[EL] ELB news and commentary 6/17/11

Fri Jun 17 07:09:55 PDT 2011

It is also worth pointing out that, contrary to some claims that the FEC is "as good as dead," in fact it is alive, kicking, and still causing problems for grassroots politics, political discussion, and the First Amendment.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault 

  Designated Professor of Law

Capital University Law School

303 East Broad Street

Columbus, OH 43215

(614) 236-6317

bsmith at law.capital.edu <mailto:bsmith at law.capital.edu> 

http://www.law.capital.edu/faculty/bios/bsmith.asp <http://www.law.capital.edu/faculty/bios/bsmith.asp> 

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Steve Hoersting
Sent: Friday, June 17, 2011 9:32 AM
To: Rick Hasen
Cc: law-election at uci.edu
Subject: Re: [EL] ELB news and commentary 6/17/11

Nice piece on the Facebook matter.

An interesting thing to note about this internet disclaimer matter is that the disclaimer statute does not extend to internet communications.  Perhaps someone in Congress thought having candidates and committees speaking unimpeded to citizens in a cost-effective, evolving and democratizing medium, like what would become Facebook, was a good thing.

Some at the Commission thought they knew better while writing the disclaimer regs: I won't mention any names.  The lesson here, as in the Facebook matter, apparently, is one of unintended consequences: Heaven preserve us from the goo-goos... of both political parties.

Here is the disclaimer statute (which I have no reason to think has been amended):

2 U.S.C. 441d.

(a) Whenever a political committee makes a disbursement for the purpose of financing any communication through any broadcasting station, newspaper, magazine, outdoor advertising facility, mailing, or any other type of general public political advertising... such communication [shall include a disclaimer].

The inclusio unis est exclusio alterius canon means that if "World Wide Web" is not in the long list, it is not covered.

The ejusdem generis canon means that tacking on "or any other type of general public advertising" does not sweep in known and distinct media like the "World Wide Web."

But Congressmen are stodgy, right?  Certainly they would have included the World Wide Web if only they were hip enough to think of it.

Except that three paragraphs down from paragraph (a), above, Congress said that in those media where disclaimers are required they must include a:

(3) ... telephone number or World Wide Web address

Steve Hoersting

On Fri, Jun 17, 2011 at 1:42 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

"John Edwards Sought Millions From Heiress as Feds Closed In - ABC News Exclusive" <http://electionlawblog.org/?p=19300>  

Posted on June 16, 2011 <http://electionlawblog.org/?p=19300>  by Rick Hasen <http://electionlawblog.org/?author=3>  

See, he's not a candidate anymore and he still wants <http://abcnews.go.com/Politics/john-edwards-sought-millions-heiress-rachel-bunny-mellon/story?id=13861284>  Mellon's millions!  Maybe he wants to show the earlier money was not a contribution <http://www.slate.com/id/2296188/> .

  <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19300&title=%E2%80%9CJohn%20Edwards%20Sought%20Millions%20From%20Heiress%20as%20Feds%20Closed%20In%20%E2%80%93%20ABC%20News%20Exclusive%E2%80%9D&description=%0A> 

Posted in campaign finance <http://electionlawblog.org/?cat=10> , chicanery <http://electionlawblog.org/?cat=12> , John Edwards <http://electionlawblog.org/?cat=17>  | Comments Off 

"Bookmark alert! New redistricting home page and scorecard" <http://electionlawblog.org/?p=19297>  

Posted on June 16, 2011 <http://electionlawblog.org/?p=19297>  by Rick Hasen <http://electionlawblog.org/?author=3>  

The Fix announces <http://www.washingtonpost.com/blogs/the-fix/post/bookmark-alert-new-redistricting-home-page-and-scorecard/2011/06/16/AGsMyVXH_blog.html> three redistricting-related pages.

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19297&title=%E2%80%9CBookmark%20alert%21%20New%20redistricting%20home%20page%20and%20scorecard%E2%80%9D&description=%0A> 

Posted in redistricting <http://electionlawblog.org/?cat=6>  | Comments Off 

"Md. robo-calls: Ehrlich aide, consultant accused of trying to suppress black vote" <http://electionlawblog.org/?p=19294>  

Posted on June 16, 2011 <http://electionlawblog.org/?p=19294>  by Rick Hasen <http://electionlawblog.org/?author=3>  

