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March 25, 2009

Government lawyer claims right to censor political-campaign books paid with corporate funds

The New York Times reports: A quirky case about a slashing documentary attacking Hillary Rodham Clinton would not seem to be the most obvious vehicle for a fundamental re-examination of the interplay between the First Amendment and campaign finance laws.

But by the end of an exceptionally lively argument at the Supreme Court on Tuesday, it seemed at least possible that five justices were prepared to overturn or significantly limit parts of the court’s 2003 decision upholding the McCain-Feingold campaign finance law, which regulates the role of money in politics.

Several of the court’s more conservative justices reacted with incredulity to a series of answers from a government lawyer about the scope of Congressional authority to limit political speech. The lawyer, Malcolm L. Stewart, said Congress has the power to ban political books, signs and Internet videos, if they are paid for by corporations and distributed not long before an election.

Mr. Stewart added that there was no difference in principle between the 90-minute documentary about Mrs. Clinton, “Hillary: The Movie,” and a 30-second television advertisement.

Justice Anthony M. Kennedy said the government’s uncompromising position could have dire consequences for the McCain-Feingold law. -- Justices Consider Campaign Finance Law

NPR's report is here.

October 26, 2008

Since it is illegal for the campaign to pay for Palin's clothes, the RNC did

Newsweek reports: The disclosure that the Republican National Committee spent more than $150,000 on clothing and accessories for vice presidential candidate Sarah Palin and her family set off recriminations among GOP officials—and, more important, party donors. ...

The decision to greenlight the purchases was made after Palin arrived in Minneapolis for the Republican Party convention. Campaign aides quickly concluded that she lacked the necessary wardrobe for two months of intensive national campaigning. "She didn't have the fancy pantsuits that Hillary Clinton has," explained one staffer (who, like most others interviewed for this account, declined to be identified speaking about the episode). The problem was figuring out how to pay for new dresswear: the 2002 McCain-Feingold law, co-authored by the GOP candidate, tightened the rules to ban using campaign funds for personal clothing. While Jeff Larson, a veteran GOP consultant who headed the party's "host" committee, provided his credit card for the Palin family shopping spree, he was directed to send the bills over to the Republican National Committee (which was not covered by the clothing ban in McCain-Feingold). RNC officials were not happy about it. "We were explicitly directed by the campaign to pay these costs," said one senior RNC official who also requested anonymity. After at first declining to comment, a McCain spokeswoman said the clothes would be donated to charity after the campaign was over. -- Not The Change They Wanted

Hat-tip to TalkLeft for the link.

June 29, 2008

Millionaire's Amendment struck down

The New York Times reported on Thursday (note to self: don't take a vacation during the last week of the Supreme Court Term): The Supreme Court on Thursday struck down a law meant to level the financial playing field when rich candidates pay for their own political campaigns.

The 5-to-4 decision, legal experts said, was significant for rejecting the rationale behind the law, known as the “millionaire’s amendment,” and for confirming the court’s continuing skepticism about the constitutionality of campaign finance regulations.

“Supporters of reasonable campaign finance regulation are now zero for three in the Roberts court,” said Richard L. Hasen, a professor at Loyola Law School in Los Angeles. “This is a signal of what is to come. What could easily fall following this case are the longstanding limits on corporate and union spending in federal elections.”

The law at issue in Thursday’s decision imposed special rules in races with candidates who finance their own campaigns. Those candidates are required to disclose more information, and their opponents are allowed to raise more money. -- Supreme Court Strikes Down ‘Millionaire’s Amendment’

June 14, 2008

FEC's rules struck down again

Court Deems Campaign Finance Rules Too Weak -
The Washington Post reports: The U.S. Court of Appeals for the District of Columbia Circuit ruled yesterday that the Federal Election Commission has failed to adequately enforce key aspects of the McCain-Feingold campaign finance restructuring that Congress passed six years ago, and urged the FEC to write new rules that help prevent corporations, unions and special interest groups from influencing federal elections.

"Basically, we re now getting into our fourth election cycle under McCain-Feingold, and we still don t know what the rules are," said Richard L. Hasen, an election law professor at Loyola Law School in Los Angeles.

At issue in the case were regulations the FEC wrote in response to the 2002 campaign finance law -- named for Senate sponsors John McCain R-Ariz. and Russell Feingold D-Wis. . Sponsors of the law sued the FEC arguing that the rules were too lax, and the court agreed.

