Friday, January 15, 2010
Jan Baran's firm reports that a couple of guys have gone to jail for lying to the FEC. But the FEC investigation was, as far as I can tell, itself unconstitutional.
Is it a crime to lie in response to questions that shouldn't have been asked in the first place? I don't know the answer to this. Eugene Volokh is the expert on the false statement exception to the first amendment. I'm not condoning the behavior, but I'm not sure it was criminal. I might get around to posting about this on the election law list. Not going to do so right now - already posted once today, about today being the 50th anniversary of the talley v california oral argument.
FEC finds no reason to believe Friends of Jeff Smith violated Act
In MUR 5493, a complaint alleged that two 2004 Congressional campaigns, Joan Barry in Congress (MO/3) and Friends of Jeff Smith (MO/3), violated the Act by working together to obscure the identity of the individuals responsible for distributing three flyers and a postcard to residents of Missouri’s 3rd Congressional District. The Commission found reason to believe that Joan Barry in Congress violated the Act by failing to include disclaimers on three campaign flyers, but exercised its prosecutorial discretion and took no further action. The FEC found no reason to believe that Friends of Jeff Smith and Joan Barry in Congress violated the Act’s reporting requirements or contribution limits. The Commission found no reason to believe that Eric Lillard, accused of acting on behalf of Friends of Jeff Smith, violated any provision of the Act. Finally, the Commission found reason to believe a violation occurred, but took no further action, against an unknown political committee that might have been responsible for the postcard.
Lying to the FEC Catches Up with Former Missouri State Senator
By Carol A. Laham and Andrew G. Woodson
January 2010 | Election Law News
Last November, a former Missouri congressional candidate, along with several members of his campaign team, were sentenced for their roles in obstructing a multi-year investigation by the Federal Election Commission (FEC)—even though the FEC had already dismissed the matter.
The charges arose out of the August 2004 Democratic primary for the seat once held by long-time Missouri Congressman Dick Gephardt. According to FBI press releases, an individual affiliated with an organization known as Voters for Truth (VFT) approached members of then-candidate Jeff Smith's campaign team during the primary with a plan to produce and disseminate communications critical of one of Smith's opponents, Russ Carnahan. Although unidentified in court documents, press accounts named the individual as Milton Ohlsen, a Missouri resident with a checkered criminal past, including convictions for bank fraud and a firearms violation. At Smith's request, a close political ally, Steve Brown, worked to raise substantial funds for Ohlsen and the VFT from Smith's campaign donors. Then, shortly before the primary, nearly 25,000 postcards were mailed to voters without identifying who paid for them.
Responding to a complaint filed by the Carnahan campaign, the FEC opened an investigation into the mailers. As part of its investigation, the FEC subpoenaed Mr. Ohlsen to testify in Washington, DC. According to an FBI press release and various media accounts, Steve Brown met with Mr. Ohlsen before his FEC testimony and encouraged him to cover up Smith's and Brown's involvement in the matter. Moreover, Smith, Brown and one other campaign staffer had numerous telephone conferences where they jointly agreed to deny any involvement in the matter.
The FEC dismissed the matter in late 2007. Acting on newly discovered information, however, the FBI opened its own investigation into the conspiracy. Ultimately, Brown turned on Smith and agreed to wear a wire for federal investigators in exchange for a lesser sentence. Smith was captured on tape admitting that he had not been entirely truthful in providing information to the FEC or federal investigators. For his role, Smith was sentenced in federal court to 12 months and one day in prison, and ordered to pay a $50,000 fine. He also resigned his seat in the Missouri State Senate on August 5, 2009. Two others, including Brown, were fined and sentenced to two years of probation.
Interesting discussion we're having about anonymity, disclosure, a
right to know, and so forth.
I thought I'd mention that it was 50 years ago today (or yesterday;
the argument took two days?) that Talley v California was argued at
the Supreme Court.
The decision was announced March 7th 1960. Talley, and related cases
NAACP v Alabama and Dairy Bates v Little Rock, established a right to
privacy under the First Amendment.
Specifically, Talley held that the government cannot require
disclaimers on political literature.
http://epic.org/free_speech/talley_v_california.html.
California, 50 years later, still tries to compel disclaimers on
political literature. See the Daniel Griset case for an example.
Kentucky and Indiana are also in the camp that is still resisting
obeying they Court's holding in Talley. Is this unusual, for a Supreme
Court case to still be resisted 50 years later?
Some members of this list are better connected than I am with
legislators, lobbyists, drafters of legislation. I'd like to see some
kind of resolution introduced, maybe in Congress, maybe in California,
commemorating Manuel Talley and what he tried to accomplish. It's my
general sense that's it's much much easier to pass a resolution than
an act. Here is a photo of Manuel Talley
http://www.flickr.com/photos/9562869@N07/3931757432/ (A link because
i'm not sure photos are welcomed on this list.)
I am somewhat frustrated by the way the disclaimer issue was framed in
CU, as well as in McConnell. In both of these cases, the question
presented was one involving whether or not the express advocacy
exception fits the facts, instead of simply pointing to Talley and
saying that the court has already held that disclaimers cannot be
required. I am very interested to see whether and how the Court
addresses the issue of the disclaimers on the CU ads for the movie.
More generally, I am interested in working with anyone interested in
seeing whether states and municipalities are following Talley,and
doing whatever is needed to bring them into compliance. Robbin
Stewart.
