soapbox

Michigan hypothetical: see this post. (This entry was 2/12, not actually 2/10)

My questions are based on a state criminal felony prosecution brought by
the Michigan Attorney General's office of a person who registered a PAC
with the FEC and raised money for the presidential race in 2000. He was
convicted in state court and is in prison. The discussion of false and
misleading speech prompted my questions.

I am wondering how these cases apply to a fundraising
solicitation for U.S. Presidential candidates or U.S. congressional
candidates. Assume that a PAC files all necessary papers to obtain FEC
status, and files all FEC disclosures, and meets the reporting
requirements. Assume the PAC raises money independently for a candidate
or committee and turns over the money that is raised, minus a fair and
reasonable amount to cover costs of fundraising. (Assume the FEC heard
and denied a complaint seeking to disqualify the PAC and revoke its
status and to impose fines.)

Assume that a State Attorney General then prosecutes the PAC for
statements in fundraising letters that it says are false and misleading.

The prosecution goes forward under state criminal statutes that make it
a felony to take money under false pretenses (a larceny offense) and
"gross fraud" (a statutory larceny offense that codifies a common law
crime.)

I have three basic questions:

(1) Does the First Amendment Apply to protect false and misleading
speech?:
(a) What relevance do the cases that seem to protect false and
misleading speech have in such a case to create a First Amendment
defense to the state criminal charge?
(b) Does strict scrutiny apply to modify the elements of the
state statutory definition of the crime in any way?
(c) Are there any cases where the state criminal statute has
been modified or limited by a federal or state court applying first
amendment principles

(2) Where would you recommend I look to find any such state criminal
cases:
(a) Have state attorneys general viewed it as their duty to
prosecute
(b) Does the Justice Department support a view states can
prosecute in this area involving federal elections
(c) Has a special federal prosecutor ever been appointed to
prosecute federally (e.g. if a party candidate or committee is engaged
in false or misleading speech)

(3) Does federal preemption apply on the theory that federal law
controls
(a) Has the FEC and the federal statutes preempted the field of
state regulation of fund-raising for presidential campaigns
(b) If there is no field preemption, is there limited
preemption?
Patrick Levine Rose, Esq.
321 Woodland Pass
Suite 400
East Lansing, MI 48823
(phone redacted)
patrickrose@voyager.net

I know nothing about michigan post-conviction relief or federal habeus corpus; generally one wants to raise these issues at the first opportunity,
but I don't think that's an absolute bar here.
We don't know the facts: was this a scam all along, or legitimate political expression gone awry somehow?
Strict scrutiny applies in pure speech cases. Expressive speech regulation of money gets laxer scrutiny under McConnell, Valeo, O'Brien, and Burdick v. Takushi. Survival Education Fund, 4th cir., upheld the solicitation prong
of the otherwise unconstitutional federal disclaimer statute. The courts allow more leeway in preventing fraud than in preventing speech.
New York Times v. Sullivan sets out the "false malicious defamatory" standard of applying the first amendment to state regulation of advertizing. I was surprized to see these same three elements present in the Alien and Sedition Act, earlier today.
Some Louisiana disclaimer cases show how hard the NYT standard is, in an election context. Napolean Moses versus somebody, maybe Moses v. State. Earlier cases in that line included ... I used to be able to rattle those off. I even read the case files on my last trip to New Orleans. La. v. Burgess.
Preemption: I certainly think preemption is worth looking into, where there have been FEC proceedings. I'd start with the FEC Record
's index, anything on preemption?
As applied First Amendment claim: can it be fairly said that the prosecution was content-based; that it is retaliation because they don't like the candidate at issue? Who complained and why? A little old lady who wants her money back, or the opposition? Research "selective prosecution." If, in practice, there was some element of retaliation, that makes it easier to argue for strict scrutiny. If it's content neutral, TPM, laxer review.
What are the client's goals? 100% just wants out of jail? or revenge?
I'd prepare (but not file) a 1983 action for injunctive relief and damages,
ethical complaints if there's appearance of impropriety, look into any clemency options if the governor is either a friend or an enemy, and start a public relations campaign, if the equities support it.
Is there any defect in the statute? In New York v. Duryea, for example, Duryea was guilty, but had standing to raise an overbreadth challenge, won, and walked. Dennis v Massachusetts, 1974, Dennis was in prison on a political speech charge and walked due to unconstitutional statute.
Mens rea - criminalization of political speech requires specific intent. Smith v. California. Which is, again, the malice prong of NYT.
This is just off the cuff - with more facts I could speculate further.







Open source election software:
Post-Bush v Gore, everybody's running around buying new voting machines, even if the old ones were fine.
The voting machine companies are getting rich, selling hardware, and software. Then the software doesn't support some extra feature, so they go spend more money on more software. My thought is, the purchasers of this stuff should insist on open-source systems, and then buy hardware that works with the system, so they buy the software once, not over and over. Does this add to or detract from system security?
This also aids in spreading democracy to 3rd world countries, which aren't going to buy the gold-plated HAVA systems. Get some software to give away, and a manual for how to build and test the hardware.