[EL] Quick Question on Super PACs/Briffault

[Steve Hoersting]

And, I should mention, the "electioneering communications" funding
restrictions -- not so much the political committee rulemaking -- led to *
WRTL* and *Citizens United.*

On Mon, Jun 4, 2012 at 9:16 AM, Steve Hoersting <hoersting at gmail.com> wrote:

> 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
>
>


-- 
Stephen M. Hoersting
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