Union Tribune

July 10, 2003

Vote may weigh on Issa role in recall
FEC to address state efforts, fund raising


WASHINGTON In an opinion that could shed light on whether Rep. Darrell Issa broke the law while raising money to recall Gov. Gray Davis, lawyers for the Federal Election Commission yesterday said an Arizona congressman should follow federal law when raising money for a state ballot measure.

The opinion, which the FEC will vote on today, takes on the vexing and debatable question about the extent to which federal lawmakers can participate in state and local campaigns.

If election commissioners agree with their lawyers at today's meeting they will endorse the view that federal lawmakers working on state ballot campaigns which California's recall effort is considered to be can't solicit donations of more than $2,000, nor ask for money from corporations and labor unions.

Those are the requirements of the McCain-Feingold campaign-finance law that Congress passed last year.

An elections commission complaint against Issa, a Vista Republican, alleges the two-term congressman directed money from his real estate company to the recall campaign, and accepted donations larger than $2,000 for his Rescue California committee, the driving force behind an attempt to remove Davis, a Democrat, from office. The elections commission is reviewing the complaint.

Issa's office referred questions to Issa's attorney, Ben Ginsberg, who couldn't be reached.

In an interview last month, Issa said an elections commission opinion in the Arizona case "will have no effect on me at all" because he said he is not soliciting contributions.

"I told (potential donors) that I couldn't solicit money, but that I believed in the recall enough that I was giving my own money to it," Issa said. "If you look at the list of (donors), many of them I've never met in my life."

The McCain-Feingold law, also known as the Bipartisan Campaign Reform Act, bars federal candidates and officeholders from raising soft money, which includes contributions from corporations and labor unions. It also forbids them from soliciting donations larger than the $2,000 federal limit, even for state and local campaigns.

Scholars, campaign watchdogs and lawmakers continue to argue whether the law unconstitutionally injects itself into state campaigns. It might take a coming U.S. Supreme Court ruling to settle the matter. Meanwhile, lawmakers are seeking elections commission guidance.

In March, Rep. Jeff Flake, R-Ariz., asked the commission if he must follow the reform act as he raises money for a state ballot measure that would prevent Arizona from spending taxpayer money on campaigns. Flake believes he should be bound only by Arizona fund-raising laws, which are more lenient than the federal reform act.

Elections commission attorneys concluded in one report that Flake's campaign falls under the federal act definition of an "election," and Flake must follow its fund-raising restrictions. The attorneys urged the six-member commission to adopt this view.

In a second report, the lawyers said commissioners also could conclude the campaign doesn't fall under the federal definition of an "election."

The commission is split along ideological lines, and the second report likely reflects the thinking of its Republican-leaning members, said Larry Noble, a former elections commission attorney who leads the Center for Responsive Politics, a campaign watchdog.

"What you have are three Republicans who don't believe in (the campaign reform act), and they're very vocal about it," Noble said.

Some observers believe today's vote could reflect on Issa and his Rescue California committee, which this week announced it had the nearly 900,000 signatures needed to force the first statewide recall election in California history.

If the signatures are valid, an election would be held this fall or next March, and today's elections commission vote wouldn't affect that process.

"The cases are identical in that both involve a federal officeholder raising money for a committee that is going to be engaged in a state ballot issue," said Adam Morse, an associate counsel at the Brennan Center for Justice, a legal think tank.

Others said Issa's case might be different because Issa will be a candidate to replace Davis should there be a recall. He might be exempt from the campaign reform act if he can establish Rescue California is a vehicle for his gubernatorial aspirations.

"At the most, what this means is that Issa has impermissibly engaged in certain activities in violation" of federal law, said Rick Hasen, a Loyola Law School professor. "But it's not entirely clear that (it) applies to Issa. This area of the law . . . is still evolving."

Issa has spent about $1.15 million of his money on the recall.

Copyright 2003 Union-Tribune Publishing Co.