election-law_gl-digest Friday, February 15 2002 Volume 01 : Number 141
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Date: Thu, 14 Feb 2002 22:19:31 -0800
From: Rick Hasen <rick.hasen@lls.edu>
Subject: [Fwd: Webcasting of Georgetown Election Reform Symposium]
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Date: Thu, 14 Feb 2002 20:09:53 -0500
From: elias levenson <levensoe@bulldog.georgetown.edu>
Subject: Webcasting of Georgetown Election Reform Symposium
To: rick.hasen@lls.edu, electioncenr@pdg.net, montjrs@auburn.edu,
ljs@virginia.edu, raskin@wcl.american.edu, sda@mit.edu,
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The Georgetown Journal on Poverty Law and Policy's 2002 Election Reform
Symposium, which is occurring on Tuesday, February 26th, will be webcast
(live audio and video) via the web. Those wishing to watch and hear the
Symposium must have Real Audio and speakers on their computer. The
webcast can be reached by logging into the following site on February
26th:
http://media.law.georgetown.edu/webcast/election_reform.html
This site currently houses an updated program for the Symposium. Please
circulate this e-mail and publicize the webacasting as you deem
appropriate. Thank you for the interest.
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Date: Fri, 15 Feb 2002 08:48:31 -0800
From: Rick Hasen <rick.hasen@lls.edu>
Subject: shays-meehan question
Does anyone know if the version of Shays-Meehan as passed in
the House has the equivalent of the Wellstone amendment from
the Senate? That amendment extended the ban on corporate and
labor issue advocacy referencing a clearly identified
candidate in the days before the election to apply to
non-profit groups as well.
Assuming such a provision stays in the final bill and the
bill becomes law, is there anyone out there who believes the
provision as applied to non-profits would be constitutional?
The case for union and corporate limits has some good
support in existing law (e.g., NRWC, Austin), but I don't
believe the provision on non-profits does.
If that's right, would the supporters of the bill in the
courts concede the provision's unconstitutionality as to
non-profits?
Rick
- --
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
------------------------------
Date: Fri, 15 Feb 2002 11:12:22 -0600
From: Steven Mulroy <smulroy@memphis.edu>
Subject: Re: shays-meehan question
Rick: My understanding is that nonprofits have to fund "federal election
activity" from separate "hard money" accounts. Also, they are to be
treated the same as for-profit corporations if they generate business
income or receive money from for-profit corporations. I'm getting my
info from http://www.CFInst.org/eguide/update/shays_meehan_passed.html
which seems like a reliable guide, if you want to check it out for
yourself. SJM
Rick Hasen wrote:
Does anyone know if the version of Shays-Meehan as passed in
the House has the equivalent of the Wellstone amendment from
the Senate? That amendment extended the ban on corporate and
labor issue advocacy referencing a clearly identified
candidate in the days before the election to apply to
non-profit groups as well.
------------------------------
Date: Fri, 15 Feb 2002 11:31:23 -0800
From: Rick Hasen <rick.hasen@lls.edu>
Subject: Re: shays-meehan question
I have received a few responses off list that I thought I
should pass on. First, I learned that the Campaign Finance
Institute's E-Guide (http://www.cfinst.org/eGuide/ ) will
have a "redline" version next week that compares the two
bills side-by-side.
Second, apparently the term "federal election activities" is
a term applied in the bill only to parties; the relevant
term here for groups is "electioneering."
Here is a relevant comparison of the operative language:
MCCAIN-FEINGOLD
SEC. 204. RULES RELATING TO CERTAIN TARGETED ELECTIONEERING
COMMUNICATIONS.
Section 316(c) of the Federal Election Campaign Act of 1971
(2 U.S.C. 441b),
as added by section 203, is amended by adding at the end the
following:
`(6) SPECIAL RULES FOR TARGETED COMMUNICATIONS-
`(A) EXCEPTION DOES NOT APPLY- Paragraph (2) shall not apply
in the case of
a targeted communication that is made by an organization
described in such
paragraph.
`(B) TARGETED COMMUNICATION- For purposes of subparagraph
(A), the term
`targeted communication' means an electioneering
communication (as defined
in section 304(f)(3)) that is distributed from a television
or radio
broadcast station or provider of cable or satellite
television service whose
audience consists primarily of residents of the State for
which the clearly
identified candidate is seeking office.'.
SHAYS MEEHAN
SEC. 204. RULES RELATING TO CERTAIN TARGETED ELECTIONEERING
COMMUNICATIONS.
Section 316(c) of the Federal Election Campaign Act of 1971
(2 U.S.C. 441b),
as added by section 203, is amended by adding at the end the
following:
`(6) SPECIAL RULES FOR TARGETED COMMUNICATIONS-
`(A) EXCEPTION DOES NOT APPLY- Paragraph (2) shall not apply
in the case of
a targeted communication that is made by an organization
described in such
paragraph.
