Votelaw, Edward Still's blog on law and politics: January 2003 Archives

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January 29, 2003

IRS considers changes to Form 990

The IRS is considering changes to Form 990 which will affect reporting by Section 527 political organizations. The comment period closed earlier this week. The Campaign Finance Institute has filed comments. The CFI press release said,

In comments filed January 28 with the IRS regarding proposed changes in its annual information return (Form 990) for tax-exempt groups, the Campaign Finance Institute (CFI) strongly endorsed expanded disclosure by noncharitable exempt organizations of their affiliations, financial transfers and other transactions. It argued that increased disclosure was essential for voters to be fully informed about who is behind their political candidates.

Georgia redistricting case

Before Georgia lawyers can go to the U.S. Supreme Court to argue a redistricting case, they may need to stop at the state high court to answer an important question: Who speaks for the state of Georgia?

That quandary came up this week when Gov. Sonny Perdue asked Attorney General Thurbert E. Baker to drop the state's appeal of a federal court ruling that struck down the redistricting plan drawn by then-Gov. Roy E. Barnes.


more

January 28, 2003

Akron campaign finance law

The Beacon Journal reports that US District Judge Polster has lifted the stay he imposed on the enforcement of the Akron campaign finance law. The charter amendment limits contributions to mayoral and at-large council candidates to $300 and to ward council candidates to $100.

January 27, 2003

Canadian campaign finance bill nears introduction

Canada.com reports

Liberal ministers will get a chance at a cabinet meeting Tuesday to discuss a controversial bill about political donations before it's tabled the next day in the House of Commons, party sources say.
The bill is expected to cap corporate and union donations to political parties at $1,000, a source in Prime Minister Jean Chretien's office said Monday. Response to the proposed legislation at last week's cabinet retreat was "pretty positive," a government source said. But there was debate among ministers over some key points, not least the proposed cap, the source said.

Hackers disrupt online election

CBC News reports that hackers apparently used a "distributed denial of service" attack to disrupt the (Canadian) National Democratic Party's election of its party leader.

A distributed denial of service attack is basically like this: You somehow commandeer a number of telephones and then have all those phones dial the same number. Because the target phone is constantly ringing, legitimate callers have a hard time getting through. In a denial of service attack, one or more computers bombard a target website with requests for information, so that the target is overwhelmed.

I am not sure if this was an attack aimed at the NDP election or part of the world-wide problems caused over the weekend by the Slammer worm. Either way, it shows some of the vulnerabilities of Internet voting.

Panel on BCRA

At the recent American Association of Political Consultants meeting, there was a panel with Bob Bauer and Joe Sander, two Democratic Party lawyers, and David Mason, a member of the FEC. The topic of discussion was the BCRA. The video is 83 minutes and well worth your time.

Panel on BCRA

At the recent American Association of Political Consultants meeting, there was a panel with Bob Bauer and Joe Sander, two Democratic Party lawyers, and David Mason, a member of the FEC. The topic of discussion was the BCRA. The video is 83 minutes and well worth your time.

January 24, 2003

BCRA Millionaire's Amendment rules

The Federal Election Commission has posted the interim rules for "Increased Contribution and Coordinated Party Expenditure Limits for Candidates Opposing Self-Financed Candidates (a.k.a. Millionaires’ Amendment)" -- all 143 pages in Word format. You can get them here.

Federal Election Commission revised forms

The Federal Election Commission website has the draft forms for compliance with the BCRA. These will be considered at the 30 January meeting of the Commission.

Georgia v Ashcroft

The Fulton Daily Report has a good overview of the problem facing the new governor of Georgia.

Thanks to the U.S. Supreme Court, Georgia Gov. Sonny Perdue is in an awkward position: The state government he was elected to lead opposes his Republican Party in a suit that could determine how legislative districts are configured in the future.

The justices last week agreed to hear the state of Georgia's arguments that the redistricting plan passed by former Gov. Roy E. Barnes does not violate the Voting Rights Act. The plan distributed black voters around many districts in order to help Democrats, but last year a federal court voted 2-1 that the plan illegally diluted black voting strength in three state Senate districts.

The Justice Department's motion to affirm in the case is here.

Arizona Clean Elections

Arizona Congressman Jeff Flake is charging ahead in his quest to repeal the state's Clean Elections Act, which provides public money for candidates to run for state offices.
Flake, a Republican, has formed a committee called Stop Taxpayer Money for Politicians, and he hopes to have a grass-roots army of volunteers to gather the 120,000 signatures needed to put the repeal on the 2004 ballot.

Flake forms panel to repeal Clean Elections I'll bet the committee calls itself "STaMP."

Arizona: even earlier ballot

The Arizona Republic reports on a bill that would let troops get early ballots overseas.