"The question is . . . does the challenged regulation frustrate Congress s goal of prohibiting soft money from being used in connection with federal elections ?" Judge David Tatel wrote for a three-judge panel. "We think it does."

April 21, 2008

Davis' challenge to "Millionaire's Amendment"

The Washington Post reports: Wealthy, self-financed congressional candidate Jack Davis says the McCain-Feingold Act s Millionaire s Amendment, which raises the contribution limits for opponents of wealthy, self-financed candidates, is not only unfair but also unconstitutional, and his lawyers will try to persuade the Supreme Court of that tomorrow.

The provision violates his rights under the First and Fifth amendments, gives an advantage to his opponent and imposes reporting requirements that force him to reveal his campaign strategy, says Davis, an industrialist who unsuccessfuly ran for Congress as a Democrat in 2004 and 2006.

But that hardly means he has tired of trying. He announced last week that he will again run for the western New York seat of Rep. Thomas M. Reynolds R , who is departing the House. This time Davis, 75, is pledging to spend $3 million of his money on the effort.

That would bring to about $7 million the amount Davis has spent trying to be elected to Congress -- a total that might serve as Exhibit A in Congress s defense of the law, which was passed to combat the impression that congressional seats can be bought. -- Justices to Hear Challenge of Law That Affects Self-Funded Candidates -

April 20, 2008

McCain using "hybrid legal structure" to raise more money

The WSJ's Washington Wire blog reports: To help ease their fund-raising woes, John McCain’s campaign has devised a new system to increase the maximum amount an individual can donate to the unofficial Republican nominee’s election efforts.

Campaign manager Rick Davis released the details of the “McCain Victory 08” fund on Friday. He said the entity is a joint committee, combining the McCain campaign, the Republican National Committee and four key states under a “hybrid legal structure.”

The idea is to tap donors for more than the $2,300 limit set by campaign finance laws. Under legislation pushed by McCain in his role as a senator from Arizona, an individual can donate a maximum of $2,300 to a presidential primary campaign and the same amount to the general election campaign. Although McCain received the number of delegates necessary to secure the nomination in March, he will not be the party’s official nominee until the convention in September—so he is still running a primary campaign.

The new structure allows up to $70,000 in individual contributions by channeling the money into different McCain-centric funds. The first $2,300 of that would go to McCain’s primary campaign. The Republican National Committee would receive $28,500 of the donation. The remaining funds would be divided equally, up to $10,000 a piece, among four states the campaign has designated as battlegrounds for November: Wisconsin, Minnesota, Colorado and New Mexico. --
Washington Wire - : New McCain Fund Gets Around Donation Limits

Hat tip to Daily Kos.

February 29, 2008

Illinois: Dems file FEC complaint against Oberweis for filing to iile Millionaire's Amendment report

The Daily Herald reports: Accusing Republican congressional candidate Jim Oberweis of attempting to flout campaign finance law, the Democratic Congressional Campaign Committee on Thursday filed a complaint with the Federal Election Commission.

Oberweis failed to file a specific FEC form and notify both his Democratic opponent, Bill Foster, and Democratic party leaders within 24 hours of loaning his campaign more than $350,000 -- a requirement under the so-called Millionaire s Amendment in the 2002 Bipartisan Campaign Reform Act. Oberweis and Foster are running in the March 8 special election to replace retired U.S. Rep. Dennis Hastert in the 14th Congressional District.

Triggering the Millionaire s Amendment turns the race into a virtual financial free-for-all by increasing individual contributors limits from $2,300 to $6,900 and allowing the state and national party committees to dump an unlimited amount of money into their candidate s campaign coffers.

Oberweis campaign officials claim the errors were unintentional. In two separate transactions since the Feb. 5 primary election, Oberweis loaned his campaign $640,000; $300,000 was allocated toward the special election and $340,000 toward the general election, campaign spokesman Bill Pascoe said. -- Daily Herald | Filing flap in the 14th Congressional District race

April 26, 2007

More stories on yesterday's arguments in Supreme Court

Joan Biscupik in USA Today

Robert Barnes in the Washington Post

AP has an unsigned story (at least in the Baltimore Sun)

Michael Doyle in the McClatchy Newspapers

Charlie Savage in the Boston Globe

Joseph Goldstein in the New York Sun

April 25, 2007

Comments on the WRTL argument

In trying to understand Supreme Court arguments, multiple heads are better than one. Here are several heads:

Rick Hasen
The Skeptic's Eye
Bob Bauer
ACS Blog (actually about a pre-argument panel)
SCOTUSblog (rounding up a few post-argument pieces, plus a bunch of pre-argument columns)
Linda Greenhouse at the New York Times
Dahlia Lathwick (discussing "duckness")

The oral argument transcript is here

McCain-Feingold oral arguments today

The Washington Post reports: The Supreme Court will take up a key element of the landmark McCain-Feingold campaign finance law in a challenge to the constitutionality of restrictions on pre-election issue ads that mention a candidate by name.

