Federal Election Commission Advisory Opinion Number 2006-24

Federal Election Commission Main Page

FEDERAL ELECTION COMMISSION
Washington, DC 20463
October 5, 2006

CERTIFIED MAIL
RETURN RECEIPT REQUESTED

ADVISORY OPINION 2006-24

William J. McGinley, Esq.
General Counsel
National Republican Senatorial Committee
425 Second Street, NE
Washington, DC 20002

Marc Elias, Esq.
Counsel
Democratic Senatorial Campaign Committee
Perkins Coie LLP
607 Fourteenth Street, NW
Washington, DC 20005

Lawrence J. Tabas, Esq.
General Counsel
Republican State Committee of Pennsylvania
One Penn Center, 19th Floor
Philadelphia, PA 19103

Dear Messrs. McGinley, Elias and Tabas:

We are responding to your joint advisory opinion
request on behalf of the National Republican Senatorial
Committee ("NRSC") and the Democratic Senatorial Campaign
Committee ("DSCC") (on behalf of the committees themselves
and the committees' respective Members who are currently
Federal candidates), and the Republican State Committee of
Pennsylvania ("State Party"). Your request concerns the
application of the Federal Election Campaign Act of 1971, as
amended (the "Act"), and Commission regulations to the
establishment and administration of funds by Federal
candidates' principal campaign committees and the State
Party to pay recount and
election contest expenses resulting from the upcoming
Federal elections on November 7, 2006 ("recount funds"), and
the role that the NRSC and DSCC may play in the
administration of such recount funds.

The Commission concludes that because election recount
activities are in connection with a Federal election, any
recount fund established by either a Federal candidate or
the State Party must comply with the amount limitations,
source prohibitions, and reporting requirements of the Act.
In addition, the Commission concludes that the NRSC and
DSCC, and their agents, may participate in planning and
strategy discussions with a Federal candidate or the State
Party regarding the use of their respective recount funds.

Background

The facts presented in this advisory opinion are based
on your letter received on August 7, 2006.

NRSC and DSCC Involvement with Recount Funds

The NRSC and DSCC are political committees comprised of
sitting Members of the United States Senate of their
respective political party and include all incumbent
Senators who are currently Federal candidates. The primary
function of these political committees is "to aid the
election of candidates affiliated with their respective
parties," including providing political and financial
support and guidance to Federal candidates. The NRSC and
DSCC intend to advise their Members in close elections to
establish and administer recount funds to be used to finance
any recount, election contest or related post-election
litigation costs. The NRSC and DSCC also intend to conduct
strategy and planning sessions with Federal candidates and
State party committees regarding the establishment and
administration of recount funds. These sessions will
include discussion of how recount funds should be raised and
spent, as well as "recount and election contest strategies
and tactics."

Federal Candidate Recount Funds

Federal candidates who become involved in recounts
intend to establish and administer recount funds through
their authorized committees. The Federal candidates will
retain all authority over the raising and spending of funds
in the recount fund, but will consult with national and
State party committee officials regarding fundraising,
administrative issues, and strategies and tactics. The
Federal candidates and their authorized committees will not
solicit or receive any funds from corporations, labor
organizations, national banks, or foreign nationals for the
recount funds. Money raised by the recount funds will not
be used to pay for pre-election or Election Day expenses,
such as administrative costs, get-out-the-vote activities or
communication expenses. Instead, the recount funds will be
used only to pay for "expenses resulting from a recount,
election contest, counting of provisional and absentee
ballots and ballots cast in polling places," as well as
"post-election litigation and administrative-proceeding
expenses concerning the casting and counting of ballots
during the Federal election, fees for the payment of staff
assisting the recount or election contest efforts, and
administrative and overhead expenses in connection with
recounts and election contests" ("recount activities").

The State Party Recount Fund

The State Party is the Republican State party for the
Commonwealth of Pennsylvania, and is registered with the
Commission as a political party committee. The State Party
intends to establish a recount fund to support its Federal
candidates by financing recount, election contest and
related post-election litigation costs. The State Party
will establish and administer the recount fund and will
retain all authority over the raising and spending of the
recount fund. The State Party intends to consult with any
Federal candidate who is, or may be, involved in a recount
or election contest prior to, on, and after Election Day.
The State Party will also consult with national party
committee officials regarding fundraising, administration,
and recount and election contest strategies and tactics.
The State Party will not solicit or receive any funds from
corporations, labor organizations, national banks, or
foreign nationals for the recount fund. Prior to or on
Election Day, no money raised by the recount fund will be
used to pay for Federal election activity, as defined in 2
U.S.C. 431(20) and 11 CFR 100.24, coordinated or independent
expenditures, exempt party activities, or any communications
referring to any Federal candidate. All recount funds will
be used solely to pay for recount activities, as described
above.

The Pennsylvania Election Code does not limit the
amount that may be contributed with respect to State
elections. It does, however, prohibit contributions by
national and State banks, corporations and unincorporated
associations. 25 Pa. Stat. Ann. 3253(a). State party
committees are required to file reports of receipts,
including specific contributor information, and expenditures
with the Secretary of the Commonwealth. 25 Pa. Stat. Ann.
3246.

Questions Presented

1. Are recount activities conducted by a Federal
candidate's recount fund in connection with an election for
Federal office so that 2 U.S.C. 441i(e)(1)(A) applies to the
recount fund?

a. What amount limits apply to donations from individuals
and political committees to a Federal candidate's recount
fund?

b. How should a Federal candidate's recount fund report
its activities?

c. What are the restrictions, if any, on Federal
officeholders or candidates and State party officials
raising funds for the Federal candidate's recount fund?

2. Are the State Party's recount activities involving
Federal races "in connection with an election for Federal
office" so that only Federal funds may be used to pay for
these recount activities?

a. What amount limits apply to donations from individuals
and political committees to the State Party's recount fund?

b. How should the State Party's recount fund report its
activities?

c. What are the restrictions, if any, on Federal
officeholders or candidates raising funds for the State
Party's recount fund?

d. May the State Party involve a Federal candidate in its
decision-making regarding its recount activities and "fully
coordinate" recount activities with the Federal candidate?

e. May the State Party's recount fund pay attorney's fees
and other litigation costs incurred by a Federal candidate
who is a party in a recount or election contest?

f. Are the State law contribution limitations and
reporting obligations preempted by the Act and Commission
regulations with regard to the State Party's recount fund?

3. May the NRSC and DSCC, and their agents, participate in
planning and strategy sessions regarding the establishment,
administration, fundraising strategies and recount
activities of a recount fund established by a Federal
candidate or the State Party?

4. May a Federal candidate or the State Party retain
excess funds in the recount funds for future elections,
or must the funds be disposed of in some manner?

Legal Analysis and Conclusions

Question 1: Are recount activities conducted by a
Federal candidate's recount fund in connection with an
election for Federal office so that 2 U.S.C. 441i(e)(1)(A)
applies to the recount fund?

Yes, any recount fund established by a Federal
officeholder or candidate is subject to 2 U.S.C.
441i(e)(1)(A), and therefore any funds solicited, received,
directed, transferred, or spent are subject to the amount
limitations, source prohibitions and reporting requirements
of the Act. This statutory provision applies regardless of
whether the recount fund is established as a separate bank
account of a candidate's authorized committee or a separate
entity.

