Unfairness at the FEC

The FEC has released an Advisory Opinion for EMILY's List that says they have to pay for all administrative expenses related to non-federal elections with at least 50% federal (hard money) funds. Allison Hayward noted

The FEC confirmed that the new regulations would require ANY committee that allocates - one with a 65-35 ratio of nonfederal-to-federal activity, or a 98-2 ratio, to spend 50% federal (”hard”) money on such general expenses. “Tinkering”? For a small group, perhaps the impact isn’t so big. We will stipulate, however, that the impact on Emily’s List is significant. Contrast this to the situation of a corporate or labor PAC. The connected organization - the company or the union, can pay 100% of those committees’ administrative costs with general treasury funds. That’s 100% soft money. (There’s a catch, of course, in that the PAC can only solicit money from its “restricted class” - union members, executives or shareholders.)

Moreover the Emily’s List AO confirmed that the new regulations require a federal committee that makes a communication featuring a federal candidate to use 100% hard money, even if it talks about non-federal races generally. Contrast this with an “issue advertisement” run by a group that is not a federal committee. In that case, unless the communication contains “express advocacy” or is within the electioneering period, the group can pay for it pretty much however it wants.

Here's the rub for me. EMILY's List has an avowed political purpose, to elect pro-choice women to office. It is a political entity, not unlike the national party committees. But they are treated like a PAC, but without the advantages inherent in corporate and labor union PACs, namely EMILY's list must pay its staff and overhead expenses out of the money it raises. Thus a percentage of the money it raises is not used for its primary political purpose. On the other hand, all the money raised by corporate and labor union PACs can be spent on political purposes, since the corporation or labor union can cover expenses themselves.

The solution would be to treat non-connected PACs more like the national parties. For example, as a non-connected PAC, EMILY's list may only collect up to $5,000 per year from an individual. However, the National Party Committees, like the RNC or DNC (which also have to pay for overhead expenses from the hard money they must raise), can accept up to $25,000 per year from a individual and $15,000 a year from a PAC.

Why then cannot an avowedly political organization like EMILY's List have limits similar to the national party committees. thus they would be able to raise more hard money and pay their overhead expenses without having to deal with a lower contribution limit.

The other option would be to allow EMILY's List to raise non-federal funds to pay overhead expenses like any labor union or corporation. If the concern about national party committees raising soft money is the corrpution of those in office, by definition, the non-connected PACs like EMILY's List are not subject to the same danger of corruption. Allowing them to raise money for the purpose of paying the bills like salary, rent and utilities would allow more funds for political purposes.

In short, it seems as though the FEC can't seem to make up its mind about what is fair for all political committees, but the very nature of the regulatory structure ensures that some groups are penalized more than others due to their characteristics. Is that not a form of discrimination?

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