Votelaw, Edward Still's blog on law and politics: October 2002 Archives

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October 31, 2002

Pelosi folds up Team Majority

Roll Call reports that Rep. Nancy Pelosi has closed down her second "Leadership PAC" and asked the recipients to return the contributions the TM made. See my earlier notes on this, here and here.

New 527s

Roll Call reports that several Republicans have set up The Leadership Forum as a 527 organization. Because the leaders of the organization are a former aide to Tom Delay and a former member of the GOP House leadership, observers predict that it will be a conduit for "rerouting of soft money previously donated to national parties."

Judge: Students Can Vote in County (

Just as I predicted (but a day late), a federal judge has ruled Students Can Vote in County .

October 30, 2002

Arkansas Student voting

ArkansasNews Little Rock reported yesterday on the suit filed by the students who have been barred from voting in the county where they attend college. The guy who started the whole mess (the suit in state court that barred the students) has told the federal court that there is no need to issue an injunction because "fail safe voting" will allow the students to vote. Wrong. Ark. Code 7-1-101 (11) restricts fail-safe voting to moving within the same county.

Minnesota election

Pioneer Press story, "DFL files suit over absentee ballots," points up the problems that arise when a state puts an election system together in bits and pieces. The law on filing vacancies is a pretty well-thought-out law as long as the election occurs on a single day. However, I wonder if anyone actually thought of the problem that would arise when they started liberalizing the absentee balloting laws.

If a lawyer writes a will and trust for someone and overlooks a contingency that later happens, the lawyer should expect to get sued for malpractice. However, when a legislature overlooks a contingency, there are suits, but not for damages against the legislature.

October 28, 2002

Public Citizen | 527 Search Engine

Public Citizen has created a 527 Search Engine to search the records filed with the IRS under Section 527 of the Internal Revenue Code. The donors are those at the $5000 or higher level. Section 527 from 2000 to just recently required political groups not filing with the FEC to file a list of donors and expenditures with the IRS. Under a recent amendment to the law, groups that file disclosures with state authorities do not have to file with the IRS. Also the IRS is supposed to develop its own searchaable database. See my earlier post on this here.

October 27, 2002

Election contests loom

The New York Times has an article today, Wellstone Death Brings New Focus to Senate Battles, that contains this:

Since a number of races could turn on just a few thousand votes, the parties are preparing teams of lawyers in case of Election Day controversies over who can vote, for possible recounts and legal challenges.

For both parties, the presidential standoff in Florida in 2000 led to the preparations that are coming into force now. The Democraticshave set up a national line for anyone to call who is turned away from the polls. They also plan to deploy 10,000 lawyers at polls in a dozen states with close Senate or House races ó or where there have been histories of complaints.

"There are a lot of Senate races that are dead heats right now where literally 100 or 200 votes could mean the difference," said Maria Cardona, spokeswoman for the Democratic National Committee.

Republicans, as part of a 72-hour turnout project, are planning to mobilize poll watchers and are setting up state telephone lines which people can use to report that machines are not working properly or that they suspect voting fraud.

Voices of the Electorate

Voices of the Electorate is a coalition of a large number of civil rights and "good government" organizations. They have come together to talk about "election reform and other issues impacting civic participation." Their first project is the creation of a "Voter's Bill of Rights" for a number of states. They have 2 posted now -- Florida and North Carolina. (I gave a little advice on the Alabama version, so I hope it is posted soon.) When I was on the legal committee of the Mark Warner for Governor (of Virginia), we produced such a statement for Virginia voters. I will testify that it is hard to boil the state law down into understandable chunks that non-lawyers find useful.

October 26, 2002

Wellstone (3)

The New York Times article, Succession Rules Leave Few Options, reports on the problems that arise in trying to apply the Minnesota substitution law to the present situation with so much early voting and so many absentee ballots. The Minneapolis Star Tribune article raises the possibility that Gov. Ventura may appoint someone who will serve until the election results are certified. (Here we go again: I'm reading for the first time a set of election laws I am not familiar with.) Minn. Stat. 204C.40 provides that the certificate of election is not issued until 7 days after the canvass is complete. Section 204C.33 requires the state canvass to start on the 14th day after the election and the results to be certified 3 days after the canvass is done. So I am not sure if the certificate of election is issued on the 21st or 24th day after the election. The Senate will reconvene on 12 November. At that point, there will be 49 Republicans, 49 Democrats, and 1 Independent, unless Gov. Ventura has appointed someone.

