CCP Submits Comments on FEC Draft Advisory Opinion

Today the Center for Competitive Politics submitted comments on a Draft Advisory Opinion that the Federal Election Commission will consider at its meeting tomorrow.

The National Right to Life Committee (NRLC) had asked the FEC whether it could use general treasury funds to broadcast two advertisements in the weeks up to the November presidential election.  NRLC sought advice from the FEC because both ads it wanted to run refer to Barack Obama and question his position in being "responsible for killing a bill to provide care and protection for babies who were born alive after abortions," as well as "later misrepresent[ing] the bill’s content."

Earlier this week, the FEC released draft advice approving of the first ad, but concluding that NRLC cannot broadcast the second ad because it constitutes express advocacy.  Indeed, the Draft Advisory Opinion finds that the second ad is prohibited despite the fact that the ad does not use any language of express advocacy at all.  According to the draft advice, the ad constitutes express advocacy, instead, because it "could only be interpreted by a reasonable person as advocating the defeat of Senator Obama."

The comments submitted today by the Center for Competitive Politics point out that the Draft Advisory Opinion is troubling not only because the Ninth Circuit decision and FEC regulation relied upon have been discredited, but also because the ad at issue does not include a call to action, which is required for express advocacy.

To read CCP’s comments, click here.

UPDATE (4:55 pm): The FEC has just posted an alternative Draft Advisory Opinion for consideration tomorrow.  This "Draft B" — circulated by FEC Chairman Donald F. McGahn II — follows directly on CCP’s comments from earlier today and considers them favorably.  Indeed, the "Draft B" advice, if adopted, would "conclude[ ] that neither of the advertisements contains express advocacy" — exactly as CCP had commented, and does so based on the lack of an "electoral portion" as our comments asserted.  "Draft B" also correctly would find that neither ad constitutes a prohibited corporate electioneering communication.

To read the FEC’s "Draft B," click here

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Comments of the Center for Competitive Politics on the Draft Advisory Opinion

CCP Comments urging the FEC to carefully consider a Draft Advisory Opinion concerning express advocacy

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It Must Be Something in the Cheese

The state of Wisconsin is becoming an increasingly dangerous place to make statements of a political nature.

Those who follow the issue of political speech regulation are probably familiar with some of the recent escapades in the Badger State over the past few years.

Wisconsin Right to Life wanted to run ads asking fellow citizens to contact their U.S. Senators regarding judicial nominees, and was promptly slapped down by the Federal Election Commission. The U.S. Supreme Court thankfully upheld the First Amendment in 2007 when it got the chance, preserving at least in part the right of Americans to speak about politics.

Earlier this year, a Wisconsin resident who was critical of a local school bond referendum got in hot water after he paid to place an ad in the Milwaukee Journal-Sentinel voicing his concerns. Residents of Wisconsin who dare to spend more than $25.00 opposing or supporting a candidate or ballot measure must first register with the state as a political committee, something this citizen didn’t do.

The District Attorney who was given the job of investigating the case had perhaps the best quote I’ve ever heard on this type of issue: "It’s a circumstance where it is a citizen who had strong feelings about the referendum and just had no idea that those campaign finance laws that you hear about now and then even remotely applied to a citizen who just wanted to exercise his constitutional right to free speech."

And of course, earlier this year CCP Vice President Steve Hoersting was in Wisconsin, testifying in front of the Government Accountability Board about proposals to tighten regulation of independent electioneering communications.

As if all this wasn’t enough to make Wisconsin a dangerous place to speak, there is now an effort to criminally prosecute a successful candidate for State Supreme Court for allegedly "false" statements made in his campaign ads.

To read about the latest threat to free political speech from the Badger State, click the headline above.

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The Insatiable Appetite of the Regulators

Yesterday, the New York Times gave us a breathless report that, gasp, campaign funds are being raised under the "hard money" limits of the Federal Election Campaign Act, and even worse (shudder!) political parties and their candidates have common interests in winning elections.

The Times concern is that, "enabled by the fine print in campaign finance laws, [some donors] have written checks that far exceed normal individual contribution limits to candidates, to joint fund-raising committees that benefit the candidates as well as their respective parties."

In other words, the Times and the various regulatory advocates quoted in the article suggest that contribution limits, especially contribution limits to political parties, are too high, and that candidates of a party should not be allowed to urge citizens to give money to the party.  This constitutes a remarkable concession from the position argued seven years ago, that "McCain-Feingold" was needed to stop "soft money" and simply to return the campaign finance system to the shape it originally had after the Federal Election Campaign Act amendments of 1974.  It also indicates a desire to radically expand the reach and scope of the regulatory regime.

