Treating that activity as an in-kind is indeed a far more congruous and natural result. It is one, however, the actual text of the statutes and regulations does not necessarily lead.
But even if it does (especially if it does), wouldn't it make the coordination anaylsis for internet content much *worse*? What I mean is, wouldn't it take internet communications OUT of the particularized content/conduct/payor tests of Part 109 and leave them governed by the far more subjective and spongier statutory "test"? If so, what's good about this?
-----Original Message-----
From: Sandstrom, Karl J. (Perkins Coie) [mailto:KSandstrom@perkinscoie.com]
Sent: Fri Mar 10 10:29:23 2006
To: Joseph Birkenstock; Election-law Listserver; Bauer, Bob (Perkins Coie)
Subject: RE: HR 1606: Once more from the top! With gusto!
Joe, I will try to respond to your modest request. Imagine that a
candidate has produced a brochure that touts his position on stem cell
research and contrasts it with his opponent's position. He knows that
if he mails it to more than 500 voters, it is a "public communication"
and is subject to 109.21. So to avoid those rules, he asks his local
teachers union to produce and provide volunteers to deliver it two weeks
before the election throughout his congressional district. Because the
brochure contains no express advocacy and is not a "public
communication", you appear to be arguing that the FEC could not
characterize this transaction as an in-kind contribution. I would
contend that FEC should be able to successfully contend that the
teachers union has made an illegal contribution under 109.20(b) and
109.23. If I am wrong, the regulations are in need of great repair. If
I am right, the same in-kind contribution treatment would result when a
candidate requests that a corporation pay for a similar expense for a
communication over the Internet.
Karl J. Sandstrom
Perkins Coie LLP
(202) 434-1639
Ksandstrom@perkinscoie.com
IMPORTANT TAX INFORMATION: This communication is not intended or written
by Perkins Coie LLP to be used, and cannot be used by the taxpayer, for
the purpose of avoiding penalties that may be imposed on the taxpayer
under the Internal Revenue Code of 1986, as amended.
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Joseph
Birkenstock
Sent: Thursday, March 09, 2006 8:08 PM
To: Election-law Listserver; Bauer, Bob (Perkins Coie)
Subject: RE: HR 1606: Once more from the top! With gusto!
Fair enough - I had hoped I made it clear that I would welcome
even just a quick link or clip of text, on-list or off, clearly
addressing my concerns. While I did get several off-list responses, I
didn't get any that offered the kind of specific, step-by-step analysis
I was looking for on coordination of non-express advocacy - and which I
feel I provided in support of the argument I offered.
Anyway, at the risk of making the on-list portion of this a
conversation with myself, I'll even try to describe one counterargument
to my position which I kind of expected to receive in response to my
first post two days ago. I have read a couple iterations of one
argument, which I *think* I understand - although I certainly could be
getting it wrong - for why coordinated internet ads would still be
treated as "coordinated expenditures" even though the regulations would
indicate they're not "coordinated communications." Since frankly I'm
not all that convinced by it (or, like I said, just don't fully
understand it), I may not articulate it well, but here goes:
1. The coordination analysis at Part 109 applies to
coordination of "public communications." However, those regs do not
supply a negative inference - just because those regs would determine
that a given communication was not a "coordinated communication" does
not automatically mean that it is permissible. (BTW - I understand and
agree with all of this so far.)
2. And, to be sure, there certainly are categories of
activities (e.g., those listed at 114.4(c)(2)-(5), namely distributing
voter reg materials, absentee ballot applications, voting records, or
voter guides) which, even to the extent they are done through means that
are not "public communications," still have at least some degree of
communicative nature and still cannot be coordinated with candidates.
(Still agree.)
3. Accordingly, even under 1606 the analysis of a coordinated
internet ad could not stop with the application of the coordinated
communications regs. (And here's where I think I start getting lost.)
Even if the ad in question was not specifically described in
114.4(c)(2)-(5), the very existence of those regs (the simple
application of others?) indicates that there are other kinds of
communications beyond "public communications" which can still constitute
441b violations due to coordination.
