FEC Advisory Opinions
AOR 2012-14 (McCutcheon)
On behalf of our client, Mr. Shaun McCutcheon, DB Capitol Strategies filed Advisory Opinion Request (AOR) 2012-14, made public on March 9, 2012. AOR 2012-14 asks the FEC to reconsider the biennial limit on net contributions to all federal candidates by a donor, currently $46,200 in light of recent Court opinions.
This request is currently pending before the FEC, and is available here.
AOR 2012-01 (ELF)
On behalf of our client, Stop This Insanity, Inc. Employee Leadership Fund (ELF), DB Capitol Strategies filed Advisory Opinion Request (AOR) 2012-01, made public on January 4, 2012. We asked the FEC to determine whether the connected political action committee of a 501(c)(4) organization, and by extension that of any incorporated entity, may establish a non-contribution account (Carey Account) to solicit and accept unlimited contributions from the general public, corporations and unions (Carey Contributions) for use in making Independent Expenditures. Although two draft advisory opinions were issued, the FEC deadlocked on both votes and failed to adopt either draft. Because the FEC failed to issue a formal opinion, our firm is preparing to litigate this matter.
The request and both drafts from the FEC are available here.
AOR 2011-28 (Western Representation PAC / WRPAC II)
On behalf of our client, Western Representation PAC (WRPAC), DB Capitol Strategies filed an Advisory Opinion Request (AOR) 2011-28, made public on November 18, 2011. WRPAC, a non-connected PAC, planned to conduct national Independent Expenditure advertising via the internet in support of, or opposition too, one or more clearly identified candidates in the Republican presidential preference primary election season. WRPAC sought an opinion regarding the interpretation of Independent Expenditure reporting requirements that created an unconstitutional burden upon WRPAC. After three public comments and two hearings, a fourth and final draft was adopted that operates to squelch the free speech of WRPAC. Our firm is preparing to litigate this matter.
The Request, public comments, and final Advisory Opinion are available here.
AOR 2011-21 (Constitutional Conservatives Fund PAC)
On behalf of our client, Constitutional Conservatives Fund PAC (CCF PAC), DB Capitol Strategies filed Advisory Opinion Request (AOR) 2011-21, made public on October 17, 2011. AOR 2011-21 sought to advance the right of CCF PAC, a Leadership PAC of Utah Senator Mike Lee, to have a Carey Account to accept unlimited contributions from any individual or incorporated entity just as any other non-connected PAC. The FEC failed to lift this unconstitutional restraint on speech and association, and further action is still being contemplated.
The request and final Advisory Opinion are available here.
AOR 2011-18 – (Western Representation PAC / WRPAC I)
On behalf of our client, Western Representation PAC (WRPAC), DB Capitol Strategies filed Advisory Opinion Request (AOR) 2011-18, made public on July 15, 2011. WRPAC requested permission to exclude the actual cost of sending each Independent Expenditure email from the calculation of costs relevant to the 24- and 48- hour reporting requirements, provided such actual costs are included in WRPACs regular monthly reports to the FEC.
On October 13, 2011, we withdrew the request. The request is available here.
2010-20 – National Defense PAC
On behalf of our client, National Defense PAC (NDPAC), DB Capitol Strategies filed Advisory Opinion Request (AOR) 2010-20, made public on August 11, 2010. Our client requested an opinion on whether a non-connected political may, (1) raise unlimited contributions from individuals, other committees, corporations, and unions to make independent expenditures only, and (2) raise amount and source restricted funds from individuals and other committees only for the purpose of making candidate contributions, provided such receipts are held in separate bank accounts by intended use and separately accounted for in FEC reporting.
DB Capitol Strategies also filed a public comment in response to other comments and draft opinions issued by the Federal Election Commission. The entire AOR file is available here.
The FEC ultimately denied our advisory request, litigation ensued, and our firm was ultimately victorious (see below).
Combat Veterans For Congress PAC v FEC (1:11-cv-02168-CKK)
[date filed]: On behalf of Combat Veterans For Congress PAC, DB Capitol Strategies filed suit against the FEC to challenge Administrative Fines that were improperly applied to the PAC. The suit is necessitated by the refusal of the FEC to follow black letter law – including their own regulations and explanation and justifications – to hold Political Committee Treasurers responsible in their personal capacity when acting knowingly, willfully, and recklessly in failing to fulfill their statutory duty (filing of reports). Allowing Treasurers to escape any liability for documented misfeasance is an invitation to corruption on a grand scale that not only endangers this PAC, but the entire Campaign Finance legal system.
Joining DB Capitol Strategies' Dan Backer as Co-Counsel is distinguished Administrative & Election Law attorney and past General Counsel of the Washington Legal Foundation, Paul Kamenar.
Carey v FEC (791 F. Supp. 2d 121)
August 19, 2011: The Federal Election Commission conceded defeat and has entered into a stipulated judgment in Carey v FEC that grants the Plaintiffs, our client, the relief they sought. This victory for free speech has significant practical ramifications. Click here to read the Judges Opinion (pdf)and click here to read our assessment of the practical impact from this ruling.
June 14, 2011: The U.S. District Court issued a Preliminary Injunction against the FEC and in a strongly worded accompanying memorandum, roundly rebuked the FECs position and upheld that of the Plaintiffs, indicating a strong likelihood of success on the merits. While not definitive and final, this ruling set the stage for settlement discussions. Click here to read the Judges Opinion (pdf).
April 26, 2011: The Center for Competitive Politics (CCP) has joined as co-counsel to DB Capitol Strategies on behalf of the National Defense PAC, Rear Admiral James J. Carey [Ret.], and Kelly S. Eustis. Click here to read the press release from CCP (pdf).
January 31, 2011: On behalf of the National Defense PAC, Rear Admiral James J. Carey [Ret.], and Kelly Eustis, DB Capitol Strategies filed suit against the FEC to defend the Constitutional rights of free speech and free association. The suit was premised on the failure of the FEC to rule on AOR 2010-20, which sought to allow Political Action Committees to engage in unlimited Independent Expenditure (IE) activity from unlimited funds from any source while simultaneously soliciting & accepting amount and source restricted contributions for direct candidate giving. In the wake of Citizens United v FEC, SpeechNow.org v. FEC, and EMILY’s List v. FEC, and subsequent FEC Advisory Opinions, both activities are lawful when conducted apart, and ought to be lawful when done in concert, provided the simple expedient of separate bank accounts is used.
Joining DB Capitol Strategies’ Dan Backer as Co-Counsel are distinguished election lawyers and first amendment scholars Benjamin T. Barr and Stephen M. Hoersting (now counsel to DB Capitol Strategies).