The Act and Commission regulations define the terms
"contribution" and "expenditure" to include any gift, loan,
or payment of money or anything of value for the purpose of
influencing a Federal election. See 2 U.S.C. 431(8)(A)(i)
and (9)(A)(i);
11 CFR 100.52(a) and 100.111(a). Commission regulations
promulgated before the enactment of the Bipartisan Campaign
Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (2002)
("BCRA"), make exceptions from the cited definitions for
gifts, loans, or payments made with respect to a recount of
the results of a Federal election. 11 CFR 100.91 and
100.151.1 Nonetheless, in recognition of the Act's
prohibitions on corporations, labor organizations, national
banks, and foreign nationals making contributions or
donations "in connection with" Federal elections, see 2
U.S.C. 441b(a) and 441e(a)(1)(A), these recount regulations
expressly bar the receipt or use of funds prohibited by 11
CFR 110.20 (foreign nationals) and Part 114 (corporations,
labor organizations, and national banks). 11 CFR 100.91 and
100.151.

In two advisory opinions, the Commission has addressed
the application of pre-BCRA law to election recounts.
First, in Advisory Opinion 1978-92 (Miller), the Commission
concluded that any funds received by a separate
organizational entity established by the candidate's
authorized committee solely for the purposes of funding an
election recount effort would not be subject to the
contribution limitations of 2 U.S.C. 441a, and would not
trigger political committee status or reporting obligations
for the separate election recount entity. The Commission
also concluded that the separate recount entity could not
accept funds from corporations, labor organizations, and
national banks, which were included in 11 CFR 100.4(b)(15).2
The Commission noted that involvement of current officers
and staff of the authorized committee as organizers and
principals in a separate election recount entity would not
change these conclusions.

In Advisory Opinion 1998-26 (Landrieu), the Commission
considered a candidate's principal campaign committee that
established, as a wholly separate entity, a contested
election trust fund. The Commission concluded that the
trust fund was not subject to reporting requirements and
could accept amounts in excess of the contribution
limitations in 2 U.S.C. 441a, but could not accept funds
from prohibited sources, as specified in the predecessors to
the recount regulations, 11 CFR 100.7(b)(20) and
100.8(b)(20).

BCRA took effect after these advisory opinions were
issued. Under BCRA, Federal candidates and officeholders
may not solicit, receive, direct, transfer, or spend funds
"in connection with an election for Federal office" unless
the funds are subject to the limitations, prohibitions, and
reporting requirements of the Act ("Federal funds"). See 2
U.S.C. 441i(e)(1)(A); see also 11 CFR 300.2(g). These
restrictions apply to Federal officeholders and candidates,
their agents, and entities directly and indirectly
established, financed, maintained, or controlled by, or
acting on behalf of, any such candidates or officeholders.
Id.; see also 11 CFR 300.60 and 300.61. Congress's choice
of the "in connection with" standard in 2 U.S.C.
441i(e)(1)(A) requires the Commission to conclude that
section 441i(e)(1)(A) applies to funds raised or spent on
recounts of Federal elections. This conclusion flows from
the plain language of BCRA, as well as the Commission's
recount regulations dating to 1977 that are premised on the
conclusion that recounts are "in connection with" Federal
elections. See 2 U.S.C. 441b(a), 441e(a)(1)(A); 11 CFR
100.91 and 100.151.

Therefore, 2 U.S.C. 441i(e)(1)(A) prohibits Federal
officeholders and candidates, their agents, and entities
directly or indirectly established, financed, maintained or
controlled by or acting on behalf of one or more Federal
officeholders or candidates, from soliciting, receiving,
directing, transferring, or spending funds for expenses
related to a recount of the votes cast in a Federal
election, including the recount activities described above,
unless those funds are subject to the limitations,
prohibitions, and reporting requirements of the Act.
Because Federal candidates would directly or indirectly
establish, finance, maintain, and control the recount funds
under your proposal, 2 U.S.C. 441i(e)(1)(A) applies to the
Federal candidates' recount funds.

To the extent that Advisory Opinions 1978-92 and 1998-
26 differ from this result, they are superseded.

(a) What amount limits apply to donations from
individuals and political committees to a Federal
candidate's recount fund?

As discussed above, a Federal candidate's recount fund
must not receive or solicit donations in excess of the Act's
amount limitations. 2 U.S.C. 441i(e)(1)(A). Thus, by
operation of 2 U.S.C. 441i(e), any recount fund established
by a Federal candidate may not receive donations that in the
aggregate exceed $2,100 per person or $5,000 per multi-
candidate political committee.

However, because section 441i(e)(1)(A) does not convert
the donations into "contributions" for purposes of 2 U.S.C.
441a, donations to a Federal candidate's recount fund will
not be aggregated with contributions from those persons to
the Federal candidate for the general election. For these
purposes, a recount is similar to a runoff election, which
is also subject to a contribution limit separate from the
general election contribution limit. Similarly, the
aggregate biennial contribution limits of 2 U.S.C.
441a(a)(3) do not apply to an individual's donations to
recount funds. Federal candidates may advise prospective
donors that donations to recount funds will not be
aggregated with contributions from individuals for purposes
of the contribution limits for the general election set
forth in 2 U.S.C. 441a(a)(1)(A) or (2)(A) or the aggregate
biennial contribution limits set forth in 2 U.S.C.
441a(a)(3).

(b) How should a Federal candidate's recount fund
report its activities?

A Federal candidate may establish a recount fund either
as a separate bank account of the candidate's authorized
committee, or as a separate entity. The required reporting
does not vary, but the authority for the reporting
requirements depends on the organizational option. If the
recount fund is a separate account of the Federal
candidate's authorized committee, then its receipts and
disbursements must be reported on the authorized committee's
reports as "other receipts" and "other disbursements." See
11 CFR 104.3(a)(3)(x)(A) and (b)(2)(vi)(A). If the recount
fund is a separate entity established by the Federal
candidate, then the separate entity must report as an
authorized committee under 11 CFR 100.5(d) in order to
comply with the reporting obligations under 2 U.S.C.
441i(e)(1)(A). Under 11 CFR 104.3(f), the principal
campaign committee must consolidate in its report any other
authorized committee's reports. Therefore, if the recount
fund is a separate entity, the Federal candidate's principal
campaign committee must still report the recount fund's
receipts and disbursements as "other receipts" and "other
disbursements."

(c) What are the restrictions, if any, on Federal
officeholders or candidates and State party officials
raising funds for the Federal candidate's recount fund?

As a general matter, Federal officeholders and
candidates may solicit only funds that are subject to the
limitations, prohibitions, and reporting requirements of the
Act in connection with a Federal election. See 2 U.S.C.
441i(e). Because any recount fund established by a Federal
candidate will comply with the limitations, prohibitions and
reporting requirements of the Act, as explained in response
to Question 1, Federal officeholders and candidates may
solicit funds for the recount fund consistent with this
restriction in 2 U.S.C. 441i(e). You specifically ask
whether Federal officeholders and candidates may appear as
featured guests at fundraising events, participate in pre-
event publicity, sign fundraising letters and make telephone
solicitations for the recount fund. Such activity would be
permissible as long as it is consistent with the restriction
in
2 U.S.C. 441i(e). State party officials may also
participate in fundraising for a Federal candidate's recount
fund so long as that fund complies with the amount
limitations, source prohibitions and reporting requirements
of the Act.3

Question 2: Are the State Party's recount activities
involving Federal races "in connection with an election for
Federal office" so that only Federal funds may be used to
pay for these recount activities?4

Yes, payments for recount activities involving Federal
races are disbursements in connection with a Federal
election. Under 11 CFR 102.5(a)(1)(i) and
300.30(b)(3)(iii), the State Party must use funds in a
Federal account to pay for these recount activities.

