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Campaign Finance Law 120: Recount restrictions.

Executive summary: the setup and funding of election recounts is affected, like virtually everything else in politics involving money, by the Bipartisan Campaign Reform Act (otherwise known as the BCRA, otherwise known as McCain-Feingold*).  The Federal Election Committee (FEC) has advised that aid by the national committees in the recount efforts be administered as per the following:

  • Direct financial support is limited to $5,000 to a candidate’s recount efforts (the standard amount allowed to PACs), independent of whatever contributions were made to the candidate during the election.  So people and PACs who gave the legal maximum to the candidate before the election may give up to the same legal maximum directly to the candidate for recount purposes only.
  • A national committee may also set up a recount fund to pay expenses generated by the recount process, and the recount process only.  Contributions to this fund are likewise subject to the restrictions set up by BCRA for contributions to national committees.

More details after the fold.

The two relevant Advisory Opinions (AOs) from the Federal Election Commission are 2006-24 and 2009-04; they’re AOs because the FEC takes forever to formally rule on tricky subjects.  So what happens is that a group that has a question asks it, and the FEC staff gives their best take on the subject, at the time.  It’s not precisely law, but it does offer protection against later lawsuits.

So.  In 2006 the NRSC, DSCC, and state GOP of PA asked what the rules were for funding recounts, given that BCRA had put in serious restrictions on contributions.  The FEC essentially ruled (majority opinion; skip to the end for a somewhat scathing minority opinion) that BCRA election fundraising limits applied to recount efforts, but that these contributions were independent of campaign contributions made to the candidate for the original election.  That meant that people who contributed to the general election fund could also contribute again, provided that the money was used strictly for a recount.  Effectively, this authorized recount funds.

Which was important in 2009, because at that time the DSCC asked if they could create a recount fund for the Coleman-Franken race.  The FEC ruled that the DSCC could, with the understanding that the funds raised that way were subject to BCRA restrictions on national committees.  This is important mostly because while donations to individual candidates are currently capped at $2,400 by an individual / $5,000 by a multi-candidate PAC, contributions to national committees are capped at $30,400 by an individual/$15,000 by a multi-candidate PAC.  This is not particularly important for someone donating $100… but it is to wealthy organizations, or non multi-candidate PACs.

I know that this is not thrilling reading (I certainly didn’t really enjoy having to be walked through this this morning), but it’s kind of important to know: McCain-Feingold is one of those infuriating pieces of legislation that seems dedicated to causing trouble wherever it goes – and particularly in this specific election cycle.

Speaking of this election cycle: national committees may not contribute to a recount fund that does not yet exist.  I note this because this elementary detail seems to have been ignored in a lot of breathless reporting on the Renee Elmers (who I like, and did my best to help out)/NRCC brouhaha.  If you call up a group asking them for money when they have no legal way of giving it to you, do not be surprised it the answer is ‘no.’

I humbly suggest that any lingering ire along these lines be directed towards McCain-Feingold, where it properly belongs.

Moe Lane (crosspost)

PS: No, I don’t know – yet  – whether the NRCC is setting up a general recount fund.  Given the current atmosphere, they’d probably be yelled at if they tried.

PPS: You can find direct links to GOP candidates undergoing recounts here.

*Usually with a curse word or two added.

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