Last Week at the FEC: Tracking of Staff Work by State and Local Party Committees

by Holland & Knight LLP
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Last week the Federal Election Commission held an opening meeting during which it approved Audit Division recommendations related to the manner in which the Dallas County Republican Party and the Republican Party of Iowa have maintained records regarding the type of funds used to pay for staff work. The Commission also obtained Revolution Messaging, LLC’s consent to further extend its consideration of AO 2013-18 through February 28, 2014.

Outside of the Commission’s internal deliberations, Public Citizen and ProtectOurElections.org filed a complaint for declaratory and injunctive relief against the Commission for its dismissal of its complaint against Crossroads GPS, which this blog discussed on January 13. The groups allege that the Commissioners who voted against further investigation misapplied the Commission’s major purpose inquiry and that the resulting dismissal of their complaint was arbitrary and capricious.

Disagreement Regarding Recordkeeping Rules

Although the Commission unanimously approved the majority of the Audit Division’s recommendations, the Commissioner’s split regarding how and when state and local committees should track the amount of time spent on federal vs. non-federal campaign activity. Under Commission regulations and statutory guidelines, a state or local committee is required to pay their staff with federally regulated “hard money” if they spend more than 25 percent of their time working on federal election-related activities.

While the Commissioners agreed that this requires tracking of the time spent by staff who worked on both federal and non-federal activities, they split along party lines regarding whether these committees must also track the time for employees who were paid solely with non-federal funds to engage in non-federal activity. While Chairman Lee Goodman and his fellow Republicans argued that these workers need not be tracked, and could be presumed to work solely on state and local activities, Commissioner Ellen Weintraub and her fellow Democrats argued that the law applied to all of the staff of these committees, and that they could not simply presume compliance without a verifiable record.

The Commissioners deadlocked in a 3-3 vote regarding this issue, as well as on a related finding that would have extended the recordkeeping requirement to contractors who were paid solely with non-federal funds. An audio recording of the deliberations regarding these recommendations is available on the Commission’s webpage.

Continued Consideration Of Disclaimers for Mobile Phone Advertisements

The Commission has once again requested and received an extension to further consider whether mobile phone banner advertisements must include a disclaimer on political communications, or whether they could refrain from doing so based on the Commission’s previously articulated small item or impracticability exceptions. See 11 C.F.R. 110.11(e)(i-ii).

The Commission requested and received an in initial extension from Revolution Messaging in December, and held over consideration two weeks ago after receiving late comments from both Revolution Messaging and from the Center for Competitive Politics. This blog previously discussed the draft advisory opinions under consideration on December 2 and 9, 2013.

- See more at: http://www.hklaw.com/PoliticalLawBlog/Last-Week-at-the-FEC-Tracking-of-Staff-Work-by-State-and-Local-Party-Committees-02-03-2014/#sthash.yuEZ4MXS.dpuf

Last week the Federal Election Commission held an opening meeting during which it approved Audit Division recommendations related to the manner in which the Dallas County Republican Party and the Republican Party of Iowa have maintained records regarding the type of funds used to pay for staff work. The Commission also obtained Revolution Messaging, LLC’s consent to further extend its consideration of AO 2013-18 through February 28, 2014.

Outside of the Commission’s internal deliberations, Public Citizen and ProtectOurElections.org filed a complaint for declaratory and injunctive relief against the Commission for its dismissal of its complaint against Crossroads GPS, which this blog discussed on January 13. The groups allege that the Commissioners who voted against further investigation misapplied the Commission’s major purpose inquiry and that the resulting dismissal of their complaint was arbitrary and capricious.

Disagreement Regarding Recordkeeping Rules

Although the Commission unanimously approved the majority of the Audit Division’s recommendations, the Commissioner’s split regarding how and when state and local committees should track the amount of time spent on federal vs. non-federal campaign activity. Under Commission regulations and statutory guidelines, a state or local committee is required to pay their staff with federally regulated “hard money” if they spend more than 25 percent of their time working on federal election-related activities.

While the Commissioners agreed that this requires tracking of the time spent by staff who worked on both federal and non-federal activities, they split along party lines regarding whether these committees must also track the time for employees who were paid solely with non-federal funds to engage in non-federal activity. While Chairman Lee Goodman and his fellow Republicans argued that these workers need not be tracked, and could be presumed to work solely on state and local activities, Commissioner Ellen Weintraub and her fellow Democrats argued that the law applied to all of the staff of these committees, and that they could not simply presume compliance without a verifiable record.

The Commissioners deadlocked in a 3-3 vote regarding this issue, as well as on a related finding that would have extended the recordkeeping requirement to contractors who were paid solely with non-federal funds. An audio recording of the deliberations regarding these recommendations is available on the Commission’s webpage.

Continued Consideration Of Disclaimers for Mobile Phone Advertisements

The Commission has once again requested and received an extension to further consider whether mobile phone banner advertisements must include a disclaimer on political communications, or whether they could refrain from doing so based on the Commission’s previously articulated small item or impracticability exceptions. See 11 C.F.R. 110.11(e)(i-ii).

The Commission requested and received an in initial extension from Revolution Messaging in December, and held over consideration two weeks ago after receiving late comments from both Revolution Messaging and from the Center for Competitive Politics. This blog previously discussed the draft advisory opinions under consideration on December 2 and 9, 2013.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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