`(B) TARGETED COMMUNICATION- For purposes of subparagraph
(A), the term
`targeted communication' means an electioneering
communication (as defined
in section 304(f)(3)) that is distributed from a television
or radio
broadcast station or provider of cable or satellite
television service and,
in the case of a communication which refers to a candidate
for an office
other than President or Vice President, is targeted to the
relevant
electorate.
`(C) DEFINITION- For purposes of this paragraph, a
communication is
`targeted to the relevant electorate' if it meets the
requirements described
in section 304(f)(3)(C).'.
304(f)(3)(C)
(C) TARGETING TO RELEVANT ELECTORATE- For purposes of this
paragraph, a
communication which refers to a clearly identified candidate
for Federal
office is `targeted to the relevant electorate' if the
communication can be
received by 50,000 or more persons--
`(i) in the district the candidate seeks to represent, in
the case of a
candidate for Representative in, or Delegate or Resident
Commissioner to,
the Congress; or
`(ii) in the State the candidate seeks to represent, in the
case of a
candidate for Senator.
****
After looking at the provisions, my question about
constitutionality as applied to non-profits remains. Besides
Shays-Meehan being a bit more precise about "targeting," it
seems that both bills as applied to non-profits run squarely
into MCFL, unless the Court is prepared to overrule that
case.
The concern with this provision explains why the bill's
supporters have fought against a "non-severability clause."
(That would strike the whole bill down if any part were
constitutional.)
One irony of severability could be that the Court upholds
the ban on soft money but strikes down the new limits on
sham issue advocacy even as applied to corporations or labor
unions. (I think there is good reason for the court to
uphold the ban on sham issue advocacy as applied to
corporations or labor unions, and ample authority for the
Court to do so.) It would be just like the Court in Buckley
upholding the contribution limits but not the expenditure
limits. One hears echoes of Chief Justice Burger in Buckley,
talking about the Court recrafting the bill in a way that
probably would not have gotten majority support in Congress.
- --
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
------------------------------
Date: Fri, 15 Feb 2002 13:41:31 -0800
From: Adam Winkler <awinkler@LAW.USC.EDU>
Subject: Shays-Meehan
I agree with Rick that Massachusetts Citizens for Life raises serious
questions about the constitutional validity of Shays-Meehan's requirement
that non-profit organizations fund electioneering solely through hard money
accounts. MCFL holds that there is no compelling governmental interest in
limiting the express advocacy of an organization to which contributors give
money specifically for the advancement of political beliefs. Shays-Meehan
replicates the problem dealt with in MCFL almost perfectly. The provision
here applies to 501(c)(4)'s (nonprofits designed to pursue political
agendas and whose contributors do not receive tax deductions, just like
MCFL) who engage in electioneering (a broader definition of express
advocacy, which was at issue in MCFL). Like the FEC in MCFL, Shays-Meehan
says these organizations can fund electoral advocacy through segregated
separate accounts -- or at least something equivalent in that the money is
bound by hard money restrictions and thus akin to a PAC.
Take a well-known 501(c)(4) such as Planned Parenthood Advocacy
Project. All of its contributors know that the political agenda of PPAP is
the election of pro-choice candidates, and Shays-Meehan would require all
of PPAP's election-related spending to be funded by money contributed under
hard money caps and procedures rather than through PPAP's general treasury
fund.
In my view, this analysis of MCFL (and necessarily of Austin v. Michigan
Chamber of Commerce) shows that, outside of quid pro quo, the corruption
sufficient to warrant corrective legislation is not an unbalanced political
discourse in need of equalization. Rather, the corruption emerges from
agency problems -- that if people contribute money to an organization for
political purposes, the organization's use of that money for
election-related speech is not a (constitutionally cognizable) danger to
democracy. If, however, people contribute money for non-political purposes
(such as stockholders in a corporation), the use by the organization of
"other people's money" for other purposes is a type of corruption that can
be remedied by law.
- -------------------------
Adam Winkler
John M. Olin Fellow
Center in Law, Economics & Organization
University of Southern California Law School
Los Angeles, CA 90089
awinkler@law.usc.edu
(213) 740-3065
------------------------------
Date: Fri, 15 Feb 2002 17:34:58 -0500
From: "Trevor Potter" <TP@capdale.com>
Subject: Re: Shays-Meehan
Of course, the Court's MCFL decision only allowed organizations that did not take corporate or labor funds to engage in such activity. Thus, the Shays-Meehan provision on C-4 election activity would only be limited by MCFL to the extent the C-4 had no cor
porate or labor funding. This is a very small class of organizations.