Last year a lower court relaxed the law's restrictions on issue ads that are run by corporations, labor unions and other special interest groups in the final weeks of a campaign. -- Federal Election Law Faces Challenge -

Nina Totenberg has a report on the case on NPR.

January 20, 2007

Supreme Court expedites WRTL campaign-finance case

The New York Times reports: The Supreme Court stepped back into the debate over campaign finance regulation on Friday, announcing an expedited review of a ruling last month that substantially narrowed the application of a major provision of the McCain-Feingold federal campaign law.

At issue is a section of the 2002 statute that imposes a blackout period before elections on television advertisements that meet the law’s definition of “electioneering communications” and that are paid for from the general treasuries of corporations or labor unions.

The question is how to reconcile that provision with the free-speech rights of groups that say they are engaged in grass-roots lobbying, the sort of genuine issue advertising the First Amendment protects.

The court heard the same case a year ago, shortly before Justice Samuel A. Alito Jr. took his seat last January. Faced with the prospect of a 4-to-4 deadlock in the absence of Justice Sandra Day O’Connor, who was days away from retirement and would not have been able to participate in a decision, the court then sent the case back to the lower court. -- Justices Revisit Campaign Finance Issue - New York Times

December 22, 2006

Court voids part of McCain-Feingold law

The New York Times reports: A three-judge panel on Thursday overturned a key segment of the campaign finance law that banned issue advertisements paid for by corporate or union money in the critical weeks before federal elections.

The case, which was heard by a special federal court panel in Washington, now heads to the Supreme Court. If upheld, the ruling would unravel one of the tougher restrictions on the use of unregulated donations that interest groups pumped by the millions of dollars into political commercials.

The case was brought by Wisconsin Right to Life, which has been fighting the restrictions since 2004, claiming they infringe on its First Amendment guarantee of free speech, among other grounds.

Using its corporate treasury, the group had paid for advertisements denouncing Senate filibusters of judicial nominees and urging viewers to contact either Senator Russell D. Feingold, who was up for re-election that year, or the state’s other Democratic senator, Herb Kohl, who was not. -- Court Overturns Limits on Political Ads, Part of the Campaign Finance Law - New York Times

November 4, 2006

McCain-Feingold did not reduce money in campaigns, or make parties irrelevant

AP reports: Wealthy Americans and legions of small donors are helping finance an onslaught of last-minute political advertising and a fierce voter turnout drive over the next three days, closing out a midterm election that is projected to cost more than $2.6 billion. ...

The influx of money has had its share of surprises.

The parties, particularly the Democrats, have adapted remarkably well to a 2002 campaign finance law that many thought would render them irrelevant. Democrats and Republicans have tapped a new vein of small donors, and have taken advantage of higher contribution limits to squeeze more money out of the ultra-rich.

Strikingly, the Democrats have used a late burst of fundraising to close a Republican cash advantage and to expand their hunt for competitive races. The rush of cash has also quieted an internal squabble over money between
Democratic National Committee Chairman
Howard Dean and the heads of the party's two campaign committees.

At the same time, challengers have raised more money, putting Republican incumbents at risk. And political action committees set up by labor, business and ideological groups have made a resurgence, raising hundreds of millions of dollars to target specific congressional races.

One thing is for sure. While the 2002 campaign finance law, known as McCain-Feingold, banned unrestricted donations from labor, corporations and the wealthy to the political parties, it did not reduce the amount of money in the political arena. -- Political system flush with cash - Yahoo! News

October 16, 2006

Nebraska: Rickets gives another $2 million to his campaign against Ben Nelson

The Sioux City Journal reports: Republican Pete Ricketts has given another $2 million to his campaign for U.S. Senate, meaning the former TD Ameritrade executive has now spent nearly $12 million in his attempt to unseat incumbent Ben Nelson.

