On the Campaign Finance Laws and Lawyers

February 11, 2014
posted by Bob Bauer

A federal judge once opined that the federal campaign finance laws were hard to follow, and the same perplexity has been expressed by the Supreme Court—directly, in the course of oral argument, and somewhat less directly in an opinion of the court.  See Citizens United v. FEC, 558 U.S. 310, 334-35 (2010) (Kennedy, J.).  Conflicts over the constitutionality of various enactments and rules are common.  And much has been written about the  use and misuse of the heavily regulated legal process to harass, wear down or disgrace political adversaries.

Notwithstanding all of that, the beleaguered participant in the political process looking for legal advice can run into trouble when shopping for free or discounted legal services. Under federal and numerous state laws, these services are a contribution, like any other “in-kind” contribution, with some exceptions.  A fully  individual volunteer effort is typically permissible.  Or a firm can donate but not bill for the time of its lawyers,  provided the services are solely for the purpose of assuring compliance with the law  and the value of the services is disclosed.  As soon as life becomes more complicated, getting the help of a lawyer runs into contribution limits or restrictions on the sources of funds.

The Wall Street Journal objects that these limits on the supply of legal services are another example of the folly and dangers of contemporary campaign finance regulation. It organizes its point around recent cases in which a state has made an issue of pro bono legal services.  In one of these cases, the state is asserting its authority to regulate these services as a basis for contesting the award of fees in a section 1983 action.

The Federal Election Commission over the years  has tried to make some sense of what Congress may have intended to do about legal services.  (In a twist, members of  Congress have accepted pro bono legal services to contest FEC regulations that they insist don’t follow Congressional intent.)  The agency has allowed candidates and political committees to receive some free or reduced-rate services, but not others: it has interpreted the law, as enacted and later amended, to allow law firm support for candidates’ defense of civil suits, but not for their filing of amicus briefs in ballot access cases that would determine the shape of their race.  FEC Advisory Ops. 1980-04, 2006-22.   Decisions have rested on different theories—whether the services themselves involve an attempt to influence an election, or whether the candidate had any choice in the matter (i.e. being sued v. suing).  Other circumstances evidently had some bearing on the result, as in one case where the candidate lost the election and did not hold office, and the benefit of the free services could influence neither the election outcome nor the official behavior of the winner. FEC Advisory Op. 2011-01.

At the root of the issue under federal law is a broad definition of “contribution,” defined to include “anything of value” and, more particularly, compensation paid to others to provide services to a political committee.  2 U.S.C. § 431(8)(A)(i), (ii).  The contribution definition applies to anything of value provided for the purpose of influencing an election.  11 C.F.R. § 100.52.   But the provision governing the compensation of personal service is broader, encompassing services tendered for any purpose, other than legal services provided for compliance purposes.   11 C.F.R. § 100.54.

On the one hand, yes, committees engage lawyers in the pursuit or retention of office, and this is a “purpose of influencing” an election.  But, on the other, they are engaging lawyers because they operate within a complex regulated environment—because constitutional, strategic and operational considerations, as well as the goal of achieving compliance, dictate the resort to lawyers.

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