Marty,
My question was not rhetorical in the least. Obvioiusly the law of BCRA was not the law of 56 years, or no new law was required. You suggest that the plaintiffs made an effort to "circumvent Taft-Hartley," and that that was plugged by BCRA and upheld by the court. Quite true, I suppose. But when A is unlawful but B, similar to A, remains lawful, that is a very different situation than when A and B are both unlawful. And, of course, from Buckley in 1976 right up through the passage of BCRA had come a series of appellate decisions recognizing the difference between A and B, and even Austin - an express advocacy case - did not obliterate that distinction. Nor did the McConnell Court hold that this was a simple application of Austin to a set of facts. Rather, it held that given what it saw as the "functionally meaningless" distinction between A and B, and given Austin, it would not stand in the way of Congress outlawing B.
You suggest that the "sky had not fallen" under the older limits on corporate and union participation in campaigns. That's a new constitutional standard. Obviously corporations and unions had sought to find other ways to participate in political activity, to the point where eventually the Court felt that they had successfully made 441b "functionally meaningless." This is strong evidence that the unions and corporations did find that 441b was restricting them from engaging in activity - and the exercise of what even the Court has always recognized is First Amendment activity - in which they want to engage. So the unions and corporations may not have met the exacting "sky is falling" test (gosh, I can hardly think of any case that would ever have met that test), but you can't just say that there was no difference between the law pre-BCRA and post BCRA. What might better be said is that Congress attempted to limit the speech of corporations and unions; corporations and uni!
ons, finding those restrictions impeded their ability to participate in politics in the manner they deemed most effective, found other avenues of participation that were almost as effective, and exploited them with increasing aggressiveness; and Congress changed the law to more broadly limit their activities.
The fact that something was "not the second coming of the sedition act" - the "sky is not falling test" - is not and has never been the test for recognizing infringement of a constitutional right. Heck, by that standard even the sedition act was not the first coming of the sedition act, in that political debate remained robust enough that the Federalists were trounced at the polls in the election of 1800. But personally, that wouldn't gain my support for the sedition act, and, more to the point, wouldn't lead me to say that the expiration of the sedition act was not a change in the law, or that its expansion would not have been a change in the law.
________________________________
From: Marty Lederman [mailto:marty.lederman@comcast.net]
Sent: Fri 4/21/2006 2:01 AM
To: Smith, Brad; election-law
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 <mailto:BSmith@law.capital.edu> >
To: "election-law" <election-law@majordomo.lls.edu <mailto: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 <mailto: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 <mailto:jpomeranz@harmoncurran.com> >
To: election-law <mailto:election-law@majordomo.lls.edu <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 <mailto:jpomeranz@harmoncurran.com>