Saturday, February 21, 2004
contest:
erick writes, under the heading McCain-Feingold Lunacy
I'm hoping this is not true, but I just got an email forwarded to me that had been sent from a staffer in the State Republican Party in Georgia.
The email said, quoting directly: “Concerning the Presidential Preference Primary, due to McCain Feingold, we cannot shoot out an e-mail to our Republican list saying -' Support our President, vote Tuesday' . . ."
Did I miss something? Is this in the law?! If so, putting it in non-academic non-legal genius terms, isn't it stupid that the State Republican Party cannot send out an email saying, "Support our President, vote Tuesday."
What are the Republican and Democratic Parties good for anymore if they can't do that?
Thanks,
Erick Erickson
Discuss.
update: brian writes:
...day-to-day costs from the expenditures that need to be attributed to
candidates. The FEC applied this specifically to e-mail in
http://herndon2.sdrdc.com/ao/ao/990037.html.
The e-mail would have to have a disclaimer, if it were sent to more than 500 people. In short, while there are myriad ways in which BCRA complicates the lives of state parties, this probably isn't one of them.
My thoughts:
point 1: It's easy to say, "This is ok" when it's not yourself at risk.
As the 527 AO indicates, even the experts don't know what McCain-Feingold does or doesn't require. BCRA has added to the fear uncertainty and doubt about the legal status of political speeh, so that such speech is chilled. It is not enough to be within the law. There must also be the appearance of being within the law, or one's opponents will file frivolous complaints with the FEC, and when the FEC dismisses them, Common Cause will sue (if the speaker is Republican.) By the time you win the case, you've lost the election. So better to avoid anything remotely iffy.
Where can a speaker obtain speech insurance, similar to title insurance in a real estate transaction?
Point 2: Erick Erickson asks whether FEC regs (I paraphrase to make a point, he asked about BCRA) prohibit or regulate statements of the form,
"Support the president. Vote Tuesday."
Brain Svoboda responds that, if sent to over 500, a disclaimer would be needed. See FECA 318, while keeping in mind the narrow grounds on whih the Chief Justice upheld BCRA 311. (That is, 311 survived an issue v. express challenge but there was no direct challenge to the stand by your ad disclaimer provisions.)
The case most on point which I found was Stewart v Taylor, 953 F. Supp. 1047 (SD Ind. 1997) which upheld "Robbin Stewart for Township Board - Vote Tuesday." The court found McIntyre directly on point. I conclude that "support the president. vote tuesday" is protected speech for the same reasons. ACLF and Watchtower upheld McIntyre, itself based on Talley v California, and McConnell did not overturn any of these decisions. Dissenting in McConnell, Justice Stevens indicates he may no longer support McIntyre, but meanwhile it remains good law and has the support of a majority of the court. More on this topic at majors.blogspot.com. Disclaimer: My biases should be evident.
A version of this post has been sent to the election law list.
erick writes, under the heading McCain-Feingold Lunacy
I'm hoping this is not true, but I just got an email forwarded to me that had been sent from a staffer in the State Republican Party in Georgia.
The email said, quoting directly: “Concerning the Presidential Preference Primary, due to McCain Feingold, we cannot shoot out an e-mail to our Republican list saying -' Support our President, vote Tuesday' . . ."
Did I miss something? Is this in the law?! If so, putting it in non-academic non-legal genius terms, isn't it stupid that the State Republican Party cannot send out an email saying, "Support our President, vote Tuesday."
What are the Republican and Democratic Parties good for anymore if they can't do that?
Thanks,
Erick Erickson
Discuss.
update: brian writes:
...day-to-day costs from the expenditures that need to be attributed to
candidates. The FEC applied this specifically to e-mail in
http://herndon2.sdrdc.com/ao/ao/990037.html.
The e-mail would have to have a disclaimer, if it were sent to more than 500 people. In short, while there are myriad ways in which BCRA complicates the lives of state parties, this probably isn't one of them.
My thoughts:
point 1: It's easy to say, "This is ok" when it's not yourself at risk.
As the 527 AO indicates, even the experts don't know what McCain-Feingold does or doesn't require. BCRA has added to the fear uncertainty and doubt about the legal status of political speeh, so that such speech is chilled. It is not enough to be within the law. There must also be the appearance of being within the law, or one's opponents will file frivolous complaints with the FEC, and when the FEC dismisses them, Common Cause will sue (if the speaker is Republican.) By the time you win the case, you've lost the election. So better to avoid anything remotely iffy.
Where can a speaker obtain speech insurance, similar to title insurance in a real estate transaction?
Point 2: Erick Erickson asks whether FEC regs (I paraphrase to make a point, he asked about BCRA) prohibit or regulate statements of the form,
"Support the president. Vote Tuesday."
Brain Svoboda responds that, if sent to over 500, a disclaimer would be needed. See FECA 318, while keeping in mind the narrow grounds on whih the Chief Justice upheld BCRA 311. (That is, 311 survived an issue v. express challenge but there was no direct challenge to the stand by your ad disclaimer provisions.)
The case most on point which I found was Stewart v Taylor, 953 F. Supp. 1047 (SD Ind. 1997) which upheld "Robbin Stewart for Township Board - Vote Tuesday." The court found McIntyre directly on point. I conclude that "support the president. vote tuesday" is protected speech for the same reasons. ACLF and Watchtower upheld McIntyre, itself based on Talley v California, and McConnell did not overturn any of these decisions. Dissenting in McConnell, Justice Stevens indicates he may no longer support McIntyre, but meanwhile it remains good law and has the support of a majority of the court. More on this topic at majors.blogspot.com. Disclaimer: My biases should be evident.
A version of this post has been sent to the election law list.
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