In this morning's Roll Call, an article quoted some listserv
posts regarding the recent Shays v. FEC case. I wanted to use
this opportunity to remind everyone of our privacy and quotation
policy, and to offer an apology to those quoted for directing the
reporter to the listserv discussion without letting her know about the
quotation policy.
First, the privacy policy. Listserv messages are not private. Since
1995, when this listserv began (back when I was at Chicago-Kent), we
have had the following policy, now available from the listserv home
page at:
http://majordomo.lls.edu/cgi-bin/lwgate/ELECTION-LAW_GL/information.html
"How private are my postings?
They are not private. Postings on the list are available in
archived form to the general public at :
http://majordomo.lls.edu/cgi-bin/lwgate/ELECTION-LAW_GL/archives/"
The list now has about 450 subscribers, including the vast majority of
academics working in the field of election law, numerous election
lawyers, government officials and staff attorneys, and journalists from
a number of very prominent news organizations. (The distribution list
itself is available to the public from the home page). The ideology of
list members is diverse, as is obvious to anyone who reads list posts
regularly. So no one should post any messages here that are intended
for a private audience.
That said, we have had a different policy about quoting from list
messages. When we were on the old Chicago-Kent system, each listserv
message printed at the bottom the admonition not to quote from the
message without the permission of the message's author. That's still
our policy, but it is not readily apparent from someone who just looks
at our archives. And I should have told the Roll Call reporter
about the policy. I apologize for not doing so. I'll see if it is
possible to get the admonition added to listserv messages in the future.
One more point on quoting. Last year, the issue came up about linking
to listserv posts on blogs. I have done so, as has Mickey Kaus (and
perhaps Ed Still as well). At the time the issue arose, we stated the
list's policy that linking to the posts on blogs is fine, but that
bloggers should not quote from the posts without the permission of the
author. That's still the policy.
Bottom line: Don't put out anything on the list that you don't want the
world to read. But if you are a member of the press, please get
permission from authors before quoting any listserv messages directly.
Here is the article in question from today's Roll Call article:
Bill to Rein in 527s
Introduced
September 22, 2004
By Amy
Keller,
Roll Call Staff
The Federal Election
Commission’s toughest Congressional critics will introduce legislation
today
cracking down on independent political organizations known as 527s — a
move that
comes as legal experts continue to assess the impact of a federal
judge’s recent
decision tossing out numerous FEC regulations.
Sens. John McCain
(R-Ariz.) and Russ Feingold (D-Wis.) and Reps. Christopher Shays
(R-Conn.) and
Marty Meehan (D-Mass.) will introduce the 527 Reform Act. The
legislation is
aimed at making sure that 527 groups engaging in political activity are
treated
as political committees under the law and thereby registered with the
FEC and
subject to the same reporting requirements and contribution limits.
This comes
on the heels of a lawsuit that Shays and Meehan recently filed in U.S.
District
Court challenging the agency’s failure to crack down on the
groups.
Meanwhile, some of the nation’s foremost election lawyers
were burning up the blogosphere Tuesday as they debated the impact of
District
Judge Colleen Kollar-Kotelly’s decision, released over the weekend, to
overturn
15 campaign finance rules put in place by the FEC.
At the center of
the dispute is whether the FEC’s regulations implementing the
Bipartisan
Campaign Reform Act — which affect everything from soft-money
solicitations to
coordination — remain in effect pending the agency’s likely appeal of
the
controversial ruling, or whether those in the campaign arena ought to
rely on
other standards when deciding how to behave.
Not all the players
found common legal ground in their analysis of the
situation.
“Given that Judge Kollar-Kotelly found that specific
rules adopted by the FEC were arbitrary and capricious and contrary to
law ... I
do not see how those rules can be said to remain in effect,” Trevor
Potter, head
of the Campaign Legal Center, concluded in an Internet chat forum
frequented by
campaign finance experts.
“If they were invalid exercises of FEC
authority, then they are invalid rules, and the FEC cannot now apply
them,”
continued Potter, a champion of the Bipartisan Campaign Reform Act and
a
Republican who once served as FEC chairman.
Absent a stay, he
argued, the FEC would seem to have to fall back on the language of the
statute
itself.
That sparked an impassioned reply from Joseph Sandler, a
Democratic campaign finance attorney with the firm Sandler, Reiff &
Young,
who wrote that simply instructing political actors to “follow the
statute”
without implementing regulations was “absurd.”
“From the standpoint
of those of us who actually have to advise the people now out in the
field whose
every move is governed by this law, 18 hours a days 7 days a week, such
statements are breathtakingly reckless and irresponsible,” Sandler
retorted.
Referring to BCRA’s “foreboding vagueness and impossible
complexity,” Sandler pointed to the case of the coordination rules,
noting that
there is in fact “no statute to follow” — that Congress merely repealed
the
then-existing regulations and simply required the FEC to issue new
rules.
“It could not be clearer — could NOT be clearer — that the
current FEC regulations stay in effect, and that everyone is entitled
to follow
them without fear of prosecution or complaint, UNTIL the FEC comes up
with new
rules,” Sandler wrote.
Indeed, Kollar-Kotelly’s surprise decision,
released on Saturday afternoon, seemed to leave massive confusion in
its wake,
as it confirmed many of the challenges to the regulations posed by
Shays and
Meehan.
The judge tossed out more than a dozen regulations she
deemed were contrary to Congress’ intent and in some cases “severely
undermined”
the nation’s campaign finance law.
But Kollar-Kotelly stopped short
of granting the specific relief requested by Shays and Meehan. While
the
lawmakers had asked for an injunction, a 15-day deadline for commencing
a new
rulemaking and court oversight of that process, Kollar-Kotelly simply
remanded
the rules back to the FEC, ordering the agency to “take action
consistent with
these findings.”
Various lawyers interpreted Kollar-Kottelly’s
decision differently.
“The Judge concluded that the rules are
unlawful,” Potter argued on Loyola Law School Los Angeles professor
Rick Hasen’s
Web site. “She did not want to become involved in monitoring how the
FEC
responds to that conclusion and did not want to ‘devise a particular
remedy.’”
That said, Potter concluded, “there is no way” the FEC
can continue to enforce its existing rules — without a stay from the
court, of
course — while taking steps to comply with the judge’s ruling.
At
least four FEC commissioners have said they will seek to appeal
Kollar-Kotelly’s
decision and indicated they would likely seek a stay so as not to upset
the
regulated community in the last six weeks of the election
cycle.
Brian Svoboda, an attorney with the law firm Perkins Coie,
which provides campaign finance and election advice to numerous
Democratic
campaigns, also disputed Potter’s notion, arguing that the judge could
have
“vacated” the FEC’s rules if she had so wished, but that she chose not
to do
that.
“Faced with a choice of having no rules on the one hand, and
leaving doubtful rules in place pending rewrite on the other, a court
can opt
for the latter course — especially when the consequences of vacatur
would be
extremely disruptive for the agency and the regulated community,”
Svoboda wrote.
“Certainly, that would be the case here, with little more than 40 days
to go
before a presidential election.” With criminal penalties for certain
campaign
finance violations written into BCRA, some lawyers focused on the
question of
whether individuals could face penalties or prosecution if they relied
on the
FEC’s regulations.
“It is virtually inconceivable, as a practical
matter, that the FEC or [Justice Department] would ever take
enforcement action
against a person who acted in conformity with the regulations during
this
election cycle, if the conduct was undertaken while the regulations are
still
‘on the books,’” predicted SCOTUSblog’s Marty Lederman, a former
Justice
Department lawyer.
Again, my apologies.
Professor Rick Hasen
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-0019
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org