Ricketts gave his primary campaign $4.7 million, and has now given $6.925 million to his general election campaign, according to a filing Friday with the Federal Election Commission. ...

Relying on outside donations, Nelson is outpacing his opponent 4-to-1 in fundraising, with more than $1.4 million alone from the state party, compared to $150,000 Ricketts received from his state party.

In August, Ricketts triggered the so-called millionaire's amendment, a federal law that is meant to level the playing field in big-money races.
-- Sioux City Journal: Ricketts gives $12 million to campaign

August 30, 2006

FEC defeats proposal to loosen rules on interest group advertising

AP reports: Federal election regulators refused to ease limits on political advertising Tuesday, blocking an effort to let interest groups run radio and television ads mentioning elected officials within weeks of an election.

The Federal Election Commission voted 3-3 on a proposal that would have allowed such ads as long as they addressed public policy issues and did not promote, support, oppose or attack a sitting member of Congress. Supporters of the change said they wanted to strike a balance between campaign ad restrictions and constitutional free speech guarantees.

The measure failed with the commission's three Democrats voting against the proposal and the three Republicans backing it.

With 70 days left before the general election, the change could have let loose a wave of unrestricted ad spending in the weeks leading up to Election Day. The vote lets stand a provision in the 2002 campaign finance law that requires independent groups to limit the contributions and to disclose the donors of money used to pay for ads that run within 30 days of a primary or 60 days of a general election. -- AP Wire | 08/29/2006 | FEC won't ease limits on interest groups

Washington State: Cantwell can't use millionaire amendment -- yet

AP reports: A $2 million loan by U.S. Senate challenger Mike McGavick to his own campaign does not trigger a "millionaires' amendment" that would allow Democratic Sen. Maria Cantwell to raise more money, the Federal Election Commission ruled Tuesday.

The FEC's decision means that Cantwell will have to abide by normal campaign-finance laws, at least until the Sept. 19 primary.

In a unanimous decision, the FEC said the so-called millionaires' amendment — which lifts campaign-donation limits for anyone facing a candidate who self-finances a campaign — applies only to McGavick's Republican primary opponents, not Cantwell.

But the FEC said money donated by either Cantwell or McGavick to their respective primary campaigns could trigger the millionaires' amendment if the money is used in the general-election campaign. Both Cantwell and McGavick are expected to win easy victories for their party's nominations. -- The Seattle Times: Local News: McGavick loan won't trigger rule

August 22, 2006

Arizona: Kyl seeks to invoke the millionaire's amendment

The Arizona Republic reports: Faced with a wealthy challenger who has spent millions on television and radio ads, U.S. Sen. Jon Kyl has asked election authorities to exempt his campaign from federal fund-raising limits.

Kyl, a Republican, already holds a 2-1 fund-raising advantage over Democratic shopping mall developer Jim Pederson, and the race is shaping up as the most expensive in Arizona history.

But if the Federal Election Commission grants Kyl's wish, he will be able to return to donors who already have given his campaign more than $11 million and request up to six times more. Kyl made the request last week, and the FEC has 60 days to issue an advisory opinion. ...

The problem is, Kyl and Pederson are not yet officially opponents because they have not yet been nominated in their respective Sept. 12 primary elections, although neither has a primary opponent. That has allowed Pederson to spend over $4 million of his own money against Kyl so far without triggering the amendment. -- Kyl may seek an exemption to add cash to his war chest

May 16, 2006

Maine: Supreme Court will not speed up challenge to McCain-Feingold

AP reports: The Supreme Court refused Monday to speed up an appeal by a conservative organization seeking to air a radio ad on same sex marriage around election time.

The proposed ad by the Christian Civic League would refer to the two U.S. senators from the state of Maine, a format the Federal Election Commission says would violate the ban on "electioneering communications" in the Bipartisan Campaign Reform Act of 2002.

The reform law bars corporations or labor unions from paying for any broadcast referring to a candidate for federal office within 30 days of a federal primary election or 60 days of a general election.

