Perhaps this point has been made elsewhere, but the FEC, in its recent
rulemaking, specifically exempted from the reach of the coordination
provision, a web-based or other general public communication by the
candidate of his or her strategic wishes. So if Howard Dean's campaign, or
any other, could post on its website a message that "Attempts to support my
candidacy through reference to X issue" are unhelpful", with whatever
accompanying explanation the candidate sees fit to provide, the so-called
"conduct" test of the coordination rules would not have been satisfied. By
contrast,as I read the FEC's position, Dean could not through his campaign
manager send an email with the same commentary to a discrete or limited
collection of known allies or associates of the group running the ad. (68
Fed. Reg. 432 Jan. 3, 2003).
One last point on the objectives of BCRA: Marty posted the observation that
the "lawyers" who drafted the provisions of BCRA had specific objectives in
mind. Perhaps they did--but what legal difference would their intention
make? Their "motives" matter not at all, and certainly less than those of
the officeholders who controlled the final content, the terms of the debate
and the passage of the bill. In a discussion of a statute allegedly
designed to promote democratic accountability, it is odd indeed to dismiss
the statements of the officeholders responsible for the bill and appeal to
the intentions of lawyers who drafted its provisions. Which lawyers?
Representing which interests? Paid by whom?
(I know, but raise the question solely for argumentative emphasis....) I
also cannot see how the inquiry into "motive" has anything to do with this:
the officeholders said what they said, for all the world to hear and read.
Not much probing into "motive" is needed.
And I cannot agree that those concerned with negative campaigns or
equalizing access or limiting their fundraising commitments would be "sorely
disappointed" by Title I. How so? The bill, by its prohibitions and
restrictions on soft money in the parties and through the fundraising of
officeholders, advances all of these objectives directly (especially if you
agree, as some did, that soft money fueled the rise of spending, hence the
burdens of fundraising, and also the allegedly escalating use of "attack"
ads.
The floor debate also demonstrates that officeholders, in the Senate at
least where the more extended debate occurred, were quick to deny that a
concern with "actual corruption" associated with the use of soft money
motivated their support for the bill. This statement by Senator Feingold is
particularly interesting:
"I am sorry but the choice of the word "corruption" is not my choice. It is
the standard that the U.S. Supreme Court has said we have to deal with if we
are going to legislate in this area...We are going to talk about corruption,
but, more importantly, what is much more obvious and much more relevant is
the appearance of corruption. It is what it does to our Government and our
system when people think there may be corruption even if it may not exist."
March 19, 2001, S2444.
In effect, the Senator is saying that the use of the word "corruption" is
required of the Senate by the Supreme Court's standard of constitutional
review. Yet he suggests that the issue is really "appearance"--even if
there is no corruption. For purposes of the debate, he states, the
appearance issue matters more than the existence of actual corruption.
So,the validated interests cited in the floor, by sponsors as well as
others, included
1. Limiting fundraising burdens on officeholders (not a compelling interst
under Buckley)
2. Limiting negative campaigning (not a compelling interest under Buckley)
3. Equalizing access to political resources or leveling the playing field
(not a compelling interest under Buckley)
4. The appearance of corruption (a compelling interest, though never before
held to sustain, standing alone, a thoroughgoing statutory restriction of
this scope on the raising and spending of political money).
-----Original Message-----
From: Marty Lederman
To: Mickey Kaus; election-law@majordomo.lls.edu
Sent: 12/28/2003 9:22 PM
Subject: Re: But People Are Still Running Expensive/Negative Political Ads!
Good question. But it's an old question: Buckley itself indicated
(footnote 53) that the test for coordination was the distinction between
a person placing an ad "completely on his own" and doing so "at the
request or suggestion of the candidate or his agents."
I don't know much about the way in which the FEC and the courts have
evaluated evidence of coordination (suggestions, winks, nods, etc.) over
the years; others on the list would probably have far more information
on that. I wonder, though: Is the test that much different, or more
difficult to answer, than the old "meeting of the minds" test for
criminal and civil conspiracy (a test that juries have been applying for
eons)?
----- Original Message -----
From: Mickey Kaus <mailto:Mickey_Kaus@msn.com>
To: Marty Lederman <mailto:marty.lederman@comcast.net> ;
election-law@majordomo.lls.edu <mailto:election-law@majordomo.lls.edu>
Sent: Sunday, December 28, 2003 11:55 PM
Subject: Re: But People Are Still Running Expensive/Negative Political
Ads!
thanks. but how could any court honestly go about answering question #4?
And would/should it really be fatal if the group that ran the ad said
"well, yes, we want to help progressive ideas and when Howard Dean said
he didn't like that ad that was one factor getting us to rethink"?
----- Original Message -----
From: Marty Lederman <mailto:marty.lederman@comcast.net>
To: election-law@majordomo.llsedu <mailto:election-law@majordomo.llsedu>
Cc: mickey kaus <mailto:Mickey_Kaus@msn.com>
Sent: Saturday, December 27, 2003 9:19 AM
Subject: But People Are Still Running Expensive/Negative Political Ads!
The most commonly heard complaint about BCRA is that it is "ineffective"
because wealthy individuals (e.g., Soros) and noncorporate organizations
can continue to run expensive advertisements. As we've discussed
endlessly, this "criticism," of course, misunderstands BCRA's
objectives, which do not include "getting money out of politics,"
"equalizing the debate/playing field," or "stopping negative
advertising."