State campaign finance laws graded

"Nearly half the states received a failing grade for the campaign finance disclosure required of state-level political party organizations," according to the Center for Public Integrity report Disclosure Rankings. The full report is available at the link above. Alabama scored 54 -- well below the passing grade of 60. The federal government scored 87, just below North Carolina, Washington, California, and Oregon (the best).

Colleges students barred from voting (2)

In a followup to my report a day or so ago, the AP via the Washington Post reports Ark. Students Sue for Right to Vote. I give it till Tuesday before I expect there will be an injunction or settlement.

Pelosi PACs may violated affialition rule (2)

Following the disclosure that Rep.Pelosi had started a second leadership PAC, the Washington Post now reports she has changed her mind. See Rep. Pelosi to Stop Using PAC (

October 25, 2002

Wellstone's death (2)

I should have read the entire statute (hint to young lawyers: always read the *whole* statute. Minn. State. 204D.28 provides, in part, Subd. 12. Succession by regularly elected senator.
An individual who is elected to the office of United States
senator for a regular six-year term when the office is vacant or
is filled by an individual appointed pursuant to subdivision 11,
shall also succeed to the office for the remainder of the
unexpired term.

Wellstone's death

Paul Wellstone, his wife and daughter, two pilots, and several campaign workers were killed in a plane crash today. We shall miss him.

Wellstone is on the ballot this fall. Here is what I know about what will happen.

The Democratic Party can fill the vacancy. "If the vacancy in nomination occurs through the candidate's death or catastrophic illness, the nomination certificate must be filed within seven days after the vacancy in nomination occurs but no later than four days before the general election. " Minn. Stat. 204B.13. How votes for Wellstone get translated into votes for the new candidate or the new candidate gets on the ballot, I don't know.

The Minnesota law provides the governor appoints the person to fill the vacancy until a special election is held to fill the vacancy next November. See Minnesota Statutes 204D.28. Of course, there will be a vacancy only until the person elected on 5 November takes office in January. So it is possible for Gov. Ventura to change the partisan balance of the Senate for the lame duck session.

Trademarks and campaigns

Here a couple of stories about the use of trademarks in campaign ads: The Washington Post reports that the AARP is complaining that Gov. Jeb Bush and others are using its logo to imply some sort of endorsement by the organization. And the Arizona Republic reports that the Energizer folks have complained that the Proposition 201 (a gambling -- excuse me, "gaming" -- initiative on the Arizona ballot this November) campaign has used a likeness of the bunny who just keeps going and going.

October 24, 2002

Absentee voting

There are several stories in the press about absentee voting. The Milwaukee Journal Sentinel reports that absentee ballot requests are coming in at a high rate, but the groups organizing the drives for the absentee ballots are sometimes giving incorrect information to voters. The DailyKOS blog has a story about the registered Democrats casting double the number of absentee ballots as the GOP.

Colleges students barred from voting

The Associated Press is reporting that a judge in Arkansas has ruled that college students who live on campus of two colleges in Clark County cannot vote in the upcoming election. The Governor of Arkansas has offered his daughter as a plaintiff in the suit being put together by the ACLU. It is amazing how all the same old issues keep coming up. This was an issue 30+ years ago when I was at the University of Alabama. Usually, the issue revolves around the issue of a student's "domicile" -- usually defined as the place where a person lived and had a fixed intention to return. The same issue of domicile was in the New York case I mentioned a few days ago about people who wanted the ability to vote in two localities. This case ought to be interesting.

Pelosi PACs may violated affialition rule

Roll Call has an article about Rep. Nancy Pelosi opening a second leadership PAC. Under the affiliation rules of the FEC, two PACs that are considered affiliated have to share in the limitations on their receipts and contributions. Pelosi's treasurer claims that he received oral advice from an FEC staffer (but does not remember the name) that having dual PACs was OK.

October 23, 2002

Young voters

If you are interested in the issue of young voters, take a look at the website of the Campaign for Young Voters.

Early voting -- early controversy

The Pine Bluff Arkansas Commerical has reports on the Republican challenges to early voting by Democrats in Jefferson County, AK. The first story is from the Democratic Senatorial Campaign Committee site and the second from today' paper. Republican poll watchers were demanding photo IDs from voters, taking their pictures, and taking pictures of computer screens.

