[EL] Clinton Cash - banned under pre-Citizens United regime?

[Sean Parnell]

On ABC yesterday morning
<http://abcnews.go.com/Politics/week-transcript-clinton-cash-author-peter-sc
hweizer/story?id=30568766&singlePage=true> , discussing Clinton Cash with
author Peter Schweizer, George Stephanopoulos said the following in his
lead-in:

"You know, I was looking at the book jacket right here and you say that,
here in the book jacket, that your reporting raises serious and alarming
questions about judgment of possible indebtedness to an array of foreign
interests and ultimately, a fitness for high public office."

His language largely mirrors what is on the Amazon page
<http://www.amazon.com/Clinton-Cash-Foreign-Governments-Businesses-ebook/dp/
B00Q33PRDS/ref=sr_1_1?ie=UTF8&qid=1430142150&sr=8-1&keywords=%22clinton+cash
%22>  for Clinton Cash, so I'm going to assume the book jacket does indeed
explicitly refer to Clinton's "fitness for high public office," and it's
likely there is some discussion of this topic scattered throughout the book
as well.

That phrase rang a bell, and I dug up this memo regarding campaign finance
laws
<http://www.hklaw.com/publications/FEC-Issues-New-Electioneering-Communicati
ons-Rules-for-Corporations-and-Labor-Unions-03-05-2008/>  from 2008,
courtesy of the law firm of Holland and Knight, which includes the following
regarding electioneering communications (note the bold):

The FEC provides a safe harbor for communications that:

.         do not mention any election, candidacy, political party, opposing
candidate, or voting by the general public;

.         do not take a position on any candidate's or officeholder's
character, qualifications, or fitness for office; 

If a communication does not qualify for the safe harbor, the FEC will
consider whether the communication includes any "indicia of express
advocacy" and whether the communication has an interpretation other than as
an appeal to vote for or against a clearly identified federal candidate. A
communication includes indicia of express advocacy if:

.         it mentions any election, candidacy, political party, opposing
candidate, or voting by the general public; or

.         takes a position on a candidate's or officeholder's character,
qualifications, or fitness for office 

So, my question is, depending upon the timing of course, and the specific
language used in the book discussing Clinton's "fitness for office," could
Clinton Cash have been prohibited from publication/distribution under the
pre-Citizens United regime, since it was published by a corporation (Harper
Collins)? If not entirely, then at least from the period beginning 30-days
prior to the Iowa Caucuses through the nomination process and possibly even
through the general election? 

 

I ask, of course, because DSG Verrilli said during the original CU arguments
that the federal government could ban a book based on a single instance of
express advocacy (not, it should be noted, an electioneering communication,
at least that's my memory of it), and SG Kagan did not, in fact, repudiate
that position (she merely said someone would have a good as-applied
challenge to such a ban, again according to my memory).

 

I'd be very interested in knowing what the actual lawyers on the list think
about whether and how the pre-CU regime might have applied to Clinton Cash
and it's discussion of Clinton's "fitness for office."

 

Best,

 

Sean Parnell

President, Impact Policy Management, LLC

571-289-1374 (c)

sean at impactpolicymanagement.com

Alexandria, Virginia

 

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