Poll results

Question: Do you ever find elections campaigns silly or ridiculous?
• 7% Often
• 51 Sometimes
• 37 Never
• 5 Other/Don’t know
Source: Survey conducted by the Center of International Studies, Princeton University with 970 adults nationwide in March 1960. Data provided by The Roper Center for Public Opinion Research, University of Connecticut.

Washington Post

Virginia GOP executive director indicted for wiretapping

Ex-Official of Va. GOP Indicted in Eavesdropping

Federal prosecutors announced today that the former executive director of the Virginia Republican Party was indicted on felony charges of eavesdropping on Democratic conference calls, reviving a political feud that helped demolish bipartisan cooperation last year.
Edmund A. Matricardi III, 34, who resigned his Virginia GOP post last April following his indictment here on similar state charges, resigned his new position at the South Carolina Republican Party this afternoon after U.S. Attorney Paul J. McNulty announced the latest indictment alleging violations of the U.S. Wiretap Act.

Matricardi has already admitted that he listened in on the conference call, but claimed he had been given permission to do so by one of the participants.

January 23, 2003

DC Mayor to return some campaign funds

The Washington Times reports that Mayor Anthony Williams will return money that is proven to have been improperly contributed by the Washington Teachers Union. See here for an earlier post on this story.

Touch screen voting in California

The San Jose Mercury News has an editorial today suggesting that all touch screen system should have a "voter-verifiable audit trail."

Lieberman's email campaigning

Sen. Joe Lieberman launched his campaign a week or so ago and immediately sent out a bulk email, according to Declan McCullagh. McCullagh points out that Lieberman introduced a bill in the last Congress to stop spam, but is now using spam to send his message.

What't this got to do with my usual topic? E-mails are not regulated by the McCain Feingold law, so it is foreseeable that we will have more pols sending out more emails.

(Thanks to Taegan Goddard's Political Wire for the link.)

Lightbulb joke

Ted Barlow has a string of lightbulb jokes on his blog. This one is about campaigning.

Laugh, if you can.

Suggestions for changing public funding of presidential primaries

Fred Wertheimer, president of Democracy 21, had an op, Just Whose Presidency Is This?, in the Washington Post a week ago. I overlooked it until now. He suggest some practical fixes for problems that now affect the public funding of presidential primaries.

January 22, 2003

More on Akron

SardonicViews has an interesting take on the Akron ordinance. (Thanks to Howard Bashman for the link.)

Governor of Hawaii also pushes anti-pay for play

Gov. Lingle's State of the State address has a proposal about the "pay for play" issue in Hawai'i:

The public also is rightly concerned about the large amounts of money contributed to political campaigns by businesses that then get millions of dollars in non-bid contracts. Accordingly, I ask that you enact a law prohibiting political contributions by anyone benefiting from non-bid contracts.
This effectively will prevent many businesses from financially supporting the candidates of their choice, and that's unfortunate. But the people have made clear their desire for this kind of campaign finance reform.

Supreme Court denies cert in Frank v Akron

AP reports that the Supreme Court has denied certiorari (refused to hear) the case of Frank v. City of Akron, a challenge to the strict campaign finance law adopted in Akron. See my earlier post here.

New Jersey campaign finance reform

My post of about a week ago reported that the Gov. McGreevy insisting on a bill banning "pay for play" (barring campaign contributors from receiving state contracts). The bipartisan group supporting the bill now faces the prospect of a veto because the Governor says the bill does not go far enough. See the NYT story
here.

New Jersey Redistricting

Here is a clearer copy of the decision in McNeil v. Legislative Apportionment Commission.

January 21, 2003

New Jersey redistricting overturned

PoliticsNJ.com has a report on its front page that a state appellate court has overturned the 2001 legislative redistricting plan on the grounds that the districting for Jersey City and Newark violated the constitutional rule that "no county or municipality shall be divided among a number of Assembly districts larger than one plus the whole number obtained by dividing" the population by one fortieth of the state population. The decision is here.

The Court distinguished a 1972 case which everyone apparently though had held the constitutional provision unconstitutional. This is part of a trend I have noticed over the last couple of years of state courts applying state constitutional provisions that constrain redistricting plans to use whole counties, whole cities, or divide them as little as possible. Similar such decisions were rendered in Colorado and Pennsylvania, among others.

Thanks to Mr. Moderate at Political State Report for the lead.

Allison R. Hayward's article in

Allison R. Hayward's article in National Review Online uses the papers of Justices Marshall and Powell to understand some of the issues in the Buckley v. Valeo case. She concludes,


The Buckley Court, faced with numerous complex issues, nevertheless thought through express advocacy and the potential for "issue ads." The justices knew that the express-advocacy standard would permit individuals and groups to discuss issues relevant to campaigns without regulation, but remained committed to providing a clear and narrow standard to address constitutional concerns. It was not, as critics seem to suggest, a hasty, naive, or ignorant Court that set forth this standard, but one aware of reality, concerned about liberty, and protective of speech in campaigns.

