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The Bipartisan Affair of Threatening Free Speech

The National Republican Congressional Committee (NRCC) became the latest campaign organization to unsheathe the electoral sword when it filed a complaint against Patriot Majority with the Federal Election Commission (FEC).

"Efforts to intimidate and harass independent political speech are a bipartisan offense," observed Reid Cox, Legal Director for the Center for Competitive Politics and author of a memo analyzing Patriot Majority’s political activity.  "Republicans and Democrats alike are all too aware of the ease with which campaign finance complaints can be used for political gain based in the flimsiest of pretexts."

The NRCC contends that because "Patriot Majority and its affiliated committees have spent more than $1 million on television advertisements opposing Republican candidates for federal office," it should be forced to register "as a [f]ederal political committee." 

As a political committee, the Patriot Majority would be subject to "federal contribution limits" for donations from individual citizens and would be unable to use or accept general treasury dollars from incorporated organizations or labor unions to fund the group’s speech.

"Unfortunately, with the FEC taking the position that it can investigate virtually any group in order to examine its ‘major purpose,’ not only is the campaign finance threat real, but there is little the independent group can do to avoid it," Cox said.  "Since both sides of the aisle play this threatening game, is it too much to ask that they both agree to end the bipartisan affair of threatening free speech?"

Cox’s memo is the fourth in a series of analysis produced by the Center for Competitive Politics examining the legal and political issues surrounding the advocacy activities of independent groups in the 2008 election.

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FEC holds public hearing to consider new ‘bundling’ rules

The Federal Election Commission (FEC) will hold a public hearing this morning beginning at 9:30 a.m. on proposed rules governing the disclosure of ‘bundled’ contributions by certain lobbyists, registrants and their political action committees.

The FEC is conducting the rulemaking as a result of the "Honest Leadership and Open Government Act of 2007" which adds to already existing reporting and recordkeeping requirements.

"The bundling law used lobbyists to initiate another complex layer of regulation to our campaign finance rules," explained Reid Cox, Legal Director of the Center for Competitive Politics.  "The clear design of the law by its supporters is to take an incremental step towards greater restriction on all bundled contributions."

The most controversial element of the proposed rulemaking centers on whether or not "the new law covers bundled contributions provided by employees and agents of organizations that are registrants, when those individuals are not themselves lobbyists/registrants."

Marc Elias of the law firm Perkins Coie argued in written comments that the legislation’s sponsors made clear that the provision only applies to registered lobbyists.

"Targeting non-lobbyists would clearly overstep the act’s intended reach," Cox agreed.  "Worse, it could have a chilling effect on citizens who simply happen to work for organizations that are registrants."

"It’s important to remember that bundling is simply citizens asking their fellow citizens to support candidates in whom they believe," Cox concluded.

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Are they really safe?

In an important campaign finance story published today ($), the BNA’s Money & Politics Report states in a headline that the Justice Department’s top election crimes official told a conference last Friday that "DOJ Does Not Pursue Criminal Probes of Independent Groups."  

But did the director of DOJ’s election crimes branch,  Craig Donsanto, really take independent groups off the criminal hook, or just their donors? 

Although I wasn’t at the conference, and thus didn’t  hear the comments first hand, it certainly appears from the rest of the story that the only position staked out by DOJ, through Donsanto, was not to criminally pursue the donors, thus tacitly leaving the door open to criminal investigations of the independent groups who solicit and accept the donations.  In other words, it may not be the independent groups but rather only their donors who can rest easier, at least based on Donsanto’s comments.

More after the jump.

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Who deserves full First Amendment rights?

Scottsdale resident Michael Merrill, tired of always seeing the Arizona Republic editorial board support positions with which he disagreed, tried to take put matters into his own hands the government’s hands last month.

Merill filed a complaint alleging that the Arizona Republic violated campaign finance laws by failing to register as a political committee.

The complaint was rightfully dismissed last week by Scottsdale city clerk Carolyn Jagger, but as the line between traditional journalism and other forms of the "Fourth Estate" blur, Merill reminds us of the sometimes chilling impact that campaign finance laws have on the ability of citizens to exercise their First Amendment rights.

A case with parallels to the complaint against the Arizona Republic occurred in Washington state when the government sought to silence two radio hosts who routinely spoke out against a new gas tax that had been levied.  The radio hosts won in court (thanks to the good folks at the Institute for Justice) but only after a protracted legal fight.

While the First Amendment rights implicated in the above two cases may (hopefully) seem obvious to most, in other cases the line is not so clear. And we are left to weigh whether "full" First Amendment rights shouldn’t apply to all groups.

More after the jump.

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Leadership for America’s Future

Leadership for America’s Future, an independent group formed "to foster a national discussion on the kind of leadership needed to guide America into the 21st Century," exemplifies the rough road that citizens must tread to exercise their First Amendment rights in our overregulated campaign finance system.

The group plans to run television advertisements educating "the public on the traits of leadership" but will make no mention of any candidate for federal office.

"But even if a group of citizens goes painstakingly out of its way to avoid even the mention of any candidate around election time-an action that itself could subject the group to campaign finance regulations-those same citizens still face accusations claiming they’re not safe from the maze and mystery of federal election law," explained Reid Cox, legal director at the Center for Competitive Politics and author of a memo analyzing Leadership for America’s Future.

More after the jump.

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Reasonable minds

It appears that state legislators in New Jersey are not the only people to have grown skeptical of taxpayer-financed political campaigns.

