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As promised a month ago and explained on Monday, I'm sending this (or something close) to the Federal Election Commission today:

To the Commission:

On behalf of my clients Markos Moulitsas Zúniga ( and BlogPAC, a federal political action committee dedicated to supporting netroots-friendly candidates and building an online progressive infrastructure, I wanted to offer these brief comments regarding your draft advisory opinions on ActBlue.

Draft AO 2007-31:  Judge Learned Hand once wrote that "There is no surer way to misread any document than to read it literally ... As nearly as we can, we must put ourselves in the place of those who uttered the words, and try to divine how they would have dealt with the unforeseen situation; and, although their words are by far the most decisive evidence of what they would have done, they are by no means final."  This draft opinion, requested by the Edwards campaign, surely has made the same error cautioned against by Judge Hand, privileging the cold text of 11 CFR 9034.3(f) over any reasonable interpretation of its intent.

Obviously, while ActBlue is a "political committee" in the strictest sense of the term, in reality it does not act as such.  ActBlue is a conduit for individual contributor preferences, to track and aggregate small-dollar contributors.  It asserts no control over the recipients of its funds; the site’s only criteria is that the recipient be a Democrat. It fulfills FECA’s anticorruption goals by reporting contributors’ names, addresses, employers, and occupations to campaign, which in turn provide that information to the Commission as is legally required.

This is a clear a case as any of reformers accomplishing via technology what law alone cannot do: leveling the playing field between moneyed interests and small-dollar contributors by allowing anyone to become a "bundler", and to allow such contributors to have visual, real-time confirmation of their impact upon the process.  In the same way that the public financing system itself is designed to encourage and magnify the impact of small-dollar contributions, ActBlue facilitates those contributions occurring in the first place.  

The regulation in question, 11 CFR 9034.3(f), was implemented at a time when tracking of individual contribution was much more difficult than it is today, and there is no danger of ActBlue becoming a conduit for above-limit contributions given the technological advances which allow for heightened transparency and scrutiny of all contributions.

There is no conceivable purpose for campaign finance law that would be served by treating the ActBlue contributions as not-matchable under the law, as ActBlue presents none of the concerns articulated by the groups otherwise covered by 11 CFR 9034.3(f), and for these purposes is more akin to a credit card processor than any other entity.  This is technology being used to encourage small-dollar contributions which are at the heart of reforming our campaign system, and to treat it as "dirty money" seems ludicrous.  Nothing distinguishes these from any other small-dollar contributions other than the website through which they were sent.  The Commission should reject the draft opinion and allow the Edwards campaign to seek matching funds for contributions transmitted by ActBlue.

Draft AO 2007-27:  Regarding ActBlue’s desire to solicit contributions for restricted SSFs, we urge the Commission to adopt Draft A, the more permissive version.  Under Program 1, grassroots donors should be able to contribute to PACs whose objectives they support, and allowing ActBlue to serve as a conduit for such contributions does not implicate any of the policy concerns underlying the restrictions regarding SSFs.  The same source prohibitions and contribution amount limitations will be enforced, and no SSF funds will be expended outside the class.

There is no reason to prevent grassroots donors from contributing to PACs whose objectives they endorse.  Based on our experience with the netroots community, we are confident that grassroots donors would use ActBlue’s Program 1 to support such groups, and that doing so serves the best interests of a healthy political process.  

Conclusion: Over the past few years, this Commission has shown tremendous sensitivity to the ways in which technology has transformed the terrain for campaign finance regulation, and has consistently taken an approach which encourages innovative efforts to encourage grassroots political activity through the Internet.  For those efforts to continue, we urge the Commission to reject Draft Opinion 2007-31 and approve Draft A for Opinion 2007-27.  

* * *
[Okay, I haven't explained the other ActBlue-related request at all yet.  Basically, it would allow ActBlue to act as a conduit for donors outside of a union or not working for a corporation to make contributions to union or corporate PACs, as well as allowing ActBlue to act as an intermediary to collect such money from members/employees. It's a very good idea.]

If you agree with us on this, you have a few options:

  • Lots of people have already emailed their own comments.  Send yours to Commission Secretary Mary Dove at, and either use your own words, borrow some of ours, or just tell them you agree with us.
  • If you're old-school, such comments can also be submitted by fax machine to the Secretary at (202) 208-3333 and to FEC's Office of General Counsel at (202) 219-3923, which may make them more likely to be read.
  • The Edwards campaign is organizing its own efforts.  Find out about it here.
  • So, too, is Public Campaign, a great grassroots organization dedicated to public financing of elections.
This isn't about supporting the Edwards campaign -- I've made my feelings clear on that subject.  It's about protecting ActBlue and the public financing system, and pushing for a legal regime which respects technological innovation.  Please join us in this fight -- you only have until noon on Thursday to submit comments.

