Thursday, December 14, 2006

THe FEC has launched a major attack on 527's.
Three of the big ones, Swift Boats, League of Conservation Voters, and a MoveOn subsidiary, were fined a total of over half a million, with substantial chilling effect.
The decisions were complex and hard to figure out. I've always had trouble getting a handle on the 527 litigation - you need to know tax law, con law, and the FECA nuances.
Hasen here, Bauer here.

It's a really vague "we know it when we see it" test that seems to combine a major purpose test, an implied advocacy test, and fundrasing pitched at specific candidates.
Thus, when Swift Boats runs ads saying Kerry is wussy and dishonorable, that makes it need to register as a political committee.

I don't claim to know what to make of all this. I don't like it when the FEC looks at implied advocacy and pretrends that it is express advocacy - they are dead wrong on that. But where here they are looking at what is or isn't a political committee, I don't feel I know the area well enough to say they are right or wrong.
And I'm a bright guy with a law degree who focuses on this sort of thing. What's a regular guy to do, who wants to spend over $1000 to call a crook a crook? As in, "Hillary 2008 - Vote for the Crook it's Important." Hmmm.. Alien vs Predator....
The three 527s paid out large amounts of money as being cheaper than litigating.
That's going to be a problem for the little guy, although granted these were the big fish. Ok, I'm rambling. Just wanted to note the issue.

The FEC points to MCLF in support of its implied advocacy test. MCLF is mostly known for creating a free speech exception for ideological corporations. But there's a line in there about specch which is "in effect" expresss advocacy. Maybe the FEC is right that this "in effect" language undoes the express advocacy test of Valeo,and allows implied advocacy tests ala Furgatch. The Furgatch test isn't about what it says, it's about what it does. Under Furgatch, a court can reach any speach any time anywhere, although the language of the test requires that speech be unmistakenly only possibly construed as electoral advocacy. Some sort of litigation is likely. I might or not be a small player in that litigation - currently not planning that far ahead.

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