I'm going to take a final stab at formulating what I
*think* is a valid
question into an intelligible one, but after this I surrender.
I wrote, below: "Shouldn't regulation of [less coordinated speech] be held
to a higher standard of review than [more coordinated speech]?" The answer
is, of course, already clear: of course it should, that's why it's treated
like an expenditure and coordinated speech is treated like a contribution.
(I'm tempted to quote an unnamed law professor of mine who said, in class,
"there are no dumb questions, only dumb people who ask questions" but I
don't think that helps me.)
What confuses me, and I promise this is my last attempt to get this out, is
what standard of review will apply to the government's regulation of that
distinction. BCRA left the definition of this standard to the FEC, so I
assume that for now the regulation will be entitled to Chevron deference.
If Congress were to write the standard itself, would it be held to strict
scrutiny as a regulation of expenditures or the more deferential standard as
a regulation of contributions? The choice of standard seems to predetermine
the result, but the distinction between the topics that determine the
standard is precisely what the government (whether the Commission or
Congress) is trying to define in the first place.
----- Original Message -----
From: "Joe Birkenstock"
<jbirkenstock@smithkaufman.com>
To: "'Trevor Potter'"
<TP@Capdale.com>; "'Marty Lederman'"
<marty.lederman@comcast.net>; "'election-law'"
<election-law@majordomo.lls.edu>
Sent: Friday, December 12, 2003 12:14 PM
Subject: RE: McConnell v. FEC: The big picture
I think this illustrates how poorly I framed my question. That the Court
upheld the provision that deems activity *that is in fact coordinated* to
be
an in-kind doesn't answer the question I'm trying (and failing) to ask.
How about, what standard will apply to expenditures that *might* also be
contributions, i.e. *allegedly* coordinated expenditures?
I think what I'm driving at is, coordination to me should not a binary
determination - it's not like pregnancy because, to me, there is such a
thing as just very slightly coordinated, and there is a different such
thing
as thoroughly and unreservedly coordinated. Shouldn't regulation of the
former be held to a higher standard of review than the latter?
Certainly it's the Commission that has had to wrestle out the initial
answer
on "how much is enough," but does McConnell mean that once your
expenditures
have *any* component of collaboration (perhaps working from publicly-made
statements from the candidate about which issues she expects to win on or
the geographic targeting she thinks will run in her favor) the government
can regulate you under the deferential standard?
-----Original Message-----
From: Trevor Potter [mailto:TP@Capdale.com]
Sent: Friday, December 12, 2003 11:47 AM
To: jbirkenstock@smithkaufman.com; Marty Lederman; election-law
Subject: RE: McConnell v. FEC: The big picture
Since the Court upheld the "coordinated activity as an in-kind
contribution"
provision, won't they use the contribution standard?