FEC v Beaumont

I was right when I predicted that the Supreme Court would set the FEC v Beaumont case for 25 March. See the calendar here.

US House relaxes its ethics rules

The Washington Post reports on the revised ethics rules the House of Representatives has adopted. Under the old rules, "members and their staffs can accept $100 in meals each year from each lobbyist and watch Washington Wizards basketball games and rock concerts from luxury skyboxes valued to fit just under their $50-per-event limit on tickets." The new rules, lobbyists will be able to attribute the cost of the meals to everyone in the congressional office receiving the meal. Members and staff will be able to accept free travel to charitable events.

Georgia redistricting case

Political State Report: straight from the trenches has a post from Paul McCord stating that Gov. Sonny Perdue (R) may try to stop the appeal of the Georgia redistricting case which is being handled by Attorney General Thurman Baker (D).

Georgia filed suit to get preclearance for its redistricting plan, drawn by the Democratic governor and legislature to be as pro-Democratic as possible. The court rejected the plan and forced the legislature to draw a new plan. The Republicans won enough seats to get a majority in the Senate (with 4 party-switchers), so they may not be interested in a new plan.

Secrecy in the McConnell v FEC suit

The 3-judge court hearing McConneell v FEC has remanded to a single judge the motions by news organizations to make all documents and testimony public. (via Campaign & Media Legal Center)

January 20, 2003

Mississippi campaign finance proposal

The Greenwood Commonwealth reports...

Sen. Hillman Frazier . . . is filing a bill to restrict campaign fund-raising activities during legislative sessions.

Under his proposal, any legislator who wants to have a fund-raising event during a session would have to file notice with the state Ethics Commission at least 30 days in advance.

Canadian prime minister to push big campaign finance reform

Canada.com reports

Prime Minister Jean Chrétien is determined to radically reduce the influence of money on the political system and will force recalcitrant Liberal backbenchers to fall in line by declaring imminent reforms to political financing laws a matter of confidence in his government.
***
In his first, detailed explanation of why he thinks such legislation is necessary, Mr. Chrétien said he does not believe the current system of unlimited donations by individuals, unions and corporations has corrupted the political system.
***
Still, the prime minister said there is a "perception" big donors get preferential treatment from the government. That perception is heightened by the tendency of opposition parties to trumpet news of donations given to the ruling party by companies that win government contracts or receive money from government programs.

January 19, 2003

Wisconsin corruption case

Earlier in the week, I posted a story here about the pending case against two Wisconsin House members and a staffer. The case against the leader of the Senate is apparently proceeding separately. The Journal Sentinel has this story on Sen. Chvala's lawyers arguing for dismissal. Interesting arguments in both cases about the sufficiency of the indictment and the ability of prosecutors to go after corruption in the legislative process.

January 18, 2003

Georgia redistricting appeal

Here is the New York Times article on the Georgia appeal of its redistricting preclearance case.

Here is the Supreme Court order setting the schedule in the case. Note that the last brief is on 21 April. The Court only sets times in its orders when it is expecting to hear the case at a particular time. It has argument days set for 21, 22, 23, 28, 29, and 30 April. I expect the case will be argued on the 28th or 29th. They will reserve 30 April, I will bet, for McConnell v FEC.

January 17, 2003

Supreme Court Accepts Georgia Redistricting Appeal

AP reports
here that the Supreme Court has agreed to hear Georgia's appeal in its preclearance suit. The Georgia jurisdictional statement is here on the Georgia House Republican Caucus website.

I can't find the DOJ brief (motion to dismiss or affirm).

More later.

FEC v Beaumont

Until I get around to reading these and writing some analysis, here are links to the briefs:

Petition for Certiorari by FEC

Motion in Opposition by Beaumont -- click on FEC v Beaumont and then on Brief in Opposition

Reply brief by FEC

Brief for the Petitioner

Amicus brief of Brennan Center

Amicus brief of Public Citizen et al

Amicus brief of ATLA not yet available online

FEC advisory opinion to Libertarians

This story on the AP wire gives more details about the FEC decision yesterday. Apparently, the Commission agreed with Weintraub's proposal about the sale of mailing lists because there is a thriving commercial market in mailing lists, but rejected it as to ads and licenses for logos because of the problems in trying to determine if the price was reasonable or was a disguised contribution.

January 16, 2003

test

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FEC advisory opinion to Libertarians

I mentioned yesterday that the FEC was considering an advisory opinion to the Libertarian National Committee. Commission Chair Ellen Weintraub proposed an alternative opinion that would allow national parties to sell items on the commercial market. Her proposed draft is here.

The Commission has apparently gone along with Weintraub's position, even though this article credits the idea to David Mason.