WaPo reports <http://www.washingtonpost.com/local/dc-politics/md-robo-calls-ehrlich-aide-consultant-accused-of-trying-to-suppress-black-vote/2011/06/16/AGCnv1XH_story.html> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19294&title=%E2%80%9CMd.%20robo-calls%3A%20Ehrlich%20aide%2C%20consultant%20accused%20of%20trying%20to%20suppress%20black%20vote%E2%80%9D&description=%0A> 

Posted in chicanery <http://electionlawblog.org/?cat=12> , electon administration <http://electionlawblog.org/?cat=18>  | Comments Off 

"Real Truth About Obama Challenge Rejected, Disclosure Requirements Upheld" <http://electionlawblog.org/?p=19291>  

Posted on June 16, 2011 <http://electionlawblog.org/?p=19291>  by Rick Hasen <http://electionlawblog.org/?author=3>  

For a change, an FEC regulation gets upheld <http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=1377:june-16-2011-real-truth-about-obama-challenge-rejected-disclosure-requirements-upheld&catid=63:legal-center-press-releases&Itemid=61> :

	Today, the U.S. district court for the Eastern District of Virginia upheld FEC rules that serve to establish federal political committee status and the scope of federal disclosure requirements in Real Truth About Obama (RTAO) v. FEC.  The plaintiff RTAO challenged the much-contested "subpart (b)" definition of "expressly advocating" (11 C.F.R. § 100.22(b)), as well as the FEC's methodology for determining when a group has campaign activity as its "major purpose," an important step in the larger determination of political committee status.

.

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19291&title=%E2%80%9CReal%20Truth%20About%20Obama%20Challenge%20Rejected%2C%20Disclosure%20Requirements%20Upheld%E2%80%9D&description=%0A> 

Posted in Uncategorized <http://electionlawblog.org/?cat=1>  | Comments Off 

Jeff Patch on the FEC and Facebook's Request for an Exemption from Disclosure Rules <http://electionlawblog.org/?p=19286>  

Posted on June 16, 2011 <http://electionlawblog.org/?p=19286>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Here <http://dailycaller.com/2011/06/16/a-setback-for-online-ad-freedom/> , at the Daily Caller.

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19286&title=Jeff%20Patch%20on%20the%20FEC%20and%20Facebook%E2%80%99s%20Request%20for%20an%20Exemption%20from%20Disclosure%20Rules&description=%0A> 

Posted in campaign finance <http://electionlawblog.org/?cat=10>  | Comments Off 

"The People's Business: Disclosure of Political Spending by Government Contractors" <http://electionlawblog.org/?p=19283>  

Posted on June 16, 2011 <http://electionlawblog.org/?p=19283>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Elizabeth Kennedy and Adam Skaggs have written this report <http://www.brennancenter.org/content/resource/the_peoples_business_disclosure_of_political_spending_by_government_contrac/>  for the Brennan Center.  More here <http://www.huffingtonpost.com/adam-skaggs/the-peoples-business_b_878291.html> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19283&title=%E2%80%9CThe%20People%E2%80%99s%20Business%3A%20Disclosure%20of%20Political%20Spending%20by%20Government%20Contractors%E2%80%9D&description=%0A> 

Posted in campaign finance <http://electionlawblog.org/?cat=10>  | Comments Off 

"TV stations more concerned about money than truth in advertising" <http://electionlawblog.org/?p=19280>  

Posted on June 16, 2011 <http://electionlawblog.org/?p=19280>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Meredith McGehee writes <http://thehill.com/blogs/congress-blog/campaign/166923-tv-stations-more-concerned-about-money-than-truth-in-advertising>  for The Hill's Congress blog.

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19280&title=%E2%80%9CTV%20stations%20more%20concerned%20about%20money%20than%20truth%20in%20advertising%E2%80%9D&description=%0A> 

Posted in campaign finance <http://electionlawblog.org/?cat=10>  | Comments Off 

"More procedural hurdles for the appeal of Judge Cacheris' Citizens United ruling" <http://electionlawblog.org/?p=19277>  

Posted on June 16, 2011 <http://electionlawblog.org/?p=19277>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Paul Prados blogs <http://northernvirginialawyer.blogspot.com/2011/06/more-procedural-hurdles-for-appeal-of.html>  on Danielczyk.

