A New York Times editorial praised a court's decision denying the Real Truth About Obama's (RTAO) request to block Federal Election Commission (FEC) campaign finance rules. The editorial states; "The wholesale descent into Swift Boat campaigning has been blocked - for now - by a federal judge in Virginia."

If the group were to win on appeal, it would signal open season for countless stealth groups to flood the remaining weeks of the campaign with underhanded attack ads. [. . . ] Posing as a mere 'issue advocacy' operation, the group's ad attacks Mr. Obama's character and accuses him of 'lying' about his abortion record. In truth, it trashes the candidate's nuanced position.

In response the Center for Competitive Politics (CCP) states; "the RTAO issue offers a good example as to why we should not fear the advocacy efforts of outside groups. While RTAO believes that Obama's position on abortion is wrong, many other groups and the Obama campaign itself thinks that Obama's abortion position is correct."

The question of issue advocacy, as the New York Times brings up, should be left alone because the court had to decide whether or not to grant the group protection in case the FEC were to consider the group a political committee. The issues are a bit muddled, and each of these reactions, a bit zealous.

We reported when the Real Truth About Obama Inc.'s (RTAO) preliminary injunction request was denied. RTAO appealed the case and it is now before the U.S. Court of Appeals for the Fourth Circuit. BNA Money and Politics ($$) reports that the Federal Election Commission (FEC) and the Department of Justice (DOJ) have until Sept. 24 to respond to a bid for an injunction request to block enforcement of campaign finance rules. RTAO is challenging restrictions on independent political groups. The group plans to run issue ads examining the Democratic presidential candidate's position on abortion, and do so by raising unlimited contributions.

Attorney James Bopp of the Indiana-based firm Bopp Coleson & Bostrom, along with other attorneys for RTAO, filed a motion Sept. 17 with the Fourth Circuit, asking for injunctive relief pending their appeal of the district court decision by U.S. District Judge James Spencer. RTAO claims it has a First Amendment right to run advertising that attacks Democratic presidential nominee Sen. Barack Obama (D-Ill.) on the abortion issue and accuses him of "lying" about his record on the issue. Funding for the proposed ads would be restricted however, by FEC rules and possible enforcement action by the FEC or DOJ, the group says.

The Federal Election Commission (FEC) held a hearing on how to implement a new requirement that all federal candidates, parties and political committees report any registered lobbyists or lobbying entities who engage in bundling of campaign contributions. The Honest Leadership and Open Government Act required the FEC to create a rule for the disclosure of bundled lobbyist contributions worth $15,000 or more.

The FEC heard from two panels at the public hearing. The FEC must decide some questions that will determine how much bundling activity will be disclosed. According to BNA Money and Politics ($$) those issues are;

• which contributions are properly credited to a fund-raising effort by a lobbyist;
• how to report money raised at a fund-raising event hosted by multiple lobbyists; and
• whether money raised by an agent of a lobbying organization, who is not a lobbyist, should be reported.

RollCall ($$) reported that "the discussion dealt with how campaigns credit lobbyists for campaign contributions and whether lobbyists and fundraisers would try to circumvent the law by increasing the number of lobbyists sponsoring an event — to ensure that the event would not trigger the $15,000 threshold." And "some advocated for the broadest possible definition of assigning credit for lobbyist bundling."

The new bundling rule will not likely be finished in time to effect the upcoming election. More information on the hearing and witness testimony is available here.

On September 12, 2008, the D.C. Circuit Court of Appeals heard oral argument in National Association of Manufacturers (NAM) v. Taylor. NAM is challenging a provision (Section 207) in the Honest Leadership and Open Government Act (HLOGA) that requires a lobbying coalition to disclose members that fund and actively participate in the coalition's lobbying efforts. NAM's argues that the HLOGA provision violates the First Amendment and is unconstitutionally vague. NAM is appealing a lower court decision that upheld the requirements.

According to BNA Money and Politics ($$), "the court gave little indication of whether the new law would be upheld as constitutional."

[Lawyers representing the Justice Department and the Secretary of the Senate] emphasized that HLOGA calls for penalties only for those who knowingly try to avoid disclosure--not those who make honest mistakes. DOJ attorney Nicholas Bagely said the Supreme Court has upheld laws designed to bring transparency to lobbying in order to increase public confidence in the government. He noted that the high Court has said disclosure can be avoided in cases where an organization's members might face retaliation for their political views, but NAM has offered no evidence that it faces such a risk. Thomas Caballero, the Senate legal counsel, said HLOGA made clear that it requires associations to disclose only those organizational members who plan and control their lobbying efforts.