Is it a crime to lie in response to questions that shouldn't have been asked in the first place? I don't know the answer to this. Eugene Volokh is the expert on the false statement exception to the first amendment. I'm not condoning the behavior, but I'm not sure it was criminal. I might get around to posting about this on the election law list. Not going to do so right now - already posted once today, about today being the 50th anniversary of the talley v california oral argument.
FEC finds no reason to believe Friends of Jeff Smith violated Act
In MUR 5493, a complaint alleged that two 2004 Congressional campaigns, Joan Barry in Congress (MO/3) and Friends of Jeff Smith (MO/3), violated the Act by working together to obscure the identity of the individuals responsible for distributing three flyers and a postcard to residents of Missouri’s 3rd Congressional District. The Commission found reason to believe that Joan Barry in Congress violated the Act by failing to include disclaimers on three campaign flyers, but exercised its prosecutorial discretion and took no further action. The FEC found no reason to believe that Friends of Jeff Smith and Joan Barry in Congress violated the Act’s reporting requirements or contribution limits. The Commission found no reason to believe that Eric Lillard, accused of acting on behalf of Friends of Jeff Smith, violated any provision of the Act. Finally, the Commission found reason to believe a violation occurred, but took no further action, against an unknown political committee that might have been responsible for the postcard.
Lying to the FEC Catches Up with Former Missouri State Senator
By Carol A. Laham and Andrew G. Woodson
January 2010 | Election Law News
Last November, a former Missouri congressional candidate, along with several members of his campaign team, were sentenced for their roles in obstructing a multi-year investigation by the Federal Election Commission (FEC)—even though the FEC had already dismissed the matter.
The charges arose out of the August 2004 Democratic primary for the seat once held by long-time Missouri Congressman Dick Gephardt. According to FBI press releases, an individual affiliated with an organization known as Voters for Truth (VFT) approached members of then-candidate Jeff Smith's campaign team during the primary with a plan to produce and disseminate communications critical of one of Smith's opponents, Russ Carnahan. Although unidentified in court documents, press accounts named the individual as Milton Ohlsen, a Missouri resident with a checkered criminal past, including convictions for bank fraud and a firearms violation. At Smith's request, a close political ally, Steve Brown, worked to raise substantial funds for Ohlsen and the VFT from Smith's campaign donors. Then, shortly before the primary, nearly 25,000 postcards were mailed to voters without identifying who paid for them.
Responding to a complaint filed by the Carnahan campaign, the FEC opened an investigation into the mailers. As part of its investigation, the FEC subpoenaed Mr. Ohlsen to testify in Washington, DC. According to an FBI press release and various media accounts, Steve Brown met with Mr. Ohlsen before his FEC testimony and encouraged him to cover up Smith's and Brown's involvement in the matter. Moreover, Smith, Brown and one other campaign staffer had numerous telephone conferences where they jointly agreed to deny any involvement in the matter.
The FEC dismissed the matter in late 2007. Acting on newly discovered information, however, the FBI opened its own investigation into the conspiracy. Ultimately, Brown turned on Smith and agreed to wear a wire for federal investigators in exchange for a lesser sentence. Smith was captured on tape admitting that he had not been entirely truthful in providing information to the FEC or federal investigators. For his role, Smith was sentenced in federal court to 12 months and one day in prison, and ordered to pay a $50,000 fine. He also resigned his seat in the Missouri State Senate on August 5, 2009. Two others, including Brown, were fined and sentenced to two years of probation.
Interesting discussion we're having about anonymity, disclosure, a
right to know, and so forth.
I thought I'd mention that it was 50 years ago today (or yesterday;
the argument took two days?) that Talley v California was argued at
the Supreme Court.
The decision was announced March 7th 1960. Talley, and related cases
NAACP v Alabama and Dairy Bates v Little Rock, established a right to
privacy under the First Amendment.
Specifically, Talley held that the government cannot require
disclaimers on political literature.
http://epic.org/free_speech/talley_v_california.html.
California, 50 years later, still tries to compel disclaimers on
political literature. See the Daniel Griset case for an example.
Kentucky and Indiana are also in the camp that is still resisting
obeying they Court's holding in Talley. Is this unusual, for a Supreme
Court case to still be resisted 50 years later?
Some members of this list are better connected than I am with
legislators, lobbyists, drafters of legislation. I'd like to see some
kind of resolution introduced, maybe in Congress, maybe in California,
commemorating Manuel Talley and what he tried to accomplish. It's my
general sense that's it's much much easier to pass a resolution than
an act. Here is a photo of Manuel Talley
http://www.flickr.com/photos/9562869@N07/3931757432/ (A link because
i'm not sure photos are welcomed on this list.)
I am somewhat frustrated by the way the disclaimer issue was framed in
CU, as well as in McConnell. In both of these cases, the question
presented was one involving whether or not the express advocacy
exception fits the facts, instead of simply pointing to Talley and
saying that the court has already held that disclaimers cannot be
required. I am very interested to see whether and how the Court
addresses the issue of the disclaimers on the CU ads for the movie.
More generally, I am interested in working with anyone interested in
seeing whether states and municipalities are following Talley,and
doing whatever is needed to bring them into compliance. Robbin
Stewart.
Monday, January 11, 2010
Controversial Michigan attorney Geoff Feiger is front page news again,
testing a new disqualification rule, seeking to force recusal of 3 of the 7 judges on the Michigan supreme court, in a $16 million case.
testing a new disqualification rule, seeking to force recusal of 3 of the 7 judges on the Michigan supreme court, in a $16 million case.
