"Blogged Down"

Investor's Business Daily offers this editorial, which begins: "Campaign Finance Reform: Could it be that nearly 200 members of our esteemed House of Representatives simply don't recognize the First Amendment? Yes, it could, and it's a telling commentary on our condition."

Interesting Politicians in Trouble Stories

As readers of this blog know, I don't usually blog these kinds of stories, relying upon Ed Still to keep me up to date. But these two stories caught my eye this morning:

The NY Times reports that "Representative Tom DeLay asked the lobbyist Jack Abramoff to raise money for him through a private charity controlled by Mr. Abramoff, an unusual request that led the lobbyist to try to gather at least $150,000 from his Indian tribe clients and their gambling operations, according to newly disclosed e-mail from the lobbyist's files."

The LA Times reports that "U.S. Rep. Dana Rohrabacher (R-Huntington Beach) used his influence to open doors in Washington for a Hollywood producer pitching a television show after the producer paid him a $23,000 option on a screenplay, records and interviews show."

"Drug Firms Gave Money to Some Who Endorsed Proposition 78"

The LA Times offers this front-page report. See also this Q&A with Edwin Bender on campaign donations.

"System Failure: Congress should have passed the Online Freedom of Speech Act"

Allison Hayward has written this National Review Online commentary.

Reargument in WRTL Case?

As I've noted, the Supreme Court will hear a major campaign finance case on January 17. January 17 has now been announced as the target date for a Judicary Committee to vote on the nomination of Judge Alito for Justice O'Connor's seat. Thus, even if all goes according to plan and there is no attempted filibuster of Judge Alito's nomination, Justice O'Connor is going to be on the bench for the WRTL argument. If Judge Alito is confirmed, Justice O'Connor won't be there fore the decision in the case.

There is good reason to believe that without Justice O'Connor the current Court could divide 4-4 on the lurking question in WRTL: is it constitutional to bar corporate expenditures in candidate elections? If that's the case and Judge Alito is confirmed, expect a reargument of the case before any decision, where Judge Alito's vote will be pivotal to the outcome.

"Lessons from the Clash Between Campaign Finance Laws and the Blogosphere"

I have posted on SSRN this short essay forthcoming in a Nexus Law Journal symposium on blogging and the law. Here is the abstract:

Abstract:
In this essay prepared for a Nexus Law Journal symposium on blogging and the law, Professor Hasen examines the current controversy over whether campaign finance laws should extend to election-related activities conducted over the Internet. Until recently, Federal Election Commission (FEC) regulations exempted Internet-based election communications from the reach of much campaign finance law. The status quo changed when a federal district court recently held that the FEC must impose some regulations of these communications consistent with Congress's intent in passing the Bipartisan Campaign Reform Act of 2002. The FEC Internet rulemaking sparked a blogstorm of protest, and as of this writing the FEC had not yet promulgated a final rule. Whatever rule the FEC does promulgate is sure to be challenged by some aggrieved party in court, though it is possible that Congress will act first to exempt such communications, or at least attempt to do so, from the ambit of campaign finance laws.

Regardless of the final outcome of this rulemaking, the clash tells us some important things both about the nature of speech in the blogosphere and about the tenability of campaign finance laws in the era of cheap speech and shifting technology. First, the line between journalism and blogging is thin indeed. Second, many bloggers view their activities as more worthy of protection than traditional political communications, but they shouldn't. Third, the convergence of journalism and blogging, and of internet and television, will put pressure on rules limiting corporate and union participation in the election process. My main conclusion is that this debate will be fruitful only if one identifies the proper goals of campaign finance regulation. If we structured our campaign finance system to prevent corruption, promote equality, and provide valuable information to voters, we would do little to limit the political activities of bloggers, but we would impose some sensible disclosure rules. In implementing rules to meet these goals, we should be aware of the danger that the new sensible exemptions for blogging today can have unintended and far-reaching consequences tomorrow.

"Voter ID amendment advances"

See this news from Wisconsin. Thanks to David Kimball for the pointer.

Alito Compared to O'Connor on Election Law

I hope to write more about this soon. In the meantime, A.P. reports "Alito Could Shift Court on Major Issues," which quotes me as follows:

"Justice O'Connor has been the key vote in everything from campaign finance to the meaning of the Voting Rights Act to racial gerrymandering to Bush v. Gore," said Richard Hasen, a Loyola Law School professor specializing in elections.

Today's Washington Post also discusses Judge Alito's vote in a case challenging an at large districting system.

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 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