs related to the ongoing PMA Group contributions-for-earmarks investigation.
Click here to read the entire post.
Friday, June 19, 2009
CQ Politics: FEC Puts Off Decision on Kerry Investment
CQ Politics reports "It looks like Sen. John Kerry may have to wait at least another week to find out if he can add executive film producer to his resume. The Federal Election Commission today put off a decision until next week on whether the Massachusetts Democrat should be allowed to invest campaign funds in a documentary film. . . . Kerry’s request drew a range of opinions and questions from the commissioners at their meeting today, with all three Republicans leaning toward approval and two of the three Democratic members speaking as if they may deny it."
Click here to read the entire post.
Thursday, May 07, 2009
FEC Approves Congressman's Request To Spend Campaign Funds on Home Security System
From AO 2009-08 (Gallegly): "Because the on-going harassment has occurred as a result of Representative Gallegly’s re-election campaign and public position as a Member of Congress, the Commission concludes that the need for the proposed upgrades to the Congressman’s security system would not exist irrespective of the Congressman’s campaign or duties as a Federal officeholder. Therefore, the use of campaign funds to pay for these security system upgrades would not constitute personal use of campaign contributions, and would not be prohibited by the Act or Commission regulations. 2 U.S.C. 439a(b)."
Click here to read the entire post.
Monday, April 27, 2009
John Kerry Wants to Make a Movie
Senator Kerry has submitted an advisory opinion request to the FEC, asking if his campaign committee (John Kerry for Senate) "may enter into an agreement with White Mountain Films to provide $300,000 in development funds for a documentary film tentatively entitled 'Keeping Faith.'" The Kerry campaign would receive a return of up to 120% of investment.
Click here to read the entire post.
Thursday, April 16, 2009
FEC Authorizes Single-Member LLC To Make Independent Expenditures
The FEC approved Advisory Opinion 2009-02 today, allowing a single-member LLC to make independent expenditures, "subject to the limitations and disclsoure requirements that apply to individuals."
Click here to read the entire post.
Friday, March 20, 2009
FEC Approves DSCC Request To Establish Separate Recount Fund; Splits On Whether Franken Campaign May Create New "Election Contest" Fund
Yesterday, the FEC approved the DSCC's request to create a separate recount fund. This vote was viewed as an extension of Advisory Opinion 2006-24, which allowed federal candidates and state party committees to establish recount funds and accept donations from PACs and individuals who had already contributed the legal maximum to the party or candidate.
Click here to read the entire post.
Friday, March 20, 2009
FEC Approves Socialist Workers Party Request For Continued Disclosure Exemption
The FEC voted 5-1 to grant the Socialist Workers Party a 4-year extension of its long-standing exemption from some of the FEC's reporting and public disclosure requirements. Chairman Walther dissented, believing the extension was not justified by the factual record before the FEC and public policy considerations.
Click here to read the entire post.
Sunday, March 15, 2009
Minnesota Independent: FEC: Franken, Dems can keep raising funds for Senate contest
According to the Minnesota Independent, "The Federal Elections Commission (FEC) signaled Friday that Al Franken and national Democrats will get an OK to raise funds beyond existing caps in the ongoing Senate election contest in Minnesota. Republican groups that help Norm Coleman’s effort echoed Franken’s Feb. 17 request for an advisory opinion from the FEC. The three draft opinions released today (pdf) would approve some form of post-election fundraising by the party, Franken or both, outside of pre-election limits."
Click here to read the entire post.
Tuesday, February 24, 2009
Minnesota Independent: Franken asks FEC for OK to set up two new recount funds
Click here to read the entire post.
Friday, February 20, 2009
New Advisory Opinion Request Pending Before FEC
The True Patriot Network, LLC, asks if "an LLC with only a single natural person as a member, funded exclusively with the personal funds of that individual, and not electing to be taxed as a corporation" may be "treated for all purposes in the same manner as an individual" under federal election laws and regulations.
Click here to read the entire post.
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