FEC Decision on Fundraising for Redistricting Delayed

May 3, 2010 · 10:45 AM EDT

After three hours of discussion on Thursday, a deadlocked Federal Election Commission postponed until next week an important decision about whether Members of Congress can raise soft money for some redistricting activities until next week.

In March, the National Democratic Redistricting Trust requested an advisory opinion about whether Members are allowed to raise money for the trust, which is handling the legal aspect of the Democrats’ redistricting effort.

On Monday, the FEC released two opposing draft advisory opinions — one that would allow and one that would forbid the trust from using federal lawmakers and candidates to raise unlimited funds for the organization.

After Thursday’s proceedings, it appears that commissioners Matthew Petersen, Donald McGahn, and Caroline Hunter agree with the first opinion that would allow the trust to proceed. Commissioner Cynthia Bauerly agrees with the second opinion, and commissioners Ellen Weintraub and Steven Walther are undecided.

A chunk of the discussion centered on whether redistricting activities are “in connection with” a federal election, a key legal distinction.

“Reapportionment is not drawing maps, it’s who gets how many seats,” said McGahn, a Republican. “If raising money for litigation” and its defense is regulated as a election-related activity, “then is the federal government spending money in connection with a federal election when they are running those Census ads?”

The FEC is expected to decide the matter by May 7.

It is possible that neither opinion garners the four votes necessary to issue an advisory opinion. In that instance, the FEC would not issue an opinion and the trust and other similar groups would be left where they started — without clarity on the issue.

“An advisory opinion is a shield, not a sword,” Democratic attorney Marc Elias told Roll Call before the most recent hearing, about the usefulness of the FEC’s decision when future complaints are filed. Elias filed the request on behalf of the trust.

Republicans are anxiously awaiting the decision as well.

Depending on how the FEC crafts its response to the trust, it could allow Making America’s Promise Secure, a 501(c)(4) that is coordinating the legal and data aspects of redistricting for Republicans, to raise money with Members’ help as well.

A favorable or neutral opinion from the FEC wouldn’t change the strategy for the trust or MAPS, but it could ease the fundraising lift.

The FEC’s decision will not affect the Republican State Leadership Committee’s Redistricting Majority Project or the Democrats’ Foundation for the Future, which are deeply involved in the redistricting process but are organized as 527s.

The next round of reapportionment and redistricting will be the first since the passage of the Bipartisan Campaign Reform Act, which eliminated soft money and therefore is expected to severely limit Members’ involvement in the process.

Alex Knott contributed to this report.