On May 9, a three-judge panel of the U.S. District Court in Washington, D.C., rejected the civic league's request for a preliminary injunction to fund the ad, saying that it represents "the sort of veiled attack that the Supreme Court has warned may improperly influence an election." -- Court won't rush appeal on same-sex ad | | Tacoma, WA

March 17, 2006

Conference announcement: "Making Every Vote Count: A Colloquium on Election Reform Legislation"

On behalf of the Policy Research Institute for the Region at Princeton University's Woodrow Wilson School of Public and International Affairs, the Brennan Center for Justice at New York University School of Law and the Fels Institute for Government at the University of Pennsylvania, we would like to invite you to attend a conference on election reform that we are hosting this spring. The conference, titled "Making Every Vote Count: A Colloquium on Election Reform Legislation" will take place at Princeton on April 6th and 7th, and will bring leading figures in the scholarly, policy, and advocacy communities together to consider the myriad urgent yet delicate questions currently confronting the nation's electoral systems. For attorneys, the conference will also count as CLE credit. There is no charge to attend.

"Making Every Vote Count," will focus on three particularly important federal laws -- the Bipartisan Campaign Reform Act (BCRA, or McCain-Feingold), the Voting Rights Act (VRA), and the Help America Vote Act (HAVA) – with a special emphasis on the implications of these acts for practice and policy in the New York/New Jersey/Pennsylvania region. Among the questions we hope to address are:

• “How has the McCain-Feingold Act both limited and driven policymaking at the state level;”

• “In what ways does HAVA challenge common definitions of voting equity, and what are the implications of those challenges for the future of policymaking;"

• "How might the Voting Rights Act best reflect minority voters’ concerns, in the renewal process and beyond;"

• “What are some important goals in election reform that both HAVA and the VRA fail to address?”

Several pieces of specially commissioned research will provide the foundation for the event. Authors who will be presenting their work include Ned Foley of Ohio State’s Moritz College of Law, Richard Pildes of New York University School of Law, Richard Briffault of Columbia Law School, and Guy Charles of the University of Minnesota Law School. Along with panels based on these papers, there will be roundtable discussions with critical regional election officials, as well as keynote addresses by leading figures in the election reform movement, including former EAC Chair DeForest Soaries.

For more information, please contact Andy Rachlin at or (609)258-9531. To register, please go to or contact Georgette Harrison at or (609)258-9065. Please register online if at all possible, as it makes it easier for us to provide updates on the conference as the date nears. Note that the conference will begin at 9:15 a.m. each day and continue until mid-afternoon.

We hope you will be able to join us for what is sure to be a timely and provocative event.

December 19, 2005

U.S. House strips campaign finance provision from budget bill

AP reports: House Republicans abandoned a last-minute attempt to limit individual political donations to independent organizations Sunday, setting up for passage a military measure that had been stalled by the effort.

GOP leaders had sought to attach the campaign finance legislation to a final defense bill, a move aimed at hampering Democratic-aligned groups such as that were a powerful voice in 2004 and could threaten GOP candidates next year.

A bipartisan group in the Senate joined House Democrats in criticizing the 11th-hour maneuver and refusing to sign off on the plan.

The standoff had put into question the fate of the bill that sets Pentagon policy and, like a separate defense spending measure, includes a ban on cruel, inhuman and degrading treatment of foreign terrorism suspects in U.S. custody as well as other restrictions on detainee interrogation and prosecution. -- House GOP drops bid limiting donations to independent groups

November 8, 2004

More money in this campaign, despite BCRA

The New York Times reports: The McCain-Feingold law, which did more to change how American political campaigns are financed than any legislation since the 1970's, got its first real-world test in this year's election. And now its critics are more emphatic than ever in arguing that the law has fallen short of its goals, and even some supporters are calling for revisions.

The 2002 law demolished the system that for more than a decade had allowed political parties to feed on unlimited soft-money contributions from companies, labor unions and donors. But what rose in its place remains the subject of fierce debate.

Critics say the law was undercut by a loophole that allowed advocacy groups known as 527 committees to raise hundreds of millions in soft money. Supporters say the law stands as a barrier to corruption and needs only reinforcement, and that the law was not intended as a panacea. ...

Lawyers and political operatives tested the boundaries of the new law with the Federal Election Commission, openly seeking ways to use the law to their advantage. They also adopted new strategies and creative ways to raise money and sometimes just worked harder. -- The New York Times > Washington > Even With Campaign Finance Law, Money Talks Louder Than Ever

October 30, 2004

"I approve this message"

The New York Times reports: They were four words that were expected to forever change the tone of television politics: "I approve this message."

They were part of a provision of the new campaign finance law that requires candidates to appear in their own commercials to endorse them, in part to discourage outrageous attack advertisements.

And it seemed to work for a time, during the primary season. But advertisements in the presidential and Congressional races are just as harsh, perhaps harsher, than they have ever been, political analysts say. And pollsters are mixed about whether the candidates are paying a price among voters for having their faces in their attack advertisements.