As explained in response to Question 1, although
recount funds are not considered "contributions" or
"expenditures" under Commission regulations, those funds
received or spent for recount activities are spent on
activities "in connection with" a Federal election.
Pursuant to 11 CFR 102.5(a)(1)(i) and 300.30(b)(3)(iii), all
disbursements in connection with a Federal election made by
a State party that has both Federal and non-Federal accounts
must be made from a Federal account.5 In addition, only
Federal funds may be deposited in a Federal account. See 11
CFR 102.5(a)(1)(i) and 300.2(g). Therefore, a recount fund
established by the State Party to conduct recount activities
in support of the party's Federal candidates must be a
Federal account containing only Federal funds.6

(a) What amount limits apply to donations from
individuals and political committees to the State Party's
recount fund?

Under 11 CFR 300.30(b)(3)(iii), the State Party's
recount fund for recounts of Federal races must comply with
the amount limitations in the Act, and therefore may not
receive more than $10,000 from a person or $5000 from a
multicandidate political committee per calendar year. See 2
U.S.C. 441a(a)(1)(D) and 441a(a)(2)(C). As explained in
response to Question 1(a), requiring that this State Party
recount fund receive only Federal funds does not convert the
donations into "contributions" for purposes of 2 U.S.C.
441a. Consequently, donations to the State Party's recount
fund will not be aggregated with contributions from those
same donors to the State Party for the calendar year.
Similarly, the aggregate biennial contribution limits of 2
U.S.C. 441a(a)(3) do not apply to individuals' donations to
recount funds. The State Party may advise prospective
donors that donations to the State Party's recount fund will
not be aggregated with contributions from the same persons
to the State Party in that calendar year, or for the
purposes of the aggregate biennial contribution limits of 2
U.S.C. 441a(a)(3).

(b) How should the State Party's recount fund report
its activities?

The State Party must establish a separate Federal
account to pay for all Federal recount activity. The State
Party must report all of the recount fund's receipts and
disbursements to the Commission in accordance with 2 U.S.C.
434 and 11 CFR 104.3 because the recount fund is a Federal
account of a State party committee.7

(c) What are the restrictions, if any, on Federal
officeholders or candidates raising funds for the State
Party's recount fund?

Federal officeholders and candidates may solicit only
Federal funds for the recount fund consistent with 2 U.S.C.
441i(e). As explained above in response to Question 1(c),
Federal officeholders and candidates may appear as featured
guests at fundraising events, participate in pre-event
publicity, sign fundraising letters and make telephone
solicitations for Federal funds for the State Party's
recount fund.

(d) May the State Party involve a Federal candidate in
its decision-making regarding its recount activities and
"fully coordinate" recount activities with the Federal
candidate?

Yes, the State Party may involve a Federal candidate
and the candidate's agents in the decisions concerning the
State Party's recount fund before, on, and after Election
Day. The limitations on coordinated spending by the State
Party for a particular candidate are not applicable to a
State Party's recount fund. These limitations, found at
2 U.S.C. 441a(d)(3), are applicable only "in connection with
the general election campaign of a candidate for Federal
office." Recount funds are subject to the limitations,
prohibitions, and reporting requirements of the Act, but
they are not in connection with the general election
campaign of the Federal candidate because the campaign has
ended and because such funds are not otherwise permitted to
be used for campaign activity. Therefore, the State Party's
use of Federal funds to support the recount effort are not
subject to the coordinated spending limitations.

The State Party would not be required to aggregate
amounts spent on coordinated recount activities with any
coordinated expenditures for the general election made on
behalf of that candidate.

(e) May the State Party's recount fund pay attorney's
fees and other litigation costs incurred by a Federal
candidate who is a party in a recount or election contest?

Yes, the State Party's recount fund may pay attorney's
fees and other litigation costs of a Federal candidate
involved in a recount or election contest. The State Party
payment for a Federal candidate's legal expenses in
connection with a recount would be permissible when made
with recount funds subject to the limitations, prohibitions,
and reporting requirements of the Act. As explained in
response to Question 2(d), the amount limitation in
2 U.S.C. 441a(d)(3) would not apply to coordinated recount
activity. The
State Party should report such payments as disbursements of
the Federal recount fund account as explained in response to
Question 2(b).8

(f) Are the State law contribution limitations and
reporting obligations preempted by the Act and Commission
regulations with regard to the State Party's recount fund?

Yes, the Act states that its provisions and the rules
prescribed under the Act "supersede and preempt any
provision of State law with respect to election to Federal
office." 2 U.S.C. 453(a); 11 CFR 108.7(a). The House of
Representatives Administration Committee explained this
provision's meaning in sweeping terms, stating that it is
intended "to make certain that the Federal law is construed
to occupy the field with respect to elections to Federal
office and that the Federal law will be the sole authority
under which such elections will be regulated." H.R. Rep.
No. 93-1239, 93d Cong., 2d Sess. 10 (1974).

When the Commission promulgated regulations at 11 CFR
108.7 on the effect of the Act on State law, it stated that
the regulations follow section 453 and that, specifically,
Federal law supersedes State law with respect to the
organization and registration of political committees
supporting Federal candidates, disclosure of receipts and
expenditures by Federal candidates and political committees,
and the limitations on
contributions and expenditures regarding Federal candidates
and political committees. See Explanation and Justification
for 1977 Amendments to Federal Election Campaign Act of
1971, H.R. Doc. No. 95-44, 95th Cong., 1st Sess. 51 (1977);
11 CFR 108.7(b). As the legislative history of 2 U.S.C. 453
shows, "the central aim of the clause is to provide a
comprehensive, uniform Federal scheme that is the sole
source of regulation of campaign financing . . . for
election to Federal office." Advisory Opinions 2000-23 (New
York State Democratic Committee); 1999-12 (Campaign for
Working Families); 1988-21 (Wieder).

Section 108.7(b)(3) of the Commission's regulations
specifically preempts State laws concerning limitations on
contributions made and received by and expenditures
made by Federal candidates and political committees. See
also Advisory Opinion 2000-23 (New York State Democratic
Committee);. Although receipts and disbursements of the
State Party's recount fund are not "contributions" or
"expenditures" under the Act, these receipts and
disbursements are in connection with a Federal election, and
not in connection with any non-Federal election. Thus, such
recount funds are subject to the amount limitations and
source prohibitions in the Act, preempting the Pennsylvania
Election Code, 25 Pa. Stat. Ann. 2600 et. seq. Moreover,
because the State Party's recount fund must be a separate
Federal account that is not used for non-Federal election
spending, the reporting requirements of the Act and
Commission regulations preempt the reporting requirements of
the Pennsylvania Election Code.

Question 3: May the NRSC and DSCC, and their agents,
participate in planning and strategy sessions regarding the
establishment, administration, fundraising strategies and
recount activities of a recount fund established by a
Federal candidate or the State Party?

Yes, the NRSC and DSCC, and their agents, may
participate in strategy sessions regarding the raising and
spending of these funds on recount activities without
violating the Act or Commission regulations, provided that
the State Party does not use non-Federal funds to pay
expenses related to their participation. As the Supreme
Court stated in McConnell v. FEC, 540 U.S. 93, 161 (2003),
BCRA "leaves national party committee officers entirely free
to participate, in their official capacities, with state and
local parties and candidates in soliciting and spending hard
money."

