On December 18, 2008, two Federal Election Commissioners issued an unusual statement decrying the failure of three Republican members who refused to accept an admission of guilt by a 527 committee for its violations of federal election laws.
In a statement issued by Commissioners Weintraub and Bauerly, they stated:
On October 21, 2008, the Commission failed, by a vote of 3-3, to accept a signed conciliation agreement with the November Fund and Bill Sittman, in his official capacity as treasurer (“The November Fund”), that would have settled violations of 2 U.S.C. §§433, 434, 441a(f), and 441b(a) of the Federal Election Campaign Act of 1971, as amended (“FECA”). We voted to adopt the recommendation of the Office of the General Counsel to accept the signed conciliation agreement. We write to articulate our reasons for doing so and to express our concern about the dramatic departure this result represents from the Commission’s prior enforcement efforts and the law itself.
By way of background, in 2004 the Citizens for Responsibility and Ethics in Washington (CREW) filed a complaint with the Federal Election Commission (FEC) regarding activity by the recently formed 527 organization, The November Fund.
The complaint alleged that the Chamber of Commerce made an illegal corporate contribution of $500,000 to The November Fund, that the Fund is illegally coordinating its activities with the Bush-Cheney ‘04 campaign committee, and that it planned to engage in “electioneering communications,” meaning that within 60 days of the election, the Fund planned to run print and television ads specifically naming Democratic Vice Presidential candidate Sen. John Edwards.
In August of 2004, Ken Rietz, the director of The November Fund, told the Associated Press that the Fund plans to feature Senator Edwards in the Funds’ ads. Chamber of Commerce President Tom Donohue told Lou Dobbs that the Chamber started the November Fund because they didn’t want to see John Edwards involved in the appointments of regulators, appellate judges and Supreme Court justices.”
The two incredulous Commissioners went on to note:
In refusing to accept the signed conciliation agreement, some of our colleagues have suggested that The November Fund’s major purpose was issue advocacy focused on trial lawyers rather than campaign activity to defeat John Edwards. The facts here simply do not support this view. The November Fund’s strategic choice to focus on the fact that John Edwards was a trial lawyer as its vehicle for attacking his candidacy does not negate the fact that its statements and spending show that its major purpose was to defeat the Kerry-Edwards ticket in the November 2004 election. Nothing in its communications or solicitations could be read, for example, as promoting tort reform legislation or any other related issue. Instead, what is clear is that it aimed to prevent a trial lawyer from achieving the “biggest prize of all – the White House.” It is also worth noting that the organization’s choice of ‘The November Fund” as its name leaves little to the imagination about its intent to influence the November 2004 general election.
Somehow this name was not obvious enough for the three commissioners who refused to sign off on the FEC General Counsel’s recommendation.
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