Soft Money

The Hill reports today, "Both parties race to set up new soft-money mechanisms." Here is the text of the regulation being used by these organizations:

11 CFR 300.2(c)(3) Safe harbor. On or after November 6, 2002, an entity shall not be deemed to be directly or indirectly established, maintained, or controlled by another entity unless, based on the entitiesí actions and activities solely after November 6, 2002, they satisfy the requirements of this section. If an entity receives funds from another entity prior to November 6, 2002, and the recipient entity disposes of the funds prior to November 6, 2002, the receipt of such funds prior to November 6, 2002 shall have no bearing on determining whether the recipient entity is financed by the sponsoring entity within the meaning of this section.

October 22, 2002

Campaign Finance

US Public Interest Research Group has released two reports that might be interesting:

Contribution Limits and Competitiveness: an analysis of how state campaign finance laws affect challengers and incumbents. The bottom line, according to the report, is that there is negative correlation between the existence of contribution limits and the margin of victory for winners.

The Wealth Primary: The Role of Big Money in the 2002 Congressional Primaries. Large contributions from few donors gave winners an edge. The winners usually had far more money than losers.

The Election Reform Information Project

The Election Reform Information Project has just issued its 2nd annual report. You may view it here and the home page of the Project is here. The report has state-by-state coverage of reform of the election system, plus maps showing where the states stand on issues such as statewide voter databases, or voter ID requirements.

October 21, 2002

More blogs I follow

I have added a couple of blogs on the left margin -- TalkLeft -- the politics of crime and Bag and Baggage. TalkLeft has a prodigious output. I do not know how she can carry on her law practice, private life, and write as much as she does. Maybe she is like Isaac Asimov, described to me by John Ciardi as being able to type on two typewriters at the same time.

Campaign funds for Congress

Roll Call reports in a long article, "Republican candidates in the closest House contests in the country are outdistancing their Democratic opponents in the race for campaign cash, according to financial reports filed last week with the Federal Election Commission."

McConnell v FEC depositions

Roll Call has an article in today's paper about the depositions in the MConnell v FEC suit. Sen. McCain has repeated his allegation that Sen. McConnell "encouraged [Republican] Senators to support the tobacco industry on a legislative matter in return for soft money- financed issue ads."

October 20, 2002

Voter turnout

The New York Times Book Review has a review (and first chapter) of Thomas E. Patterson's The Vanishing Voter. And the Washington Post has an article on "Young Voters' Disengagement Skews Politics." I will have to order a copy of Patterson's book to see what he has to say in more detail. We have been facing decreasing turnout for several decades. (The exception is the South where the enfranchisement of blacks increased turnout for a while.) Laws have made it easier to register, to vote early, to vote by absentee ballot, but folks still stay away. Could the answer be (a) post the Ten Commandments in every school and public building [well, hmm, nothing about voting in the Commandments] or (b) get candidates who will actually talk about the problems real people face and then have a government that addresses those problems? That might be too hard.

Let me suggest some reasons for declining turnout.

1. People are more likely to vote when they believe that government pays some attention to them. Does the government pay more attention to us now? I think people rightly perceive that government is not doing so.

2. People are more likely to vote when they have been engaged in some political activity such as joining a political group, giving to a candidate, or even putting a sign in the yard. Over the past 3 decades we have been developing a system in which the candidates engage in long range bombardment of the public rather that real close contact. We see pictures of candidates sitting aroung a living room or standing in a circle at a picnic and telling their story to a group of voters, but that does not happen much in real life.

How do we change all that?

Election Reform bill

My commentary on the Help America Vote Act has been published in today's Birmingham News.

October 19, 2002

Judicial elections

How Appealing has a quick take on the 11th Circuit opinion in Weaver v. Bonner case.


The archives are back. And I won't try to enter the brain of John Malkovich anymore.

Corruption in Wisconsin

Today's New York Times and Milwaukee Journal Sentinel report that the Republican Speaker of the Assemby, the Majority Leader, and an aide have been charged with illegally using state employees in campaigns. J-S has a copy of the criminal complaint.

