May 31, 2002

Following the Commission’s nomenclature in Agenda Document, 02-28, this memorandum on certain aspects of FEC rulemaking to implement the Bipartisan Campaign Reform Act of 2002 will refer to the latter as "BCRA" and employ other shorthand referents used in the Document.

We need to look for opportunities in the Act to re-involve the American electorate in electoral politics as volunteers. Fortunately, notwithstanding the Act’s total focus on money and lack of any mention of political volunteerism, it offers some opportunities to redress the imbalance in politics between a steadily increasing dominance of money in politics and the small and decreasing role of volunteers.

Note that the Act federalizes the political process and undermines the role of political parties, who traditionally advocate that people "vote the ticket" in elections that frequently involve a mix of federal and non-federal elections. It does so by requiring that "allocation rules" are established to identify what portion of campaign finance and party disbursements (including "generic") have been devoted to advocating the election of federal election candidates and to voter registration (VR) or get-out-the-vote activities (GOTV) during a federal election season. Only the Levin Amendment (in part) and reliance upon political volunteers (not political committee "employees") would enable political parties, committees and other organizations to escape the implied regulatory/ enforcement burden of such rules.

Note also that the Act allows both parties to raise substantial amounts of money for non-profit groups as long as they are non-political and/or not involved in political activity favoring federal candidacies. Such groups are often able to mobilize substantial numbers of volunteers.

Finally, note that the Act potentially implies (1) a shift in emphasis of fund-raising from national to state and local political committees and (2), from political committees to non-profit membership organizations. Potentially, it also can help to provide more attention and resources to the state and local levels of politics where people can more readily be involved.

Viewing the above "note"(s) in the context of the "standpoint" stated at the outset of this draft, the following suggested rules may be both apropos and beneficial. The writer would welcome an opportunity to elaborate on these propositions during the public hearing scheduled for June 3, 2002.

• The required allocation rules should not apply to how volunteers spend their time

• "Generic campaign activity," political "communications," "solicitation" and other activities that the FEC may deem in need of definition, given BCRA wording and Congressional intent, in such ways as to require the application of "allocation ratios" to such activities, should be defined so as to exclude the activities of political volunteers.

• The use of Levin Amendment "soft money" should be limited to the purchase of election materials that are typically used or disbursed by volunteers and to expenses needed to recruit, manage and mobilize volunteers. The Act is ambiguous on this point, so provision of a precisely worded rule here could be especially significant. The proposed limitation of expenditure scope would be quite consistent with the intent of the amendment, which appears to be to turn the use of soft money to the "party building" purpose for which it was originally intended.

• Contributions to non-profit groups from national parties and others should be unlimited to the extent that they serve to elicit the efforts of additional volunteers. If necessary, some reasonable, pro-rata bases (such as the minimum wage and an assumption of time commitments by an average volunteer) could be employed to connect volunteers’ time and contributors’ money.

• "Employees" of political committees of any sort at any level should be narrowly defined so that there is no way that volunteers can be confused with employees.

• Local political "committees" (including "district," ward or precinct committees and political clubs chartered by state committees) should be recognized as sub-units of state committees but also as units that are nevertheless separate or separable from state committees for purposes of administration and enforcement of the Act. Thus, the BRCA’s provision to "Increase the limit for contributions to state party committees to $10,000 per year…" should apply to local committees.

• Allocation rules or ratios should not be applied to "vote the ticket" messages that may cite and/or picture individual candidates but where the message is fundamentally a party message such as ‘these are the candidates that share our party’s philosophy and its approach to problems.’ They should also not be applied to administrative costs that may arise from the need of local political committees to adequately manage political volunteers.

• The political advertising to which the Levin Amendment section pertains should be defined to be periodical and electronic media advertising. It should not include print media such as materials carried by political volunteers canvassing for their party’s ticket door-to-door.

The Act is ambiguous on some points of concern. Thus, the following are just a few among many questions that need to be addressed so that precise rules can be written and enforced in ways that grassroots political participation is encouraged or not discouraged.

• Do "state parties" necessarily include local committees defined under state election laws and political clubs, assemblies or associations that are chartered by state committees?

• What is to be the definition of "employees" of political committees and of "members" of groups, whether incorporated or unincorporated?

• What was the intent of Senator Levin with regard to the advertising restriction of his amendment?