National party committees, including NRSC and DSCC, may
not solicit, receive, direct or spend "any funds [] that are
not subject to the limitations, prohibitions, and reporting
requirements of th[e] Act." 2 U.S.C. 441i(a)(1); 11 CFR
300.10(a). As the Explanation and Justification for 11 CFR
100.10 makes clear, this prohibition applies regardless of
whether such funds are "in connection with" a Federal
election or for any other purpose. See Explanation and
Justification for Final Rule on Prohibited and Excessive
Contributions: Non-Federal Funds or Soft Money, 67 Fed.
Reg. 49064, 49089 (July 29, 2002) ("[T]he plain language of
BCRA, supported by the legislative history, indicates that
the ban on national party raising and spending non-Federal
funds was intended to be broad, prohibiting a party from
raising, receiving, or directing to another person `a
contribution, donation, or transfer of funds, or any other
thing of value' or spending `any funds' that are not subject
to the Act's limitations, prohibitions, and reporting
requirements." (emphasis in original)). Thus, the NRSC and
DSCC must pay for all of the recount activities they conduct
using entirely Federal funds.

Question 4: May a Federal candidate or the State
Party retain excess funds in the recount funds for future
elections, or must the funds be disposed of in some manner?

You inquire very broadly as to all possible uses of
leftover recount funds including, but not limited to,
whether such funds must be disposed of or whether they may
be kept in a separate account for future elections of the
same candidate or be transferred to other political
committees. The Commission concludes that this question is
speculative, and a definitive answer depends upon various
contingencies that may or may not occur. This question is,
therefore, hypothetical.9 Commission regulations explain
that requests posing a hypothetical situation, presenting a
general question of interpretation, or regarding the
activities of third parties, do not qualify as advisory
opinion requests. 11 CFR 112.1(b). On this basis, the
Commission expresses no opinion regarding this question. If
a Federal candidate or State Party in fact has excess funds
in a recount fund after the election, the candidate or party
may wish to resubmit this question for Commission
consideration with specific proposed plans for the excess
funds.
This response constitutes an advisory opinion
concerning the application of the Act and Commission
regulations to the specific transaction or activity set
forth in your request. See 2 U.S.C. 437f. The Commission
emphasizes that, if there is a change in any of the facts or
assumptions presented, and such facts or assumptions are
material to a conclusion presented in this advisory opinion,
then the requestor may not rely on that conclusion as
support for its proposed activity.

Sincerely,

(signed)

Robert D. Lenhard
Vice Chairman

Enclosures (Advisory Opinions 2000-23, 1999-12, 1998-26,
1988-21 and 1978-92)

DISSENTING OPINION

OF

COMMISSIONER HANS A. von SPAKOVSKY

IN ADVISORY OPINION 2006-24
(ELECTION RECOUNTS)

On October 5, the Federal Election Commission ("the
Commission") issued an Advisory Opinion on a vote of 4 to 2
to the National Republican Senatorial Committee, the
Democratic Senatorial Campaign Committee, and the Republican
State Committee of Pennsylvania ("the Requestors") over the
application of the Federal Election Campaign Act of 1971, as
amended ("the Act"), to the establishment and administration
of accounts by Federal candidates' principal campaign
committees and a state party to pay recount and election
contest expenses resulting from the upcoming federal
election on November 7, 2006.

I dissented from the Advisory Opinion because the
majority opinion misinterprets and misapplies the law, and
also effectively rewrites and repeals two regulations that
have existed for nearly 30 years a mere month before a
national election.10 The statute that the Commission is
tasked with enforcing specifically states that regulations
may not be amended or repealed by advisory opinion. The
Advisory Opinion issued by the Commission in this instance
is an ultra vires act that exceeds the Commission's
authority.

Recounts are not "elections" under the plain and clear
definition contained in the Act, see 2 U.S.C. 431(1), so
funds solicited, received and spent in connection with a
recount are not funds solicited, received or spent in
connection with an election, and therefore are not subject
to 2 U.S.C. 441i(e)(1). There is no evidence that
Congress intended through the Bipartisan Campaign Reform Act
of 2002 ("BCRA") to implicitly (it certainly did not do so
explicitly) overturn either the Commission's 30 year-old
regulations or previous Advisory Opinions on the treatment
of recount funds. In fact, there is substantial evidence of
legislative acquiescence to the Commission's longstanding
treatment of recount funds. BCRA's restrictions at 2 U.S.C.
441i(e)(1) on Federal candidates soliciting, receiving,
directing, transferring, or spending funds in connection
with either Federal or non-Federal elections do not alter
the Commission's prior treatment of funds raised and spent
by Federal candidates for recounts and recount funds.

I. WHETHER RECOUNT ACTIVITIES ARE AN "ELECTION" FOR
FEDERAL OFFICE

The central question asked by the Requestors was
whether activities conducted by a Federal candidate's
recount fund are in connection with an election for Federal
office so that the limitations of 2 U.S.C. 441i(e)(1)(A)
apply. The obvious answer is "no," since a recount is not
an "election" under the Act. Therefore, the restrictions of
2 U.S.C. 441i(e)(1)(A) do not apply to the activities of a
recount fund. However, Commission regulations still
prohibit donations to a Federal candidate's recount fund
from national banks, corporations, labor organizations, and
foreign nationals. 11 CFR 100.91 and 100.151. An
examination of the history of these regulations confirms
that Congress never objected to the Commission's
understanding of what constitutes an "election" - despite
nearly 30 years of opportunity to do so - and that there is
no basis to now suddenly disregard those regulations and
abruptly change the Commission's longstanding treatment of
recount activities. In fact, public policy concerns argue
against such action.

A. History of the Commission's Recount Regulations

The Act and Commission regulations define the terms
"contribution" and "expenditure" to include any gift, loan,
or payment of money or anything of value made by any person
for the purpose of influencing a Federal election.
2 U.S.C. 431(8)(A)(i) and (9)(A)(i); 11 CFR 100.52(a) and
100.111(a). Commission regulations promulgated in 1977
before the enactment of the Bipartisan Campaign Reform Act
of 2002, Pub. L. No. 107-155, 116 Stat. 81 (2002) ("BCRA"),
make exceptions from these definitions for "a gift,
subscription, loan, advances, or deposits of money or
anything of value made with respect to a recount of the
results of a Federal election." 11 CFR 100.91 and 100.151
(emphasis added).11

The recount regulations (11 CFR 100.91 and 100.151) are
premised on the Commission's interpretation of the statutory
term "election" to exclude recounts. See 2 U.S.C. 431(1);
see also 11 CFR 100.2. The Act defines elections to include
primary, general, special and runoff elections, but it does
not include recounts. See 2 U.S.C. 431(1); 11 CFR 100.2.
The Commission explained this exclusion when it first
enacted the recount regulations in 1977. "Also excluded
from the definition of contribution is a donation to cover
the costs of recounts . . . , since, though they are related
to elections, [they] are not Federal elections as defined by
the Act." Federal Election Regulations, Explanation and
Justification of the Disclosure Regulations, H.R. Doc. No.
95-44, at 40 (1977). The recount regulations expressly bar
the donation, acceptance, or use of funds prohibited by
11 CFR 110.20 (foreign nationals) and Part 114
(corporations, labor organizations, and national banks).
11 CFR 100.91 and 100.151.