January 15, 2003

FEC draft advisory opinion to the Libertarians

Tomorrow (16 January), the FEC will consider a draft advisory opinion prepared by the General Counsel's office in response to a request from the Libertarian National Committee. The LNC is covered by the BCRA because it is a "national party committee."

The LNC, like other national parties, used to deposit in its non-federal account any money it received from the sale or lease of its property, such as leasing its mailing lists, selling ads in its national newsletter, and licensing the sale of merchandise with its logo. The FEC has held that over the years that this sort of income is still a "contribution" and must be raised in accordance with the FECA if it is to be deposited in the federal account. Now that national party committees are forbidden to raise soft (i.e., non-federal) money, the LNC asked for a waiver. The draft AO says "no."

For background on the request, go here.

Colorado provisional ballots

I noted the efforts of the Republicans to make provisional ballots in Colorado harder to obtain, here.
Now the Denver Post reports that a bill is proceeding through the House to liberalize (if I may use that term) the procedure for provisional ballots by deleting the requirement that voters check a box as to their reason for needing a provisional ballot. If the voter has to check a box, then the absence of a check mark -- even if the voter is legally entitled to cast a provisional ballot -- is a grounds for a challenge to that otherwise legal ballot.

January 14, 2003

New Jersey Gov. to press campaign reform

The Press of Atlantic City reports that the Governor is proposing (or concurring in a Republican proposal) to ban "pay for play."

McGreevey also plans to address campaign-finance reform by offering support for a legislative plan that would bar political contributors from obtaining contracts with state, county or local government.

In recent weeks, Republicans have pressured McGreevey to support a "pay for play" bill that bars campaign contributors from receiving state contracts. The bill passed the state Senate in June but is waiting to be posted in the Democratic-controlled state Assembly.

Wisconsin corruption trial

Last week, a circuit judge refused to dismiss the charges against two Republican House members and the former aide to one of them. Their lawyers argued that the criminal complaint was insufficient. The Journal Sentinel has the story
here. One of the arguments made by counsel was,

Lawyers for the three had argued that campaigning and expanding a partisan majority is part of a lawmaker's duty. They said it was often impossible to distinguish campaign and legislative work.

The appeals court denied a motion to stay the preliminary hearing while it considers an appeal from the denial of the motion to dismiss. The JS has the story here.

The preliminary hearing began on Tuesday. The Monroe, WI, Times has the story here.

My earlier post on the complaint is here.

Leadership Forum

Christian Science Monitor has an editorial, Red-Faced Money Politics, on the story I reported here regarding the Leadership Forum's returning $1 million to the Republican National Committee.

South Carolina campaign finance bill

AP reports here on the progress of a campaign finance reform bill sponsored by the Speaker of the House. The text of the bill is here.

Funding for the Help America Vote Act

The Republicans make a big point of opposing "unfunded mandates." That is apparently out the window now. The Washington Post reports on a proposal to cut $10 billion from the fiscal 2003 budget (note that we are nearly 1/3 through that fiscal year). One of the proposed cuts is in funding for HAVA:

But in a disappointment to financially strapped state governments, the plan would provide only $50 million to help state and local governments meet a federal requirement to correct flaws in voting systems. The administration had proposed $400 million.

Many states are counting on getting that money to pay for the federally mandated changes they must make in their election systems.

Washington Mayor has another probe

No, this is not the alien abduction probe. It's the campaign finance investigation. The Washington Post reports today

The D.C. Office of Campaign Finance yesterday began investigating whether Mayor Anthony A. Williams's reelection campaign failed to report contributions from the Washington Teachers' Union.
The probe will focus in part on whether the work of Gwendolyn M. Hemphill, who co-chaired Williams's campaign, should have been reported as an in-kind contribution from the union, said Benjamin F. Wilson, chairman of the D.C. Board of Elections and Ethics, which oversees the campaign finance office. Hemphill had a paid job as assistant to the union's president at the time.
Also at issue is the Williams campaign's use of teachers union telephone banks. The campaign did not report use of the phone banks as an in-kind contribution on its financial disclosure reports. A similar arrangement during the mayor's 1998 campaign also was not reported.

According to the Office of Campaign Finance (scroll down to "In-Kind Contributions),
A contribution of goods, services or property offered free or at less than the usual and normal charge, or payments by a third party for goods and services are in-kind contributions. In-kind contributions must be valued at the current local fair Market Value at the time of the contribution. In-kind contributions (i.e., goods and services provided to a political committee or candidate) are treated as any other contribution and are subject to contribution limits. In-kind contributions must be reported and itemized under the appropriate category of receipts.

January 13, 2003

More on dual voting

The Press of Atlantic City reports on a new effort to allow non-resident property owners in all the beach towns in New Jersey to vote in the town elections. In one town over 80% of the property is owned by non-residents. A spokesperson for the group calls the present situation "taxation without representation."

