election-law_gl-digest Friday, February 22 2002 Volume 01 : Number 146
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Date: Fri, 22 Feb 2002 17:04:53 -0500
From: "Trevor Potter" <TP@capdale.com>
Subject: Re: Shays-Meehan
Michael Malbin of CFI has a recent post which does a good job of attempting to explain how Shays-Meehan applies to c-4s. Let me try it again from a different angle:
Shays-Meehan applies the existing 441b ban on certain corporate and labor political activities to a new category--"electioneering communications". Entities covered by the new ban include (once Wellstone is factored in) any incorporated entity, including a
n incorporated c-4, (but not an unincorporated PAC of a c-4), and any "person" (such as an unincorporated entity) using corporate or labor funds. However, the Supreme Court determined in MCFL that certain "C" non-profit corporations with no corporate or l
abor funds in their treasuries are exempt from the existing section 441b prohibition on corporate political activities. The FEC has written regulations defining these "MCFL" organizations exempt from the 441b prohibition. As pointed out by members of the
list serve, some courts have read the MCFL exemption more broadly than the FEC, to include incorporated nonprofits with de minimus for profit corporate funding. SINCE "MCFL CORPORATIONS" HAVE BEEN DETERMINED BY THE SUPREME COU!
!
RT TO BE BEYOND THE REACH OF 441b ON CONSTITUTIONAL GROUNDS, THEY CANNOT BY DEFINITION BE COVERED BY THE NEW SHAYS MEEHAN PROVISION EXTENDING THE EXISTING 441b PROVISION TO ELECTIONEERING COMMUNICATIONS BY INCORPORATED C-4s. If MCFL corporations are not a
lready regulated by 441b, then they are not covered by its extension.
That said, incorporated C-4s NOT exempt under MCFL are prohibited by the "Wellstone" provision from engaging in electioneering communications. If that provision were to be struck down, then (as Michael Malbin points out), they could use unlimited individu
al funds, fully disclosed, for such communications.
Rick Hasen <rick.hasen@lls.edu> 02/21/02 06:24PM >>>
Michael Malbin's post confirms that Shays-Meehan is a "full
employment for election lawyers" bill.
On a more serious note, isn't it true--as Trevor Potter said
in his post last week-- that under section 203 of the bill,
501(c)(4)'s and 527s that don't take labor or union money
can continue to spend unlimited amounts on independent
expenditures (whether constituting express advocacy or not)?
The empirical question seems to be how many of these
organizations don't take such money. Anybody know?
- --
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
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
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Date: Fri, 22 Feb 2002 17:42:39 -0500
From: Luke McLoughlin <lpm4@nyu.edu>
Subject: Re: Shays-Meehan
<html>
<font face=3D"Arial, Helvetica">Craig Holman and I assembled some empirical
data on the expenditure side of this =93MCFL organization=94 question as par=
t
of the Brennan Center=92s study, Buying Time 2000: Television Advertising
in the 2000 Federal Elections. The list below shows how much was
spent on electioneering issue ads in the final 60 days of the 2000
election by groups. Though the list does not show how much each
group received in corporate and union funds, it does show their legal
status and gives an idea of how Shays-Meehan might impact their funding
sources.<br>
<br>
<u>Electioneering Issue Ad Spending by Major Interest Groups in the Final
60 Days of the Campaign</u> <br>
<br>
* 22 groups spent roughly $38 million on electioneering issue ads in the
final 60 days.<br>
* the 22 groups accounted for more than 95% of the overall group sham
issue ad spending in that period<br>
<br>
Amount spent in last 60 days on sham issue ads featuring candidates (and
group=92s legal status):<br>
<br>
$5,773,763 Citizens for Better Medicare (501=A94, 527)<br>
$5,435,472 Chamber of Commerce (501=A96)<br>
$5,166,393 AFL-CIO (501=A95)<br>
$5,340,506 Planned Parenthood (504=A94)<br>
$4,062,111 Emily's List Women Vote (no info, likely PAC or=20
501(c)4)<br>
$2,797,292 Americans for Job Security (no info)<br>
$2,685,977 Business Roundtable (501=A9 6)<br>
$1,443,452 Handgun Control Inc. (501=A9 4)<br>
$1,112,814 Sierra Club (501=A94, 527)<br>
$809,554 League of Conservation Voters (501=A94)<br>
$787,205 Americans for Quality Nursing Home Care (no info)
<dl>
<dl>
<dl>
<dd>$761,073 Republican Leadership Council (527)
<dd>$705,411 Voters for Choice (PAC)
<dd>$477,077 American Medical Association (501=A96)
<dd>$212,640 NAACP (501=A94)
<dd>$203,263 Campaign for a Progressive Future (no info)
<dd>$147,566 National Association of Realtors (527, 501=A96)
<dd>$137,337 Citizens for a Better America (no info)
<dd>$35,367 NARAL (PAC)
<dd>$18,079 NRA (501=A94)
<dd>$12,266 U.S. Term Limts (501=A94)
<dd>$4,338 National Pro-Life Alliance (504=A94)
</dl>
</dl>
</dl> More information available at www.brennancenter.org<br>
<br>
<br>
</font>
<BR>
<br>
<i>------------------------------------------------------------------<br>
Luke McLoughlin<br>
Brennan Center for Justice<br>
at NYU School of Law<br>
161 Avenue of the Americas, Twelfth Floor<br>
New York, New York 10013-1205<br>
(212)998-6289<br>
(212)995-4550 fax<br>
luke.mcloughlin@nyu.edu</i></html>
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End of election-law_gl-digest V1 #146
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