-------- Original Message --------
For those who are interested, John Gedid has a piece at 11 Widener J. Pub.
L. 33 (2002) discussing ethical issues relating to administrative law
judges, which might (or might not) be analogous to the situation facing
Commissioner Toner. It appears that there are no clear answers regarding
the applicability of judicial ethics rules in agencies.
I must also point out that while J.J. and Roy are certainly correct that
the judicial ethical rules currently in place prohibit judges from speaking
about cases pending before them, such a rule does little if anything to
advance the impartiality interest that J.J., Roy, and the White dissenters
have invoked. As an example, judges may make any manner of comments from
the bench indicating "partiality," and none of those comments violates any
ethical canons. More generally, preventing expressions of "partiality"
does not make judges or commissioners any less "partial"; it just hides the
inclinations from the public.
The perfect example of the worthlessness of prohibitions on this sort of
speech, it seems to me, is the Newdow case raised by J.J. Can anyone
contend that Justice Scalia would have been any less "partial" on the bench
had he refused to discuss the case during that speech?
My views on the matter are more fully stated in my article Pay No Attention
to That Man Behind the Robe at 21 Yale L. & Pol'y Rev. 301 (2003).
-Mike Dimino
"J. J. Gass"
<jj.gass@nyu.edu> To: "Rick Hasen" <Rick.Hasen@lls.edu>, "election-law"
Sent by: <election-law@majordomo.lls.edu>
owner-election-law_gl@majord cc:
omo.lls.edu Subject: Re: Prejudging the 527 issue before the FEC?
01/29/2004 10:50 PM
I was interested in Rick's comment about how a judge wouldn't (or
shouldn't) make comments like this about issues raised by a pending case.
The same thought had occurred to me--besides election law, the other stuff
I spend my days thinking about revolves around the functioning of the
courts, where judges' taking public positions on controversial issues is a
hot topic in the wake of Republican Party of Minnesota v. White.
For what it's worth, if this were a judicial matter and if Michael Toner
were a judge, his comments would be improper and would clearly require his
recusal. An somewhat analogous case (though not completely, because the
case was not yet pending before the Court when the remark was made) was
Justice Scalia's criticism of the Ninth Circuit's Pledge of Allegiance
decision. As most of you probably know, the plaintiff requested Justice
Scalia to recuse himself, which he did, when the Court considered (and
granted) the cert. petition.
On the other end of the spectrum, it's clearly proper for a legislator to
express views on policy questions that are likely to arise in the current
legislative session. In the agency rulemaking context, one might view
commissioners as similar to legislators; on this view, there's nothing
wrong with Toner's letter. But there's a bit of an odd feel to it (at
least to me). Perhaps this is because the FEC performs both
quasi-legislative and quasi-adjudicative functions. Responding to the
request for an advisory opinion on the 527 issue at least feels more like
what a judge does (the article III ban on advisory opinions
notwithstanding) than what a legislator does. And notice-and-comment
rulemaking would seem kind of pointless if the agency decisionmakers had
already made up their minds; just as a judge must have a sufficiently open
mind to give a fair hearing to the litigants' arguments and evidence, one
might argue, a commissioner ought to be "persuadable" by public comments.
I'm curious as to what folks who have dealt more intimately with the FEC
think about whether there's anything troubling about the tone (no pun
intended) of Mr. Toner's letter.
----- Original Message -----
From: Rick Hasen
To: election-law
Sent: Thursday, January 29, 2004 3:02 PM
Subject: Prejudging the 527 issue before the FEC?
In a recent post to his website, Bob Bauer referred to a letter that
Republican FEC commissioner Michael Toner sent to Roll Call and published
on Tuesday. The letter is apparently not on the Roll Call's website, but
here it is:
Now that the Supreme Court has upheld the constitutionality of the
McCain-Feingold campaign finance law, a key question remains to be
decided: With the national parties strictly barred from raising and
spending soft money, can tax-exempt outside groups, organized under
Sections 527 and 501(c) of the tax code, legally take the parties'
place and spend unlimited soft money on election-related activities
that could directly affect the 2004 presidential and Congressional
elections?
The Federal Election Commission has an obligation to decide this
critical legal question as soon as possible. If the answer is yes,
almost all campaign finance observers agree that the McCain-Feingold
law will be severely undermined, and that at least as much soft
money will be spent on electoral activities in 2004 as was spent
before the new law was enacted.