I raise this once again only because Mickey Kaus has a nice couple of
short blubs about his on his blog over at Slate:
http://slate.msn.com/id/2093002/ <http://slate.msn.com/id/2093002/>
(see the posts from Friday at 2:15 a.m. and 5:50 p.m.).
Kaus asks, btw, the following question:
"If Ickes[' Media Fund] runs an ad Dean doesn't like, and Dean then
gives a public press conference where he says 'That ad isn't very
helpful to us,' and Ickes pulls the ad, is that illegal 'coordination'
between Dean and an 'independent' group? If it isn't, how much more
'coordination' do you need? If it is, aren't you in effect muzzling an
actual presidential candidate's actual speech on a highly-relevant
issue?"
Please permit me to hazard a brief response:
1. This whole hypo is a real stretch, no? Can one really imagine a
candidate saying at a public press conference "That ad isn't very
helpful to us"? (If the ad is backfiring, one can imagine a candidate
repudiating it; but not complaining that it isn't "helpful.") Or Harold
Ickes taking his cues from Howard Dean?
2. Coordinated ads aren't outright illegal (so long as we're not
talking about ads broadcast by unions or corporations using treasury
funds). They're merely subject to contribution limits.
3. A fully "coordinated" pulling of an ad would not be regulated at
all.
4. The interesting question would be, if Media Fund thereafter ran an
alternative ad based on Dean's statement -- e.g., an ad that eliminated
the features that Dean deemed "unhelpful" -- would that alternative ad
be deemed "coordinated"? The answer to that question is, how shall I
put it? -- fact-dependent. Was the expenditure made after a "wink or
nod," or in "compl[iance] with a candidate's . . . suggestion"? See 124
S. Ct. at 705.
Do I have this right?
-----Original Message-----
From: Marty Lederman
To: Mickey Kaus; election-law@majordomo.lls.edu
Sent: 12/28/2003 9:22 PM
Subject: Re: But People Are Still Running Expensive/Negative Political Ads!
Good question. But it's an old question: Buckley itself indicated
(footnote 53) that the test for coordination was the distinction between
a person placing an ad "completely on his own" and doing so "at the
request or suggestion of the candidate or his agents."
I don't know much about the way in which the FEC and the courts have
evaluated evidence of coordination (suggestions, winks, nods, etc.) over
the years; others on the list would probably have far more information
on that. I wonder, though: Is the test that much different, or more
difficult to answer, than the old "meeting of the minds" test for
criminal and civil conspiracy (a test that juries have been applying for
eons)?
----- Original Message -----
From: Mickey Kaus <mailto:Mickey_Kaus@msn.com>
To: Marty Lederman <mailto:marty.lederman@comcast.net> ;
election-law@majordomo.lls.edu <mailto:election-law@majordomo.lls.edu>
Sent: Sunday, December 28, 2003 11:55 PM
Subject: Re: But People Are Still Running Expensive/Negative Political
Ads!
thanks. but how could any court honestly go about answering question #4?
And would/should it really be fatal if the group that ran the ad said
"well, yes, we want to help progressive ideas and when Howard Dean said
he didn't like that ad that was one factor getting us to rethink"?
----- Original Message -----
From: Marty Lederman <mailto:marty.lederman@comcast.net>
To: election-law@majordomo.llsedu <mailto:election-law@majordomo.llsedu>
Cc: mickey kaus <mailto:Mickey_Kaus@msn.com>
Sent: Saturday, December 27, 2003 9:19 AM
Subject: But People Are Still Running Expensive/Negative Political Ads!
The most commonly heard complaint about BCRA is that it is "ineffective"
because wealthy individuals (e.g., Soros) and noncorporate organizations
can continue to run expensive advertisements. As we've discussed
endlessly, this "criticism," of course, misunderstands BCRA's
objectives, which do not include "getting money out of politics,"
"equalizing the debate/playing field," or "stopping negative
advertising."
I raise this once again only because Mickey Kaus has a nice couple of
short blubs about his on his blog over at Slate:
http://slate.msn.com/id/2093002/ <http://slate.msn.com/id/2093002/>
(see the posts from Friday at 2:15 a.m. and 5:50 p.m.).
Kaus asks, btw, the following question:
"If Ickes[' Media Fund] runs an ad Dean doesn't like, and Dean then
gives a public press conference where he says 'That ad isn't very
helpful to us,' and Ickes pulls the ad, is that illegal 'coordination'
between Dean and an 'independent' group? If it isn't, how much more
'coordination' do you need? If it is, aren't you in effect muzzling an
actual presidential candidate's actual speech on a highly-relevant
issue?"
Please permit me to hazard a brief response:
1. This whole hypo is a real stretch, no? Can one really imagine a
candidate saying at a public press conference "That ad isn't very
helpful to us"? (If the ad is backfiring, one can imagine a candidate
repudiating it; but not complaining that it isn't "helpful.") Or Harold
Ickes taking his cues from Howard Dean?
2. Coordinated ads aren't outright illegal (so long as we're not
talking about ads broadcast by unions or corporations using treasury
funds). They're merely subject to contribution limits.
3. A fully "coordinated" pulling of an ad would not be regulated at
all.
4. The interesting question would be, if Media Fund thereafter ran an
alternative ad based on Dean's statement -- e.g., an ad that eliminated
the features that Dean deemed "unhelpful" -- would that alternative ad
be deemed "coordinated"? The answer to that question is, how shall I
put it? -- fact-dependent. Was the expenditure made after a "wink or
nod," or in "compl[iance] with a candidate's . . . suggestion"? See 124
S. Ct. at 705.
Do I have this right?