4. Therefore, even any "communications" which the "coordinated
communications" analysis of Part 109 would purport to allow, still must
be analyzed under the "in cooperation, consultation, or concert with, or
at the request or suggestion of" language of the statute because ...
(honestly, now I'm basically just reaching) ... the coordination
regulations at Part 109 and the corporate & labor communications
regulations at Part 114 aren't necessarily co-extensive with the scope
of the statutory language.
Like I said, I *think* I follow the logic of this - most of it,
at least. On the other hard, it seems to me to be, at best, the legal
equivalent of a double-twisting, triple back-flip: it's a pretty
complicated set of maneuvers that requires lots of attention and
concentration to execute - and which requires you to cover a LOT of
ground in a single leap. What I mean is, it's fine to point out ways in
which other parts of the law might theoretically be stretched to apply
to coordinated communications, but requiring or expecting a judge to
follow along while a complainant takes this long, leisurely walk through
the rest of the Act - even though under 1606 the text of the law on
"coordinated communications" already leads to a crystal clear green
light! - is, well, remarkable. Remarkably good if you don't like
campaign finance reform, and remarkably bad if you do.
By the way, if you don't feel at home in either the "Lots" or
"None" camps on campaign finance regulation, but you believe there are
some core concepts of CFR which are worthwhile (even while you're
concerned over how far some people are willing to go to defend or extend
them), I'd suggest this result is first and foremost just remarkably and
nightmarishly COMPLICATED.
As I recall it, Allison Hayward (who deeply disagrees with me on
1606) coined the expression "Swiss Cheese-ifying the statute." I don't
think she was referring to 1606, but she should have been - truer words
were never spoken. Especially if you're convinced by the argument I
tried to outline above, I think you'd have to agree 1606 would take an
already enormously complicated set of laws and push them down those last
couple steps into farce.
Should anyone happen to be still reading, I really am still
sincerely interested in seeing a simple, clear illustration of why 1606
would not open the door to coordinated non-express advocacy "via the
Internet" - or clarifications to the argument I admittedly may have
misstated above. Feel free to call or email - on-list or off. Thanks.
-----Original Message-----
From: Bauer, Bob (Perkins Coie)
[mailto:RBauer@perkinscoie.com]
Sent: Thursday, March 09, 2006 4:15 PM
To: Joseph Birkenstock; Election-law Listserver
Subject: RE: HR 1606: Once more from the top! With
gusto!
I understand Joe's (maybe even his colleague Trevor's)
wish, perfectly understandable, to draw inferences--substantive ones
about the positions held by listserv members--from the absence of
replies to his earlier emails. He is mistaken, however, in my case, and
most likely in at least some others. There are a host of reasons why
replies might not be made. He can imagine what some of those reasons
might be.
Just wanted to discourage any other assumptions he might
make on the basis of his personal rule of construction.
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Joseph
Birkenstock
Sent: Thursday, March 09, 2006 2:24 PM
To: Election-law Listserver
Subject: RE: HR 1606: Once more from the top!
With gusto!
Well, after two days of deafening silence, I
assume we can now consider at least one part of the debate over HR 1606
to be resolved. It appears that 1606 would indeed lay to rest the 441b
corporate prohibition with respect to the funding of any advertisement,
no matter how expensive and no matter how thoroughly coordinated with
candidates or party committees, as long as it (1) avoids express
advocacy and (2) can be said to have been communicated "via the
Internet."
To be perfectly clear, there is a significant
degree to which I have no objection to that outcome. "Everything other
than express advocacy" is obviously an extremely large category of
speech, and it includes lots of very important grass-roots lobbying and
true issue advocacy which I agree should be (and are) off-limits to
FECA's limits and prohibitions. That said, I'm convinced there's also
lots of purely campaign-related activity included in that category as
well - activity to which I think it's perfectly appropriate to apply
FECA's requirements, especially the corporate prohibition. This
highlights, therefore, the issue that I'm afraid some of my colleagues
and friends who support this bill are failing to appreciate: deciding
whether or not to use express advocacy as the only dividing line between
campaign and issue speech. This is an enormous, first-order question of
campaign finance law.
