[EL] Quick Question on Super PACs/Briffault

[Steve Hoersting]

Uh, yes it's correct.  What you're missing is the overlay between Federal
Campaign Law and Internal Revenue Law.

Quickly, law related to the former provides tax benefits on the condition
of disclosing donors -- but a 527 may accept all of the money it can
raise.  The latter determines what is a political committee.  Before *EMILY's
List, SpeechNow.org,* and *Citizens United,* an organization that was a
political committee might have been a "527" under tax law -- but it had to
eschew corporate or labor treasury funds, and accept funds from individuals
in amounts of no more than $5000 per individual, per year.

Best regards,

Steve

On Mon, Jun 4, 2012 at 9:25 AM, Marty Lederman <lederman.marty at gmail.com>wrote:

> But is this correct?:  Those court cases    opened the way for unlimited
> contributions to 527's.  Why, then, the need for Super PACs?  Or am I
> misunderstanding something about the court cases and the relationship
> between the two types of committees?
>
> Sent from my iPhone
>
> On 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>
> 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.
>>
>> _______________________________________________
>> Law-election mailing list
>>  <Law-election at department-lists.uci.edu>
>> Law-election at department-lists.uci.edu
>>  <http://department-lists.uci.edu/mailman/listinfo/law-election>
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>
>
>
> --
> Stephen M. Hoersting
>
>


-- 
Stephen M. Hoersting
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120604/3927ef0b/attachment.html>