Here's what I find really interesting about Marty's reference to "the 'electioneering communication' PAC requirement of BCRA": BCRA's EC provisions don't really impose a PAC requirement per se - for groups that aren't incorporated it's just a no-corporate, no-labor union funding requirement. Unregistered organizations that aren't incorporated can use unlimited amounts from individuals to do EC's as long as they don't receive any corporate or union funds for any purpose. And, in a way that would have made John's job a lot easier, the law ALMOST didn't impose a PAC requirement for 501(c)4 organizations or 527s.
2 USC 441b(c): "... the term Ôapplicable electioneering
communicationÕ does not include a communication by a
section 501(c)(4) organization or a political organization
... if the communication is paid for exclusively by funds
provided directly by individuals who are United States
citizens or nationals or lawfully admitted for permanent
residence...."
In other words, had BCRA just been left with the Snowe-Jeffords language, c4s and 527s could have used unlimited contributions from individuals to fund electioneering communications. Good news, right? As campaign finance laws go, that's pretty clean and simple - granted it doesn't go as far as Brad would like to allow the use of money from economic corporations to fund EC's, but it seems to me this would have helped out a lot of John's clients as long as they'd be willing to make EC's with unlimited individual contributions. Which, to be perfectly clear, is *all BCRA really requires* for EC's generally.
But it just can't be that easy, can it?
2 USC 441b(c)(6)(A): Exception does not apply. Paragraph (2) shall
not apply in the case of a targeted communication that is
made by an organization described in such paragraph.
In other words, paragraph 2 doesn't apply at all. The Wellstone Amendment (BCRA 204) unwound what I found to be the pretty common-sensical exception provided by Snowe-Jeffords and, precisely as John described, it left us practitioners explaining to non-profit clients why paragraph 2 is even on the books since that section of law simply doesn't mean what it says.
So, wouldn't repealing BCRA section 204 answer a lot of questions? I would think the reform argument in cases like WRTL & CCL would be a lot STRONGER if the law allowed exempt organizations to do unlimited electioneering communications as long as they could show that no corporate or labor union funds were used in the ads. Wouldn't this moot the question of a grassroots lobbying exemption, except as to the use of money from economic corporations and labor unions? Which again, generally speaking, is *all that BCRA's EC funding provisions really prohibits anyway!*
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu on behalf of Marty Lederman
Sent: Fri 4/21/2006 2:01 AM
To: Smith, Brad; election-law
Cc:
Subject: Re: message from Gerry Hebert re: Maine Christian Civil League v. FEC
"Say what?" I'll assume, Brad, that that's a rhetorical question. But just in case: I'm referring, of course, to section 304 of Taft-Hartley, 61 Stat. 159. See generally the discussion at pages 3-5 and 75-80 of Brad's brief in McConnell.
Of course, this doesn't mean the energy of the past decade was misspent: As the Court in McConnell recognized, the attack on the "electioneering communication" PAC requirement of BCRA -- as well as the common practices of corporations and unions post-MCFL, especially from the 1996 cycle onward -- was a very concerted effort to de facto circumvent Taft-Hartley and to challenge the correctness of the Austin decision. Although, as Kennedy's dissent indicates, the opponents would have been well-advised to urge Austin's overruling more directly, their energy was nevertheless well-spent: The opponents of Austin even persuaded Rehnquist to switch his vote, and would have prevailed but for the fact that the SG, speaking on behalf of Brad, persuaded O'Connor that the sky had not fallen under the (then) 56-year-old practice, and that Taft-Hartley, as amended by BCRA, was not the second coming of the Sedition Act.
----- Original Message -----
From: "Smith, Brad" <BSmith@law.capital.edu>
To: "election-law" <election-law@majordomo.lls.edu>
Sent: Thursday, April 20, 2006 11:25 PM
Subject: RE: message from Gerry Hebert re: Maine Christian Civil League v. FEC
the basic restriction that we're discussing here has been in place for 59 years
Say What? If only we'd known, everyone could have saved a lot of energy over the past decade.
________________________________
From: owner-election-law_gl@majordomo.lls.edu on behalf of Marty Lederman
Sent: Thu 4/20/2006 9:25 PM
To: John Pomeranz; election-law
Subject: Re: message from Gerry Hebert re: Maine Christian Civil League v. FEC
Well, if we're talking about the 441b restrictions and the like, "people" can use their own money to run all the ads they want -- the restrictions only apply to corporations and unions; and even then, many nonprofits engaged in "truly non-electoral activities" are MCFL-exempt. (Speaking of which, why isn't the Maine CCL exempt? Presumably because it accepts corporate donations -- and if it ceased to accept such donations, the expenditure limitations would not apply to it.)
As many readers know, I am somewhat ambivalent, skeptical even, about whether Austin was rightly decided; and I certainly don't think the extension of Austin to unions is defensible. But let's be honest -- the basic restriction that we're discussing here has been in place for 59 years, and it has not, over those many generations, imposed a significant burden on the ability of corporations and unions to engage in lobbying or other public speech on issues of the day.
----- Original Message -----
From: John Pomeranz <mailto:jpomeranz@harmoncurran.com>
To: election-law <mailto:election-law@majordomo.lls.edu>
Sent: Thursday, April 20, 2006 7:39 PM
Subject: RE: message from Gerry Hebert re: Maine Christian Civil League v. FEC
Putting aside how different people choose to characterize the facts of this particular case, I really must dispute Gerry Hebert's suggestion that the electioneering communications restrictions and other parts of BCRA aren't actually harming people and organizations.
On a regular basis I am faced with people obliged to constrain truly non-electoral activities as a result of the broad sweep of BCRA-created tests. But you're going to have to take my word for that, because I can't ethically tell you about those people, and they've decided to do the best they can by curtailing planned efforts and working within these tests. These people and groups have other agendas -- protecting the environment, ensuring the civil rights of all Americans, fighting for economic justice for working people, ending discrimination against gay and lesbian families, challenging an unjust war, and more -- that they see as more important than spending years and hundreds of thousands of dollars fighting for their constitutional rights in the courts.
What's worse are all the people who don't even get as far as these advocates. These people see the tangle of tax and election laws governing their every move. They see the fees charged by the handful of lawyers who have made it their life's work to really understand -- as well as anyone can -- these laws. They hear the caveat-filled "advice" we are obliged to give as a result of the ambiguity of these laws. And they give up. They don't get involved. They leave the dirty business of governing the country to the few saints, fools, and fanatics so obsessed with their particular causes that they are willing to persevere against all of the barriers set against them.
Corrupt public officials (and those that corrupt them) will guarantee ongoing public support for groups that propose more more and more restrictions on political speech, and incumbents seeking to secure their positions will support those efforts. Few will fund efforts to ensure a robust -- and, yes, sometimes not very pretty -- political debate. Perhaps the only people willing to challenge those calling for more regulation will be those with a partisan ax to grind. Be grateful that at least they will! For there are others with arguably purer hearts, but without the stomach for this fight.
John Pomeranz
Harmon, Curran, Spielberg & Eisenberg, LLP
1726 M Street, NW, Suite 600
Washington, DC 20036
p: 202.328.3500
f: 202-328-6918
e: jpomeranz@harmoncurran.com
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