I am skeptical that Trevor's olive branch to the "academic freedomists" (suggesting the FEC's
existing regulations on individual volunteer activity and the Bush AO, 1999-17, offer
"considerable latitude") will calm the likes of 24 hr-a-day advocates such as Mr. Bauer.
While AO 1999-17 appears to relieve the campaigns of much of the burden in regard to not having to
"police" the uncoordinated activities of third-parties, it doesn't appear to give much relief to
those individuals or groups themselves.
In fact, the Commission seemed pretty adamant that such individuals or groups continue to be
mindful of the FEC's existing regulations on individual volunteer activity and, in terms of
internet-related issues, pointed to the applicability of AO 1998-22 - an Advisory Opinion that did
NOT offer much relief for internet public communications containing express advocacy. Moreover,
the Commission also displayed its usual concern for any sign of corporate contributions:
"If the volunteer were to send e-mails on behalf of the Committee or to prepare Internet related
material, such as a web site, using corporate owned equipment or facilities and such use went
beyond occasional, isolated, or incidental use, the campaign would incur an obligation to
reimburse the corporation within a commercially reasonable time for the normal and usual rental
charge, as defined in section 100.7(a)(1)(iii). Without such reimbursement, a prohibited corporate
contribution would result.11 The Commission notes that such use could be considered occasional,
isolated or incidental use if it meets all the other requirements of 114.9(a)."
With the FEC having set the "incidental" limit at "one hour per week or four hours per month,"
Professor Lessig would be hard-pressed not to bump up against this threshold. In addition, the
exemption for educational institutions, 11 C.F.R. 114.4(c)(7), as referenced by Joe Birkenstock,
would most likely be inapplicable since it is hard to argue that Professor Lessig is making
"reasonable efforts to ensure" the blogs posted by Dean and his committees are not essentually
"campaign rallies" nor contain express advocacy. Much less, the educational exemption is probably
nullified by the fact that Stanford University is incorporated in the state of California and,
unlike incorporated political committees, would be treated in this instance the same way as any
other corporation would be treated.
If one follows this line of conclusions, then Professor Lessig would be required to reimburse
Stanford University for the use of their facilities that exceeded "incidental" usage and place
appropriate disclaimers on his weblog, the language dependant on whether the expenditures were
coordinated with the Dean campaign or independent (and don't forget the new and improved BCRA
coordination rules). I'm sure a good attorney would in-kind his or her help with the valuation of
such expenses. (Note: rumor has it that there are a couple other Dean weblogs out there (they
might just be interested in such a verdict)).
However, if you disagree with this conclusion, I'm sure the president of the Christian Coalition
would love to post his own voluntary weblog on www.cc.org and give his unrestricted opinions of
the 2004 candidates.
JPC
--- Trevor Potter <TP@capdale.com> wrote:
List members might want to consult the FEC"s regulations on individual volunter activity, and
the Bush 2000 AO, which together give considerable latitude to individuals conducting personal
political activity in a corporate setting SO LONG AS they do not incur incremental costs to the
corporation.
Trevor Potter
-----Original Message-----
From: Bauer, Bob-WDC [mailto:RBauer@perkinscoie.com]
Sent: Wed 7/23/2003 11:47 AM
To: election-law_gl@majordomo.lls.edu
Cc:
Subject: RE: Howard Dean Controversy
This is a good example of the way in which political regulation winds up supplying its own
rationale. Various rules and standards are established, and distinctions are drawn: then, lo
and behold, a university, no doubt counseled by legal advisors to avoid pesky and unnecessary
regulatory risks, concludes that it is better to keep its distance from any alleged improper
"political activity". That there is no true corporate political activity does not weigh much,
even at all, in the decision. In this way, what is, as Eugene Volokh suggests, a matter of
academic freedom, or even individual free speech, has been transmogrified into a "regulatory
problem".
-----Original Message-----
From: Sholk, Steven H. [mailto:SSholk@gibbonslaw.com]
Sent: Wednesday, July 23, 2003 8:23 AM
To: election-law_gl@majordomo.lls.edu
Subject: Howard Dean Controversy
Since a university is involved, there is the issue of whether the university is
engaging in prohibited campaign intervention under Section 501(c)(3) of the
Internal Revenue Code. The article by Judith E. Kindell and John Francis
Reilly entitled, "Election Year Issu TYh s" in the IRS FY 2002 Exempt
Organizations Continuing Professional Education Technical Instruction
Program Textbook deals with noncommercial broadcast stations
on page 377, and universities on pages 377-78.
On noncommercial broadcast stations, the text cites Rev. Rul.
74-574, 1974-2 C.B. 160. Here, the station made reasonable
amounts of air time available without charge to all legally qualified
candidates on an equal basis. Before and after each broadcast,
the station discalimed endorsement of the candidate. The IRS
found no campaign intervention.
On universities, the text states, "the political activity must be
that of the college or university and not the individual activity of
its faculty, staff, or students.... Whether the provision of facilities
to a group for the conduct of political campaign activities will
constitute participation or intervention in a political campaign
by the college or university will depend upon all the facts and
circumstances, including whether the facilities are provided on
the same basis that the facilities are provided to other non-
political groups and whether the facilities are made available
on an equal basis to similar groups."
Steven H. Sholk, Esq.
Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.
One Riverfront Plaza
Newark, New Jersey 07102-5496
(973) 596-4639 (Phone)
(973) 639-6338 (Fax)
ssholk@gibbonslaw.com (e-mail)
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