Changes to Section 527

According to today's Washington Post, Congress has passed the amendment to Section 527 of the Internal Revenue Code. Here is the text of the bill as received in the Senate on the day before adjournment. The bill was passed by unanimous consent in the Senate without amendment. Principal provisions of the bill:
* State & local party committees and state and local candidates' committees are no longer required to file notification of formation (this is retroactive to the adoption of the notification requirement in 2000).
* Any committee that must report expenditures and receipts to a state body is exempt from filing reports and annual returns with the IRS unless a federal candidate or office holder has some involvement with the committee. (This is grossly simplified. There are lots of if, ands, & buts.) (Also retroactive.)
* Reports of contributions must be filed electronically and the IRS must make the data available on the Internet.

Congressional power to restrict medical marijuana initiative in DC

Congress has the consitutional power to forbide the District of Columbia from adopting a law by the initiative process. The Medical Marijuan Project claimed that the law (the Barr Amendment) was a restriction on the right of free speech. The court distinguished the power to debate from the power to enact. Marijuana Policy Project v DC Board of Elections, DC Circuit, 4 October 2002.

Elections, ballot designation

The 9th Circuit has upheld a Calfornia state law that allows only three designations after a candidate's name -- the name of the office presently held, the word "incumbent," or the occupation. Rubin wanted to be listed a "peace activist" but the City refused on the grounds that peace activist was his status not his occupation. Rubin v. City of Santa Monica, 9th Circuit, 17 October 2002.

Voting in 2 places

On 11 October the 2nd Circuit decided Wit v Berman, holding that the plaintiffs (who lived in New York City and the Hamptons at different times of the year) should not be allowed to vote in both localities' elections. Noted election law scholar Richard Briffault of Columbia Law School was counsel for the plaintiffs.

Ten Commandments law suit

The Southern Poverty Law Center website has the complaint and stipulated facts in the case now pending in federal court in Montgomery.

October 18, 2002

Warning, Will Robinson

The archives shown on the left are not mine. Don't go there looking for my stuff.

Judicial elections

The 11th Circuit struck down part of the Georgia Code of Judicial Conduct today. The particular rule forbade a candidate for judicial office from making a false or misleading statement (including a misrepresentation by omission of a material fact). After receiving a cease and desist order and a public reprimand from the Judicial Qualifications Commission 6 days before the election, the bad-mouthing candidate lost (Weaver) to the incumbent (Sears). Weaver sued in federal court and sought, among other things, a new election. The trial court found the rule a violation of the First Amendment. The 11th Circuit affirmed today, but denied both damages against the members of the Commission and a new election. The case is Weaver v. Bonner. You can download it from Findlaw or from the 11th Circuit website (look for the .zip file for 18 October).

Early Voting

Kyle Still (no relation, as far as I know) has a post today about using the "no excuses" early voting in North Carolina. I told Kyle not to get too exicted about this. It does not seem to increase voter turnout according to Curtis Gans.

Ten Commandments monument

Sam Heldman has had a few interesting posts about the trial now going on in Montgomery about the placement of a "washing machine sized monument to the Ten Commandments" (as the local public radio station says) by the Chief Justice. Read what Sam has to say.

How Intenet Search Engines work

Thanks to Inter Alia for pointing me to the Scientific American article on this topic

(A lot of) Quid Pro (A lot of) Quo in Florida

The Miami Daily Business Review carries a story today about Gov. Jeb Bush giving a lot of personal attention (including lobbying federal officials) to the Bicardi Rum makers in their trademark dispute with the Bicardi rum company in Cuba. While Bicardi-Martini (the Florida firm) gave lots of money before and after their meetings with Bush and his staff, I see nothing in all the emails that offers a quid pro quo. There is one email from the director of the governor's office in Washington to the governor that reminds him "Last year, Bacardi contributed over $15K to the Florida House" which is a non-profit facility in Washington, right behind the Supreme Court building.

Corruption in Wisconsin

The New York Times , the Madison State Journal, and the Milwaukee Journal Sentinel have stories today about the arrest of Senate Majority Leader Chuck Chvala on charges of extortion and campaign contribution violations. The J-S has a copy of the 69-page criminal complaint and a story that two Republican leaders are expected to be charged today.

October 17, 2002

McConnell v FEC

Thomas Mann of Brookings and Lisa Danetz of National Voting Rights Institute just pointed out that the affidavits have all been posted by the Campaign & Media Law Center. Just a little something to read for all the campaign finance mavens out there.

