Actually, Larry's analogy is inapt. Our point in talking about a "control
group" in the context of our lawsuit against the BCRA regulations was to
note that on a whole series of votes adopting more than a dozen deeply
flawed regulations, the same four commissioners voted together every time.
Whether that point is relevant or not to our challenge to the regulations is
perhaps debatable (we obviously thought it was), but that's certainly
different than talking about a majority of Justices voting together on one
discrete opinion.
Don Simon
-----Original Message-----
From: Larry Gold [mailto:Lgold@aflcio.org]
Sent: Friday, May 14, 2004 8:46 AM
To: AllisonHayward@aol.com; Vewu@aol.com; MFORSYTHE@bloomberg.net;
TP@capdale.com; Rick.Hasen@lls.edu; election-law@majordomo.lls.edu;
owner-election-law_gl@majordomo.lls.edu; RBauer@perkinscoie.com
Subject: RE: FEC Deadlock today on 527s
A related observation about rhetoric concerning the FEC: In the ongoing
litigation by Reps. Shays and Meehan against many of the FEC's BCRA
regulations, the plaintiffs in their briefs repeatedly refer to the
4-Commissioner majority that voted in favor of the rules they disfavor
not as "the Commission" but as the "control group" of the Commission, as
if they were an illegitimate occupying force that had seized control of
a distinct entity - - the Commission - - for improper purposes. Would
those who believe that the McConnell decision was wrongly decided be
justified in similarly characterizing that decision as the product of a
5-Justice "control group"? I think not.
Laurence E. Gold
Associate General Counsel
AFL-CIO
815 16th Street, NW
Washington, DC 20006
202-637-5130 (tel.)
202-637-5323 (fax)
lgold@aflcio.org
www.aflcio.org
www.workingfamilies.com
"Bauer, Bob-WDC" <RBauer@perkinscoie.com> 5/13/04 11:53:37 PM >>>
I suppose we could look at "deadlock" another way: that a motion to
adopt a
rule was made and failed for want of four votes. This is as much a
failed
motion, as it is a deadlock. The statute requires four votes for
Commission action, and there were not four votes to be had.
In fact, the reference to "deadlock" is a rhetorical maneuver, often
used
in the reform community, intended to suggest that nothing happened and
that
this is a bad outcome: that in some way, the issue was unresolved, and
that
there is something unhealthy about the failure of the Commissioners to
produce a majority for or against the motion. But something did
happen:
the motion failed. And it is not clear to me why there is anything
unhealthy or untoward about an outcome decided by a 3-3 vote in an
agency
that was constructed with 6 Commissioners and a rule requiring four
votes
for an action.
And I note also this interesting notion of the rule of law: that the
law
is being violated, and that complaints will rain down on organizations
and
individuals until the Commission decides what, in fact, the law is.
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
To: AllisonHayward@aol.com; Vewu@aol.com; MFORSYTHE@bloomberg.net;
Rick.Hasen@lls.edu; election-law@majordomo.lls.edu
Sent: 5/13/2004 2:02 PM
Subject: RE: FEC Deadlock today on 527s
I look forward to any explanation of why a 3-3 vote is not a
"deadlock"...
Interesting how some people are so sensitive to concerns about
gridlock
and deadlock at the FEC all of a sudden!
By the way, what the Commission did today (aside from the 3-3 vote)
was
to decide NOT to decide the issue for now, but rather to postpone the
decision for three months, until August (by which time perhaps four
Commissioners will be able to agree on an interpretation of a
statutory
standard (organizations which have as their major purpose the
influencing of federal elections) which has been in effect for almost
30
years!
Trevor Potter
-----Original Message-----
From: AllisonHayward@aol.com [mailto:AllisonHayward@aol.com]
Sent: Thursday, May 13, 2004 4:45 PM
To: Trevor Potter; Vewu@aol.com; MFORSYTHE@bloomberg.net;
Rick.Hasen@lls.edu; election-law@majordomo.lls.edu
Subject: Re: FEC Deadlock today on 527s
Well, if it is in Roll Call it must be true.
For those about to glaze over with boredom, here's a really quick
summary. Four votes were taken. they were 2-4, 3-3, 2-4 and 6-0.
Trevor says this is "deadlocking." I defer to his expertise in that
area.
Allison
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