In two prior advisory opinions, the Commission
addressed the application of pre-BCRA law to election
recounts. First, in Advisory Opinion 1978-92 (Miller), the
Commission concluded that any funds received by a separate
organizational entity established by the candidate's
authorized committee solely for the purposes of funding an
election recount effort would not be subject to the
contribution limitations of 2 U.S.C. 441a, and would not
trigger political committee status or reporting obligations
for the separate election recount entity. The Commission
also concluded that the separate recount entity could not
accept funds from corporations, labor organizations, and
national banks, which were included in 11 CFR 100.4(b)(15).12
The Commission noted that involvement of current officers
and staff of the authorized committee as organizers and
principals in a separate election recount entity would not
change these conclusions.

In Advisory Opinion 1998-26 (Landrieu), the Commission
considered a candidate's principal campaign committee that
established, as a wholly separate entity, a contested
election trust fund. The Commission concluded that the
trust fund was not subject to reporting requirements and
could accept amounts in excess of the contribution
limitations in 2 U.S.C. 441a, but could not accept funds
from prohibited sources, as specified in the predecessors to
the recount regulations, 11 CFR 100.7(b)(20)
and 100.8(b)(20).

BCRA took effect after these advisory opinions were
issued. Under BCRA, candidates and Federal officeholders
may not solicit, receive, direct, transfer, or spend funds
"in connection with an election for Federal office" unless
the funds are subject to the limitations, prohibitions, and
reporting requirements of the Act (i.e., are "Federal
funds"). 2 U.S.C. 441i(e)(1)(A) (emphasis added); see
also 11 CFR 300.2(g). BCRA also imposes limitations on the
funds Federal candidates may solicit, receive, direct,
transfer, or spend "in connection with any election other
than an election for Federal office." 2 U.S.C.
441i(e)(1)(B) (emphasis added).

The Commission's treatment of recount funds over the
past 30 years, based on the rationale that recounts are not
"elections," was well known by Congress. That treatment was
first expressed in the 1977 regulations, applied in Advisory
Opinion 1978-92, recodified in 1980, and applied again in
Advisory Opinion 1998-26. At no point in this period did
Congress act to alter the Commission's approach, although it
amended the Act several times. In 2002, only two years
after what is arguably the most controversial and important
presidential recount in American history, Congress enacted
BCRA with no amendment to the definition of "election" to
include recounts. The legislative history offers no
indication that Section 441i(e)(1) was intended to apply to
recounts. When Congress is aware of an agency's
interpretation of a statute and does not amend that statute,
Congress is presumed to accept that interpretation as
correct. See, e.g., Lorillard v. Pons, 434 U.S. 575 (1978)
("Congress is presumed to be aware of an administrative or
judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without
change.").

Following the enactment of BCRA, the Commission
recodified its recount regulations, and specifically
reaffirmed that recounts are not "elections." When the
Commission reorganized its regulations regarding
"contributions" and "expenditures" during the BCRA
rulemakings, one commenter "advocated the complete, or at
least partial, elimination of the exception to the
definitions of `contribution' and `expenditure' for recounts
and election contests, on the basis that recounts and
election contests, which are not Federal elections as
defined by the Act, see generally Federal Election
Regulations, H.R. Doc. No. 44, 95th Cong., 1st Sess. at 40
(1977) . . . `serve as an avenue for the use of soft money
to influence federal elections,' as evidenced by unregulated
contributions used to pay for the 2000 Florida recount."
Final Rules on Reorganization of Regulations on
"Contribution" and "Expenditure," 67 Fed. Reg. 50,582,
50,584 (Aug. 5, 2002). In response, the Commission
specifically stated that "[t]his change is beyond the scope
of this rulemaking dealing only with nonsubstantive changes
. . . ." Id.

Approximately one week earlier, the Commission noted in
a different rulemaking that "[t]he exemption for recounts is
addressed in the Commission's current rules at 11 CFR
100.7(b)(20) . . . ." Final Rule on Prohibited and
Excessive Contributions: Non-Federal Funds or Soft Money, 67
Fed. Reg. 49064, 49,085 (July 29, 2002). The Commission
specifically declined to alter that regulation when
promulgating the "soft money" rules. This regulatory
history demonstrates two key points:

ú First, the Commission explicitly reaffirmed, post-BCRA,
its view that recounts are not "elections" under the law,
citing its original 1977 regulations.
ú Second, in revising and reorganizing its regulations,
the recount regulations were recodified without substantive
change.

Finally, in its 2004 Legislative Recommendations to
Congress, the Commission asked Congress to clarify whether
recounts should be made subject to 2 U.S.C. 441i(e)(1).13
Congress did not act on this request.

Thus, recounts are not "elections" under the Act, so
funds solicited, received and spent in connection with a
recount are not funds solicited, received or spent in
connection with an election, and are therefore not subject
to 2 U.S.C. 441i(e)(1). There is no evidence that
Congress intended through BCRA to implicitly overturn the
Commission's rules and advisory opinions on the treatment of
recount funds, and in fact, there is substantial evidence of
legislative acquiescence to the Commission's longstanding
treatment of recount funds. Consequently, BCRA's
restrictions at 2 U.S.C. 441i(e)(1) on Federal candidates
soliciting, receiving, directing, transferring, or spending
funds in connection with either Federal or non-Federal
elections do not alter the Commission's prior treatment of
funds raised and spent by Federal candidates for recounts
and recount funds.

B. The Majority's Approach

The majority opinion ignores this overwhelming evidence
of legislative acquiescence to the Commission's longstanding
treatment of recount funds, and brings about a result that
contradicts the language of the statute, Commission
regulations, Commission Advisory Opinions, and legislative
and regulatory history. This sleight of hand is
accomplished by ignoring the statutorily defined term
"election" and instead focusing on the phrase "in connection
with an election for Federal office." In the majority's
view, the phrase is distinguishable from, and broader than,
the defined statutory term "election," and means something
akin to "related to an election." This is a new addition to
federal campaign finance law. The majority opinion would
have us believe that the fact that Congress did not amend
the definition of "election" is irrelevant because the term
"election" itself is irrelevant. Rather, Congress
supposedly overturned the Commission's longstanding
regulations on recounts by adopting a new term of art, not
identifying it as such, and not mentioning that this new
term of art was intended to overturn 30 years of well-known,
accepted practice. BCRA, of course, does not define the
phrase "in connection with an election for Federal office."
This means that the language "in connection with" is simply
a means of referencing the statutory term "election," which
in turn means that the phrase must be limited to
circumstances that constitute an "election" under the Act.

In fact, this common-sense limitation is evident in
past treatment of the phrase. In those instances in the
past in which the phrase "in connection with an election"
has been given meaning, it has always been limited to
activities that seek to influence a voter's choice in the
run-up to an actual election, and has never before been
interpreted to reach post-election activity. For example, 2
U.S.C. 441b prohibits corporations and labor organizations
from making "a contribution or expenditure in connection
with any [Federal] election." As the Supreme Court
explained in FEC v. Massachusetts Citizens For Life, Section
441b was designed to ratify the language and understanding
of Section 610 of the Taft-Hartley Act of 1947. The Court
noted that Representative Hansen, the provision's sponsor,
explained that "[t]he effect of this language is to carry
out the basic intent of section 610, which is to prohibit
the use of union or corporate funds for active
electioneering directed at the general public on behalf of a
candidate in a federal election." FEC v. Massachusetts
Citizens For Life, 479 U.S. 238, 247-248 (1986) (citing 117
Cong.Rec. 43379 (1971)) (emphasis added).

