WASHINGTON -- October 27 -- Congressional campaign finance reform leaders and three campaign finance groups this week filed separate comments with the Federal Election Commission (FEC) stating that the McCain-Feingold law prohibits the use of soft money by federal candidates and state parties to pay for expenses relating to a recount of a federal election.

Two advisory opinion requests raising the question are scheduled to be decided by the FEC at its meeting tomorrow, Thursday, October 28, 2004.

"Given the potential for recount challenges to be mounted around the country next week, the FEC's decision on this matter is critical. The FEC must not open the door to soft money being illegally raised by federal officeholders and spent by political parties for federal recount efforts," said Democracy 21 President Fred Wertheimer.

Democracy 21, the Campaign Legal Center and the Center for Responsive Politics filed joint comments on the advisory opinion requests with the FEC on October 25, 2004.

The first advisory opinion request was submitted by the National Republican Senatorial Committee on behalf of Representative George Nethercutt, who is running for a seat in the U.S. Senate from the state of Washington. The request asks whether Representative Nethercutt can raise and spend unlimited contributions from individuals to pay for the expenses of a possible recount in his Senate race. The second request, submitted by the Washington State Republican Party, asks a similar question regarding state party funding of recount expenses for the same Senate race.

In their joint comments, the three campaign finance groups stated that the Bipartisan Campaign Reform Act (BCRA) prohibits federal candidates or officeholders from soliciting or spending funds for recount activities unless the funds comply with federal contribution limits. The three groups wrote:

The Commission has long taken the position that funds spent for recount purposes are "in connection with" a federal election. Under 2 U.S.C. Sec. 441(i)(e) -- newly enacted as part of the Bipartisan Campaign Reform Act of 2002 (BCRA) -- nonfederal funds cannot be solicited or spent by a federal candidate or officeholder "in connection with" a federal election. Thus, this prohibits Rep. Nethercutt from soliciting or spending nonfederal funds for recount purposes.

The three groups similarly said the law also prohibits a state party from spending soft money on recount activities concerning a federal election, stating:

Commission regulations require a state party to spend only federal funds, or allocated federal and nonfederal funds, for all activities "in connection with a Federal election." 11 C.F.R. Sec. 300.30(b)(3)(iii). Since activities by a state party related to a recount of a federal election are "in connection with" an election, but are not allocable, they must be funded entirely with funds from a Federal account.

In their separate comments, the congressional campaign finance reform leaders -- Senators John McCain (R-AZ) and Russell Feingold (D-WI), and Representatives Christopher Shays (R-CT) and Marty Meehan (D-MA) -- similarly stated that the BCRA bars federal candidates and state parties from using soft money to pay for recount expenses for a federal race.

With regard to the question of whether Rep. Nethercutt could raise nonfederal funds for recount expenses, the congressional leaders said:

BCRA specifically provides that Federal candidates and officeholders may not solicit, receive, or spend funds "in connection with" a Federal election that are not subject to the limitations of the Federal Election Campaign Act ("FECA"). 2 U.S.C. Sec. 441i(e). The intent of that provision was to completely remove federal candidates and officeholders from the solicitation, receipt, and spending of "soft money." To permit candidates or officeholders to raise money from individuals in unlimited amounts for recount expenses would directly contravene both the letter and intent of the statute. BCRA requires that any fund from which recount expenses will be paid must also comply with the individual contribution limits in 2 U.S.C. Sec. 441a.

The congressional leaders further stated:

The Nethercutt campaign suggests that the clause "in connection with an election for Federal office" in 2 U.S.C. Sec. 441i(e) does not apply to recounts because recounts are not included in the definition of "election" in FECA. It also suggests that recounts are akin to redistricting and legal defense funds, which the Commission has held are not subject to FECA. These arguments are wrong. A recount is obviously not a separate election: it is a legal proceeding to determine the outcome of an election. To argue that a recount is not connected to the election it is deciding makes no sense whatsoever. It is connected to an election in the most basic way possible -- it will decide the result.

In their comments, the congressional leaders also called on the FEC to find, in accordance with federal law, that state parties can spend only funds that comply with federal contribution limits on recount activities in connection with a federal election.

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