How Much Have We Lost?

Sunday, July 28, 2013

New Opinion Highlights Virginia Campaign Finance Loopholes

In Virginia, General Assembly members and statewide officeholders are prohibited from fundraising during session.  The main purpose of this is so that decision-makers cannot press groups for campaign contributions while legislation and votes are pending like they can in Congress.  In theory, it also cuts down on grandstanding during session where leaders can pick fights on issues just to get press and raise money.  Most people think this prohibition is a good thing.

Jeff Schapiro with the Richmond Times Dispatch has a column in today's paper in which he said.
The Republican nominee for governor may have a new objective, though he doesn’t seem to be telling many people: Scuttling Virginia’s 16-year-old ban on campaign fundraising during the annual legislative session.
I hope that's not the case. 

Back in 2012, a state senator from Virginia Beach was interested in hosting a Romney fundraiser during our session.  Attorney General Ken Cuccinelli issued an Attorney General's Opinion holding that the statutory prohibition on General Assembly and Statewide Officeholders fundraising during session did not apply to solicitations on behalf of presidential candidates.  In 2010, he had issued a previous opinion giving a sitting state senator the green light to raise money to run for Congress.  He ended up winning. 


I had been thinking about this, because around the same time, I told a friend running for Attorney General in another state that I could not help him raise money with some of our law school classmates because of the prohibition.  His primary was in May so he was raising lots of money during our session. 

After reading the 2012 opinion, it occurred to me that the Attorney General's legal rationale not only made it acceptable to raise money for Presidential candidates, but it could create an exception large enough to drive a train through.  So I asked the Attorney General for an opinion to clarify the law so the legislature could look into remedies.  He confirmed my suspicion and you can read his opinion here

Broadly speaking, there are two political campaign finance regimes in Virginia.  Money raised into federal campaign accounts are governed by one set of laws and money raised into most other accounts are governed by state law.  There are also some federal laws that apply at the state level - such as the prohibition on fundraising from non-citizens. 

Many state and local parties maintain both federal and state campaign accounts because they support candidates at both levels.  However, money from a federal account can be spent on a state campaign.  Some state money, but not large amount, can be spent on federal campaigns by state and local committees due to the recognition that state campaign activity does not simply cease during federal elections. 

Therefore, according to the Attorney General's Opinion, a legislator, Governor, Lieutenant Governor or Attorney General, can solicit funds during session for the Democratic Party of Virginia, Republican Party of Virginia, or any local party committe's federal campaign account so long as they stay within federal campaign contribution limits - $2500 for individuals or $10,000 in some cases.  They can also solicit corporations on behalf of Independent Expenditure Only Committees - IEOC's or as the media calls them "Super PAC's."

Federal campaign money or "hard money" can actually be sold or traded between committees for soft money because it is harder to be raised.  Also because there is no prohibition on whether federal money is spent on state campaigns, this rationale blows a huge hole in Virginia Law and by turning Virginia's fundraising prohibtion into swiss cheese. 

I will be thinking about solutions for this to introduce next session if I am re-elected, but given the rationale in the opinion - that state government is pre-empted by Federal Law - that often means state government cannot do anything because we would basically be trying to nullify federal law (although many of my colleagues like to do try that all the time). 

I am going to continue looking into this.  If anyone has any ideas, post them up.

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