[EL] “Feds prohibit candidates from commenting on Trump, despite constitutional questions”

[Adam Bonin]

The Gregg MUR is here: http://eqs.fec.gov/eqsdocsMUR/13044350459.pdf .
Commissioner Goodman's separate Statement of Reasons is here:
http://eqs.fec.gov/eqsdocsMUR/14044352017.pdf

Adam C. Bonin
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On Mon, Mar 26, 2018 at 3:27 PM, David Keating <dkeating at ifs.org> wrote:

> Eric Wang asked me to post his response:
>
>
>
> Bonin raises two objections to my op-ed:
>
>
>
> 1.         That the FEC did not find violations in either the Inslee or
> Greitens enforcement matters;
>
> 2.         The Greitens ad “was over the line,” and an ad focusing on
> Trump’s “horrible, destructive policies” would be permissible.
>
>
>
> I’ll address each of these in turn.
>
>
>
> First, an FEC “dismissal” or lack of an affirmative 4 votes to enforce is
> not the same as an agency determination that the conduct is permissible.
> Notably, the FEC did not find that the conduct at issue in either case
> complied with the law.  As any FEC observer knows, only a finding of “no
> reason to believe” (a.k.a. “no RTB”) is a determination that there was no
> legal violation.
>
>
>
> Moreover, in the Inslee matter, there is no specific statutory or
> regulatory authority for the FEC to apply the accounting mechanism that it
> did.  That is merely an enforcement posture the FEC has taken, and one that
> could easily be reversed by a court and found to be inconsistent with what
> the plain language of the statute says.  The FEC’s explanation and
> justification for the regulations on this issue also do not address the
> accounting mechanism.  There also do not appear to be any agency advisory
> opinions that suggest such an approach (none was cited in the enforcement
> matter).
>
>
>
> Second, I’m not sure what the “Gregg standard” is, but Bonin seems to
> suggest the “PASO” standard under the BCRA ban is express advocacy.  It
> most certainly is not.  Nobody really knows what “PASO” means (other than a
> “know it when I see it” approach).  But PASO is certainly meant to be much
> broader than express advocacy.  Does an ad denouncing Trump’s “horrible,
> destructive policies” “attack” or “oppose” Trump?  I think it’d be awfully
> hard to conclude that such an ad doesn’t meet the PASO standard.
>
>
>
> David
>
> _________________________________________________
>
> David Keating | President | Institute for Free Speech
>
> 703-894-6799 <(703)%20894-6799> (direct) | 703-894-6800 <(703)%20894-6800>
> | 703-894-6811 <(703)%20894-6811> Fax
>
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>
> www.ifs.org
>
>
>
> *From:* Law-election [mailto:law-election-bounces at department-lists.uci.edu]
> *On Behalf Of *Adam Bonin
> *Sent:* Monday, March 26, 2018 11:40 AM
> *To:* Smith, Brad
> *Cc:* Election Law Listserv
> *Subject:* Re: [EL] ELB News and Commentary 3/26/18
>
>
>
> I think the Greitens one was over the line -- it literally ended with a
> tagline of "VOTE NOVEMBER 8th TRUMP PENCE," but that's not to say it's in
> any way difficult to meet the Gregg standard of ensuring that any reference
> to Trump is focused on his horrible, destructive policies and not whether
> one should vote for/against him, especially in an off-year election.
>
>
>
> As far as which language is Mr. Wang's and which is the headline writer's,
> I think you'd agree these two passages within the article do not accurately
> state the law:
>
>
>
> As the midterm congressional elections unfold, candidates are also running
> in 36 states for governor and competing for more than 6,000 state
> legislative seats. How many of these state candidates do you think will say
> something good or bad about President Trump? Probably more than you can
> count. When they do, they will break an obscure federal law.
>
>
>
> So now state candidates find themselves in a tough spot. If they want to
> attack or praise Trump, who has declared he is a candidate in 2020, they
> will be violating federal campaign finance laws. While state candidates
> must keep their mouths shut, independent groups may support or oppose
> federal candidates as much as they want.
>
>
>
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