-----Original Message-----
From: Trevor Potter [mailto:tpotter@capdale.com]
Sent: Wednesday, March 30, 2011 3:01 PM
To: Svoboda, Brian (Perkins Coie); John White; Joseph Birkenstock;
rhasen@law.uci.edu; Election Law
Subject: RE: Re: [EL] "Ornstein's Awards are Nothing to Brag About"
Brian is certainly right that the Commission's change in the disclosure
requirements in 2007 was justified neither by statute nor court decision.
However, even the defective 2007 regulation does not require the result
reached in Freedon's Watch-there is a difference between funds given for
election communications (the reg) and funds designated for specific EC
advertisements (the 3 controlling Commissioners in Freedon's Watch).
Trevor Potter
Sent by Good Messaging (www.good.com)
-----Original Message-----
From: Svoboda, Brian (Perkins Coie)
[mailto:BSvoboda@perkinscoie.com]
Sent: Wednesday, March 30, 2011 02:55 PM Eastern Standard Time
To: John White; Joseph Birkenstock; rhasen@law.uci.edu; Election Law
Subject: Re: [EL] "Ornstein's Awards are Nothing to Brag About"
The question of whether the agency should be faithful first to the
Constitution, then to the statute, is not new at all. After the Supreme
Court issued its second Wisconsin Right to Life decision in 2006, the FEC
had to rewrite its rules to account for the Court's holding, which was
that BCRA's financing restrictions on electioneering communications could
not reach ads lacking "the functional equivalent of express advocacy."
The Court didn't consider the question of disclosure. In their complaint,
the plaintiffs went out of their way to say they weren't raising it. But
the FEC took it up anyway, asking for input on "the rules governing
reporting of electioneering communications." 70 Fed. Reg. at 50,262.
I and others filed comments on behalf of the DSCC and the DCCC, saying
that the agency had to follow the disclosure statute unless and until it
was struck down. Even some skeptics of disclosure (indeed, if memory
serves, even The Skeptic) looked past their policy preferences and warned
the FEC not to play swami, and try to guess through rulemaking how a
future Court might judge the disclosure question. But the FEC, at the
behest of commenters on all sides of the ideological spectrum, rolled back
the rules "to require corporations and labor organizations to disclose
only the identities of those persons who made a donation aggregating
$1,000 or more specifically for the purpose of furthering ECs." 72 Fed.
Reg. at 72,911 (emphasis added). It was a classic case of "watch what I
say, not what I do." While claiming to agree that WRTL did not address
disclosure, it rolled back the disclosure requirements all the same.
The FEC's decision was not inconsequential, especially after Citizens
United. It bears no less responsibility than Commissioners McGahn,
Petersen and Hunter for the strained dismissal of a complaint that the
DCCC filed against Freedom's Watch in MUR 6002. (There, the sponsor of an
electioneering communication disclosed no donors at all, even though it
had one major donor who was said to provide his funds on a project-by-
project basis.) And if the agency made a tacit bet in the WRTL rulemaking
on the constitutionality of the statute's disclosure requirements, it lost
that bet completely in Citizens United.
I write not to let Commissioner McGahn off the hook for this, that or the
other thing. Rather, I would only point out that the current state of the
campaign finance laws cannot be just be chalked up to Commissioner
intransigence or bad faith. The story of how we got where we are is much
more complicated than that.
=B.
Brian G. Svoboda | Perkins Coie LLP
700 Thirteenth Street N.W.
Washington, DC 20005-3960
PHONE: 202.434.1654
FAX: 202.654.9150
E-MAIL: BSvoboda@perkinscoie.com
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From: election-law-bounces@mailman.lls.edu [mailto:election-law-
bounces@mailman.lls.edu] On Behalf Of John White
Sent: Wednesday, March 30, 2011 1:17 PM
To: Joseph Birkenstock; rhasen@law.uci.edu; Election Law
Subject: Re: [EL] "Ornstein's Awards are Nothing to Brag About"
I read the Ornstein piece and had exactly the same reaction.
But I believe that not only is Mr. Ornstein's criticism unfair, it is
fundamentally flawed as a matter of separation of powers. Where
conceptually or textually similar provisions have been declared
unconstitutional by the Supreme Court, the executive should be guided by
those court decisions when enforcing the balance of the law. It would be
irresponsible for the executive to ignore what the courts have said
regarding the limits the First Amendment places on regulation of campaign-
related speech. The court decides the specific question placed before it.
As we all know, court decisions can be "authority" beyond their specific
holding. Otherwise we would have no "see," "accord," or "cf." citation
forms to worry about.
Some of the Commissioners may take a more narrow reading of
the Supreme Court's decisions in this area than Commissioner McGahn, but
that does not mean that they are violating their oaths by failing to
uphold the First Amendment (through aggressive interpretation of the FEC's
enforcement powers).
John J. White, Jr.
white@lfa-law.com <mailto:white@lfa-law.com>
(425) 822-9281 ext. 321
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From: election-law-bounces@mailman.lls.edu [mailto:election-law-
bounces@mailman.lls.edu] On Behalf Of Joseph Birkenstock
Sent: Wednesday, March 30, 2011 8:44 AM
To: rhasen@law.uci.edu; Election Law
Subject: [EL] "Ornstein's Awards are Nothing to Brag About"
Food for thought: wouldn't it be a clearer violation of an FEC
commissioner's oath of office to in fact enforce the law as Congress wrote
it? Bringing an action to enforce FECA's limits on independent
expenditures, for example, would seem to me to be potentially sanctionable
in a court, and at a minimum could subject the Commission to (yet further)
liability to pay the respondent's legal expenses under an EAJA petition.
I see that Ornstein noted what he calls McGahn's "disclaimer," but I don't
think he paid enough attention to it. Whether or not Ornstein (or I) or
anyone else is happy about it, the foundation underneath the entirety of
campaign finance law undeniably has shifted, a lot, and it really doesn't
seem productive to me to respond to that shift by lobbing this kind of
accusation at the administrators of the agency that's obligated to adapt
to the new reality.
My only point being that you don't need to agree with everything these
Commissioners (or any Commissioners) have done to think that it's a
mistake to attempt the leap from "I disagree with his decisions" to "he
violated his oath of office" with as little run-up as Ornstein offers
here.
________________________________
Joseph M. Birkenstock, Esq.
Caplin & Drysdale, Chtd.
One Thomas Circle, NW
Washington, DC 20005
(202) 862-7836
www.capdale.com/jbirkenstock
*also admitted to practice in CA
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any tax advice contained in this communication (including any
attachments) was not intended or written to be used, and
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