Rick Hasen and three others have written an amicus brief supporting the Federal Election Commission (FEC) in the Wisconsin Right to Life case urging the Supreme Court to reverse the lower court ruling.

The district court erred in its most recent opinion by applying a poorly tailored and constitutionally tone-deaf test for separating electioneering communications likely to influence voters' choices in federal elections from those unlikely to have such an effect. It would permit corporate use of treasury funds for speech that falls within the core of the constitutional justifications for BCRA's regulation.

However, Bob Bauer disagrees in his blog www.moresoftmoneyhardlaw.com. The brief offers an as-applied exemption for issue advertising - whether the ad has an "appreciable effect on voters' choices in a federal election," which Bauer argues is too limited. The political circumstances immediately before an election are used to justify the threat to an organization's right to broadcast grassroots lobbying communications, as is protected by the First Amendment. OMB Watch plans to file an amicus brief as done in November 2005.

The Federal Elections Commission (FEC) plans to complete work on nine new regulations this year. The list of priorities includes revising ethics regulations, and implementing congressional changes that limit the use of campaign funds to pay for flights on private air travel. Another new regulation will address "hybrid ads," meaning ads referring to a federal candidate with a party reference. According to BNA Money and Politics; ($$)

FEC Vice Chairman David Mason and Democratic Commissioner Weintraub also discussed other items they would like to see addressed but did not press for them. Mason said that "in an ideal world," he would like to see the FEC consider revision of its current regulation defining "express advocacy." Weintraub said she would like to see the agency work on a new rule tackling the issue of "bundling" campaign contributions, but she said she recognized that this would be difficult with all the other matters the FEC is set to address this year.

BNA Money and Politics ($$) reports today on the latest in the clash between the Federal Elections Commission (FEC) and the sponsors of the Bipartisan Campaign Reform Act (BCRA). Reps. Christopher Shays (R-CT) and Martin Meehan (D-MA) have warned the FEC that what we might see before the 2008 elections are federal candidates relying on corporations, unions, or wealthy individuals to supply unlimited funding for advertising early in the 2008 race. Shays and Martin Meehan have filed a lawsuit objecting to these coordination rules. This is the third lawsuit Shays and Meehan have brought against the FEC, making the case known as Shays III. They have also introduced legislation (H.R. 421) that would eliminate the FEC and replace it with an entirely new agency.

In the 2008 presidential race, the tougher restrictions will not take effect until September, 120 days before the first presidential caucus in Iowa set for next January. Until then, according to critics, the FEC rule allows a presidential candidate to write an ad script, avoiding express advocacy, and send it to a corporation, union, or wealthy individual backer to pay the entire cost of production and air time. That result, critics contend, violates the fundamental legal prohibition against companies and unions financing federal campaigns and the principle that individual contributions to candidates should be limited.

According to BNA Money and Politics ($$), a federal judge has set the end of May as a deadline to complete briefing in the ongoing litigation between the Federal Election Commission (FEC) and Representatives Shays and Meehan. Shays and Meehan reject the FEC's refusal to write a rule on the activities of all 527 groups and the FEC's plan to consider possible campaign finance violations on a case by case basis looking at the actions of each organization.

"Upon consideration of the parties' recommendations for further proceedings, and in view of the urgent nature of the matter, the Court orders the parties to comply with the following briefing schedule regarding defendant's supplemental Explanation and Justification," Sullivan's order said. The order called for all briefing to be completed by May 31, with a possible court hearing after that date.

On February 1, the FEC defended its plan of not issuing a ruling on 527 organizations. In response, Representatives Shays (R-Conn.) and Meehan (D-Mass.) have filed court papers expressing their plans to insist that a federal judge order the FEC to write rules for 527s. The FEC will respond in a February 16 court filing. The lawyers for Shays and Meehan are seeking a schedule to conclude by Mid-May, but the FEC is looking towards mid-July. Given the urgency of the 2008 presidential campaign, groups continue to face legal questions, which a ruling would help subside. According to BNA Money and Politics ($$):

The FEC has said that an "explanation and justification" of its handling of Section 527 groups released Jan. 31 should satisfy an order handed down by Sullivan last March and end the litigation with Shays and Meehan. Sullivan had ordered the FEC either to write a new rule regulating 527s or better explain why it has not done so. The latest FEC document cited regulations adopted by the commission in late 2004 that govern when an organization becomes an FEC-regulated "political committee." The FEC also pointed to several recent enforcement cases in which a half-dozen organizations were cited for violating the FEC rules governing political committees.

The Federal Election Commission (FEC) yesterday unanimously approved a new eight month pilot program that was proposed in November allowing those facing campaign finance enforcement charges to argue their case directly to the FEC commissioners. The commissioners would then vote after these secret meetings whether or not there is "probable cause" in the case. More information can be read in this FEC press release.

Representative Bartlett (R-MD) has introduced H.R. 71, the First Amendment Restoration Act. This bill would repeal the "electioneering communication" provision in the Bipartisan Campaign Reform Act. The "electioneering communication" ban prohibits labor unions, corporations, and nonprofits from sponsoring broadcast advertisements that have any reference to a federal candidate 30 days before a primary election and 60 days before a general election. Bartlett's press release references the Wisconsin Right to Life case that the Supreme Court will hear April 25. As proponents of nonprofit speech rights, OMB Watch is in full support of an exemption for legitimate grassroots communications from the "electioneering communication" ban. Bartlett is quoted in the press release;

The 30-60 day BCRA provision eviscerates the central purpose of the First Amendment's guarantee of free speech — the protection of political speech. This legislation would simply repeal this provision. . . . The 30-60 day provision abridges Americans' First Amendment rights. These are rights and a guarantee for self-government that must be restored to all Americans.

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Posted by Amanda Adams, 01:48:52 PM

Thursday, February 01, 2007