Dan Walters' Column on California Redistricting Reform

See this Sacramento Bee column. A snippet:

Gov. Arnold Schwarzenegger, denouncing the gerrymander as undemocratic, wants to change it with a ballot measure that he hopes would lead to new districts being drawn for the 2006 elections by an independent panel of retired judges. Democrats and unions and other groups that can now control the outcome of Democratic primaries don't like it, nor do some Republican congressmen whose tenure would be threatened by new districts.

It's an uphill battle, not only to get the measure qualified and passed by voters, but also to survive the inevitable court tests. An outline of the potential challenges was aired Thursday during a special legislative hearing in which Democrats' handpicked witnesses complained about the technical complexities of middecade redistricting.

Potentially, the most serious legal problem is that since 2000, California's population has grown by nearly 3 million, and therefore the 2000 census data are no longer accurate enough to equalize populations of new districts. Democrats are hinting that they might be willing to create an independent panel for the post-2010 census redistricting. Schwarzenegger must decide whether to take them up on that semioffer or press ahead and risk losing either at the polls or in the courts.

Bauer Responds on Disclosure for Paid Bloggers and a Brief Response

See here. Bob is essentially concerned that allowing regulation of disclosure would lead to other, more intrusive regulations down the line. The position is a bit ironic. It is the mirror image of the anti-circumvention rationale adopted by the Supreme Court that Bob has criticized repeatedly. That is, the Court says: Congress can regulate local political party activity not because it is shown that local parties have been the site of corrupt federal election activities but rather out of fear that after the national soft money ban local parties could next play that role. On the flip side, Bob doesn't make arguments against the virtues of disclosure itself but wonders what it would lead to next.
To be clear: in my view there are a great informational benefits for the public to having those paid to make public communications to favor a candidate for federal office disclose that payment as part of the communication itself. And I believe this principle should apply equally both on and off the Internet. I am not advocating greater regulation of bloggers beyond disclosure by bloggers paid by the campaign to write such public communications.

Birkenstock on Disclosure by Paid Bloggers

Over at the election law listserv, practicing election lawyer Joe Birkenstock has posted these comments, which he has given me permission to reproduce here:

Mike Krempasky and now Mark Schmitt have warned of the drastic regulatory revisions they say would be required to apply the FEC's disclaimer requirements to candidate-paid bloggers. I disagree, and since it seems to me that the benefits (providing a candidate-paid blogger's readers with the means to consider the source of what they are reading) of such a change would outweigh any chilling effects, I wanted to make a suggestion on what looks to me like a pretty trivial re-write that would accomplish this goal.

The FEC's existing regulations on disclaimers generally are at 11 C.F.R. 110.11. In particular, 110.11(a)(1) would require bloggers, columnists, opinion writers, robo-callers, tv personalities, skywriters, or anybody else making a public communication "for which a political committee makes a disbursement" to include an appropriate "Paid for" disclaimer. It currently does not require such a disclaimer on blogs, however, because the special expansion of the definition of "public communications" in the body of 110.11(a) is limited to "Internet websites of political committees." (Emphasis added.) Since commentator blogs generally are not the product of or administered as political committees (with the significant exception of Krempasky's own RedState.org, FEC Committee ID# C00408047), the disclaimer requirement, as a general rule, does not apply anything posted on a weblog.

The problem is, with the existing structure of the regulation you can't just remove the "of political committees" qualification without ending up applying the disclaimer requirement to any blogs (or any blog posts) that expressly advocate [110.11(a)(2)] or make solicitations [110.11(a)(3)]. I wouldn't support that - frankly, I doubt anybody in America really supports that.

So why not just restructure the reg? Eliminate the "of political committees" qualification on "Internet websites" for 110.11(a)(1), but not for 110.11(a)(2)-(4). Put another way, apply the qualification to 11(a)(2)-(4), but not to 11(a)(1). This is hardly "serious regulatory surgery," this is trivial regulatory nail-clipping.

This would require anyone who got paid by a candidate to make a public communication (on a blog, on a radio talk show, in a newspaper column, or otherwise) to include a medium-appropriate "Paid for by" disclaimer on that communication. I'm no fan of much of the thrust of recent campaign finance reform efforts, but I really fail to see the harm in this one.

Mark Schmitt on Disclosure by Bloggers of Payment

See his comments here. One correction on Supreme Court doctrine to Mark's post: He writes: "Even after the Supreme Court ruling upholding BCRA, preventing corruption or the appearance of corruption by elected officials is the only justification for regulating campaign contributions or other activities." Not true when it comes to disclosure rules, which the Supreme Court has also held may be justified by an interest in providing valuable information to voters, especially of large money spending in candidate elections. Those interested in this topic of where the Supreme Court's disclosure law is generally may want to check out my article, The Suprisingly Easy Case for Disclosure of Contributions and Expenditures Funding Sham Issue Advocacy, 3 Election Law Journal 251 (2004) (abstracted here).