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19277&title=%E2%80%9CMore%20procedural%20hurdles%20for%20the%20appeal%20of%20Judge%20Cacheris%E2%80%99%20Citizens%20United%20ruling%E2%80%9D&description=%0A> 

Posted in Uncategorized <http://electionlawblog.org/?cat=1>  | Comments Off 

"Takoma Park, Maryland Tests Online Absentee Voting" <http://electionlawblog.org/?p=19275>  

Posted on June 16, 2011 <http://electionlawblog.org/?p=19275>  by Rick Hasen <http://electionlawblog.org/?author=3>  

That's the lead story in this week's Electionline Weekly <http://electionline.pmailus.com/pmailweb/ct?d=RQTIuwJqAAEAAAMYAAUorA> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19275&title=%E2%80%9CTakoma%20Park%2C%20Maryland%20Tests%20Online%20Absentee%20Voting%E2%80%9D&description=%0A> 

Posted in electon administration <http://electionlawblog.org/?cat=18>  | Comments Off 

"FEDERAL ELECTION COMMISSION ANNOUNCES NEW GENERAL COUNSEL ANTHONY HERMAN" <http://electionlawblog.org/?p=19271>  

Posted on June 16, 2011 <http://electionlawblog.org/?p=19271>  by Rick Hasen <http://electionlawblog.org/?author=3>  

See this press release <http://www.fec.gov/press/press2011/20110616newgc.shtml> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19271&title=%E2%80%9CFEDERAL%20ELECTION%20COMMISSION%20ANNOUNCES%20NEW%20GENERAL%20COUNSEL%20ANTHONY%20HERMAN%E2%80%9D&description=%0A> 

Posted in federal election commission <http://electionlawblog.org/?cat=24>  | Comments Off 

"FEC Green-Lights fund-raising Group for Corn Growers" <http://electionlawblog.org/?p=19268>  

Posted on June 16, 2011 <http://electionlawblog.org/?p=19268>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Jeff Patch has written this article <http://theiowarepublican.com/home/2011/06/16/fec-green-lights-fund-raising-group-for-corn-growers/>  for the Iowa Republican.

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19268&title=%E2%80%9CFEC%20Green-Lights%20fund-raising%20Group%20for%20Corn%20Growers%E2%80%9D&description=%0A> 

Posted in campaign finance <http://electionlawblog.org/?cat=10> , federal election commission <http://electionlawblog.org/?cat=24>  | Comments Off 

ACORN: Federal Funding and Monitoring <http://electionlawblog.org/?p=19266>  

Posted on June 16, 2011 <http://electionlawblog.org/?p=19266>  by Rick Hasen <http://electionlawblog.org/?author=3>  

GAO has released this report <http://www.gao.gov/new.items/d11484.pdf> .  From the executive summary:

	Of 22 investigations and cases of election and voter registration fraud and wage violations involving ACORN or potentially related organizations from fiscal years 2005 through 2009, most were closed without prosecution. One of the eight cases and investigations identified by the Department of Justice resulted in guilty pleas by eight defendants to voter registration fraud and seven were closed without action due to insufficient, or a lack of, evidence. The Federal Election Commission (FEC) reported five closed matters; for one, the FEC reached a conciliation agreement with a penalty. Another matter was dismissed, and FEC found no reason to believe the violations occurred for three matters. The Department of Labor identified eight wage and hour disputes, plus one delinquent reporting of required documentation, all of which resulted in an organization complying or agreeing to take corrective measures to comply with the applicable requirements.

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19266&title=ACORN%3A%20Federal%20Funding%20and%20Monitoring&description=%0A> 

Posted in electon administration <http://electionlawblog.org/?cat=18>  | Comments Off 

Read the FEC Republican Commissioners' Statement on the CU Rulemaking <http://electionlawblog.org/?p=19263>  

Posted on June 16, 2011 <http://electionlawblog.org/?p=19263>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Here <http://www.fec.gov/members/statements/CitizensUnitedRuleMakingStatement_20110615.pdf> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19263&title=Read%20the%20FEC%20Republican%20Commissioners%E2%80%99%20Statement%20on%20the%20CU%20Rulemaking&description=%0A> 

Posted in campaign finance <http://electionlawblog.org/?cat=10> , federal election commission <http://electionlawblog.org/?cat=24>  | Comments Off 

Danielczyk to Be Appealed <http://electionlawblog.org/?p=19256>  

Posted on June 16, 2011 <http://electionlawblog.org/?p=19256>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Lyle reports <http://www.scotusblog.com/2011/06/u-s-to-appeal-campaign-case/> . No opinion today in McComish.

I'll be out all day.  More posts late tonight.

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19256&title=Danielczyk%20to%20Be%20Appealed&description=%0A> 

Posted in campaign finance <http://electionlawblog.org/?cat=10>  | Comments Of

-- 
Rick Hasen
Visiting Professor
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html

William H. Hannon Distinguished Professor of Law
Loyola Law School
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org

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Steve Hoersting
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