Letter to GOP Chair Marc Racicot Regarding Campaign Finance Law

LETTER TO GOP CHAIR MARC RACICOT REGARDING CAMPAIGN FINANCE LAW

March 6, 2003

Governor Marc Racicot
Chairman
Republican National Committee
310 First Street, SE
Washington, DC 20003

Dear Chairman Racicot:

It was nice to finally see a written RNC communication describing your legal counsel's views concerning the application of the new Bipartisan Campaign Reform Act (BCRA) to state and local activity. However, it is disingenuous of you to suggest that BCRA and the published FEC regulations are insufficiently clear to allow RNC members and officers to engage in political activities at this time. Unlike the approach you have taken on behalf of the Republican Party, I have distributed to my home state party officials a five page explanation of how the new law works and what their responsibilities are as party officials. This explanation is based not on my personal views but rather on the actual wording of BCRA and the FEC regulations and Explanation and Justification published in the Federal Register.

I remain concerned about your efforts to educate state party officials about the new law. For instance, your letter to me suggests that some RNC members who are also officials of state parties cannot determine when the restrictions on national party agents raising soft money apply to them. However, BCRA plainly subjects national party officers and agents to the soft money ban only insofar as they are "acting on behalf" of the national party. See 2 U.S.C. 441i(a)(2). This concept is fully reflected in the regulations implementing the national party soft money ban. See 11 C.F.R. 300.10(c) (1).

The FEC's official explanation of its soft money regulations explicitly and repeatedly emphasizes how the "acting on behalf" concept limits the scope of the national party soft money ban. As the FEC has stated, "[t]he breadth of the national party non-Federal funds prohibition is limited . . . to the extent that the prohibition applies to officers and agents 'acting on behalf' of national parties. This limiting construction appears in other Federal statutes and indeed, in some State campaign finance statutes." 67 FR 49088 (Jul. 29, 2002).

Moreover, in a separate discussion of the concept of "acting on behalf," the FEC has officially stated that "it is clear that individuals, such as State party chairmen and chairwomen, who also serve as members of their national party committees can, consistent with BCRA, wear multiple hats, and can raise non-Federal funds for their State party organizations without violating the prohibition against non-Federal fundraising by national parties." 67 FR 49083 (Jul. 29, 2002).

In light of this statutory and regulatory language (which is quite concrete, and not merely based on my own personal views of the meaning of the statute, as your letter wrongly suggests), I remain convinced that the RNC can do better in advising RNC officials with independent state party responsibilities on their ability to continue conducting traditional state party activities.

Finally, you mention alleged "severe penalties included in the new law" as part of the concern of elected RNC members. One accomplishment of BCRA is to ensure that serious and intentional violations of the federal election laws result in more than mere "cost of doing business" minor fines, as has been the case recently. I hope that you, too, agree that intentional violations of federal laws designed to protect our democracy from corruption should be vigorously enforced. However, it remains the case that the only persons who can incur criminal penalties are those who "knowingly and willfully" violate the law. 2 U.S.C. 437g (d). As you surely know, BCRA did not change the longstanding requirement that criminal prosecution be reserved only for those who commit a violation knowing that what they are doing is illegal, and proceed nonetheless.

Likewise, even the increased civil penalties in BCRA Act apply only to "knowing and willful" violations. Neither the old nor the new criminal penalties in the election laws apply to those who unintentionally violate the statute. When the RNC lawyers scare party members with the notion that they will commit a federal crime if they inadvertently violate the law, they are spreading a notion that was false under the old law, and is false under the new one. This kind of scare tactic does not educate but only alarms well-meaning party volunteers.

Again, I suspect a complete and fair presentation of these issues would put many fears and concerns to rest. While a more accurate explanation of the law may not fit the RNC's litigation strategy, it is in the greater long term interests of our party and our political system. The Supreme Court will in due course rule on the legal challenges to BCRA. If, as I expect, BCRA is upheld, then the party will be in a difficult position if fear-mongering for purposes of litigation has scared off its local supporters. After years of concentrating on big soft money fundraising at the expense of grass roots development, I would think our party would benefit by sincerely educating its remaining volunteers on the new law and not using scare tactics that could drive them out of our party.

Sincerely,

John McCain
United States Senator