Representative Hansen's use of the term "active
electioneering" makes clear that, at least in the context of
Section 441b, a contribution or expenditure made "in
connection with" an election is limited to pre-election
activity. There is, of course, no "active electioneering"
involved in recount activities, since the election has
already occurred, only a recounting or retallying of the
votes cast in the election to ensure that every eligible
vote has been accurately counted.14

In the context of "Federal election activity,"
Commission regulations define the phrase "in connection with
an election in which a candidate for Federal office appears
on the ballot" in terms of a time period. See 11 CFR
100.24(a)(1). That time period, however, ends on the date
of the general election, and does not include any post-
election activity. Of course, there would be no reason to
conduct Federal election activity after the date of a
general election - voter registration activity, get-out-the-
vote activity, slate cards and sample ballots, voter
identification, and public communications that PASO a
Federal candidate -- because these activities are all
conducted for the purpose of getting voters to the polls and
influencing their choices. See also Final Rules on
Prohibited and Excessive Contributions: Non-Federal Funds or
Soft Money, 67 Fed. Reg. 49,064, 49,070 (July 29, 2002).

The majority opinion's approach also brings into
question the continued validity of the Commission's most
recent advisory opinion on legal defense funds. In the 2002
Democratic primary in Georgia's 4th Congressional District,
Denise Majette defeated Cynthia McKinney. Ms. McKinney's
supporters filed suit challenging Georgia's open primary
system and sought to enjoin officials from conducting the
general election. After Ms. Majette won the general
election, the complaint was amended to seek a special
primary and special general election for the seat won by
Representative Majette. Representative Majette incurred
legal fees extricating herself from this litigation over the
election and incurred additional fees monitoring the
litigation. She sought to establish a legal defense trust
fund to raise money to pay these expenses, and stipulated
that she would accept no more than $5,000 per year from any
individual or organization (including corporations and labor
unions), per House of Representatives rules. The specific
question the Commission faced was whether amounts received
and spent by the legal defense trust fund were funds "in
connection with an election for Federal office" under 2
U.S.C. 441i(e)(1)(A). The Commission determined that 2
U.S.C. 441i(e)(1)(A) did not alter the Commission's prior
treatment of legal defense funds, as set forth in a series
of Advisory Opinions from 1981-1996:15

"There is no indication in the legislative history of
BCRA that Congress intended section 441i(e)(1)(A) to
change an area that is both well-familiar to members of
Congress and subject of longstanding interpretation
through statements of Congressional policy and
Commission Advisory Opinions."16 Advisory Opinion 2003-
15 (Majette).

Furthermore, the Commission determined that since the
lawsuit in which Representative Majette was involved was
"not `in connection with' a Federal election for purposes of
section 441b, it should not be considered `in connection
with' a Federal election for purposes of 2 U.S.C.
441i(e)(1)(A)." Id.

Under the majority's new view of "in connection with an
election," must we now change the law on legal defense
funds? It certainly seems that the litigation at issue in
Advisory Opinion 2003-15 was "related to a Federal
election." The majority's opinion puts the Commission in
the strange position of saying, for example, that money
raised prior to election day for a defense fund related to
litigation over absentee ballot requirements are not limited
under the Act; yet money raised after election day for
litigation related to the validity of absentee ballots
included in a recount are subject to the Act's restrictions
at Section 441i(e)(1)(A).

C. Amending a Regulation by Advisory Opinion

In light of the foregoing, the recount regulations at
11 CFR 100.91 and 100.151 are valid and enforceable and
unaffected by BCRA. Concluding otherwise, as the majority
opinion does, constitutes rewriting Commission regulations,
which, of course, may not be done via the advisory opinion
process. See 2 U.S.C. 437f(b) ("Any rule of law which is
not stated in this Act or in chapter 95 or chapter 96 of
title 26 may be initially proposed by the Commission only as
a rule or regulation pursuant to procedures established in
section 438(d) of this title."); 11 CFR 112.4(e). See also
Advisory Opinion 1999-11, Concurring Opinion of
Commissioners Wold, Elliott, and Mason ("[A]dvisory opinions
are clearly not rules or regulations. Advisory opinions may
address only "the application of [the FECA] . . . or a rule
or regulation prescribed by the Commission." . . .
Subsection 437f(b) is an extraordinary restatement of a
restriction which is clear from the plain reading of
subsections 437f(a) and 438(d): the Commission may not
establish a rule of general applicability through the
advisory opinion process . . . ."). Only by opening a
Proposed Rulemaking as required under the Administrative
Practices Act could the Commission repeal or rewrite its two
existing recount regulations. An Advisory Opinion repealing
or amending an existing regulation is an ultra vires act.

II. COORDINATION BETWEEN STATE PARTIES AND FEDERAL
CANDIDATES ON RECOUNTS

The majority's answer to Question 2(d) is that the
limitations on coordination between federal candidates and
state parties do not apply to recounts. This answer is the
product of an amendment offered at the hearing on the
Advisory Opinion for the sake of garnering a fourth vote to
issue a response to the Requestors. As explained above,
according to the majority opinion, the restrictions of 2
U.S.C. 441i(e)(1)(A) apply to recount funds because
recounts are "in connection with an election for Federal
office." At the same time, however, also according to the
majority opinion, a state party's coordinated spending for a
candidate's recount is not limited because those amount
restrictions apply only to activities that are "in
connection with the general election campaign of a candidate
for Federal office." See 2 U.S.C. 441a(d)(3). In other
words, the majority opinion is based on the odd claim that
while recount activities are "in connection with an
election," they are not "in connection with a general
election campaign." The majority opinion utilizes a liberal
interpretation of the former phrase, but a completely
different interpretation of the latter phrase. The majority
opinion also completely ignores the context of the phrase
"general election campaign" for the sake of manufacturing a
distinction.

2 U.S.C. 441a(d)(3) uses the term "general election
campaign" rather than "election" to describe that
coordinated party expenditures are to be made with respect
to the general election of the party's candidate. The word
"campaign" simply recognizes the fact that party coordinated
expenditures are intended to contribute to the candidate's
campaign for office. The Commission has long interpreted
this phraseology in terms of recordkeeping and accounting.
Under Commission regulations, no coordinated party
expenditures are attributed, regardless of when they are
made, to a candidate's primary election. See 11 CFR
109.34 ("A political party committee authorized to make
coordinated party expenditures may make such expenditures in
connection with the general election campaign before or
after its candidate has been nominated. All pre-nomination
coordinated party expenditures shall be subject to the
coordinated party expenditure limitations of this subpart,
whether or not the candidate on whose behalf they are made
receives the party's nomination.").17 Regardless of when a
party's coordinated expenditure is made, even if it is made
in the year preceding the election year, it is treated as if
it were made with respect to the general election. This
concept cannot be captured by using the term "election"
because that term is defined to include both primary and
general elections. See 2 U.S.C. 431(1). A very simple
explanation exists for why the language of Section
441a(d)(3) differs from Section 441i(e)(1), and it is
absolutely not the case that any meaningful distinction can
be drawn between the terms "election" and "general election
campaign" for purposes of considering the applicability of 2
U.S.C.
441i(e)(1) to recounts.

In any event, if the majority opinion's interpretation
of "in connection with an election" is correct, then its
interpretation of "in connection with a general election
campaign" must be wrong. The majority opinion seeks to have
it both ways. They consider a recount to be "in connection
with an election" when it brings about a desired result
under 2 U.S.C. 441i(e)(1)(A), but not to be "in connection
with a general election campaign" when that conclusion is
necessary to produce a different result. The unprincipled
nature of this argument is obvious. The claim is inherently
contradictory, and has no basis in the law or the
Commission's regulations.

It is also worth noting that although not addressed in
the majority opinion, under the majority's rationale and
view of recount funds with regard to state parties, national
committees of political parties must now also be freed from
the coordinated party expenditure limits with respect to
recounts.