Ah, the power of a phrase.

Leadership Forum

Roll Call reports (via the Campaign and Media Legal Center) that the Leadership Forum has returned $1 million to the Republican National Committee. The RNC had given the money to the Forum in late October when the Forum was established as a 527 organization. Both major parties set up such committees in the days before the BCRA became effective because of a loophole created by the FEC regulations. The FEC allowed organizations with a former connection to a national party to sever those ties if it maintained its independence after the BCRA's effective date.

The Campaign and Media Legal Center claims that

The reversal likely was prompted by a complaint lodged with the FEC by the Campaign and Media Legal Center , Common Cause, Democracy 21 and the Center for Responsive Politics urging the Commission to scrutinize the Forum and a number of similar organizations. In their complaint, the groups alleged that these so-called "shadow committees" were established, financed, maintained or controlled by Democratic or Republican party committees and that their schemes to spend soft money in this election cycle were accordingly illegal.

January 11, 2003

Virginia House -- proposed ethics rules

Republicans in Virginia's House of Delegates, who forced their party's leader to resign this summer during a sexual harassment scandal, are now debating whether to create a code of conduct to publicly address complaints against House members.

Del. Robert G. Marshall (R-Prince William) has proposed that the House require an ethics investigation whenever a legislator is accused of "conduct that does not reflect creditably on the House of Delegates."

Va. Scandal Could Spark House Code Of Conduct (washingtonpost.com)

Massachusetts election contest

In Massachusetts, a Republican candidate for the State House lost by 17 votes and brought an election contest. A judge ruled that there were missing and misprinted ballots and other irregularities. He ordered a new election. Now the State House leaders (Democrats) are arguing that the Mass. constitution gives the final say to the House. See the story in the Boston Globe. And see Chapter I, Section III, Article X of the Mass. Constitution.

Arizona Clean Elections

Arizona has a "Clean Elections" fund that provides public financing to candidates who have raised a threshold amount in small ($5) contributions. A Republican state representative (who just lost) brought suit last year (before he lost) against the funding mechanism -- a surcharge on criminal and traffic fines. The Arizona Supreme Court upheld the plan in October. The challenger has now filed his cert petition in the US Supreme Court, according to the Tucson Citizen. (via SCOTUSblog)

January 10, 2003

Campaign Finance Sentencing Guidelines

TalkLeft has a post on the Sentencing Commission's new guidelines mandated by the BCRA.

January 9, 2003

McKinney lawsuit about crossover voting

According to AP, former Congresswoman Cynthia McKinney has dropped the winner (Denise Majette) and the Georgia Republican Party from her suit claiming "malicious crossover voting" by Republicans in the Democratic primary. (via Political State Report)

Leadership PACs

I was attending a conference on campaign law today. One of the speakers who is quite knowledgeable about the FEC said that he doubted that the FEC would actually adopt the Leadership PAC rule it has published for comment. However, when I got back to the hotel room and read The Hill online, it had an article about the proposed rule. The article points out that Bradley Smith, a former law professor who has written frequently that the FECA violates the First Amendment, and Michael Toner, former GOP general counsel, are two of the folks who seem to be behind the Leadership PAC rule. To review the proposed rule, click here.

Labor?s New 527?

Roll Call reports that Steve Rosenthal, who recently resigned as political director of the AFL-CIO, is planning on setting up a 527 political organization to assist the labor movement in GOTV.

(This will probably be the last Roll Call story I will mention. Monday, the Roll Call Online site becomes subscription-only.)

DC Mayor Williams

The Washington Post reports that campaign records of Mayor Anthony Williams have been subpoenaed by a federal grand jury. (As part of its colonial status, DC does not even have control over its criminal justice system.) The grand jury is invetigating the forged signatures on the nominating petitions submitted by Williams when he was trying to get on the Democratic primary ballot.

Dick Morris pt 3

MyDD has an insightful analysis of the Dick Morris column.

January 8, 2003

more FEC rules for BCRA

The FEC has published the final rules for Reporting and Independent and Coordinated Expenditures.

Dick Morris (pt 2)

Thanks to Taegan Goddard's Political Wire for the link to Morris' column.

Emailing in a campaign

Dick Morris is blowing his own horn in his column on TheHill.com over helping Gov. Mike Huckabee (R) win reelection in Arkansas. Morris' firm Vote.com sent emails to 545,000 people in Arkansas -- a state with 2 million residents. ere is Morris' conclusion:

E-mailing is the new front of political campaigning. It is also the ultimate answer to campaign finance reform. By lowering the cost of campaigning, massive e-mailing can — and will — reduce the price of running for office as the law of diminishing returns undermines the future of television advertising.