Click that headline for more.

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Congratulations to Senator Obama

Yesterday came the announcement that Senator Obama’s campaign had raised a record-setting $150 million in September, shattering previous fundraising records.

Senator McCain, predictably enough, began carping about "scandal" and Watergate. On Fox News Sunday, he said "Senator Obama raised $150 million… completely breaking whatever idea we had after Watergate to keep the costs and spending on campaigns under control… And I can tell you this, that has unleashed now in presidential campaigns a new flood of spending that will then cause a scandal, and then we will fix it again."

To read why Senator McCain has a point, just not the point he thinks, click on the headline above.

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I think Galatians, chapter 6 might be useful here

The Washington Times has an interesting editorial today, discussing how McCain-Feingold is impacting the campaign of Senator McCain. A few choice excerpts:

The workings of McCain-Feingold and the Democratic Party’s huge fund-raising advantage have left Mr. McCain debilitatingly dependent on the $85 million in taxpayer financing he received last month. The Politico newspaper reported yesterday that Mr. Obama is outspending the combined McCain campaign/Republican National Committee campaign effort by as much as 8-1, and that probably understates Mr. McCain’s disadvantage.

In the first three weeks of September, Mr. Obama ran 1,342 television commercials in the Washington media market, which includes Northern Virginia, a hotly contested area of a battleground state. By comparison, Mr. McCain ran just eight – an advantage of more than 160-1 in Mr. Obama’s favor. Unsurprisingly, Mr. McCain now finds himself in the embarrassing position of searching for loopholes that would enable him to circumvent the very legislative Frankenstein he created…

…Mr. McCain has apparently developed a very different perspective on the bill he touts as one of his greatest legislative achievements. Reporter Jim McElhatton of The Washington Times wrote in May about the fact that Mr. McCain was appearing at fundraisers across the United States where donors could legally donate up to $70,000 each to help him win the presidency through a group set up jointly by his campaign and the Republican Party.

The editorial gets a few things wrong, such as insinuating that it was McCain-Feingold that first imposed contribution limits (that happened back when disco ruled and the Oakland Raiders were actually good) or making the plainly-wrong statement that the Supreme Court ruled against Wisconsin Right to Life in 2007. But the editorials larger point is sound: Senator McCain has sown "reform" and "anti-corruption" sentiment for the past decade and a half, and is now reaping the result – a campaign hobbled by insufficient funding, limited in its ability to compete with an opponent with a far more sensible perspective on fundraising (at least in practice).

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It’s the chilling effect…

Last week, I had the privilege and pleasure of moderating a Federalist Society panel that examined the topic of "Election Finance and 527s," which is particularly relevant right now less than a month before the 2008 presidential and congressional elections.  Specifically, the discussion centered on the "constitutional, statutory, and regulatory questions about the free speech rights of non-profit or tax-exempt groups," and included panelists from both sides of the partisan and ideological aisle.  Nevertheless, in introducing the topic and the panel, I noted that perhaps everyone on the panel would agree that this election cycle had seen a lot fewer television advertisements run by independent groups than four years earlier.

Everyone remembers the advertising and mobilization undertaken by groups like the Swift Boat Veterans for Truth, Progress for America, Americans Coming Together,, and the Media Fund during the 2004 presidential cycle.  But try to name an independent group that has so saturated the airwaves and blanketed the country this time around, and I bet you can’t name such a group for 2008.  Quite frankly, with less than three weeks to go before Election Day, there are plenty of political ads, but nearly all of them — at least those I have been hearing and seeing in the battleground state of Virginia — are being cut, placed, and run by the candidates and their political parties.

Click on the headline above to read more.

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Somebody please alert Dave Barry, because I am not making this up

So I’m doing research on silly claims made by "clean elections" advocates, and go to the Web site of Arizona’s Clean Elections Institute. Right there on the homepage, directly under the statement that "clean elections" mean "Less money from special interests!" is an ad relating to some ballot proposition in Arizona paid for by "The Voters of Arizona – No on Prop 105."

Who are these "Voters of Arizona," you might ask? The group helpfully identifies their major donors as: "Arizona Hospital and Healthcare Association, Professional Fire Fighters of Arizona, Arizona Chapter Associated General Contractors of America Inc., and the National Education Association (an out-of-state contributor with 34,227 members in Arizona)."

This is all good and well, of course, but for an organization committed to "preserve, protect and defend Arizona’s groundbreaking, voter-approved Clean Elections Act" in order to "reduc[e] the influence of special interest money," it does seem a little  contrary to their purpose to be accepting political advertising from several interest groups on their Web site.