III. PUBLIC POLICY

This Advisory Opinion request required nothing more
than an application of the definition of "election"
contained in the Act and the Commission's existing recount
regulations. While public policy considerations cannot take
precedence over clear statutory and regulatory language, it
is useful to consider, from a public policy perspective, why
the continued application of the existing recount
regulations is in the best interests of the federal election
process and the continued viability of our democratic
process. These considerations offer rationales for why
Congress may not have wanted to overturn the Commission's
recount regulations.

A. Accurate Vote Tallies

The Commission's recount regulations advance an
important public policy goal, one recognized by Congress
when it passed the Help America Vote Act of 2002 ("HAVA"),
Pub. Law 107-252, codified at 42 U.S.C. 15301 et seq. HAVA
was passed by Congress in the wake of the Florida recount in
the 2000 presidential election. Many different task forces
were set up to examine the problems that arose in that
election and to propose solutions, including by
organizations such as the National Association of State
Election Directors. HAVA was intended to provide a
legislative solution for those problems and to improve the
administration of federal elections. Title III of HAVA
provides a set of "Uniform and Non-Discriminatory Election
Technology and Administration Requirements." From the
requirement in Section 301(a)(6) that States define exactly
"what constitutes a vote and what will be counted as a
vote," to Section 302(a) that requires states to provide
provisional ballots to voters whose names do not appear on
registration lists, HAVA was intended to ensure that every
eligible voter is able to vote and that his vote is
accurately counted, particularly in any recount.18 The
purpose in enacting HAVA was to avoid having the kinds of
questions and problems that arose in the 2000 recount occur
again.

The Commission's recount regulations serve the same
important public policy goal of assuring the accurate
tallying of votes - these funds are used to guarantee that
every ballot cast by an eligible voter is counted, and that
no person's vote is lost. Making it more difficult for
recounts to occur by limiting funding when there is a
question over the counting of ballots that have already been
cast in an election that is over damages public confidence
in the legitimacy of the outcome of elections. It will lead
to uncertainty over the actions of elected officials when no
finality is provided to the casting and tallying of the
votes that propelled those officials into office. This can
lead to the appearance of corruption in the election process
when legitimate questions over the validity of election
results cannot be resolved because the funds required to
engage in a recount are not available, particularly to a
challenger.

B. Realities of State Recount Laws

The result of the majority's opinion is that federal
candidates may raise funds for a recount in increments up to
$2,100 per individual donor. A state party committee may
raise up to $10,000 per individual donor for efforts to
assist in a candidate's recount. With these ground rules,
the prudent candidate in what is expected to be a close
election would build a recount fund during the course of the
campaign. However, for many candidates, especially
challengers who lack the fundraising abilities of
established incumbents, this will not be a feasible course
because it will not make sense to set limited funds aside
for a possible recount. How, then, do these realities
interact with state recount laws?

State laws regarding the conduct of recounts vary
widely,19 and many states require the candidate seeking the
recount to make a deposit to cover the costs of the recount.
One of those states, Washington, has been the site of two
recent statewide recounts. In 2000, the Senate election
between Slade Gordon and Maria Cantwell was subject to a
statewide recount, although it did not change the initial
result of the election.20 In 2004, a statewide recount was
conducted for the gubernatorial election. The initial vote
count put the Republican candidate, Dino Rossi, ahead by 261
votes.21 This small margin triggered a mandatory recount,
funded by the state.22 After the mandatory, machine recount,
the first result was unchanged, and Rossi led by 42 votes.
The Washington State Democratic Party, on behalf of the
Democratic candidate, Christine Gregoire, then filed an
application for a second recount, this time manual. Under
Washington law, "an application for a recount must be filed
within three business days after the county canvassing board
or secretary of state has declared the official results of
the primary or [general] election for the office or issue
for which the recount is requested." Wash. Rev. Code
29A.64.011 (emphasis added). A deposit must also be made at
the time the application is filed: "[t]he person filing an
application for a manual recount shall, at the same time,
deposit with the county canvassing board or secretary of
state, in cash or by certified check, a sum equal to twenty-
five cents for each ballot cast in the jurisdiction or
portion of the jurisdiction for which the recount is
requested as security for the payment of any costs of
conducting the recount. If the application is for a machine
recount, the deposit must be equal to fifteen cents for each
ballot." Id. at 29A.64.030.23

The Democrats raised close to $1 million to pay for the
manual recount,24 and posted a deposit of approximately
$730,000 with the Secretary of State to cover the costs.25
Of this sum, however, John Kerry donated $250,000 from
unused campaign funds.26 The fundraising effort was also
assisted by a solicitation from Howard Dean.27 The second
recount, which was not without controversy, changed the
results of the first two ballot tallies, and the Democratic
candidate was certified the winner by a 129-vote margin.28

This real world example allows us to examine the
implications of the majority opinion. It is certainly
possible for a candidate to raise an additional $730,000 in
a very short period after an election, although the
Washington example suggests that at least one very large
donation was essential to the effort. However, raising such
a large amount of money in a short period of time is no easy
task. Presumably, a Federal candidate, who could not rely
on the largess of a single source, would have to return to
his individual donor list, and ask past contributors for
additional funds. In the best case scenario, this candidate
could raise the amount needed from 348 individuals who each
contribute an additional $2,100 to his recount fund. In the
worst case scenario, the candidate would be unable to raise
the funds needed and unable to request a recount.29 Citizens
would never know whether their elected representative was
actually elected. Of course, the candidate could seek
assistance from the state party, which may accept additional
contributions from individuals in amounts up to $10,000.30
However, not every candidate has the backing of his party
structure, and assistance from the party committees is not
available to an independent candidate.

The majority's opinion, when viewed in light of the
Washington experience, raises the very real possibility that
a candidate (and/or the state party) might not be able to
raise the funds necessary to finance a recount, which, in
turn, could have the effect of leaving in place an
inaccurate tallying of votes. An overwhelming amount of
evidence that Congress did not intend the result
manufactured by the majority comes from the language and
history of the Act and Commission regulations. That
evidence is more than sufficient to decide this matter.
However, these policy considerations also serve to highlight
just how unlikely it was that Congress intended to apply the
limitations of BCRA to recount efforts.

IV. CONCLUSION

The majority affects a significant change in federal
campaign finance law with its opinion. For 30 years,
recount activities were governed by Commission regulations,
and candidates for office relied on the Commission's
consistent approach. However, only a month before a Federal
election, the rules have been changed, not by a
Congressional amendment to the Act, or by a properly-noticed
rulemaking, but by an Advisory Opinion. As explained, this
change brings about a misapplication of the law.

The real world impact of this decision remains to be
seen, although recent experience with recounts and the loss
of public confidence in the election process suggests that
the results will not be beneficial. There is now an
increased probability that questions about the validity of
election results could go unresolved due to the unfortunate
- and unwarranted - confluence of state recount laws and
federal fundraising restrictions. I sincerely hope that the
Commission's decision in this matter does not cause denial
of access to a state's recount machinery simply because a
candidate is unable to raise sufficient funds to pay for a
recount. I cannot believe that Congress intended such a
result or that it would be good for our democratic process.

