[EL] Quick Question on Super PACs/Briffault

[Steve Hoersting]

Marty,

There is a big event that must be accounted for to understand the need for
the Super PAC litigation.  Before that line of cases, 527 organizations
could, as you note, run all of the independent candidate-focused ads they
wanted -- so long as they avoiding McCain-Feingold's "electioneering
communication" funding restrictions of then-recent vintage.

So what was the event?  In the white-heat of the 2004 Presidential
election, and with the reform organizations breathing down the neck of FEC
Commissioners, the Commission took it upon itself -- remember no 527 ban
could pass the Congress -- to "do something" about the outside
organizations certain to swamp the national party committees newly deprived
of soft money and rightly unhappy about it.

The Commission, first in a 2004 Rulemaking on the definition of "political
committee," 1) expanded the definition of "expenditure," leaning again the
discredited 11 CFR 100.22(b) [made more clear in an 2007 E&J clarification]
and 2) broadened what would constitute a "contribution," stretching beyond
recognition a Second Circuit case known as *Survival Education Fund.*
These two moves vastly expanded the Commission's ability to sweep
heretofore unregulated 527s into the ambit of "political committee."

Here is the problem: The rulemaking swept in independent organizations that
could not, as a matter of jurisprudence, possibly have created a
threat of *quid
pro quo* corruption.

Enter the court cases *EMILY's List v. FEC* and *SpeechNow.org v. FEC* to
correct the glaring overreach.

To put it another way: Operatives were often happy just to "SwiftBoat."
The 2004 Rulemaking, a later E&J clarification, and the MURs built upon
both, made SwiftBoating impossible.  The only recourse was the courts.

Steve Hoersting

On Mon, Jun 4, 2012 at 8:55 AM, Marty Lederman <lederman.marty at gmail.com>wrote:

> Have been out of the loop on such questions for a while and was quickly
> perusing Richard Briffault's article on "Super PACs," i.e., "independent
> expenditure only" PACs, to see what all the fuss was about -- in
> particular, what the difference is between 527s and Super PACs.  If I
> understand Richard correctly, the principal difference appears to be that
> Super PACs can engage in express advocacy.
>
> Is that correct?  If so, why has it been an important development?  After
> all, hadn't it long been the case that no one cared much about "magic
> words," and that there was no evidence they had any greater impact than
> non-express-advocacy?  (Why many of us thought WRtL, not Citizens United,
> was the landmark case.)
>
> Is that the major Super PAC development -- that all-of-a-sudden
> individuals are making unlimited contributions to PACs *that engage in
> express advocacy*?  (I haven't seen a lot of "Vote for" ads lately -- but
> then again, it's early and I don't live in a battleground state.)  If so,
> is there really a huge demand for such advocacy, and is the resulting
> effect of such Super PACs materially different from the effect of 527s?
>
> Thanks in advance for any clarification.
>
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-- 
Stephen M. Hoersting
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