The thing Republicans and Democrats can agree upon this campaign season is that the support provision has not affected the tone and tenor of the advertising war, despite the hopes of so many of its proponents.

Some argue that the partisan lines are drawn so deep this year, the policy differences so serious, that no outside factor could restrain the inevitable hyperbole. Others say the provision did not have a shot anyway. -- Advertising: An Idea, With 4 Words, That Was Supposed to Soothe the Tone of Ads but Did Not (New York Times)

October 28, 2004

Rep. Wolf charges Socas has violated "millionaire's amendment"

AP reports: A congressman alleged Thursday that his opponent violated a new campaign finance law designed to regulate the spending of millionaires seeking political office.

The campaign of Rep. Frank Wolf, a Republican, complained to the Federal Election Commission that Democrat James Socas failed to notify the commission and Wolf's campaign as required when he contributed an additional $150,000 to his own campaign on Monday.

The Wolf campaign said the $150,000 came on top of $349,000 Socas had already given to his campaign, for a total of $499,000 in self-financing.

Under the new law, a House candidate who lends or contributes more than $350,000 to his own campaign must notify his opponent, the opponent's political party headquarters and the FEC within 24 hours of doing so. -- Va. congressman files FEC complaint (AP via

October 25, 2004

Coors drops big bucks into his campaign, triggers Millionaire's Amendment

The Rocky Mountain News reports: Pete Coors dropped another $500,000 of his personal fortune into his U.S. Senate campaign this weekend, making him one of a handful of candidates nationwide to trigger the "millionaire's amendment."

That provision of federal campaign finance law allows Coors' opponent, Ken Salazar, to at least triple the amount he can collect from individual donors - something Coors said in August he didn't want to do.

Salazar's campaign moved quickly to counter, phoning and e-mailing big donors to ask for more cash, and Salazar accused his opponent of trying to buy his way to Washington.

Coors' check, written late Friday, pushed the Republican brewery chairman over $1 million in personal spending for the general election and near $1.5 million since he joined the race in April. -- Coors ups the ante (Rocky Mountain News)

October 21, 2004

GOP accuses Florida Dems of illegal coordination with unions and others

AP reports: Republicans accused Democrats of breaking political money laws in Florida through cozy arrangements among candidates, unions and outside fund-raising groups, an allegation a top Democrat said Thursday was absurd.

At issue is a lengthy handbook for Democratic volunteers and others working to persuade and turn out voters in the battleground state.

The document proposes that representatives of organized labor, trial lawyers and teachers join Democrats at a campaign "decision-making table," a plan that Republicans contend is illegal under the 2002 campaign finance law. ...

Democrats said the document was authentic but was a draft of their final strategy for Florida. The plan is aboveboard, said Michael Whouley, election manager at the Democratic National Committee. -- Fla. Republicans accuse Democrats (AP via Seattle Post-Intelligencer)

October 20, 2004

Judge Kollar-Kotelly clarifies ruling on FEC rules

The New York Times reports: A ruling by a federal judge on Tuesday appears to have clarified questions about whether an important set of campaign finance regulations remain in effect for this year's races after a court ruling last month.

The judge, Colleen Kollar-Kotelly, of Federal District Court in Washington, said in her opinion that she did not vacate the regulations that were on the books when she asked the Federal Election Commission last month to rewrite 15 of the highly technical rules that govern how campaigns are financed.

In responding Tuesday to a request by the commission in the case, the judge wrote that "the deficient rules technically remain 'on the books.' "

For some election lawyers, the opinion answered their questions about what rules were in effect for the remaining weeks of the elections. "My sense is that the regulations as issued are the law of the land," said Michael Toner, a Republican commissioner. -- Fund-Raising: Judge, Clarifying Decision, Says Spending Rules Stand (The New York Times) **

October 16, 2004

DCCC to pull ad criticized by Democratic candidate it supposed to help

AP reports: A Texas congressman on Saturday asked the Democratic Congressional Campaign Committee to stop running a negative television ad about his Republican opponent.

Democratic Rep. Max Sandlin, who did not approve or pay for the ad, said the commercial incorrectly criticizes the sentencing practices of his opponent, Louie Gohmert, a judge.

The ad characterizes as soft a 75-year murder sentence in a plea agreement Gohmert approved. But Sandlin, a former judge himself, said the sentence was tough enough.

