Wednesday, November 15, 2006

my latest rant at the election law list:
I was suprised to see Senator McCain a week or so ago on CSPAN refer to the FEC as corrupt. (He used the present tense, indicating the current members.)
However, this ruling supports an appearance of corruption.
The FEC's policy could be construed as deliberately confusing implied advocacy, as here, with express advocacy, in order to expand its jurisdiction into the zone forbidden by Buckley v Valeo, and become a national censorship board regulation issue discussion, infringing on core speech.

I'm a bit unclear as to the standing requirements for judicial review of FEC actions.
Does everybody, such as myself, have the right to challenge this in court?
I cannot claim to be a reasonable person.
But some people could read this brochure and decide to vote for Bush or Martinez,
while others could read it and decide to vote for Kerry , while others could read it and decide that neither Bush or Kerry is supportable, and look for some other candidate.
Empirical research would be useful here.

The brochure happens to contain issue advocacy about several environmental issues, but that isn't the relevant test. The relevant test is that the advocacy is not explicit. There is no express advocacy in the "conscience" first part, and none in the second part that provides information about candidate stances on legislation. There is advocacy in the linking between the first part and the second part, but it is implied rather than express.
McConnell taught that some 94% of political advocacy is implied rather than express, and thus, except in the context of a well-crafted non-vague legislation like BCRA, most political expression is beyond the jurisdiction of the FEC and congress. Here the FEC tries to expand a small expception to free speech doctrine into a general regulatory power.
This can fairly be called corruption, in the sense that some consider the FCC corrupt when it levies large fines on vague incidents of broadcast indecency in order to create chilling effect.
- Show quoted text -

On 11/15/06, Rick Hasen wrote:



See this FEC press release about this conciliation agreement released today (after an earlier 5-1 vote, with then Commissioner Smith dissenting, and a new vote on the agreement, with Commissioners Weintraub and Lenhard dissenting). See also this report from the General Counsel, which formed the basis for the conciliation agreement. (I think I have the procedure and votes right here; if I'm wrong, I'd appreciate someone sending me an email with a correction.) Thanks to Brett Kappel for bringing this to my attention.

This resolution will be very important when it comes to voter guides, and I expect this issue will end up in court.

The press release begins:

The Sierra Club will pay a $28,000 civil penalty to settle charges that it used funds from its corporate treasury to pay for a brochure expressly advocating the election and defeat of candidates in the 2004 presidential and U.S. Senate races, the Federal Election Commission announced today.

"This is one of the most important express advocacy cases the Commission has resolved in recent years," said Commission Chairman Michael Toner. "I am very pleased that the Commission was able to conciliate this case and provide further guidance to the public on the appropriate scope of the express advocacy test," added Toner.

The settlement follows a Commission determination that the bar on using corporate treasury funds to pay for independent expenditures applies not only to communications containing so-called "magic words." such as "vote for" or "vote against," but also to a broader set of communications that are "unmistakable, unambiguous, and suggestive of only one meaning," and can "only be interpreted by a reasonable person as containing advocacy of the defeat of one or more candidates." This settlement with the Sierra Club, a 501(c)(4) organization, represents the first major case to consider the reach of the express advocacy test in light of the landmark Supreme Court case, McConnell v. FEC.

At issue was a pamphlet distributed by the Sierra Club in Florida prior to the 2004 general election. The front of the pamphlet exhorted the reader to "LET YOUR CONSCIENCE BE YOUR GUIDE," accompanied by various nature scenes. The heading of the interior of the pamphlet urged the reader, "AND LET YOUR VOTE BE YOUR VOICE."

The test used by the FEC appears at first glance to mirror the "backup" test for express advocacy in BCRA. The Supreme Court in McConnell did not have to reach the constitutionality of this backup test, having upheld the primary definition, containing a bright line test. Among other things, watch for an attack on this test as unconstitutionally vague.

Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)380-3769 - fax


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