McConnell v FEC

The trial is getting closer. Oral argument will be 4 December. (I wonder who is charge of distributing tickets.) Witness lists have been filed -- see the Campaign & Media Law Center for a copy. All testimony is by affidavit or deposition. The Democracy 21 site has several affidavits from its side (pro-BCRA). I am looking for the plaintiffs' affidavits.

Election Reform Bill

The New York Times has an article on the Senate passage of the Help America Vote Act.

Local TV not covering politics

ABC News and the AP have a story about the shameful lack of local TV news shows' coverage of local politics. I can't find the actual study yet, just the press release about it.

Extortion case against Sen. Roger Bedford

The Birmingham News has a story today about Sen. Roger Bedford's upcoming trial. Bedford is accused of extortion for telling the county commissioners that they would get no state money to help in building an agriculture center unless they bought 33 acres of land from a friend of Bedford. The defense is trying to get the case thrown out even before it starts by the simple expedient of introducing affidavits from 4 of the 5 commissioners stating that there was no threat. The judge noted that Alabama does not have summary judgment in criminal cases, but added that the testimony "conceivably could be used" to dismiss the charges. Seems to me he is hinting at a dismissal at the close of the prodecution case. Of course, there is the pesky problem of the fifth commissioner who has stated that Bedford did make the threat.

Election Reform bill

NPR's Morning Edition has a story about the Help America Vote Act.

October 15, 2002

The McKinney election contest

A few days ago I received an email with the complaint filed by several of Rep. Cynthia McKinney's supporters claiming that a massive number of Republicans had voted in the Democratic primary and that their votes had defeated McKinney. I passed the complaint along to a listserv of election law practitioners and academics and Eugene Volokh mentioned it on his blog and posted the complaint. The Atlanta Journal Constitution has now done an analysis of the voting and finds that the number of Republicans voting in the Demo primary was much smaller than the number by which McKinney lost ( | ELECTION 2002 | GOP not key in McKinney loss). This is all pretty interesting to me because I was involved in an election contest in 1986 in which we proved that Republicans had illegally crossed over to vote in the Democratic runoff. In our case, there was a party rule defining who could vote and backed up by a state law allowing such party rules. In the McKinney case, the theory is based on the constitution and the Voting Rights Act.

Predicting the midterm election

A bunch of political scientists have now posted their predictions about the outcome of the midterm election. I won't spoil their fun. Just take a look at their papers at

Depositions in the BCRA suit

Roll Call reports that Sen. McConnell is seeking to have large portions of his deposition as well as portions of Sens. McCain's and Feingold's depositons sealed. The parties to the suit agreed that anyone could declare portions of his own deposition as confidential to prevent political foes using it, but apparently McConnell is sealing portions of depositions that make charges against him.

October 14, 2002

Website use in campaigns

Unlike the official Senate websites, the campaign website can be updated several times a day. And should be. But most are not. CQ has a good article on this with lots of good website addresses (which you have to cut and paste). The best link on how websites are being used is by the University of Washington. Also, note the Libertarian candidate in North Carolina whose website is a blog. She updates the blog about every other day.

Early voting

On Friday, I was talking with a friend in Arizona about a supposedly-tight congressional race. My friend said the Democrat was not running any ads on the Phoenix TV stations which are carried by cable in the district. I said, maybe the Democrat is saving his money for a last minute ad campaign. Friend: We have early voting. The election is already going on. See today's New York Times for a story on this phenomenon. This is another example of how changing the election system changes candidate behavior.

US Senate web sites

Senators Stymied by Web Restrictions ( explains why I can't find information I need from time to time on some Senators' websites. The Senate rules treat websites like they are mass mailings, which are forbidden for 60 days before an election.

October 13, 2002

Absentee ballots. An article in

Absentee ballots. An article in today's Huntsville (AL) Times ( Politics) relates of the effort of the Republicans to turn out their folks for absentee voting and to monitor the absentee voting of others. I will be on the lookout for similar stories in other places of pro- or anti-absentee campaigns. (If any reader of this knows of one, please email by going through to my website and clicking on Contact Me.)