Or maybe not. Looking to the right of their mission statement and such is a list of the Institute’s Board of Directors. One heads the Arizona Public Interest Research Group, which lobbies legislators on behalf of various causes, another is executive director of an advocacy group with its own political action committee, and yet another is public affairs director of Planned Parenthood of Arizona, which of course also has a political action committee.

I guess money only corrupts politics when it comes from people who disagree with you.

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Perhaps Obama has more important things on his mind?

Too bad we don’t have a category for blog posts called "Some people just can’t be pleased." If we did, I suspect the folks at Public Citizen would be regularly featured there.

By this point, everyone spends more than 3 seconds a day following campaign finance issues and politics understands that Senator Barack Obama is raising lots and lots of money. I sometimes wonder if the Obama campaign has had to build their own Money Bin, a la Scrooge McDuck.

Among the vehicles the Obama campaign is using to raise this mountain of money is something called "The Committee for Change." According to this Chicago Sun-Times article, money given to this committee is to be used to register voters and get out the vote for Democratic candidates in 18 key states. John Kerry had a similar committee, and it doesn’t look all that different (although I’m sure the particulars are) than the committee set up by the McCain campaign to raise big money for the Republican National Committee and four state Republican parties.

So what’s the problem? Well, nothing for those of us who expect Senator Obama (and Senator McCain, and any other candidate with money in the bank and  a message to communicate to voters) to spend his time going around the country explaining why he’s the best choice to be our next president, and expects his campaign staff to do the same.

For those with… different… expectations for candidates, however, there is some disappointment that Senator Obama’s campaign isn’t dedicating time to satisfy their curiosity about what is going on at fundraising events. So Lynn Sweet of the Sun-Times worries that the committee’s "fund-raising activities have been done out of sight," while Public Citizen’s Chris Holman (I’m pretty sure that’s supposed to be Craig Holman) is concerned that while the Obama campaign has touted transparency as a virtue, "they should not shy away from telling the public what they are doing."

Apparently, full disclosure of donors isn’t enough to satisfy the "reform" community, they also need to be reassured that the campaign isn’t – well, I don’t know what exactly they think might be going on at these fundraising events. Perhaps Senator Obama leads the guests in belting out "It’s Rainin Money" sung to the tune of that old Gloria Gaynor classic?

I’m pretty sure the Obama campaign has better things to do with their time than keep Lynn Sweet and Chris (Craig?) Holman apprised of what goes on at their fundraising events. Lots of campaign activities take place behind closed doors – strategy and tactics meetings, policy discussions, reviewing polls, debate prep, etc. – and it’s absurd to demand that campaigns not have private events, fundraising or otherwise.

I’m a lot less interested in what goes on at these fundraising events filled with citizens who want to see their favored candidate elected, and a lot more interested in what the candidate proposes to do about issues I’m concerned with. The paranoid "reform" community apparently feels otherwise.

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I guess it’s “unforeseen” if you’re oblivious to the obvious…

We’ve been following closely the Goldwater Institute’s case in Arizona challenging their taxpayer-funded campaign scheme. Readers may recall that, based on the Supreme Court’s ruling in Davis v. F.E.C., U.S. District Court Judge Roslyn Silver ruled that the "matching funds" provision of Arizona’s so-called "clean elections" program was unconstitutional. After a great deal of educational efforts by CCP, it was this ruling that led to the final collapse of efforts in New Jersey to extend and expand their own welfare-for-politicians experiment in early September.

Although Judge Silver acknowledged that the "matching fund" were unconstitutional, she held off on preventing the program from moving forward with dispensing the additional money to candidates participating in the program. Instead, she asked attorneys for both sides to prepare arguments over whether the First Amendment rights damaged by the program were sufficient to change the rules this close to the election (presumably the matching funds are history either way after this election).

Reading this article reporting on yesterday’s hearing, I had to chuckle over the assertions of the attorney defending the "clean elections" program and why the "matching funds" should be distributed despite the fact that they are unconstitutional:

Brad Phillips, a California-based attorney representing the Clean Elections Institute, said revoking publicly funded candidates’ ability to collect matching funds would unfairly punish them for using the system and hold them accountable for unseen risks that the provision could be swept away in the middle of a campaign.

"In good faith, they relied on the act as well as the matching funds," said Phillips, adding that the candidates would be ill-prepared to respond to last-minute advertisements from their opponents.

Click on the headline above to see just how "unforseen" the risks were.

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