It has been fascinating for me to monitor the debates and comments on this
listserve, but until now I had have not submitted any comments of my own.
Perhaps an introduction is in order. I am the attorney for the Republican
Caucus of the Washington State House of Representatives, and I advise the
caucus on issues of election law.
My questions are two:
As Bob alludes to, in this era of the "permanent campaign", when is an
elected official not a candidate? We are 18 months before the next Senate
election. In the Washington State House, like the federal House, we are on a
two year campaign cycle. The presidential campaign had already begun, at
least as far as declared candidates, almost two years ahead of the election.
If two years were arbitrarily selected as the bright line, that would
clearly outlaw ads against congressmen but not senators (at least for 4
years). What if a rich individual wanted to run issue adds attacking an
incumbent senator for 5 years, and then in the 6th year challenged the
incumbent? Given these realities, when, under the alternate definition,
could issue adds attacking an incumbent's position be run?
Bob makes one other comment that intrigues me and on which I hope others
could shed some light. He notes that
"Club for Growth is clearly not expecting to pressure Daschle into adopting
the President's economic program. If this is not a "sham" issue ad,
concerned with damaging Daschle rather than moving him on the issue, what
is?"
Could the possibility of "moving" someone on an issue be relevant? Would
this make ads run to "influence" "centrist" elected officials less of a
"sham" than those run against officials viewed as more
dogmatic/principled/partisan? Of course, the "centrists" are often centrists
because they come from closely divided districts, and I would guess that
they are therefore often more likely to receive a serious challenge than
more "partisan" incumbents. I would be very interested in the groups
comments on these matters.
Very truly yours,
Geoffrey William Hymans
Senior Counsel, House Republican Caucus
Washington State House of Representatives
408 John L. O'Brien Building
PO Box 40600
Olympia, WA 98504-0600
(360) 786-7241
hymans_ge@leg.wa.gov
PS: Bob -- I work closely with many of your fellow Perkins Coie attorneys
here in Washington. A fine group.
GWH
-----Original Message-----
From: Bauer, Bob-WDC [mailto:RBauer@perkinscoie.com]
Sent: Thursday, May 15, 2003 1:56 PM
To: 'Rick.Hasen@lls.edu'; 'election-law_gl@majordomo.lls.edu'
Subject: Re: Democrats go after Club for Growth for issue ads
Speaking here as an advocate in this matter, but certainly with full
confidence in the merits of our position, let me take issue with some
assumptions behind Rick's comments.
Application of the "backup" definition to ads 'run now'? Why exactly not?
The definition is not time-limited, as the primary definition was. And I
have heard night and day how the reform communty is delighted with Leon's
broadening definition that applies the ban. throughout the cycle.
The Senate campaign in SD is in full gear and thse who doubt it should
consult the local press. And Daschle is a candidate for reelection.
Club for Growth is clearly not expecting to pressure Daschle into adopting
the President's economic program. If this is not a "sham" issue ad,
concerned with damaging Daschle rather than moving him on the issue, what
is?
And I have read much in the decision about the law's appropriate attention
to factors such as ad content, reflecting the election-related intent and
influence of the ad.
And what in any event is the significance of timing? The outcry over issue
advertising focused in large measure on Clinton's off-year ads in 1995. Not
to mention the arguments heard time and again that campaigns are beginning
earlier and earlier and involving more and more money.
The law is what it is, whatever anyone may conclude about its wisdom or
eventual vindication in the courts.
I saw Trevor this am at the Penn symposium and noted this Complaint. I
expected him to volunteer some help from the Campaign
Legal Center--but he was noncommittal on the whole subject. Perhaps he is
mulling it over.