October 20, 2006

______(signed)_______
Hans A. von Spakovsky
Commissioner

_______________________________
1 These recount regulations recognize that the Act's
definition of "election" does not specifically include
recounts. See 2 U.S.C. 431(1); see also 11 CFR 100.2. In
2002, these regulations were recodified without substantive
change from 11 CFR 100.7(b)(20) and 100.8(b)(20), effective
November 6, 2002. See 67 Fed. Reg. 50582 (Aug. 5, 2002).
Prior to 1980, similar provisions appeared at 11 CFR
100.4(b)(15) and 100.7(b)(17). See 45 Fed. Reg. 15080 (Mar.
7, 1980).
2 Advisory Opinion 1978-92 (Miller) cited the then-current
recount regulations found at 100.4(b)(15) and 100.7(b)(17).
In the 1980 recodification of 11 CFR 100.4(b)(15) and
100.7(b)(17) as 11 CFR 100.7(b)(20) and 100.8(b)(20),
respectively, the prohibition on funds from foreign
nationals was added to the regulation. See 45 Fed. Reg.
15080, 15102 (Mar. 7, 1980).
3 As explained in response to Question 2(d), consultation
and coordination between Federal candidates and State party
officials does not result in the making of coordinated party
expenditures under the Act.
4 You do not ask, and this advisory opinion does not
address recounts and election contests relating solely to
State or local candidate races.
5 The only exceptions pertain to disbursements from special
allocation accounts. However, recount activities
exclusively for Federal elections are not allocable
activities.
6 This opinion does not apply to recounts and election
contests relating solely to State or local candidate races.
7 Your request also asks whether, if the State Party is not
permitted to establish a recount fund, the State Party may
use its non-Federal account to pay for recount activities.
While the State Party may use a non-Federal account to pay
for non-Federal recount activities consistent with State
law, the State Party may only establish a recount fund for
Federal races that is a separate Federal account.
8 Your request also asks if the State Party may use a non-
Federal account to pay a Federal candidate's legal expenses
associated with a recount. As explained in response to
Question 2, the State Party may only establish a recount
fund for Federal races that is a Federal account of the
State Party. The State Party may not finance any recount
activities, including payment of attorney's fees for Federal
candidates, from a non-Federal account.
9 Your request also asks what recordkeeping and reporting
requirements would apply to excess recount funds retained
for future elections. This question is also hypothetical.
10 Chairman Michael E. Toner also voted against adoption of
the Advisory Opinion.
11 After BCRA was passed, these regulations were reenacted
and recodified without substantive change, effective
November 6, 2002. See 67 Fed. Reg. 50582 (Aug. 5, 2002).
From 1980 to 2002, they appeared at 11 CFR 100.7(b)(20) and
100.8(b)(20). Prior to 1980, similar provisions appeared at
11 CFR 100.4(b)(15) and 100.7(b)(17). See 45 Fed. Reg.
15080 (Mar. 7, 1980).
12 Advisory Opinion 1978-92 (Miller) cited the then-current
recount regulations found at 100.4(b)(15) and 100.7(b)(17).
In the 1980 recodification of 11 CFR 100.4(b)(15) and
100.7(b)(17) as 11 CFR 100.7(b)(20) and 100.8(b)(20),
respectively, the prohibition on funds from foreign
nationals was added to the regulation. See 45 Fed. Reg.
15080, 15102 (Mar. 7, 1980).
13 See Legislative Recommendations 2004, available at
http://www.fec.gov/pages/legislative_recommendations_2004.ht
m#441ie (visited September 28, 2006) ("The Commission
recommends that Congress amend 2 U.S.C. 441i(e)(1) to
clarify the circumstances in which recall elections,
referenda and initiatives, recounts, redistricting, legal
defense funds, and related activities fall within the scope
of activities that are "in connection with a Federal
election" and are thus subject to the 441i(e)(1)
restrictions.").
14 Similarly, in 1957, the Supreme Court determined that,
under the Taft-Hartley Act of 1947, certain "broadcasts
[that] urged and endorsed selection of certain persons to be
candidates for representatives and senator to the Congress
of the United States" constituted an "expenditure in
connection with any (federal) election." U.S. v.
International Union United Automobile, Aircraft and
Agricultural Implement Workers of America (UAW-CIO), 352
U.S. 567, 584-585 (1957). Obviously, these advertisements
were pre-election activity designed to influence voter
choices.
15 Advisory Opinion 2003-15 (Majette) was approved on August
14, 2003, by a 5-0 vote consisting of Commissioners Mason,
Weintraub, Toner, Smith, and McDonald. Commissioner Thomas
was not present.
16 The majority does not explain why the exact same language
is not applicable in this Opinion.
17 11 CFR 109.34: Section 109.34 is the successor to 11 CFR
110.7 (2002).
18 42 U.S.C. 15481(a)(6), 15482(a).
19 The National Conference of State Legislatures provides an
overview of state recount procedures at
http://www.ncsl.org/Programs/legman/elect/recounts.htm.

20 See
http://archives.cnn.com/2000/ALLPOLITICS/stories/12/01/washi
ngtonsenate.ap/ ("Cantwell wins last unsettled Senate
race").
21 See
http://seattletimes.nwsource.com/html/localnews/2002093547_w
ebguv17m.html ("Rossi apparent winner in governor's race;
recount next").
22 See Wash. Rev. Code 29A.64.021.
23 "The cost of the recount shall be deducted from the amount
deposited by the applicant for the recount at the time of
filing the request for the recount, and the balance shall be
returned to the applicant. If the costs of the recount
exceed the deposit, the applicant shall pay the difference.
No charges may be deducted by the canvassing board from the
deposit for a recount if the recount changes the result of
the nomination or election for which the recount was
ordered." Wash. Rev. Code 29A.64.081.
24 See
http://www.boston.com/news/politics/governors/articles/2004/
12/31/vote_for_governor_in_ washington_certified?pg=full
("But state Democrats raised nearly $1 million to pay for a
full hand recount, as the law allows.").
25 See
http://www.cnn.com/2004/ALLPOLITICS/12/22/washington.governo
r/index.html ("the state Democratic Party put up a $730,000
deposit to pay for a statewide hand recount").
26 See
http://seattlepi.nwsource.com/local/201970_governor02.htm
l ("Former presidential candidate John Kerry contributed
at least $200,000 of unused campaign contributions
yesterday to help fellow Democrat Christine Gregoire keep
the governor's race alive and pay for a statewide hand
recount. `John Kerry really came to our rescue,' said
state Democratic Party Chairman Paul Berendt. `But our
ability to pay for a statewide recount is still subject
to money which is not in. ... We are working to move
heaven and earth to get all of the money we need.'").
The actual amount appears to be $250,000, as Senator
Kerry stated on Meet The Press on January 30, 2005. See
http://www.washingtonpost.com/ac2/wp-dyn/A50306-2005Jan31
("KERRY: I gave $250,000 to Christine Gregoire's recount
in Washington.").
27 See
http://www.king5.com/topstories/stories/NW_120304ELBgregoire
_recountLJ.5cd203b.html ("Much of that money came in after
an appeal was made by Vermont Gov. and former presidential
contender Howard Dean.").
28 See
http://www.boston.com/news/politics/governors/articles/2004/
12/31/vote_for_governor_in_ washington_certified?pg=full
("Vote for governor in Washington certified").
29 In the 2004 Washington recount, Christine Gregoire said
she would concede the election to Dino Rossi if her party
could not afford a full, statewide recount. See
http://www.king5.com/topstories/stories/NW_120304ELBgregoire
_recountLJ.5cd203b.html ("'If they can't raise enough money
to do a statewide recount manual recount [sic], then I'm not
interested in a recount at all,' said Gregoire.")
30 A national party committee could raise up to $26,700 per
individual.