How does one use the Internet? How to stop voters from just deleting the messages? What information works best online? These are all the questions political consultants and candidates will ponder in the future. But the stage was set in 2002 by Mike Huckabee of Arkansas.

Al Sharpton

The Scrum repports that Sharpton says that he has not accepted any campaign contributions -- so that would mean that he has not violated the FECA. Remember that he only has to file when he has raised $5000.

January 7, 2003

Jefferson County sheriff race 1998

In 1998, Jim Woodward, the incumbent sheriff of Jefferson County, AL, was running for election -- his first time at bat, since he had been appointed to fill the position left vacant by the retirement and death of long-time sheriff Mel Bailey. After the votes were counted, Woodward had lost by 37 votes to Mike Hale, the Democratic candidate. Woodward believed that there had been voter fraud in the absentee balloting (a favorite pastime in Alabama) and launched an investigation using the sheriff's office link to the NCIC (National Crime Information Center) to find absentee voters who might have committed felonies (which would make them ineligible to vote in Alabama). Woodward hired Bert Jordan to represent him in an election contest. He eventually won the contest.

Using the NCIC records for anything other than law enforcement is a violation of federal law. So the feds indicted Woodward and Jordan for using the NCIC records. The indictment claimed that Woodward had turned over the NCIC information to Jordan who used it in preparing his case.

During the trial of the case, Judge Inge Johnson kept stopping the trial to let the defense lawyers (David Cromwell Johnson for Woodward and William Clark for Jordan) review material that she ruled should have been turned over by the prosecution earlier. Finally, she dismissed the case on the grounds of prosecutorial misconduct.

The government appealed and the 11th Circuit yesterday reversed and sent the case back for trial. It is a long opinion and I don't pretend to understand most of it, since I don't handle criminal law. The 11th Circuit opinion is, as usual, in a zip file on the court's site. Go here and click on the "Day of the Month" link, choose 6, and download the zip file (this is the only case in the file).

The Birmingham News story has some background.

Disclosure: Jordan and I have known each other for years. We go to the same church. And we have always been on opposite sides of political/legal questions. Read the opinion, and I think you will agree with me that if Bill Clark can prove what he said in his opening argument, Bert will be acquitted.

Moral of the story: election lawyers can get in a heap of trouble trying to get their clients out of trouble. As the sergeant on Hill Street Blues used to say, "Hey, be careful out there."

FEC regs on Consolidated Reporting

The FEC has issued its regulations on all reporting requirements under the BCRA.

Texas Association of Business

In the recent election, the Texas Association of Business (TAB) was extraordinarily successful. According to its website, 100 of the 104 House candidates its PAC (BACPAC) endorsed won. Apparently not all of the electioneering went through BACPAC.

According to the Texas Lawyer, TAB ran ads comparing the records of its endorsed candidates and their opponents on a list of business-related issues and paid for the ads with funds, the source of which it did not disclose as required by Texas law.

Texas law also provides that a losing candidate may sue in such a case for twice the value of the ads. Four Democrats have filed suit in state court to collect the fines. TAB in turn has filed suit in federal court (W D Texas) against the other 17 defeated candidates for a declaration that they cannot collect.

TAB's defense (or offense. depending on your point of view) is that its comparison ads never used the "magic words" such as "elect, defeat, vote for," etc. The Chamber has some support from the Fifth Circuit. Last year it held in a case in Mississippi:

Because the Chamber's advertisements do not contain explicit words exhorting viewers to take specific electoral action for or against the featured candidates, we hold that the advertisements do not constitute "express advocacy" under the bright line approach adopted above. As a consequence, the district erred in holding that the advertisements are subject to mandatory disclosure under the Mississippi election statute.

Chamber of Commerce v. Moore, http://laws.findlaw.com/5th/0060779cv0.html.

January 6, 2003

Bill Pryor and the Republican Attorneys General Association

Sam Heldman over at Ignatz has an interesting post about the trial balloon about Bill Pryor (Alabama's Attorney General) being appointed to a federal judgeship. As usual, I have a slightly different take on what is going on. The thing that interests me is the Republican Attorneys General Association (RAGA) founded by Pryor and its lack of public disclosure of its receipts.

According to a bunch of news stories I have read, RAGA raises money from large corporations this way: RAGA apparently solicits the contribution but it is given to the Republican National State Elections Committee which then gives some money it collects to RAGA. Since RNSEC has some others out beating the bushes for it, it is hard (heck, it is impossible) to tell what contributions to RNSEC were solicited by RAGA or whose money goes to RAGA. That appears to be the point. As Pryor told the Decatur (AL) Daily, "The last thing I want to do is to try to make the businesses that support us a target for trial lawyers."

The thing that every campaign finance law includes is disclosure of contributions. Some states (like Alabama) have pretty weak laws, but the general notion is there. And Bill Pryor thinks that's a bad idea.