Furthermore, consider the context in which this
bill is now being offered: the WRtL litigation may yet produce a new and
workable standard for defining grassroots lobbying, and the Fired Up! AO
has now provided other appropriately broad protections for even highly
partisan and opinionated internet media activity. This convinces me
that 1606 is not about protecting bloggers or making sure the law
respects the newness and uniqueness of this new, unique medium - it's
about legislating the express advocacy standard into place as broadly as
possible going forward.
To those 1606 supporters who hold less than an
acidic level of hostility to anything that can be labeled "campaign
finance reform," I repeat: this is a bill you will regret having helped
pass.
-----Original Message-----
From:
owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Joseph
Birkenstock
Sent: Tuesday, March 07, 2006 12:11 PM
To: Election-law Listserver
Subject: HR 1606: Once more from the
top! With gusto!
Trying not to simply rehash too much of
the ground already covered on the proper scope of a statutory exemption
for political activity conducted via the internet(s), I wanted to try to
ask a narrow question that may help me better understand the position of
those who support HR 1606.
As previously stated, my concern is that
given the indeterminate nature of the specific technologies included
within this statutory reference to "the Internet," 1606 would exempt
from a coordination analysis expensive forms of advertising that are
indistinguishable from the TV or radio ads we've known for 50 years.
My basis for this concern is the
structure of the exemption created by 1606:
A. 1606 would amend the definition of
"public communications" to exclude "communications over the Internet."
B. The regulatory definition of
"coordinated communications" premises such a finding on the existence of
a "public communication" in the first place.
C. Consequently, under 1606 internet
advertising could not constitute a "coordinated communication," since
it's not a "public communication."
The negative responses I received, both
on this list and especially off, seem to me to have fallen into a few
general categories:
1. My analysis is incorrect,
coordinating any soft money internet advertising with candidates or
party committees would still be illegal.
2. My analysis is imprecise.
Coordinating non-express advocacy internet advertising would be
exempted, but coordinating express advocacy would not, and therefore
1606 makes sense because it addresses the right category of activities.
3. My analysis is beside the point. To
any degree HR 1606 would exempt anything it's a good thing because CFR
generally is unconstitutional/misguided/a bad thing.
4. My analysis is just fear-mongering.
Scare tactics. My head and my, uhh, lower GI tract have been claimed to
fit together in anatomically innovative ways. In other words, in a slur
so deeply offensive it pains me to let the words cross my lips, I'm
accused of sounding like [gulp] "a reformer." (Heaven forfend! Water
pistols at 20 paces for the next man who repeats such a calumny!)
I understand reactions 2 through 4, but
especially 2 - at least to a point. I totally agree that if the
internet ads in question contain express advocacy there are lots of
other legal restrictions that would apply to them. Even if done
independently, a corporation generally couldn't make EA communications
over the internet whether 1606 passes or not. Furthermore, 11 CFR
109.20(b) plainly covers coordinated "expenditures" that don't meet the
"coordinated communications" definition in 109.21, but that restriction
is textually limited to "expenditure[s]." Unless I'm missing something
big, for corporations and other non-political committees Buckley still
limits "expenditure" to express advocacy, so 109.21(b) doesn't apply to
coordinated non-express advocacy.
So what I don't understand is reaction
#1. If 1606 becomes law, how would FECA/BCRA apply to the coordination
of internet ads that don't contain express advocacy? I think it would
genuinely advance the argument if a supporter of 1606 were to illustrate
a step-by-step response to this question.
P.S. I've read the links in Bob's blog
post today, and have gone back over the various emails I exchanged with
people the last time we went around the block with this issue, but
either those explanations simply don't address coordination of
non-express advocacy or I'm just too dense to perceive it. If you're
going to respond (either on-list or off) by referring me to prior
listserv or blog posts on this topic, please cut and paste or otherwise
highlight the sections that address coordination of non-express advocacy
communications. Thanks!
________________________________
Joseph M. Birkenstock, Esq.
Caplin & Drysdale, Chartered
One Thomas Circle, NW
Washington, DC 20005
(202) 862-7836
*also admitted to practice in CA
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