Originally posted to Daily Kos on Wed Dec 12, 2007 at 11:28 AM PST.

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Comment Preferences

  •  Excellent letter, Adam (13+ / 0-)

    Thanks for your work on this, it's to the benefit of all of the netroots/grassroots.

  •  Let me know if you have questions (17+ / 0-)

    As we demonstrated a few years ago, the FEC really does listen to your comments.  Join in.

  •  good job - and another point (5+ / 0-)

    or question -  since Act Blue was also serving as a conduit in the 2006 cycle when no opinion was requested, would not ruling that they fully met the category of a political action committee not mean that the FEC would have to retroactively rule all of the pass through contributions in that cycle in excess of 10,000 for candidates who won their primaries and 5,000 for those who lost primaries as illegal excessive contributions?

    Not saying this should be part of your letter, but it is an issue that occurs to me.  Interested in your take, since IANAL.

    Those who can, do. Those who can do more, TEACH! If impeachment is off the table, so is democracy

    by teacherken on Wed Dec 12, 2007 at 11:35:14 AM PST

  •  Regardless of Which Candidate We Each Support (5+ / 0-)

    it is vital to ensure that contribution made via ActBlue (and similarly-structured aggregators) not be formally deemed unmatchable.

    The key word regarding these contributions would appear to be "via", which should clearly show that for these purposes, the organization is nothing more than a conduit, not an entity which acts on its own or on behalf of a specific set of interests.

  •  You Forgot to Call Them Idiots (2+ / 0-)
    Recommended by:
    NCDem Amy, Predictor

    A few gratuitous obscenities would spice it up, too. Other than that, it's a very well written letter. It makes us crazy lefties sound almost resonable.

    Oh, and don't take everything I say literally. But you didn't need Judge Leonard Hand to tell you that.

    "Vice President Cheney is expanding the administration's policy on torture to include tortured logic" Sen. Dick Durbin D-IL

    by Tuba Les on Wed Dec 12, 2007 at 11:43:33 AM PST

  •  Thanks Adam (6+ / 0-)

    This is an important issue that goes beyond a candidate, your efforts are very commendable. This is what Democracy is about. We don't have to agree on everything, but some things rise above politics.


  •  Thanks, Adam (6+ / 0-)

    Last month, while browsing through a used bookstore in Maryland, I picked up a great collectible book that contained copies of the papers and addresses of Learned Hand.

    In these days of George W., I love Judge Hand's statement that "Liberty is never being too sure you're right."

    Never before has that statement rung out as so clear and true.

    ..(A friend of mine who's done genealogical research on his family often teases me about a  name he found in his family tree, reminding me that a Learned Hand may be nice but a "Bigger Head" is also interesting.  :)

    Thanks for sharing your work and opinions with us.

    •  May 1944 speech (4+ / 0-)
      Recommended by:
      Iddybud, Tracy Joan, edgery, NCDem Amy

      What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it...

      What is this liberty that must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not the freedom to do as one likes. That is the denial of liberty and leads straight to its overthrow. A society in which men recognize no check on their freedom soon becomes a society where freedom is the possession of only a savage few — as we have learned to our sorrow.

      What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.

  •  Thanks for the comment to the FEC. (5+ / 0-)

    And for posting on DailyKos on this issue.  It is important to all of the netroots, Democrats, and ActBlue.

    The JSamuel Irregular
    This is going to be an election, Tim, it's not going to be an auction. - JRE

    by jsamuel on Wed Dec 12, 2007 at 11:49:29 AM PST

  •  In effect they're trying to change the rules (0+ / 0-)

    of the game after the first quarter's been played. It was marginally more convenient for me to donate through ActBlue than directly to the Edwards campaign (and it also allowed me to acknowledge the efforts of one of our Kossack Edwardsians, which was a nice thing to be able to do). Had I the slightest inkling that those contributions would not be matchable, I would have donated to the campaign directly, and I have no doubt that the vast majority of Edwards ActBlue donors would have done the same.

    This pernicious draft opinion is essentially a sneaky attempt to retroactively disenfranchise me and all other Edwards ActBlue contributors. The Bill of Rights (remember that?) doesn't have much use for ex post facto laws, and this opinion should be rejected in that spirit.