See these stories from the Decatur Daily, the Washington Post, and an op-ed piece from the News Journal in Delaware. (Thanks to Sam for providing some of the links.)

California Indian Tribe sued by California FPPC

The California Fair Political Practices Commission has sued the Agua Caliente Band of Cahuilla Indians for the Band's failure to file timely reports ot $8 million in donations. The tribe has asserted the defense of its immunity to state government regulation. The case will be heard on Wednesday. The AP story on the subject is here. The website of the FPPC has most, if not all, of the documents in the case here.

January 5, 2003

NARAL's new plan

The New York Times reports today that the National Abortion and Reproductive Rights Action League is changing its name to Naral Pro Choice America and "planning a multimillion-dollar campaign to try to make abortion a critical issue in the 2004 presidential election." Today's class assignment is write a memo to Naral about how the Bipartisan Campaign Reform Act will affect its plan.

Colorado recount aftermath

Remember the recount (or maybe it was the long first count) in Colorado's 7th Congressional District? I mentioned it frequently in the days following the November election.
The Political State Report has a long post from one of its Colorado correspondents about the efforts of the Republicans to make provisional ballots much harder to cast because the Democratic candidate received more of the provisional ballots.

Al Sharpton redux

I just realized that I was editing my Al Sharpton post when my computer froze. A sentence was left out of the last paragraph. I have corrected the post.

Voting rights for owners

The blog Sneaking Suspicions has an interesting post about Dewey Beach, Delaware. Dewey Beach allows property owners to vote as well as residents. The town's mayor was concerned that time share owners would be able to vote and that the number of "owners" would overwhelm the residents at election time. (Thanks to Sam Heldman for the link to Sneaking Suspicions.)

I mentioned the flip side of this question here in a case involving residents of New York City and resort towns in New York State.

January 4, 2003

Al Sharpton

Politics1 ("The Most Comprehensive Online Guide to American Politics") has a story that Al Sharpton has been running a website promoting his presidential candidacy for several months but has not registered the committee with the FEC or the IRS. A candidate must file a statement of candidacy with the FEC within 15 days of raising $5,000.

Politics1 states that it checked the IRS website for a filing by Sharpton. The implication that Sharpton would have to file with the IRS is incorrect. A committee required to file with the FEC (such as Sharpton's) does not have to file a notice of formation with the IRS. IRS filing requirements are found here.

Alabama's Ten Commandments Monument

Usually this blog covers election law and campaign finance issues, but a minor theme is "politicians in trouble with the law." I think the time has come for me to consider Chief Justice Roy Moore such a poltician in trouble. Here's the story to date for those who missed it. Moore got elected to the Supreme Court on the basis of his fame as the judge who put the Ten Commandments in his courtroom (he was a circuit judge at the time). After he was installed, he and a religious group designed, financed, created, and copyrighted a granite monument (usually described by the Birmingham public radio station as "washing machine-sized") depicting the Ten Commandment on an open book and the four sides of the monument contain quotes from Founding Fathers and other political leaders regarding the influence of God on America. Here is a picture of the monument at a website devoted to defending Moore.

Three lawyers brought suit against the monument. Private groups provided the attorneys who defended Moore, although the Attorney General of Alabama obligingly appointed them as "special assistant attorneys general." The Federal Court in Montgomery issued an injunction against the monument. The injunction has been stayed while an appeal to the 11th Circuit is pending. The plaintiffs' attorneys have now filed a request for payment of their fees, totalling over $700,000. Guess who will pay that fee when it is awarded? The people of Alabama and not Justice Moore or his erstwhile defenders.

Now this prospect has caused lots of editorial opinion and letters to the editor denouncing the idea that Moore is costing the State court system money (In addition to the $7 million deficit the court are facing this year). On the other hand, there are lots of letter writers explaning that the First Amendment does not apply to the states, does not prohibit an ackowledgement of God, etc. Here is one editorial from the Montgomery Independent, a weekly in Montgomery.

Will the good people of Alabama turn against Moore if he loses his appeal and costs the State even more money? Don't count on it.

BCRA in the Supreme Court before summer?

Michael Kirkland of United Press International is predicting that the Supreme Court will hold a special argument session in May just to hear the expected (well, all but certain) appeal by whichever side loses this month in the three-judge court case attacking the constitutionality of the McCain-Feingold act. (Thanks to How Appealling for the tip.)

January 3, 2003

Foreigners and campaign finance


I have added a pageto my main website dealing with the campaign finance restrictions on nonresident aliens and on foreign companies.

New Hampshire straight ticket voting

In New Hampshire a losing candidate has asked the state Supreme Court not to count any ballots for county attorney where the voter had voted a straight ticket for Party A and had also voted in some other (non-county attorney) races for a candidate of Party B. The theory of the complaint is that voters' intent cannot be determined in that type of ballot. The Ballot Law Commissioner of the state testified that voters may just be indicating their voter registration by marking the straight ticket box. Read the story for yourself in the Concord Monitor.