October 12, 2002

The Sopranos is not exactly

The Sopranos is not exactly political, but this is too good to ignore. The Smoking Gun website has a copy of the suit filed by the organizers of the Columbus Day parade in New York City to prohibit Mayor Bloomberg from inviting two actors from The Sopranos to march in the parade.

Dropping out. Today's Washington Post

Dropping out. Today's Washington Post On Politics has an article covering the phenomenon I mentioned yesterday -- candidates dropping out and efforts to replace them. and CNN has a column on its website considering who might drop out this week.

October 11, 2002

Election Reform bill

The Washington Post reported that the Congressional Black Caucus got behind the conference committee's version of HR 3295, while many of the Hispanic were opposed. As I reported earlier, the NAACP was generally positive about the bill. The website of the Lawyers' Committee for Civil Rights Under Law had a copy of a 10 October letter from Executive Director Barbara Arnwine asking members of Congress to kill the bill.

Arnwine is right. There is almost nothing in this bill that expands the right to register or makes it easier. It may become harder to register by mail because of the cumbersome requirement of making a copy of your photo ID and sending that along with your application to register. Bye bye to "postcard registration." As for the act of voting, I suppose some might consider it a plus to allow voters to go into any polling place in the county and be allowed to vote on a provisional ballot. When I worked at the polls in Fairfax county, Virginia, for the 2000 presidential election, I know there were a few voters who were turned away because they came to the wrong polling place. One came in at 5 minutes before the polls closed. No way he could get to the right polling place. So there are a few voters who might have been helped --even to the point of having a vote rather than being shut out.

By the way, how are polling officials in a big county like Fairfax or Jefferson County, Alabama (where I live now) going to give a voter the right congressional ballot when they vote by provisional ballot? Jefferson is in two congressional districts and Fairfax is in three. Parts of this turkey of a bill go into effect in 2003 (the ID to register provision), but some of the provisions designed to make registration records more centralized may not kick in till '06.

Another dropout. What is going

Another dropout. What is going on with this year's elections? So far, Andrew Cuomo has dropped out of the Democratic Primary for governor of New York shortly before the primary; Bob Torricelli has withdrawn from the New Jersey Senate race 36 days before the election; and now Mike Taylor (R) has pulled out of the race to unseat Sen. Max Baucus (D-Mont.). Read the articles from the New York Times and the Helena Independent Record. Taylor claimed that Democratic Party ads made him look like he was a homosexual hairdresser. I don't suppose the allegation in the ads that he ran a hairdressing school using a student loan scam had anything to do with his falling poll numbers. Nor did the fact that his campaign has run out of cash. Taylor's name will remain on the ballot, the Independent Record reports.

The late Rep. Patsy Mink remains on the ballot in Hawai'i, despite a Democratic Party effort to put another candidate in her place, reports the Honolulu Advertiser.

The FEC was scheduled to

The FEC was scheduled to consider the draft Consolidated Reporting regulations at yesterday's meeting. The regulations will cover reporting for independent expenditures, electioneering communications, national party committees and building funds, and candidate committees. The draft is here along with corrections.

The Four Horsemen of Campaign Finance Reform are not pleased with the FECís soft money regulations. See the Washington Post article. Reps. Shays and Meehan have filed suit seeking their invalidation, while Sens. McCain and Feingold have filed a motion under the Congressional Review Act.

Election Reform. The House passed HR 3295, the Help America Vote Act yesterday. See the articles in Washington Post and the New York Times.

October 9, 2002

Election reform has been moving

Election reform has been moving fitfully through Congress since the Bush v Gore mess was resolved in the courts. The House passed HR 3295 (Help America Vote Act) which the Senate amended with its own version. The two versions have been in a conference committee for months. Within the last week, the conferees announced agreement on a revised bill. has a copy of the conference committee bill and a section-by-section summary of it. The bill provides lots of money for states to shift from punch card voting systems, but every state will have to comply with a bunch of new requirements for federal elections -- but who is going to put two different election systems into place? There are a few provisions that actually will make it harder to vote. There is a requirement that voters voting after the normal poll closing time under a court order changing the closing time must vote by provisional ballot. There is also a requirement that those who register by mail will have to show ID in order to vote the first time. Stories in the NY Times and elsewhere immediately after the compromise was announced said that civil rights groups were concerned about some provisions in the bill. The NAACP has issued a press release generally supporting the bill while opposing the ID provisions.