Coordination

CCP Chairman – and the man who as FEC Commissioner first introduced “content standards” into the regulations on coordinated and independent expenditures – explains the current kerfuffle on Crossroads America and the Federal Election Commission.

Self-styled “reformers” have gone off one one of the stupidist campaign finance and corporate contribution crusades we’ve seen in a long time, and that’s saying something. Indeed, this one goes well beyond stupid.

The reformers are are upset because Wisconsin Senator Ron Johnson spent something under $9 million of his own money in his upset win over Russ Feingold last fall.

Lawyers for the Republican National Committee filed a petition this week seeking review of an appellate court decision on coordination restrictions affecting parties and candidates.

The petition in the case, Cao v. Federal Election Commission, was filed Dec. 8. In September, an en banc panel of the Fifth Circuit Court of Appeals ruled against the plaintiffs, Rep. Anh “Joseph” Cao (R-La.), the Republican Party of Louisiana and the RNC. Cao and the RNC are represented by super-campaign finance litigator James Bopp, Jr. of Bopp, Coleson & Bostrom. Bopp is also an RNC vice-chairman.

As lawmakers begin to tackle weighty issues in the lame duck session and look to the next Congress, the Center for Competitive Politics will work with lawmakers in both parties to advance pro-speech legislation that reaffirms important First Amendment principles.

In what we hope is the first of many common sense proposals, Rep. Tom Cole (R-Okla.) recently introduced the “Free Speech and Citizen Fairness Act of 2010″ (H.R. 6286). This legislation would eliminate the annual aggregate cap on contributions by individuals, repeal the limit on coordinated spending by national or state political parties, and clarify that blogging and other internet activities are not treated as contributions or expenditures.

Rep. Mike Castle, a Delaware Republican, is whining that his campaign is facing an onslaught of out-of-state campaign contributions and influence as voters head to the polls today for the state’s Senate primary.

Castle has singled out the California-based Tea Party Express, former Alaska Gov. Sarah Palin and Sen. Jim DeMint of South Carolina for criticism—all have endorsed his opponent. This story from Politico yesterday, “Mike Castle rips ‘out-of-state’ operation,” is representative of his lamentations.

“This has been a complete out-of-state operation, a political action committee from California, a couple people from Washington, D.C., and that’s it. It’s not been a local campaign. It’s not had local donations,” Castle said.

What’s remarkable about Castle’s claim is that (1) Castle has accepted much more out-of-state cash than his opponent, Christine O’Donnell, and (2) it’s odd that someone running for national office would gripe about people from across the country interested in the race.

Last week, on a bipartisan 5-to-1 vote, the Federal Election Commission approved rules for coordinated communications.

The professional reform lobby promptly objected, and this matter may be headed back to court. Fred Wertheimer, who, as HoltzmanVogel notes, also goes by the nom de guerre Democracy21, stopped just short of threatening a lawsuit challenging the newly-adopted rules in an interview with BNA.

In the interview, Wertheimer blasts the new coordination regulation as “different from the old regulation in name only—and … is yet again is contrary to law.” Actually, though, the regulation is an expansion of the coordination regulations—regulating the “functional equivalence of express advocacy” instead of the old test which only captured “magic words” such as “vote for” and “vote against.”

As CCP noted recently, the Fifth Circuit is currently considering Cao v. FEC, in which the litigants are challenging the low coordinated spending limits applicable to parties and House candidates. Their argument is that coordinated spending is legitimate and should be encouraged. In the wake of Citizens United and the DISCLOSE Act’s liberalization of party restrictions as compared with restrictions on other groups, Cao and his legal team are not alone in thinking that the party restrictions are, well, silly and counterproductive.

Yet, not everybody has signed on to this argument. The FEC continues to press for enforcement of coordination limits. Moreover, in a recent supplemental filing in Cao, the Commission called the Court’s attention to a recent decision that, in its view, bore on the case.

That decision? Holder v. Humanitarian Law Project, in which the Court determined that the provision of the PATRIOT Act that made knowingly providing material support to terrorist organizations a crime was constitutional. Some of the ways the statute identifies “material support” include “training” “services” and “expert advice.” The Humanitarian Law Project thought it should be unconstitutional to restrict their providing training and expert advice to terrorists, if the purpose of the advice was to facilitate peaceful activities.

At a Cato Institute-sponsored panel discussion Tuesday, CCP Chairman Brad Smith and Patton Boggs attorney William McGinley elaborated on the latest congressional attack on free speech-the DISCLOSE Act.

The Director of Cato’s Center for Representative Government, John Samples, who moderated the event, has a podcast today focusing on the DISCLOSE Act. Video of Tuesday’s event will eventually be posted on the Cato Institute website.

Smith explained that the DISCLOSE Act seeks to make illegal a large amount of political activity allowed even before the Supreme Court’s landmark decision in Citizens United v. Federal Election Commission, such as issue ads. Smith said that Democrats are using Citizens United-federally and in states-to press legislation that would enact broad campaign finance restrictions not even addressed in Citizens United. As White House Chief of Staff Rahm Emanual has explained, “You never want a serious crisis to go to waste.” Smith cited Vermont as one such state that had never attempted to restrict independent expenditures by corporations until after the Citizens United decision. Suddenly, Democrats sensed an opportunity to exploit this phony “crisis.”

McGinley focused on the more practical issues that the DISCLOSE Act would foist on candidates, businesses, nonprofits and other political speakers. McGinley began by stating that two major political speech facts need to be understood while crafting legislation. He explained that political speech is a ‘give and take’ that must have the ability to be nimble, and that political speech requires money to get a message out to the American public. He remarked that the DISCLOSE Act would destroy an advocate’s ability to be nimble and give the advantage to the political opponent because a speaker would be forced to telegraph their intentions.

Furthermore, he said  the amount of paperwork and confusion that would occur prior to the 2010 election among non-profits and corporations would be vast because DISCLOSE would completely alter the campaign finance system, introduce prior restraint and require tedious steps such as forcing candidates to certify that no campaign staff are foreign nationals. McGinley said that disclosing donors to independent groups and forcing them to appear in campaign advertisements is unnecessary, particularly because some large donors might not support specific messages, and would ‘chill speech.’ McGinley finished by contemplating the effect that the DISCLOSE Act will have on the Internet, including a continuing threat to the political speech of bloggers.

Finally, a brief question and answer section brought up numerous questions on the DISCLOSE Act, but the most significant question related to the National Rifle Association’s negotiated exemption from the DISCLOSE Act-the Shotgun Sellout.. McGinley said this exemption would make the DISCLOSE Act less likely to withstand constitutional scrutiny because it allowed Congress to pick a “preferred class of speakers, while silencing the rest.” The DISCLOSE Act is likely to come up for a vote within the next few days.

Perkins Coie’s Mark Elias (the tall one) has submitted to the FEC an Advisory Opinion Request on behalf of “Commonsense 10.” This group, unlike many, wants to be a federal political committee. They just want to behave like none before it, but raising and spending corporate, union and large individual contributions without regard to the limits imposed on committees by federal law. Then, they want to make unlimited independent expenditures in federal elections.

“That’s nice,” you might respond. “I want a pony. But life is tough, and you can’t always get what you want.”  Ah, but Elias isn’t dreaming of ponies. Instead he is predicting the combined effect of Citizens United, the appellate decisions in SpeechNow, Long Beach Chamber, and Emily’s List. Let’s review…