@FACTDC Urges Thorough FEC Investigation of NextGen Super PAC

BEFORE THE FEDERAL ELECTION COMMISSION

Foundation for Accountability and Civic Trust

1717 K. Street, Suite 900

Washington DC 20006

Complainant,

v.

NextGen Climate Action Committee

700 13th Street, NW, Suite 600

Washington, DC 20005

Respondents.

COMPLAINT

Pursuant to 52 U.S.C. § 30109(a)(1), the Foundation for Accountability and Civic Trust (FACT) files this complaint with the Federal Election Commission (FEC or Commission) against NextGen Climate Action Committee (NextGen) to determine if the following activities constitute a serious violation of the Federal Election Campaign Act of 1971 as amended (Act) and Commission regulations. The information contained in this complaint is based on media reports, public records, and information and belief. According to its FEC filings, NextGen made a payment in the amount of $177,817.60 to a federal candidate’s campaign committee. While the purpose of the payment was described as list acquisition, the circumstances surrounding the payment indicate otherwise. Under the Act, if the payment was in excess of the market value of the list, it would be a prohibited contribution to a candidate. The Commission must conduct an immediate and thorough investigation into this action. See 52 U.S.C. § 30109(a)(2); 11 C.F.R. § 111.4(a).

NextGen is a super PAC, i.e. an independent expenditure-only committee registered with the Federal Election Commission. See SpeechNow.org v. Fed. Election Comm’n, 599 F.3d 686, 696 (D.C. Cir. 2010). The Federal Election Campaign Act regulates the types of actions in which a super PAC may engage. See 52 U.S.C. §§ 30101, 30118. A super PAC may make unlimited expenditures advocating for the election or defeat of a clearly identified federal candidate, but those expenditures cannot be made in concert or cooperation with a candidate, a candidate’s campaign, or a political party. Id. § 30101(17). Additionally, a super PAC cannot make contributions to a candidate, which includes the payment of money or providing in-kind contributions. See id. § 30101(8)(A). If a payment is made to a candidate in exchange for goods, the goods must be valued at their “usual and normal charge,” i.e. “the price of the goods in the market from which they ordinarily would have been purchased at the time of the contribution.” See 100 C.F.R. § 100.52(d). The term goods includes a mailing list. Id. § 100.52(d)(1).

Media reports and public filings identify action by NextGen that appears to be contrary to the Federal Election Campaign Act. On February 12, 2015, NextGen made a payment in the amount of $177,817.60 to a federal candidate committee for what it described as “list acquisition.” NextGen Climate Action Committee, Report of Receipts & Disbursements, filed Mar. 20, 2015, pg. 7; see Craig Robinson, Braley’s $177,000 Bailout Courtesy of Tom Steyer, The Iowa Republican, April 22, 2015 (hereinafter Braley’s Bailout) (attached as Exhibit A). The circumstances surrounding and the amount of the payment indicate the payment may have been in excess of the market value of the list. NextGen’s payment was made to a candidate that ran for U.S. Senate in 2014, for whom NextGen had advocated in the election. See Robinson, Braley’s Bailout (explaining NextGen spent $781,326 supporting the candidate and $4.3 million attacking the candidate’s opponent). The payment was made over three months after the candidate lost the general election, but continued to have substantial campaign debt remaining. See Braley for Iowa, Reports of Receipt and Disbursement, filed on Apr. 13, 2015. Media reports described the effect of the payment, “The massive infusion of funds by [NextGen] allowed Braley to pay off all of his campaign debts, which eventually will allow Braley to close down his campaign.” Robinson, Braley’s Bailout. Presumably the list purchased would have primarily included voter data for a single state. However, in another case, the FEC has approved the lease of a nationwide voter list for a lesser amount of $133,841.70. Hillary Clinton, FEC Decision, MUR 6775 (Feb. 12, 2015). Thus, the large amount paid for a smaller list also indicates that it may be above market value.

All of these facts indicate that NextGen’s payment to the candidate was in excess of the fair market value of the list, which would be a prohibited donation to a candidate. A super PAC should not be permitted to make a donation to a candidate under the guise of purchasing a voter list. If this type of behavior were permitted, the rule prohibiting super PACs from donating to candidates would be eviscerated. A candidate could simply incur large amounts of campaign debt leading up to an election, with the expectation that months later a super PAC would ultimately pay off the candidate’s campaign debt.

The public filings and media reports identify evidence that NextGen may have made a prohibited donation to a federal candidate. As such, there is reason to believe NextGen has not complied with the Act’s prohibitions on donations to candidates. The Commission should conduct an immediate and thorough investigation into these allegations to determine if a violation occurred. If it should find violations of the Act, the Commission must then hold the Respondent accountable.

Respectfully submitted,

Matthew G. Whitaker, Executive Director

Foundation for Accountability & Civic Trust

1717 K Street NW, Suite 900

Washington DC 20006