The New Jersey Star-Ledger editorial board, once a supporter of government-financed elections, recently published an editorial opposing them. Kudos to the Star-Ledger for keeping an open mind – we know of a few other editorial boards that could learn from its example.

The newspaper ran an editorial last week titled "End clean-elections flop" that began "New Jersey’s ill-advised experiment with publicly funded legislative elections is coming to an abrupt end — the victim of an unfavorable federal court ruling and the state’s budget squeeze. Advocates like Assembly Speaker Joseph Roberts (D-Camden) have talked about reviving the program in a revised form, but not until 2011. Why bother? It doesn’t really work."

Compare that to what the editorial board had written previously – after the jump.

 

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Election Assistance Commission Enter Election Short-Handed

On June 24 the United States Senate confirmed Caroline Hunter for a seat on the Federal Election Commission, and she then resigned from the federal Election Assistance Commission to take her new seat.  President Bush moved smartly to fill the vacancy, sending the name of Gineen Bresso Beach, Counsel to the House Committee on House Administration (which has oversight of both the FEC and the EAC) to the Senate to fill the vacancy on July 31 .  Now it appears that Senate Rules Committee Chair Diane Feinstein (D-CA) will not have a hearing or call a vote to move Beach’s nomination to the Senate floor.  The Senate meets for just two and a half more weeks, and after cancelling this week’s hearing, no more hearings of any kind are scheduled for the Rules Committee.  This means that entering the last two months of the campaign, Democrats will have a 2-1 majority on the EAC, which is intended to be balanced 2-2.  We are unaware of any objection voiced to Beach.  It seems the is just too darned busy to address the issue.

Earlier this year the FEC spent nearly six months not merely without a full contingent, but without a quorum – a problem that began last fall when Senator Obama blocked a deal that Majority Leader Harry Reid and Minority Leader Mitch McConnell had worked out to hold votes on FEC appointments.  We’re not big fans of either of these bureaucracies, but as we said during the time of the FEC vacancies, so long as these agencies exist it is better to have them working properly.  We think it would be good for both Senators Obama and McCain to call for a hearing – after all, both these candidates remain members of the Senate, and both should want a fully staffed EAC heading into the election.

If only there were more 527s:  we need one to run some ads: "Call Senators Reid and Feinstein, and tell them we need a vote on EAC appointments."

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Accountable America’s Reversal on the Threat to Free Speech?

Assuming The Huffington Post’s Sam Stein quoted Accountable America’s founder Tom Matzzie correctly –which seems likely–then, in a matter of a few short weeks,  Accountable America and its founder have flip-flopped when it comes to whether our complex campaign finance regime poses a real threat to constitutionally protected independent citizen speech. 

Back in late August, when Matzzie’s Accountable America attacked speech that came in the form of American Issues Project ads linking Barack Obama to Weather Underground co-founder Bill Ayers, Matzzie’s position was that such actions wouldn’t threaten or chill other independent speech because Accountable America was only going after illegality. 

"Accountable America … is aimed at warning conservative donors of the legal thicket they may be entering by financing independent attack ads like the Ayers spot,"  The Washington Post paraphrased Matzzie as explaining.

But now, less than three short weeks later, Matzzie has changed his tune, lamenting in The Huffington Post that other citizens (here liberals) might be unwilling, or too afraid, to engage in independent free speech and association because they might not "have the guts to take the heat that comes with" exercising their First Amendment rights. 

What "heat" is Matzzie referring to here?  Perhaps, the heat that Matzzie and his Accountable America are helping to produce? 

As CCP pointed out last week, if political opponents are only all too willing to use the maze and mystery of campaign finance restrictions and regulations as a sword to threaten and hasten possible investigation, enforcement and prosecution for speaking around election time, then the obvious result is that citizens will just steer clear of the hazard. 

We wholeheartedly agree that, as Matzzie characterized, "sadly" independent speakers face such a situation.  Of course, Matzzie should also admit that he and his Accountable America are at least partly to blame.

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Free speech allowed to march

If we’re reading The Atlantic’s Marc Ambinder correctly then apparently the Obama campaign has decided to lay off political free speech generated by citizen organizations-at least for now when that speech criticizes his opponent, John McCain. 

We took note of just that last week in a memo entitled "Using campaign finance law as an electoral sword."  While we, of course, applaud any politician who  respects the constitutional rights of Americans to freely speak and associate on issues of the greatest public importance-namely, our government and the issues it must tackle-we also wish politicians would do so for the right reasons. 

According to Ambinder’s post this morning, the Obama campaign "no longer object[s] to independent [speech] efforts" because of "the realization that Republicans have achieved financial parity with Democrats," as well as the hope that independent speech will "come to Obama’s aid." 

For his part, after once stating his belief that 527 organizations (and their speech) should be outlawed, McCain and his campaign have remained silent and hands-off with respect to citizen groups during this election – telling the Boston Herald that he "can’t be a referee."

We are glad to see that the candidates are deciding it’s best to combat speech with more speech, rather than trying to silence citizens who are merely exercising their First Amendment rights.  Of course we also hope that these pro-speech changes in position last long after election day.

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Spinning “reform”

A major tactic used by champions of strict campaign finance regulations to advocate for even more restrictions is to try to parlay the slightest appearance of impropriety into a scandal of epic proportions.  By then constantly repeating the refrains "the system is broken," "politicians are corrupt," etc., legislators, the media, and the public begin to believe that the campaign finance system is in need of even more restraints.

Last week, the Center for Responsive Politics, which is often more responsible than other campaign finance "watchdogs," wrecklessly played the scandal card.

Only this time, the media thankfully called them to task for it.

More after the jump.

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