A decision is not expected for several weeks. More information available from NAM .

The National Right to Work Legal Defense Foundation (Foundation) filed suit challenging three state statutes that define "corporation," "political issues committee," political issues expenditure," and "impose disclosure and reporting requirements on all organizations that make campaign related expenditures."

The case was brought as a result of a new law entitling Utah youth to school vouchers. Some teachers, who felt they were being pressured by labor unions to sign petitions opposing the new law, contacted the Foundation. The Foundation issued television and radio advertisements advising teachers and school employees to contact them for free legal aid if the teachers or school employees feel pressured.

Utah's Lieutenant Governor sent the Foundation a letter requiring them to file a "corporate financial report of political issues expenditure." While the Lieutenant Governor did not determine that the Foundation was a political committee, he determined that ads "constituted political issues expenditures."

The United States District Court for the District of Utah ruled that the statutes are valid in certain instances, but not as applied to the Foundation. The statutes must be "narrowly construed to apply only to those expenditures that unambiguously relate" to enacting or defeating a ballot measure. The Foundation's ads did not "expressly advocate for the enactment of school vouchers" and they are not the "functional equivalent of express advocacy as defined by Supreme Court precedent."

James Bopp, Jr., lead counsel for the Foundation, said, in a Press Release by the James Madison Center for Free Speech, "[t]his is a decisive victory for the First Amendment."

The Associated Press reports that U.S. District Judge James Spencer denied the Real Truth About Obama Inc.'s preliminary injunction request.

It was difficult to know how the judge might rule because he asked no questions and made virtually no comments during a nearly hour-long hearing on a bid for an injunction to block the FEC rules. If Spencer strikes down FEC rules on advocacy groups--including contribution limits--the move could open the floodgates for an infusion of high-dollar donations from corporations, unions, and wealthy individuals. That could elevate the importance of such organizations in the final two months of the presidential election.

For more about this case read the Aug. 19, 2008 OMB Watcher Anti-Obama Group Seeks Exemption from Campaign Finance Rules.

The Federal Election Commission (FEC) will hold a public hearing Sept. 17 on proposed bundling rules for reporting contributions bundled by lobbyists, lobbying organizations, and the political action committees of lobbyists. The FEC will hear from some of those who commented in writing on the proposed rule issued Nov. 2007.

The Honest Leadership and Open Government Act called on the FEC to write a rule on bundling, requiring for the first time disclosure of campaign funding that is collected by a lobbyist from other contributors and passed along to a candidate. An important component is whether the law will cover only registered lobbyists or all employees of organizations that lobby Congress, including senior officials. The commission was not able to follow through with the rulemaking process because of the controversy that ensued over confirming new FEC commissioners.

The new rule is not expected to be written in time for the public to see bundling activity for this election, but may provide increased disclosure in future elections. According to BNA Money and Politics ($$), Chairman Donald "McGahn said that simple math dictated that there were not enough days left in the 2008 campaign season for the bundling rule to be completed in time. Even if the FEC promptly finished the rulemaking process, the law that calls for bundling disclosure requires a three-month waiting period before a new rule could actually go into effect."

On Sept. 5 Ohio Southern District Court Judge George C. Smith ruled to allow the Ohio Right to Life Society (ORTL) air advertisements mentioning the name of a political candidate within 30 days of an election. The decision prohibits the state of Ohio from enforcing a state campaign finance law restricting corporate funding of messages that mention a candidate in the weeks before an election (electioneering communications) as it related to the two specific ORTL ads at issue. The judge denied their request to also block enforcement of provisions requiring disclosure of those who fund the ads. ORTL planned to run ads June 2008 through December 2008 on Ohio Senate Bill 174, which would generally ban the practice of human cloning in Ohio. The preliminary injunction decision protects ORTL, allowing them to run these ads while the case is pending.

The Los Angeles Times reports that eight members of a group planning protests at the Republican National Convention in Minneapolis have been arrested by the Ramsey County Sheriff's Department and charged with conspiracy to commit terrorist acts. According to the article, the group planned to block traffic and "considered barricading bridges, spraying delegates with urine and possibly kidnapping delegates." The charges could result in prison sentences of up to five years and fines of $10,000 or both.

A trial on these charges will raise important issues about the definition of terrorism and how it can or should be distinguished from free speech, including protests. OMB Watch raised concerns about political use of Patriot Act powers in this 2001 report. We will continue to track this case and report on new developments.

Posted by Kay Guinane, 12:54:27 PM