    May I bow to Necessity not/ To her hirelings (W. S. Merwin)

    by Uncle Cosmo on Wed Dec 12, 2007 at 12:09:17 PM PST

    •  I don't think that's a fair assessment (2+ / 0-)
      Recommended by:
      Aexia, Yoshimi

      The regulation has been in place for years, and the Edwards campaign has stated (IIRC) that they've been aware of it.  The Edwards folks forced the issue now by seeking the advisory opinion to clarify what it can seek via the match.  The question might be this: given this uncertainty, should they have (a) sought an advisory opinion sooner or (b) stopped using ActBlue once the campaign believed it might be seeking public financing?

      •  they may have been aware of it, but I was not. (0+ / 0-)

        I know ignorance of the law is not excuse but I don't see a reason not to fix this.

        You keep using that word. I do not think it means what you think it means. - Inigo Montoya

        by YD on Wed Dec 12, 2007 at 10:19:04 PM PST

        [ Parent ]

    •  that was basically my comment to the fec... (0+ / 0-)

      "I have donated to multiple campaigns using the ActBlue pages.  I have never thought of myself as donating to ActBlue but as using them to facilitate my donations to campaigns.  The convenience has made it much easier for me to make these donations and fully participate in our democracy.  It would be a shame if this increased accessibility came at the cost of federal matching funds for candidates.  It is and unreasonable and unnecessary choice.  In this age of high money races those who take matching are already tying one hand behind there back, to take away those funds on a technicality clearly not in keeping with the spirit of the intent of the law is tie the other hand, making their quest that much more quixotic."

      we will see if it helps.

      You keep using that word. I do not think it means what you think it means. - Inigo Montoya

      by YD on Wed Dec 12, 2007 at 10:17:49 PM PST

      [ Parent ]

  •  Thanks for the strong comment letter (2+ / 0-)
    Recommended by:
    MsSpentyouth, NCDem Amy

    This issue transcends any particular candidate.

    If the intent of the law underlying the regulations is to promote greater participation by the general public and to encourage small dollar donations, then a literal reading of a 30 year old regulations is the wrong approach.  As you say quite well, Act Blue facilitates the intent of the public campaign financing system and the only difference between my using Act Blue to contribute or a candidate's own site is the web address.

    Let's hope that the Commission responds to the public outpouring of concern, as they have done on occasion in the past.

    "an election, not an auction." John Edwards

    by edgery on Wed Dec 12, 2007 at 12:28:28 PM PST

  •  Adam, is this similar to a brief? (0+ / 0-)

    How does the committee work?

  •  Thanks for putting all this together, Adam! (0+ / 0-)

    Thank you for sharing your letter, the PDF compilation of other letters, and the whole shebang.  

    Made it easy for me to write my own letter and contribute to the cause.  

  •  Thanks, Adam (1+ / 0-)
    Recommended by:
    Adam B

    Sent my letter off yesterday.

  •  What are you feelings on Edwards? (0+ / 0-)

    Anyhow, Learned Hand! HAHA!

    I remain convinced that part of the reason he's in the casebooks is his name, but he was a damned intelligent judge too.

    There's something attractive about invincible ignorance... for the first 5 seconds.

    by MNPundit on Wed Dec 12, 2007 at 02:54:19 PM PST

  •  Thanks for the reminder, Adam (1+ / 0-)
    Recommended by:
    Adam B

    I had forgotten to do this, but just sent the following:

    Dear Ms. Dove:

    I am an active volunteer for Barack Obama, and my candidate would probably benefit from a ruling denying matching funds to John Edwards because of the intermediary role played by in collecting many of his individual donations.  Nevertheless, I think it would be contrary to the clear spirit of the public financing laws to deny public funds to the Edwards campaign for that reason. has played a valuable role in encouraging and enabling small donations to many campaigns, and our political system would be greatly improved if such contributions were encouraged.  There is no reason, in the spirit of the public campaign financing laws, to deny matching contributions to a campaign simply because it has collected individual contributions through an intermediary organization such as


    "Those who would sacrifice liberty for security deserve neither liberty nor security." -Ben Franklin

    by leevank on Thu Dec 13, 2007 at 07:34:22 AM PST

  •  Done. And thank you. eom (1+ / 0-)
    Recommended by:
    Adam B

    "You can lead a horticulture, but you can't make her think." -- Dorothy Parker, who knew someone like Jeff Gannon

    by PDiddie on Thu Dec 13, 2007 at 08:27:25 AM PST

  •  Why did the Edwards Campaign ... (0+ / 0-)

    Does anyone know why the Edwards campaign sometimes direct people to contribute through ActBlue?

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