Comments of CCP Legal Director Allen Dickerson on the James Madison Center for Free Speech’s Petition to the FEC

On August 22, 2011, CCP Legal Director Allen Dickerson submitted comments to the Federal Election Commission (FEC) in support of a Petition for Rulemaking filed with the FEC by the James Madison Center for Free Speech on January 26, 2010.

CCP believes that the James Madison Center for Free Speech’s petition properly aligns FEC regulations with the understanding of the First Amendment recently articulated by the Supreme Court in its January 2010 decision in Citizens United v. FEC.

The FEC should approve this peition, effectively repealing existing FEC regulations that have since been invalidated by the Supreme Court.

Filed Under: Blog, Disclosure, Disclosure Comments, Disclosure State, External Relations Comments and Testimony, External Relations Sub-Pages, Federal, Federal Comments and Testimony, Legal, Legal Center, Comments and Testimony

Comments of CCP Legal Director Allen Dickerson on Representative Christopher Van Hollen’s Petition to the FEC

On August 22, 2011, CCP Legal Director Allen Dickerson submitted comments to the Federal Election Commission (FEC) in opposition to a Petition for Rulemaking filed with the FEC by Representative Christopher Van Hollen on April 21, 2011.

CCP believes that Congressman Van Hollen’s petition misinterprets existing law while inappropriately attempting to enact by regulatory action what Congress has already rejected in 2010’s failed DISCLOSE Act.

If this petition was approved, the FEC would require broad, consitutionally-questionable disclosure requirements on a variety of organizations.

Filed Under: Blog, Disclosure Comments, External Relations Comments and Testimony, Federal, Federal Comments and Testimony, Legal, Legal Center, Comments and Testimony

Colbert Is Funny, Our Disclosure Laws Are Not

As any fellow members of the Nation are doubtless aware, the latest way for college kids to get their name on television is to donate cash to Stephen Colbert’s Colbert Super PAC.  If you do so, your name will scroll at the bottom of the screen as one of the Super PAC’s “Heroes”.  It’s a nice way for a 19-year old GW student to get a new Facebook picture, and everybody who is giving is in the on the gag.  (D.B. Cooper also apparently gave.) All well and good.

Of course, Colbert could have done more than just scroll the names of the Super PAC’s donors.  He could have hunted the FEC database for those who gave more than $200 to candidates other than “Rick Parry” (with an A for America) and posted their names, addresses, employers and job titles on his website or scrolled the information on his show.  Not so funny anymore.

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog, Super PACs, DISCLOSE, Disclose Act

In the News: USA Today: Letter to the Editor: Anonymous speech needed, has history

Anonymous speech needed, has history By Sean Parnell There are many reasons other than “corrupt” ones that a donor to an independent nonprofit organization might want to remain anonymous (“Our view: Presidential race not the place for secret donors”). Citizens United, the 2010 ruling that famously led President Obama to wag a disapproving finger at […]

Filed Under: Disclosure Press Release/In the News/Blog, In the News, Published Articles

ColbertPAC is a Gag — and Nothing More

A New York Times piece about Stephen Colbert’s ongoing attempt to “satirize” campaign finance regulation appeared in the August 21st edition and made some decent points. It also got some things laughably wrong.

The piece titled “Comic’s PAC is More Than a Gag,” seeks to paint Mr. Colbert — full disclosure: he is generally respected as a comedian here at the Center for Competitive Politics — as something he simply is not. That is to say, his creation of a SuperPAC is nothing more than a gag and any measure of seriousness about it comes from those trying to figure out what kind of damage he may do to actual understanding of this complicated part of election law. Furthermore, a gag is all his efforts will ever amount to so long as he continues to refuse to really investigate the intricacies of the issue and, instead, begins to address some of the areas that could use satirizing to bring about positive change. That is, after all, what all good satire attempts to do.

 

Filed Under: Blog

Return on Lobbying Overstated by Report

An April 2009 academic paper titled “Measuring Rates of Return for Lobbying Expenditures: An Empirical Analysis Under the American Jobs Creation Act” has been floating around the web for a couple of years and is occasionally cited for a shocking statistic: it found that firms which lobbied for the American Jobs Creation Act of 2004 (a tax holiday which led to the repatriation of around $300 billion in profits that U.S. corporations were keeping overseas in order to save money on taxes) saw a 22,000 percent return on their lobbying investments.

Yes that is three zeroes you see there. Who says a dollar doesn’t go far anymore?

 

Filed Under: Blog

FEC Settles National Defense PAC Case

Sarah Lee, Communications Director

The Center for Competitive Politics

703.894.6824

[email protected]

ALEXANDRIA, Va. — Following on the heels of a decision in late July  granting The National Defense PAC’s (NDPAC) motion to stay discovery in its case against the Federal Election Commission (FEC), the FEC acknowledged yesterday that rules preventing PACs from both contributing to candidates and conducting independent expenditures were unconstitutional.

NDPAC was represented by the Center for Competitive Politics (CCP), Dan Backer of DB Capitol Strategies, Benjamin Barr, and Stephen Hoersting.

Yesterday’s settlement effectively forfeits the FEC’s ability to enforce regulations requiring separate PACs for independent expenditures and candidate contributions, provided those activities are conducted from segregated bank accounts. The settlement follows last month’s successful motion preventing the FEC from examining NDPAC’s documents, deposing its executives or otherwise subjecting the organization to a burdensome investigation. It also gives permanent effect to a preliminary injunction granted by the U.S. District Court for the District of Columbia on June 14.