Trevor Potter
Caplin & Drysdale
One Thomas Circle, N.W., Suite 1100
Washington, D.C. 20005-5802
t: (202) 862-5092 f: (202) 429-3301
TP@capdale.com
Adam Winkler <awinkler@LAW.USC.EDU> 02/15/02 04:41PM >>>
I agree with Rick that Massachusetts Citizens for Life raises serious
questions about the constitutional validity of Shays-Meehan's requirement
that non-profit organizations fund electioneering solely through hard money
accounts. MCFL holds that there is no compelling governmental interest in
limiting the express advocacy of an organization to which contributors give
money specifically for the advancement of political beliefs. Shays-Meehan
replicates the problem dealt with in MCFL almost perfectly. The provision
here applies to 501(c)(4)'s (nonprofits designed to pursue political
agendas and whose contributors do not receive tax deductions, just like
MCFL) who engage in electioneering (a broader definition of express
advocacy, which was at issue in MCFL). Like the FEC in MCFL, Shays-Meehan
says these organizations can fund electoral advocacy through segregated
separate accounts -- or at least something equivalent in that the money is
bound by hard money restrictions and thus akin to a PAC.
Take a well-known 501(c)(4) such as Planned Parenthood Advocacy
Project. All of its contributors know that the political agenda of PPAP is
the election of pro-choice candidates, and Shays-Meehan would require all
of PPAP's election-related spending to be funded by money contributed under
hard money caps and procedures rather than through PPAP's general treasury
fund.
In my view, this analysis of MCFL (and necessarily of Austin v. Michigan
Chamber of Commerce) shows that, outside of quid pro quo, the corruption
sufficient to warrant corrective legislation is not an unbalanced political
discourse in need of equalization. Rather, the corruption emerges from
agency problems -- that if people contribute money to an organization for
political purposes, the organization's use of that money for
election-related speech is not a (constitutionally cognizable) danger to
democracy. If, however, people contribute money for non-political purposes
(such as stockholders in a corporation), the use by the organization of
"other people's money" for other purposes is a type of corruption that can
be remedied by law.
- -------------------------
Adam Winkler
John M. Olin Fellow
Center in Law, Economics & Organization
University of Southern California Law School
Los Angeles, CA 90089
awinkler@law.usc.edu
(213) 740-3065
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Date: Fri, 15 Feb 2002 15:19:27 -0800
From: Adam Winkler <awinkler@LAW.USC.EDU>
Subject: Shays-Meehan
Trevor Potter is right and I stand corrected. I had relied on the Campaign
Finance Institute's Shays-Meehan overview, which turns out to be
mistaken. A review of the bill's language reveals the error of the CFI
analysis, the relevant portion of which is pasted below. Shays-Meehan
applies its ban on 501(c)(4) election activity if the organization receives
corporate money into its general treasury account -- and thus serves as a
conduit for the agency problem that warrants restriction of corporate
contributions and candidate electioneering. It thus mirrors Austin v.
Michigan Chamber of Commerce more than MCFL. -Adam Winkler
Unions, Corporations, & Non-Profits
Unions & Corporations: Beck Decision, Paycheck Protection
Unions and corporations are prohibited from giving
soft money to
parties, and from running "electioneering" issue ads
except as
hard money expenditures through their PAC.
No Beck provision: A codification of the Supreme
Court's decision
in Communications Workers v. Beck in the original
McCain-Feingold was removed at behest of Republican and
Democratic Senators.
Non-Profits
· Prohibits 501(c)(4)s from making targeted
electioneering
communication/issue ads out of their general treasury
funds.
They could make such expenditures, however, from a
separate
account using hard money.
· National parties banned from contributing to or
soliciting
contributions for non-profits in connection with
federal election
or any 527 organizations.
- -------------------------
Adam Winkler
John M. Olin Fellow
Center in Law, Economics & Organization
University of Southern California Law School
Los Angeles, CA 90089
awinkler@law.usc.edu
(213) 740-3065
------------------------------
Date: Fri, 15 Feb 2002 19:08:13 EST
From: Jrmason3@aol.com
Subject: Fwd: Shays-Meehan
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Date: Fri, 15 Feb 2002 19:00:32 EST
Subject: Re: Shays-Meehan
To: TP@capdale.com
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Of course, every Circuit to consider the question of whether MCFL-type
C-4 corporations may accept for-profit corporate funds into their general
treasury and still qualify for the MCFL exception regarding IE's has ruled
that they may accept some, so long as it isn't significant. (FEC v Survival
Educ. Fund 2nd, NCRL v. Bartlett 4th, Day v. Holahan 8th, and NRA v. FEC,
DC).
The Fourth Circuit has twice ruled on this issue, once striking down a
state statute and more recently an undivided panel ruled that the FECA's
corporate ban statute (sec. 441b) is unconstitutional as applied to the IE's
of a nonprofit that has accepted as much as 8% of its total revenue from
for-profits. Beaumont v. FEC, (4th Cir. 2002). In Beaumont, the Fourth
Circuit also ruled that the same nonprofit corp could not be prohibited from
making contributions to federal candidates from its general funds. Judge
Gregory dissented on the second holding, citing MCFL's discussion of NRW.
(As a matter of disclosure, I represented the nonprofit in Beaumont.)
James R. Mason, III
Home School Legal Defense Association
(Formerly of Bopp Coleson and Bostrom, Terre Haute, Indiana)
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End of election-law_gl-digest V1 #141
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