[EL] WRTL v Barland

[Smith, Brad]

Justin,

I think the first question you ask at the end of your message is how you determine major purpose, not whether "major purpose" and "under control" are separate ways to become political committees.

To answer that question, however: The determination of a group's major purpose has always been done based on its actual activity, so no, I don't see any new law here. One might argue it's a misreading of Buckley but it's one that has existed from day one and been generally accepted.

 One can argue, of course, that one can (presumably") just decide that you want to be a committee and file as such, but no one does. And why would you? If you met the major purpose test by deed, you are covered regardless of your stated purpose. If you don't make sufficient expenditures to meet the test, you probably shouldn't be a Committee,  but more importantly, who would want to be? What group would make that declaration? So it seems a non-issue.

 Of course, one theory holds that if you declare a major purpose to the IRS, then that same purpose carries over to the FEC. Those who make that argument never ask why the FEC definition should not carry over to the IRS. It seems to me that you cannot force people to give up a constitutional right in order to operate under the only tax code provision the organization is legally qualified to operate under (after all, a classic issue ad 527, because of the IRS's interpretation of its own rules, doesn't qualify as a for-profit company, nor under any other 501(c) category. And in any case, so long as the IRS insists that its definition of political activity is different from that which courts have dictated to the FEC to use for its definition of political activity, any characterization one would make to the to the IRS is not applicable to FEC determinations. Or by analogy, if my owners association has a rule saying "no power boats on the lake," but adds "electric motors are not considered power boats," and I go to the Marina and ask for an electric boat and they say, "ah, you want a power boat," the owners association isn't going to say "Well, you told the Marina you want a power boat, so you can't take your electric motor on the lake."

All that means the answer to your second question is: no, this is not a change from Buckley.

As to the question whether a group controlled by a politician must also have a major purpose to be a political committee, what do you see in Barland that addresses that? I do not remember it, and I don't have time to more thoroughly re-read the 80 pag opinion now if I just missed it. But I don't think it addresses any committees under control of a candidate, and I don't think anyone was asserting that was the case with WRTL.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Justin Levitt [levittj at lls.edu]
Sent: Thursday, May 15, 2014 1:16 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] WRTL v Barland

A (real) question for list members: Buckley avoided vagueness in defining a political committee as a group that 1) makes a certain threshold level of contributions, or 2) a group "under the control of a candidate or the major purpose of which is the nomination or election of a candidate" that makes a threshold level of express-advocacy expenditures.   Barland seems to conflate two separate portions of part 2, restricting political committees to groups under the control of a candidate or with the major purpose of engaging in express advocacy.   Those appear to me to be different standards.  The Buckley test seems to encompass a group that adopts in its charter the sole goal of electing like-minded candidates, and then puts out a few "vote for" ads.  The Barland  standard would presumably exclude such a group unless they agreed that the method they chose to further the election of candidates would be express advocacy.

I know list members are likely to have rather strong feelings about whether changing the constitutional line in this way is good or bad.  But I've got two different questions.  First, is Barland the first decision to declare that the relevant "major purpose" is the major purpose to engage in express advocacy, or have their been others?  And second, do observers think that this is not actually a change from Buckley?

Justin

--
Justin Levitt
Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>
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