Brian, you take my point precisely. As I think this through a little more,
I suppose the comparison might be slightly less stunningly ironic than I
found it at first blush, but I still think it's an awfully surprising thing
for Wertheimer to say. The determination Fred's quote addresses would
require the qualitative judgment as to whether an ad has a positive or a
negative message. What I mean is, you would need to actually determine
which it is: positive *or* negative; not just whether it has any persuasive
effect in the abstract.
The judgment required in applying the FEA definition is different, you don't
need to resolve whether it helps or hurts, you basically just need to
determine that it could do either and you know you've got FEA.
Ultimately, though, I think this is a distinction without much of a
difference - making the FEA judgment requires as much subjective judgment as
would the positive/negative ad determination. BCRA and these implementing
regulations are written to apply to a world in which everyone sees these ads
the same way - what Fred Wertheimer finds to be an electioneering ad should
be expected to be seen by the general electorate as an electioneering ad.
In my opinion, and as I think the "Buying Time" controversy illustrated,
however, that simply isn't so.
----- Original Message -----
From: "Svoboda, Brian-WDC" <BSvoboda@perkinscoie.com>
To: <Holman@aol.com>; <jbirkenstock@smithkaufman.com>;
<election-law@majordomo.lls.edu>
Sent: Saturday, November 08, 2003 5:31 PM
Subject: Re: "Who, pray tell, is going to decide which ads are positive and
which ads ...
I fear that Joe Birkenstock's point was minsunderstood. If I took him
correctly, he was asking why BCRA's authors felt they could not assess the
positive or negative character of an ad for purposes of the disclaimer
requirement - while requiring precisely such a determination when
classifying an ad as "federal election activity" that must be paid for by
state and local parties entirely with hard money under 2 USC 431(20).
"Federal election activity" includes a public communication that "promotes
or supports, or attacks or opposes" a clearly identified federal
candidate.
The $64 question is, what does it mean to "attack or oppose"? This is a
question that the legislative history does not address, that the FEC
refused
to clarify when writing the rules, and that Judge Leon grappled with at
some
length in his McConnell opinion.
Congress intended the new disclaimer requirement to get at negative ads.
The section header assigned to it in BCRA says exactly that. It seems
probable to me that the drafters wrote the disclaimer requirement the way
they did precisely for the reason Fred Wertheimer suggested in the Times.
It probably never occurred to them to view it in relation to the
definition
of "federal election activity."
It thus seems obvious to me that the restraints the disclaimer requirement
is now placing on *positive* ads - a white whale for the media
consultants,
to be sure, but a very real phenomenon - is an unintended consequence of
the
law. What I'd like to know is, what's wrong with admitting that? That it
was unintended does not *necessarily* mean it's unconstitutional. On this
particular issue, it's unpersuasive to say, like the Emperor in "Star
Wars,"
that "everything is proceeding exactly as I have foreseen."
=B.
-----Original Message-----
From: Holman@aol.com <Holman@aol.com>
To: jbirkenstock@smithkaufman.com <jbirkenstock@smithkaufman.com>;
election-law@majordomo.lls.edu <election-law@majordomo.lls.edu>
Sent: Sat Nov 08 13:21:37 2003
Subject: Re: "Who, pray tell, is going to decide which ads are positive
and
which ads ...
In a message dated 11/8/2003 12:32:42 AM Eastern Standard Time,
jbirkenstock@smithkaufman.com writes:
http://www.nytimes.com/2003/11/08/politics/campaigns/08ADS.html
Joseph:
You ask who will determine whether an ad is an attack ad versus a positive
ad for purposes of making a candidate stand by his or her advertisement:
no
one, of course, should make that determination, which is why the law is
written to make such candidate disclosure in all campaign ads. And,
despite
the complaints by campaign media advisors, the disclosure provision is
working well. The disclosure clause may sound a little unnecessary in
positive ads -- though I do not find it distracting -- but it will ring
loudly when candidates begin attacking others in their ads (which has not
happened yet this early in the campaign season).
Just one of many pluses to come from BCRA.
Craig Holman, Ph.D.
Public Citizen
215 Pennsylvania Ave., SE
Washington, D.C. 20003
TEL: 202-454-5182
FAX: 202-547-7392
Holman@aol.com