Re: [EL] Electionlawblog news and commentary 1/25/11

For starters, the Commission was not voting last week “to repeal regulation.” Instead, the Commission was voting on whether to publish a Notice of Proposed Rulemaking, which would have invited public comment on how the Commission should amend its rules to implement the CU decision. Only after receiving public comment—core First Amendment activity required and protected by the Administrative Procedures Act—would the FEC then decide how to amend its rules.

Importantly, the NPRM preferred by the Republican Commissioners was not limited to repealing regulations, as you seemingly claim it was. Instead, the Republican-preferred NPRM was 89 pages of questions about whether and how the Commission should amend specific regulations to implement CU, including, for example, a multi-page discussion of whether and how CU impacts the ban on corporations/unions facilitating the making of contributions—an issue neither litigated nor even mentioned in CU.

Similarly, nor was the NPRM preferred by the Democratic/Independent Commissioners limited to repealing regulations. Indeed, it cast a substantially broader net for public comment about which regulations should be amended and how. And a broad net is appropriate in an NPRM, with public comment informing Commissioner thinking on a variety of ways to address important matters of public policy, leading, finally, to focused, well-reasoned regulations.

The mystery to me is why the Republican Commissioners are so intent on denying me and other members of the public the opportunity to exercise our First Amendment right and weigh in regarding what legal issues directly related to corporate/union IEs need to be addressed in this rulemaking. The time for Republican Commissioners to disagree with their Democratic/Independent colleagues should come later, after the public has had the opportunity to weigh in. Who knows . . . maybe public comment would actually change some minds.

Paul Seamus Ryan

FEC Program Director & Associate Legal Counsel

The Campaign Legal Center

215 E Street NE

Washington, DC 20002

Ph. (202) 736-2200 ext. 14

Mobile Ph. (202) 262-7315

Fax (202) 736-2222

Website: http://www.campaignlegalcenter.org/

Blog: http://www.clcblog.org/

To sign up for the CLC Blog, visit: http://www.campaignlegalcenter.org/index.php?option=com_forme&fid=1&Itemid=63

From: JBoppjr@aol.com [mailto:JBoppjr@aol.com]
Sent: Tuesday, January 25, 2011 3:11 PM
To: Paul Ryan; election-law@mailman.lls.edu
Subject: Re: [EL] Electionlawblog news and commentary 1/25/11

On this point, I guess one person's faithful interpretation is another person's subversion.

But what of my main point, do you also applaud the Democrats for failing to repeal regulation now unconstitutional under CU, i. e., ones that can only be justified based on the corporate prohibition now declare unconstitutional in CU? Jim

In a message dated 1/25/2011 3:03:01 P.M. Eastern Standard Time, PRyan@campaignlegalcenter.org writes:

Jim wrote, in criticizing Rick’s excellent Slate piece:

“In contrast, the Democrats wanted to adopt regulations to expand the law, as if they had won CU, not lost it. Adding new provisions to the FECA is not the FEC's business, but Congress's.”

When it comes to electioneering communication disclosure, Congress already did its business and its business was upheld by eight of the Court’s nine Justices in Citizens United. The disclosure provisions in the NPRM supported by the FEC’s Democrats and Independent are not an attempt to expand the law—they’re an attempt to implement the law passed by Congress in 2002, which the FEC severely undermined in its 2007 post-WRTL rulemaking. I detail this history in a piece I wrote for the ACS Blog last week, which can be found here: http://www.acslaw.org/acsblog/node/18089. I applaud Commissioner Weintraub (who was on the Commission in 2007 and who has publicly lamented the way the 2007 rule’s been interpreted) and her colleagues, Chair Bauerly and Commissioner Walther, for their efforts to undo the damage done to FECA through the 2007 rulemaking.

Paul Seamus Ryan
FEC Program Director & Associate Legal Counsel
The Campaign Legal Center
215 E Street NE
Washington, DC 20002
Ph. (202) 736-2200 ext. 14
Mobile Ph. (202) 262-7315
Fax (202) 736-2222
Website: http://www.campaignlegalcenter.org/
Blog: http://www.clcblog.org/
To sign up for the CLC Blog, visit: http://www.campaignlegalcenter.org/index.php?option=com_forme&fid=1&Itemid=63

From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of JBoppjr@aol.com
Sent: Tuesday, January 25, 2011 11:57 AM
To: rick.hasen@lls.edu; election-law@mailman.lls.edu
Subject: Re: [EL] Electionlawblog news and commentary 1/25/11

    Another the-sky-is-falling article which always follows the refusal of the FEC to expand the FECA to suit the reform industry. What is not revealed in the article is that there were 2 proposals before the FEC. One, by the Republican members, to repeal regulations on corporation and labor unions based solely on the corporate prohibition struck down in CU. This should have been a no brainer, but the Democrats blocked it.

    In contrast, the Democrats wanted to adopt regulations to expand the law, as if they had won CU, not lost it. Adding new provisions to the FECA is not the FEC's business, but Congress's. And what possible justification is there for not repealing regulation now unconstitutional under CU.

    Well the FEC must be good as dead, when it does not do the bidding of the reform industry. Jim Bopp

In a message dated 1/25/2011 11:38:25 A.M. Eastern Standard Time, rick.hasen@lls.edu writes:
"The FEC Is As Good As Dead; The new Republican commissioners are gutting campaign finance law."
I have written this Jurisprudence column for Slate. It begins:
Last week, the press was full of retrospectives on the one-year anniversary of the Supreme Court's decision in Citizens United v. FEC, which freed corporate cash for use in federal elections. The Federal Election Commission, the six-member bipartisan body charged by Congress with administering and enforcing federal campaign finance laws, marked the anniversary with a 3-3 partisan deadlock over proposed rules to revamp those laws in light of the Citizens United opinion. Unfortunately, this was business as usual at the FEC: For the past several years the three Republican FEC commissioners have blocked enforcement of much of what remains of federal campaign finance law. As we enter the 2012 election season, the FEC is as good as dead, and the already troubling campaign finance world of secret unlimited donations is bound to get worse.

Posted by Rick Hasen at 08:30 AM

_______________________________________________
election-law mailing list
election-law@mailman.lls.edu
http://mailman.lls.edu/mailman/listinfo/election-law