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Friday, December 22, 2006
2006 started with a Supreme Court decision that allowed the Wisconsin Right to Life Committee (WRTL) to challenge the constitutionality of the McCain-Feingold rule that barred them from airing grassroots lobbying ads about judicial nominations 60 days before the 2004 election. The case was sent back to a lower court to decide if the facts in WRTL's situation entitled it to an exemption from the ban.
On Dec. 21 the three judge district court found that WRTL did not violate the prohibition in campaign finance law that bars use of the group's treasury funds for communications that expressly advocate election or defeat of federal candidates because the ad was about a genuine public policy issue, did not refer to the election and did not have language promoting or attacking a federal candidate. The court rejected arguments that they should look beyond the content of the ad and consider WRTL's intent in airing it, saying they do not believe "the speculative conjecture of experts can actually project the 'likely' impact of a given ad on the electoral process."
The case is likely to end up back in the Supreme Court and be decided before the 2008 primary season begins. While the results only apply to WRTL and do not create an exemption for all grassroots lobbying ads, the outcome is likely to have an impact on other courts and Federal Election Commission, which rejected a proposed exemption for grassroots lobbying earlier this year, saying it would wait for guidance from the courts.
The case is part of a long standing debate on the need to regulate use of soft money in federal campaigns. It has pitted first amendment rights against the need to protect the election process from corruption, with little dialog about finding a balanced approach. This decision recognizes the importance of people's right to engage in grassroots lobbying, and the dangers of government trying to go beyond actual statements and read minds to determine the "intent" of a communication.
See the court's opinion For information see an analysis that agrees with the court see Bob Bauer's blog, and this blog posting by Prof. Rick Hasen.
Thursday, December 14, 2006
Earlier in the week Roll Call (subscription required) reported that the Federal Elections Commissioned (FEC) was likely to fine some 527 groups involved in the 2004 campaign. Yesterday, the FEC fined three 527 groups, Swift Boat Veterans, the League of Conservation Voters and MoveOn.org’s Voter Fund, after determining that the organizations violated requirements to register as political committees. The groups registered with the IRS as 527s which bars them from express advocacy, but the FEC determined that their large donor funds set involvement in campaign activity as their major function. As covered in the New York Times; "The agency found that some of the groups’ activities crossed the line by soliciting donations and then spending the money with the express purpose of electing or defeating particular federal candidates." The Washington Post and USA Today also reported on this story. Perhaps to prevent further confusion, the FEC could make clear rules on the regulation of 527s. Blogs of differing campaign finance angles respond; Center for Competitive Politics a group critical of campaign finance regulation and the reform group Campaign Legal Center.
Tuesday, December 12, 2006
The National Association of Realtors (NAR) has proposed that state associations send a larger portion of individual contributions to the NAR, in turn lowering the amount of money going to the state political action committee. In exchange, the NAR will give an equal amount of money from its treasury account to the state association. NAR had asked the Federal Elections Commission (FEC) whether this proposal would be permitted. Other similar groups are interested in ways to expand the ability to raise hard money.
The National Association of Realtors asked for an advisory opinion from the FEC (AO 2006-33) regarding a proposal to pay money directly from the corporate treasury of the national trade association to state associations affiliated with the national group. The payments would be made to encourage state associations' PACs to provide more hard money from individual members to the national realtors' PAC. The FEC draft concludes that the proposed arrangement would amount to a trade of corporate "soft money" for hard money and is prohibited.
BNA Money and Politics (subscription required) details this case while this blog entry from the Center for Competitive Politics disagrees with the FEC's decision.Update: BNA Money and Politics reports that the FEC commissioners voted against the draft's conclusion. "Rejecting advice from the agency's staff attorneys, the Federal Election Commission voted 4-2 Dec. 14 to allow a national trade group to finance "hard money" fund-raising efforts by its state affiliates to benefit the national group's political action committee."
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