January 2, 2003

Arakaki v Hawaii

The 9th Circuit released its opinion in Arakaki v. Hawaii earlier this week. The case involves the statutory requirements to run for the office of trustee of the Office of Hawaiian Affairs, a state body that controls a trust fund established by Congress.

In Cayetano v Rice, the US Supreme Court held that the requirement of being a descendant of the pre-European-contact native people of the islands to vote for the trustees was a violation of the 15th Amendment.

The 9th Circuit held that the candidate qualification provision was a violation of the 15th Amendment and the Voting Rights Act.

There are a couple of strange things about this case. The first is why the State of Hawaii thought it could win on the candidate qualification provision after the Supreme Court voided the voter qualification provision. And the second is why the 9th Circuit bothered to reach the constitutional issue at all. Judge Clifford Wallace concurred and raised that point, in effect saying, the court had gone too far.

David Cromwell Johnson

I just heard that David Cromwell Johnson died in his sleep last night. David and I worked together on just one case, the 1986 election contest between Bill Baxley and Charlie Graddick (for the Democratic nomination for governor). David was the head of the whole Baxley team, putting together a massive operation to check the signatures of Democratic runoff voters on the sign-in lists against those of Republican voters 3 weeks earlier. (There was a Democratic Party rule making those who had voted in the Republican Primary ineligible to vote in the Democratic runoff.) I was in charge of the brief writing and arguing of motions, appeals, etc.

Even then, David had a large reputation as a criminal attorney. Since then, his reputation has only grown. One of David's tactics was to attack the prosecution. I was still practicing in Washington DC when Gov. Don Siegelman hired David to represent him in the investigation the Republican US attorney had mounted against him. I told a lawyer with whom I was working about David's tactics and then was pleased to see he did it again in Siegelman's case. I told him that story when I talked to him recently. He laughed and said, "I had to do it, Ed. The US Attorney's office was leaking all sorts of damaging information. And you saw that it stopped after I filed my motion."

David was a great lawyer. He will be missed. Rest in peace, David.

UPDATE: the Birmingham News carried this story on David's life and death.

Political State Report

A new blog, Political State Report: straight from the trenches, has just debuted. It seeks to have at least two correspondents (one R and one D) from each state to give a view from each state of the politics of that state.

January 1, 2003

Susan McDougal on the Clinton investigation

Atrios' blog, Eschaton - Middle 'C' on the Mighty Casio, has an interesting piece today about Susan McDougal's book on the Whitewater investigation and her 18 months in jail for refusing to testify before a grand jury. The blog is apparently a complete copy of a column in an unnamed paper by Gene Lyons, so I point you to Escaton rather than the source.

The Democratic Race for President

In 1964 I was a senior in high school and very interested in politics. I remember that Barry Goldwater announced on New Year's Day that he was running for president. In contrast, we are a year earlier in the political cycle, and two Democrats have already announced the formation of their exploratory committees and four others are in various stages of the dance leading to announcement. Goldwater could make his announcement that "late" because there were few primaries and most of the delegate selections were made in late spring or early summer. In contrast, the 2004 primaries will be even more "front-loaded" than last time. I have not been able to find a specific list of primary dates, but here is a discussion of the "window" during which Democratic primaries and caucuses are to be held.

What's the effect of all this? As Tom Edsall points out in the Washington Post, "The ability to raise large amounts of money has been a crucial factor in determining winners in presidential primary contests, and the accelerated schedule of primaries and caucuses in early 2004 has heightened the importance of the 2003 competition for dollars. With many states moving their primaries into the first quarter of 2004, the winner is likely to be determined by mid-March."

As the song from Cabaret says, "Money makes the world go around."

Southern anti-Americanism

Kos over at Daily Kos stirred up a hornet's nest by asking the difference between wearing a Confederate Flag t-shirt and one with Osama bin Laden. As I write this a day and a half after Kos's post, he has 129 comments. My friend Sam Heldman has had two good thoughts to add to the controversy, here and here.

Here's my effort at cognitive dissonance to break through in a way that Sam might or might not approve of:

The Civil War was about slavery. The South seceded because of slavery. Oh, no, you say, it was "states' rights." States' rights to do what? Well, let's look at the record. South Carolina seceded complaining about the refusal of northern states to return runaway slaves. If slavery wasn't the cause of SC's secession, what was?

Alabama seceded and invited other "slaveholding states" to meet for a convention to create a new government. If slavery wasn't the point of secession, why did Alabama invite just the slaveholding states?

Also see Sam's citation of a speech of Vice President Alexander Stephens.

Here ends the lesson, as we say in church.