Dear Commissioners:

The Perkins Coie Political Law Group (“PLG”) is pleased to submit these comments in connection with the Forum that the Commission has convened to “evaluate and improve our administration of the law with respect to political parties.”

For many years, the PLG’s practice has included national, state, and local party committees, and the group has represented these clients before the Commission on a wide range of party issues in the rule-making, advisory opinion and enforcement processes. While a representative of the PLG was unable to be present at the Forum, we have observations to offer from this practice’s experience that may be useful to the Commission. The views expressed here are the PLG’s alone and not those of any client of the firm.

As a result of the enactment of the Bipartisan Campaign Reform Act of 2002 and other developments in the law, the political parties have been required to address open regulatory issues of considerable importance to their ability to conduct basic party functions and to maintain a central, vibrant role in a political process in which “outside groups” have become increasingly prominent. The Commission is aware that we have been active in filing requests for opinions and taking positions before the agency on these issues. For its part, the agency has routinely faced the question of whether it could or would interpret the statute to provide the parties with flexibility in raising needed funds and meeting core institutional expenses.

While in certain of these cases, the Commission acted to provide such flexibility, on other and significant occasions it stopped well short of doing so (with not all Commissioners in agreement on the appropriate outcome). We appreciate that we will not “win them all.” But we also have observed a hesitation to choose, among reasonable readings of the rules, those that are most helpful to the parties, apparently out of a concern that the Commission will open a “loophole” or establish a precedent that might be later abused for other purposes. It is particularly important that in the circumstances faced by the political parties today, the Commission consider adopting the most constructive possible approach to these questions—one shaped less by suspicion about motives and consequences, and more by an openness to the challenges the parties face.

There is no question that the Commission must be faithful to the law. But there are always “gaps” and questions that Congress did not anticipate or address by statute. The question to be asked then should not be “what are the parties up to now?” but instead “in what way can we supply them with constructive guidance in meeting bona fide institutional objectives?”

The Commission has a fresh opportunity to reconsider its regulatory program affecting parties in the wake of recent Supreme Court decisions, most notably McCutcheon v. Federal Election Commission. There, the Court emphasized that the regulatory interest in preventing quid pro quo corruption is not generally implicated by funds donated to a political party in which

party members join together to further common political beliefs, and citizens can choose to support a party because they share some, most, or all of those beliefs. To recast such shared interest, standing alone, as an opportunity for quid pro quo corruption would dramatically expand government regulation of the political process.

McCutcheon v. FEC, 134 S.Ct 1434, 1461 (2014) (internal citation omitted).

The programs devised by parties to achieve access to additional and flexible sources of funding should not be confused with schemes to “circumvent” statutory limits. The parties are doing what they should be doing—exploring avenues to expand their membership and their appeal to the electorate, which requires both resources and the means by which they can be efficiently raised and spent. For the parties, and in the words of the majority in McCutcheon, these activities are not “an opportunity for quid pro quo corruption.” Id. The parties are working to compete with other powerful actors that operate either under more relaxed regulatory standards, or—some would argue—outside the rules altogether. And the parties must also to strive to keep pace at considerable expense with changing campaign techniques and technologies.

We appreciate this occasion for the Commission to consider these questions. For further examples and discussion, we refer the Commission to the numerous presentations the PLG has made on party issues, in Advisory Opinion Requests and in other matters, and to the Commission’s decisions (or failure to reach agreement) in response.

Very truly yours,


Robert F. Bauer

Marc E. Elias

Rebecca H. Gordon

Ezra W. Reese

Brian Svoboda

For the Perkins Coie Political Law Group

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