"Bid to curb groups' political ads may dim a Kerry bright spot"

The Boston Globe offers this report.

"Disclosure Rules in Holding Pattern; Senators Split Over Mandatory Electronic Filing for Candidates"

Roll Call offers this report (paid subscription required).

"Playing with Fire on 'Soft Money'

E.J. Dionne offers this column in the Washington Post.

"Suffrage Suffers in the Land of Rights"

Jamin Raskin offers this oped in the Los Angeles Times, which begins: "You have to admire President Bush's willingness to amend the Constitution over an issue of basic principles. But before we forever deny millions of Americans the chance to marry the persons they love, shouldn't we first pass an amendment guaranteeing all of us the right to vote and the right to have those votes counted?"

Seventh Circuit Decides Important Campaign Finance Disclosure Case

By a 2-1 vote, the Seventh Circuit has upheld a campaign finance disclosure statute in Majors v. Abell. Before the Supreme Court decided McConnell v. FEC, there were a number of open questions regarding the constitutionality of campaign finance disclosure laws, including the question whether government compelled disclosure on the face of a document (or other communication) is constitutionally permissible (or whether the First amendment creates a right to engage in anonymous speech).

I believe that McConnell did nothing to clarify this question, or two other important disclosure questions. (See the abstract of my forthcoming Election Law Journal article on this topic here. The article is part of a symposium on McConnell that will be out any day---the table of contents for that publication is here.)

In Majors, all three judges agree that McConnell is unhelpful in answering the question. Judge Posner, writing for the majority, holds the Indiana statute constitutional: "Reluctant, without clearer guidance from the Court, to interfere with state experimentation in the baffling and conflicted field of campaign finance law without guidance from authoritative precedent, we hold that the Indiana statute is constitutional." Judge Easterbrook, in dissent, notes many of the questions I raise in my article: "Still, the Justices’ failure [in McConnell] to discuss McIntyre, or even to cite Talley, American Constitutional Law Foundation, or Watchtower, makes it impossible for courts at our level to make an informed decision—for the Supreme Court has not told us what principle to apply. Does McConnell apply to all electioneering? All speakers? To primary communications (as opposed to notices sent to agencies)? The Supreme Court wrote that §304 is valid because it is (in the view of five Justices) a wise balance among competing interests. Yet the function of the first amendment is to put the regulation of speech off limits to government even if regulation is deemed wise. [citations] For the judiciary to say that a law is valid to the extent that it is good is to operate as a council of revision and to deny the power of a written constitution to constrain contemporary legislation supported by the social class from which judges are drawn. And when, as in McConnell, the judgment is supported by a one-vote margin, any Justice’s conclusion that a particular extension is unwise will reverse the constitutional outcome. How can legislators or the judges of other courts determine what is apt to tip the balance?"

UPDATE: The ever precise Marty Lederman writes: "The Easterbrook opinion technically is not a dissent but instead an opinion "dubitante" (i.e., expressing doubts). Basically, Easterbrook writes that he has no way of deciding the question one way or the other in light of the mess that the SCOTUS has made of this area. "[T]the Justices’ failure to discuss McIntyre, or even to cite Talley, American Constitutional Law Foundation, or Watchtower, makes it impossible for courts at our level to make an informed decision—for the Supreme Court has not told us what principle to apply." Of course, he has the luxury of being able to file an "I have no idea" opinion because he's the third vote.

Are 527 Ads "Illegal?"

Monday I offered Commentary: Legality of TV Ads by Third Party Groups on NPR's "Day to Day." The commentary tracks many of the arguments I made in this L.A. Times oped. Scott Stanzel, spokesperson for the Bush-Cheney reelection committee responded to my commentary here in a "Day to Day" interview with Madeline Brand.

I think the Bush-Cheney committee made a mistake by putting on Stanzel rather than one of their campaign finance lawyers. Stanzel apparently misunderstood the Supreme Court's recent opinion in McConnell v. FEC, and spoke a bunch of gibberish about "issue ads." The constitutional question that I raised does not depend upon whether the Moveon ads "promote, support, attack or oppose" a candidate or whether the Moveon ads use words of express advocacy. The question is this: if it is unconstitutional to limit George Soros's independent spending on ads that oppose Bush, why would it be constitutional to limit contributions of Soros to a group that runs independent ads that oppose Bush, particularly when the group does not sell access to candidates? Stanzel did not even grasp the question, much less provide a cogent answer.

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
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rick.hasen@lls.edu
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