Sunlight Foundation Reporting Group

FEC likely to OK campaign contributions via text message

In a busy day at the Federal Election Commission, commissioners on Thursday appeared ready to approve a proposal to allow small campaign donations via cell phone carriers, and, in a separate case, said they would a consider whether a congressional challenger's ads for his plumbing company have to be treated as electioneering communications. 

The three Republican commissioners were ready to give the green light to allow small, anonymous donations to campaigns via a text message aggregation service. But a Democratic commissioner, Ellen Weintraub, wanted some questions answered and said she was not ready to vote on it. The FEC has until June 11 to issue its decision and could do so at its next open meeting on June 7. 

For more than an hour, commissioners peppered the attorneys of two political consulting firms and an aggregator of text messaging contributions with hypothetical questions. Weintraub asked how proponents of the measure would prevent contributions via foreign cell phone companies. Foreign nationals are barred from contributing to federal campaigns.  One of the lawyers, Craig Engle of Arent Fox, said he would address that concern by following up with the FEC with written comments. 

The consulting firms, and the text company, m-Qube, Inc., are seeking to allow donations of under $50 by cell phone. 

This would be a potential boon to campaigns. Perhaps that's why both the campaign committees of President Obama and his presumptive Republican opponent, Mitt Romney campaigns wrote the FEC to endorse the proposal. Good government groups also support it, saying it would "reduce the role of unchecked super PACs and corporate special interest spending" by enhancing the opportunities for small donors. 

The way it would work: the contributor would send a text to m-Qube, notifying the company of the contribution. M-Qube would front the costs to the campaign, like a credit card, and then get paid when the customer pays its phone bill at the end of the month. The company would take a portion of the donation as a fee.

One objection raised by Weintraub: what if families conspire, under their family cell phone plan, to donate far above the $50 limit? Mom could be giving $250 to a campaign but have each of her children and spouse pledge $50 through individual cell phone numbers. The response from Republican Commissioner Donald McGahn: there are always opportunities for abuse in any money transaction. But in this case, at such low contributions, having a corrupting influence on campaign is slim. Lawyers noted that donors would still have to attest their donation is lawful—that the money is theirs, and that they're not a foreign national or a corporation. 

Pipe Dream

The Commission was ready to shut down another request by a plumber, running in a six-way race for the GOP nomination in an Oklahoma House race, to continue airing ads for his company without treating them as campaign ads. Despite the fact that the long-running ads do not promote him as a candidate, law says they would still need to be reported to the FEC, Republican Commissioner Donald McGahn said at the hearing.

Still, after hearing the argument of the candidate's lawyer, Jason Torchinsky, the Republican commissioners changed course. The chair, Caroline Hunter, said the lawyer made her rethink her vote and the commissioners will now provide the committee with an answer by Wednesday. The Democratic commissioners remained silent throughout the hearing.

The candidate, Markwayne Mullin, running in Oklahoma's second district, would like an answer fast. His primary is fast approaching on June 26. According to the law, any ad that runs within 30 days of a primary (or 60 days of a general election), mentions a candidate for office and reaches a certain number of district voters would have to be reported to the FEC. 

Because of a recent decision, Van Hollen v. the FEC, the entities behind the so-called issue ads would also have to disclose their donors—in Mullin's case, that would be all of his customers. Torchinsky is also the lawyer for a group challenging the D.C. Circuit Court decision in that case. He is also the lawyer for another committee, the American Future Fund, that is trying to avoid disclosing its donors to the FEC by writing ads that mention the "White House" instead of "Barack Obama." 

After the hearing, Torchinsky criticized the electioneering communications statute, included in the law known as McCain-Feingold. "The statue is written so broadly that is sweeps in everything."

It was a good sign that the commissioners delayed the vote, he added. If they deny his request, Mullin's options include changing the ads, filing donor reports, ignoring the FEC and hoping nobody files a complaint, or seek an injunction against the FEC, he said.

Torchinsky brought up that last option during the FEC hearing. 

To which McGahn sarcastically responded, "Awesome."