RE: Tuesday on Votelaw

A couple things should be pointed out on the first and third items in Ed's report.  
 
First, on the Texas case, the article is not the "Houston Chronicle report[ing];" it is an opinion column by Rick Casey.  Casey is a pretty rabid Delay critic, if you read some of his back columns.  This column itself is quite unfair: there is no evidence, for example, that DeLay criticized the 1977 decision on which the Court relied last week.  One might note that last week's ruling was perfectly consistent with a conservative approach to judging: the judges followed binding precedent that they obviously did not like.  And it is hardly fair to accuse DeLay of hypocrisy based not on anything he said or did, but on what Casey thinks DeLay would have thought about a decision 30 years ago.
 
Next, on the Blackwell piece: This is the type of reporting that illustrates the fundamental dangers of this type of regulation.  Now granted, here the issue is merely the church's tax exempt status, and the Supreme Court has held that limits on that status do not violate the First Amendment.  But as in campaign finance, it illustrates the problematic nature of government regulation of speech:
 
A bunch of politically liberal preachers file a complaint with the IRS.  Barely three months later - the Post says it's been three months, but the fact of the complaint was first announced by the preachers and first reported in the Columbus Dispatch less than three months ago - they complain that the IRS is not acting, and that this demonstrates "favoritisim."  In fact, they have no idea if the IRS is acting or not, because the IRS doesn't tell them.  But what, exactly, should we expect in any case?   Let's see - do you think the churches should be notified of the complaint, and have an opportunity to respond?  How long should they get to respond - is 20 days adequate?  30 days?  So in a best case scenario, we're basically a month in, more or less, by the time the IRS has notified respondents of the complaint and received a response.  Only then can the IRS even decide to start an investigation.
 
Despite the thoroughly predictable assertions from the complainants' lawyer (quoted by the credulous Post as if they were meaningful to understanding the case), this looks to be a pretty complex case.  Complainants allege - according to press reports here in Columbus - a number violations of lengthy, often arcane, and generally complex rules.  Most of the allegations have been publicly denied as being based on incorrect facts (for example, the defendant churches have stated publicly that they did give other candidates the same invitations as they gave Blackwell, but the other candidates chose not to take them - a very believable story).  So this "he said/she said" is almost certainly a case demanding some fact intensive investigation.  How fast do you think that should be done?  Once it is done, do you think the defendant churches deserve a chance to respond to any legal findings? The truth is, whether it's the IRS or the FEC, it is wholly unrealistic to expect most investig!
 ations to be completed within 3 months, if any respect is given to the due process rights of defendants.
 
So, one week before the Ohio primary, the complainants, admitted Blackwell opponents, want another news story.  And they get compliant Post reporters to write one, relying almost entirely on their own assertions.  Does anyone think that this complaint is anything but politically motivated?  Does anyone think this complaint would have been filed by these preachers against Columbus's predominantly black churches, inviting liberal politicians to address them (as has occured many times in the past)? 
 
As with the DeLay case, to say that the charge is politically motivated is not to say that there is not a violation of the law - but it is another example of how these rules will always be exploited for partisan gain.  The laws are arrows in the quivers of political operatives, and will be used against one's opponents to the extent possible.  If the current charges against Blackwell turn out to be patently bogus, they will have served their purpose of tarring he and his supporters, and attempting to suppress their activity for fear of bad press and legal enforcement.  Just as violations, if any, will not be determined until well after the election, nor will innocense and bogus charges.  So much for campaigns being about "the issues."  In any event, these complainants are hardly in a position to whine about favoritism in enforcement, not only because they have no evidence of favoritisim (other than their apparent belief that the IRS should act at a pace that would clearly den!
 y the defendant churches due process), but because even if true, it is an inherent problem in this type of regulation.  Indeed, many would argue that it is the purpose of this regulation.  And that is why we generally don't give the government this power.  
 
Of course, my friend Ken Blackwell - and he is my friend of many years - has accepted John McCain's endorsement and jumped on the campaign finance bandwagon, so there may be some rough justice if he is hoisted on that petard.  I wonder if Sen. McCain will come to Secretary Blackwell's defense, noting that it is wholly unreasonable to expect a decision from the IRS so quickly?  Probably not.
 
Brad Smith
Professor of Law
Capital University Law School
Columbus, OH
 

 
________________________________

From: owner-election-law_gl@majordomo.lls.edu on behalf of Edward Still
Sent: Tue 4/25/2006 9:24 AM
To: election-law
Subject: Tuesday on Votelaw


To read these and earlier stories in full, go to http://www.votelaw.com/blog. 



Texas: a 1977 "liberal" decision helped DeLay <http://www.votelaw.com/blog/archives/004010.html> 

The Houston Chronicle reports: IT was exactly the sort of decision that has Congressman Tom DeLay declaring that "judicial activism has become the greatest threat confronting representative government." In Baker v. the State of Texas, an appeals court made up... 



Arizona: two appellate courts reject challenges to trial judge hearing redistricting case <http://www.votelaw.com/blog/archives/004009.html> 

AP reports: The state's redistricting commission is questioning how it can get a fair shake from a trial judge who the commission suggests could be resentful, partly because his rulings on key issues on the legality of Arizona's map of... 



Ohio: is the IRS dragging its feet on investigation of churches supporting Blackwell? <http://www.votelaw.com/blog/archives/004008.html> 

The Washington Post reports: In a challenge to the ethics of conservative Ohio religious leaders and the fairness of the Internal Revenue Service, a group of 56 clergy members contends that two churches have gone too far in supporting a... 



Wisconsin: county voters may vote on county board size <http://www.votelaw.com/blog/archives/004007.html> 

AP reports: Advocates for smaller county boards have a new weapon in Wisconsin � putting the issue to a vote of residents � but early returns indicate changes won't come soon. Only one county has put the issue to a... 



Alabama: GOP redistricting suit awaits court action <http://www.votelaw.com/blog/archives/004006.html> 

AP reports: A lawsuit challenging the constitutionality of the current district boundaries for the Alabama Legislature awaits a ruling by a three-judge federal panel on whether it can continue. Democrats claim it's a Republican attempt to pick up where the... 





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Edward Still
attorney and mediator
Suite 201
2112 11th Ave S.
Birmingham AL 35205
  phone 205-320-2882
  fax toll free 1-877-264-5513
  still@votelaw.com
  http://www.edwardstill.com <http://www.edwardstill.com/>  
  http://www.votelaw.com/blog <http://www.votelaw.com/blog>