The stakes are very high. Published reports indicate
thatDemocratic-oriented tax-exempt groups plan to spend hundreds of
millions of dollars of corporate, union and other soft-money funds
to air advertisements attacking President Bush and to conduct
voter-mobilization activities in targeted states. Press accounts
indicate that a group called America Coming Together is aiming to
spend at least $95 million on Democratic voter identification and
get-out-the-vote activities in key states. Billionaire currency
trader George Soros has reportedly pledged more than $15 million to
ACT and MoveOn.org to help underwrite these efforts. Moreover, an
outside entity named the Media Fund, headed by Harold Ickes, a
former aid to President Bill Clinton, reportedly plans to spend
nearly $100 million to finance television and radio advertisements
critical of President Bush.
All told, published reports indicate that Democratic-oriented
outside groups are planning to spend at least a quarter of a billion
dollars on election-related activities. This year alone outside
spending by Democratic groups could exceed the $245.2 million of
soft money that the Democratic Party's national committees spent
during the entire 2000 election cycle.
Although Democratic-oriented Section 527 and 501(c) groups have
received more media attention to date, there is little doubt that
Republican groups are poised to also spend vast amounts of soft
money prior to Election Day if it is determined to be legally
permissible.
The FEC is scheduled to rule in early February on an advisory
opinion sought by a Republican tax-exempt group known as Americans
for a Better Country. However, in order to comprehensively address
the legal ability of outside tax-exempt groups to spend soft money
on election-related activities, the commission needs to issue
binding regulations as soon as possible.
The FEC issued final regulations implementing the national-party
soft-money ban 90 days after McCain-Feingold became law. I believe
the commission should issue rules governing outside groups with
similar expedition. If the FEC issues final rules by mid-April, it
would ensure, no matter what the agency decides, that the rules are
effective for the 2004 presidential election.
I do not prejudge what legal rules the FEC should issue. However, in
upholding the constitutionality of the McCain-Feingold law, the
Supreme Court repeatedly indicated that the government has the power
to prevent circumvention of the campaign finance laws. Outside
tax-exempt groups are seeking to essentially replicate, with
soft-money funds, much of the issue advertising and
voter-mobilization activities that the national parties financed
with soft-money funds before the new law was enacted. At the very
least, serious questions exist whether outside groups are
circumventing the McCain-Feingold law, and these questions must be
addressed.
In the weeks ahead, it will be critical that the sponsors of the
McCain-Feingold law indicate whether they believe outside tax-exempt
groups can legally spend unlimited soft money on election-related
activities in the place of the national political parties under the
new law. I believe the FEC should decide this important question as
soon as possible, before the outside groups spend the millions of
dollars they are currently amassing.
The future effectiveness of the new campaign finance law may largely
hang in
the balance.
Michael E. Toner
Commissioner
Federal Election Commission
The letter is very interesting and confirms the fears I expressed in this
Slate article yesterday that the 527 issue is getting enmeshed in a
partisan battle between Democrats and Republicans. Though the commission
is split between three Democrats and three Republicans, this Washington
Post article explains where the fourth vote for regulation of 527s may
come from:
Democrats are privately worried that one of the three Democratic
appointees to the FEC, Scott E. Thomas, could vote that the
"independent" Democratic groups are illegal.
Thomas is a strong supporter of hard-line regulation and has devoted
much of his adult life to working for the FEC. He has been angered
by the decision of Democratic congressional leaders not to appoint
him to another term. He is serving until a replacement is confirmed.
I also think it is very interesting that Toner would send such a letter.
Despite the statement that he has not "pre-judged" the issue, note the
other things he says:
1. If 527s are not regulated as political committees, "almost all campaign
finance observers agree that the McCain-Feingold law will be severely
undermined."
2. "[I]n upholding the constitutionality of the McCain-Feingold law, the
Supreme Court repeatedly indicated that the government has the power to
prevent circumvention of the campaign finance laws. Outside tax-exempt
groups are seeking to essentially replicate, with soft-money funds, much
of the issue advertising and voter-mobilization activities that the
national parties financed with soft-money funds before the new law was
enacted."
3. "The future effectiveness of the new campaign finance law may largely
hang in the balance."
Certainly no judge would make such statements about a matter that is
pending, or might soon be pending, before him or her. But apparently the
rules for FEC commissioners' public statements are considerably more lax.
In any event, it hardly seems "critical that the sponsors of the
McCain-Feingold law indicate whether they believe outside tax-exempt
groups can legally spend unlimited soft money on election-related
activities in the place of the national political parties under the new
law." That statement may be important for public relations purposes, but
the views of Sens. McCain or Feingold would have no bearing on resolution
of the difficult constitutional question whether McConnell's footnote 48
reference to California Medical Association changed the apparent rule from
CMA that seems to bar limits on contributions to political committees that
engage solely in independent expenditures.
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org