Using Judge Leon's ruling on express advocacy as
a club against the "Club for Growth" The "Club for Growth" is one of
the plaintiffs in the BCRA litigation that is asking the lower court to enjoin
the BCRA in its entirety pending a ruling by the Supreme Court. (For reasons
I have already stated, getting an injunction at this late stage is a long
shot.) But the Club for Growth has become a target for complaints that it
violated the rules prohibiting corporations, unions, and organizations taking
significant corporate or union funding from running ads that "promote," "support,"
"attack," or "oppose" a candidate for federal office. The Democratic Senatorial
Campaign Committee has filed a complaint at the FEC against the Club's ads,
one of which states: "President Bush knows tax cuts create jobs, and that
helps balance the budget... But Sen. Tom Daschle opposes the president. Tell
Tom Daschle to support the Kennedy-Reagan-Bush tax policy that will bring
jobs back to South Dakota."
The DSCC contends this is an ad attacking Daschle, for which only hard money
may be raised and for which there should be disclosure of the source of the
funds. This
article in the Rapid City Journal quotes DSCC attorney Bob Bauer
as follows:
The DSCC's Bauer said that not only does the new law specifically aim to
end the use of soft money, given by unnamed donors, to buy "issue" advertising,
but judges held up Club for Growth "as exhibit No. 1" as an offender in this
area.
"The Club for Growth was the subject of an enormous amount of commentary
in recent court decisions. The judge identified it as exactly what it is,"
Bauer said. "The Club for Growth went off in the wake of and in the face
of that decision and did exactly what the court says is prohibited."
Bauer said that because Club for Growth's stated aim is the election or defeat
of candidates, it is bound by the same rules as candidates themselves.
"No one would quarrel with the club if it paid for these ads with hard money
raised and disclosed like any other political committee," he wrote to the
FEC.
The club should register as a political committee with the FEC, Bauer said.
The fiscally conservative group is currently registered as a "527" political
organization with the Internal Revenue Service.
Likely the Club for Growth is running these ads to test the limits of the
law. No one expects Judge Leon's ruling to stand, and under the primary and
backup definitions of electioneering communications in the BCRA (without
Judge Leon's butchered construction) there is no way that the Club for Growth
ad, run now, should quality as an electioneering communication. Perhaps the
DSCC sees some political advantage in highlighting Judge Leon's decision;
it is no secret that many Democratic political leaders detest the BCRA, even
though it was mostly Democratic congressional votes that allowed the BCRA
to become law.
http://electionlaw.blogspot.com/2003_05_01_electionlaw_archive.html#200296631
--
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
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html