The gist of the argument made by CCP and co-counsel is that PACs should not be burdened with the necessity of cloning themselves, and assuming twice the regulatory burden, in order to speak on political topics. Small, grass-roots organizations like NDPAC, are especially hard hit by such requirements. The FEC’s acknowledgement of this undue burden on political association makes it easier for Americans to participate in the political process.

Allen Dickerson, CCP Legal Director, was pleased with the decision. “This is a major victory for grass-roots organizations that cannot afford to comply with burdensome regulations, or hire a lawyer if those regulations violate the constitution,” he said. ” In acknowledging the unconstitutionality of its regulations, the FEC is making it easier for average Americans to engage in political speech.”

Filed Under: External Relations Press Releases, External Relations Sub-Pages, Press Releases

Bad for Business

Last week, the Atlanta Journal-Constitution reported:

Commissioner Emma Darnell is proposing would be among the most stringent campaign finance restrictions in the nation, banning any company that donates more than $500 to a commission candidate’s war chest from doing business with the county for a year.

The article continued:

“Many contractors don’t believe they have a chance, unless they are connected,” said Darnell, who will ask the board to adopt the new rules at Wednesday’s meeting. “That’s not true in Fulton County, but that’s the perception.”

Well, it appears that Commissioner Darnell’s proposed restrictions evoked a rather strong reaction, according to the Atlanta Journal-Constitution:

The board opposed the plan 4-2, then, on a motion from Commissioner Tom Lowe, voted 4-2 to officially deny it so it can’t be brought up again. Lowe called the idea stupid and bad for business.

 

Filed Under: Blog

Colorado Data Affirms Parker North Case

The Colorado Secretary of State’s office recently began to examine some of the data their online campaign finance reporting system, called TRACER, was tracking about who was paying the most in fines for violations of campaign finance law. The data proved interesting in light of Colorado’s recent history with campaign finance regulation and how it affects small groups of people coming together over politics.

The data reveals, as reported by the Pueblo Chieftain, the groups most encumbered by the complexity of campaign finance regulation tend to be smaller and less well-financed grassroots organizations.

“Our office did a study and looked at who pays campaign finance fines, who doesn’t, who violates the law a lot, things like that,” said Secretary of State Scott Gessler. “And the bottom line is this: Volunteers and grass-roots groups are far more likely to run afoul of the law because the law is so complex. Large, big-money groups are able to hire attorneys and accountants and pay very, very few fines.”

Filed Under: Blog

Bradley Smith and Thom Hartman Debate ‘Corporate Personhood’

CCP founder and chairman Bradley Smith went head to head with progressive talk-radio host Thom Hartman recently on the issue of “corporate personhood.” In the interview, Hartman keeps insisting that corporations are “souless” and do not have the same rights to free speech in the public discourse as individuals. He claims to base this legal history, arguing that Blackstone and early American court precedents support this view. For support,  Hartmann turned first to Dartmouth College v. Woodward (Hartmann referred to it as an 1817 decision; it is an 1819 decision), quoting the great Chief Justice John Marshall for the proposition that “[a] corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.”

Smith, a former FEC Chairman and currently the Josiah H. Blackmore II/Shirley M. Nault Professor of Law at Capital University, notes that Justice Marshall’s decision in the Dartmouth College upheld the rights of the corporation against the state, specifically rejecting the argument that a corporation, as a “creature of the state,” had no rights. Marshall’s point in Dartmouth College was that it shed little light on the issue to ask whether a corporation was “a person.” Of course it isn’t. But the citizens who create corporations have rights, and those rights are not given up merely because they organize legally in the corporate form, a legal concept. The idea of “corporate personhood” is merely a legal fiction for the recognition of Americans frequently can and do exercise their rights in association with others, as a group. Hartmann at one point tries to argue that corporations cannot get married; Smith agrees – corporations are not “people,” but are organizations of people. They can exercise the rights of people acting collectively, including the rights to join together to buy property, to publish their views, and so forth. The right to marry, conversely, is an individual right exercised only in an individual capacity- there is no right to group marriage. Hartmann suggests that corporations would not have 5th Amendment rights – Smith points out that they clearly have Fifth Amendment rights in property. (Not in the interview, but a corporation cannot exercise the Fifth Amendment right against self-incrimination because that right is solely individual – that is, a group of criminals cannot invoke the Fifth Amendment to demand that a whistleblowing member stay silent). Hartmann then argues that the Supreme Court reporter created the corporate rights by inserting such a declaration into the headnotes of the 1886 case Santa Clara County v. Southern Pacific Railroad. Smith notes that this is “bad history,” that the legal concept of corporate “personhood” had long been recognized, as in Dartmouth College. Unfortunately, Hartmann has been propagating this incorrect historical take for some time, including in his 2010 book, “Unequal Protection.”

The Citizens United ruling granting corporations – that is, groups of people – the rights of political free speech was the proper decision. It’s always interesting to hear a reform minded advocate argue that corporations should not be considered bodies made up of individual people, with the attendant free speech rights to speak together through the corporation. The remarkable consequences of that argument, if adopted, would be to strip Americans of one of their most fundamental rights – the right of association.

Filed Under: Blog