"The ads simply don't pass my mother's truth test and if they don't pass my mother's truth test, they don't pass the test with me," Sandlin said.

Greg Speed, a spokesman for the DCCC, said the committee stands behind the accuracy of the ad, but would have it pulled in deference to Sandlin. -- Texas Rep. Wants Ad Against Opponent Nixed (AP via

Does this constitute "coordination?"

October 5, 2004

FEC asks for stay of judgment on its rules; Shays and Meehan criticize

AP reports: Sponsors of the nation's campaign finance law urged a court Tuesday to uphold a ruling striking down several government rules on political fund raising despite the Federal Election Commission's request for a stay.

Reps. Christopher Shays and Martin Meehan noted that U.S. District Judge Colleen Kollar-Kotelly's ruling overturning more than a dozen FEC regulations didn't block the commission from enforcing those rules while it wrote new ones. Instead, the judge left it to the FEC to decide how to proceed, they wrote. ...

If the judge grants the FEC's stay request, she should block only the parts of the ruling the commission plans to appeal, and should press for quick action by an appellate court on the commission's appeal so new rules could be in place early in the 2005-06 election cycle, the lawmakers wrote.

The FEC asked the judge Friday to stay her decision, arguing that rules interpreting the campaign finance law are crucial as the election approaches. The commission also asked Kollar-Kotelly to make it clear that the regulations she overturned will remain in effect while the FEC appeals her September ruling. -- Lawmakers oppose FEC bid to stay decision overturning campaign finance rules (AP via

September 28, 2004

FEC will appeal voiding of its regulations

AP reports: The Federal Election Commission said Tuesday it will appeal a federal judge's decision to strike down more than a dozen of the government's current rules on political fund raising.

In a statement, however, the commission said it had not decided whether to ask the U.S. Court of Appeals to review all or some of the rules sent back to the agency by U.S. District Judge Colleen Kollar-Kotelly.

Last week, Kollar-Kotelly ordered the FEC to write new rules to govern key aspects of fund raising, including when candidates and outside parties can coordinate activities.

Kollar-Kotelly ruled that some of the regulations the FEC devised after passage of the Bipartisan Campaign Reform Act in 2002 would "create an immense loophole" and allow for abuses that lawmakers who wrote the law never intended.

FEC commissioner Michael Toner, a Republican, said the appeal was necessary. "The commission's regulations clearly and effectively implemented the law," Toner said. -- FEC to appeal campaign finance ruling (AP via

September 22, 2004

Bush team coordinating ads with RNC

AP reports: President Bush's political team is orchestrating a vastly larger advertising campaign than thought possible under federal law, taking control of millions in Republican Party funds simply by inserting the phrase "our leaders in Congress" in selected commercials.

The GOP strategy had gone unnoticed for weeks by Sen. John Kerry and the Democrats, who now may abandon their own less cost-efficient approach to advertising.

Ken Mehlman, Bush's campaign manager, said in an interview that federal election law allows the campaign access to party money "provided that your message is broader than the individual candidate and includes a discussion of the overall agenda and the message of the party." The Republican National Committee has $93 million on hand.

This month the Republicans began airing television and radio commercials paid for jointly by the president's re-election campaign and the RNC and including the words "our leaders in Congress." -- Bush Team Orchestrates Larger Ad Campaign (AP via

CREW files FEC complaint against Chamber of Commerce group

AP reports: A group funded in part by the U.S. Chamber of Commerce that plans to run ads criticizing Democratic ties to trial lawyers is the target of a complaint filed with election officials Wednesday.

The complaint to the Federal Election Commission is against The November Fund by Citizens for Responsibility and Ethics in Washington, a group headed by Melanie Sloan, a former aide to congressional Democrats and former federal prosecutor.

It accuses the U.S. Chamber of making an improper corporate donation of $500,000 to the fund and says the group plans to run ads targeting Democratic vice presidential nominee and former trial lawyer John Edwards despite a ban on the use of corporate contributions for such TV and radio ads within two months of the Nov. 2 election.

The complaint also accuses Republicans, including President Bush's campaign, of coordinating with the group. It says three of the fund's leaders have ties to the GOP or the Bush administration: director Ken Rietz was an adviser to Bush's 2000 campaign; fund co-chairman Craig Fuller has worked with the administration to block the importing of prescription drugs from Canada; and Bush named co-chairman and former Sen. Bill Brock to a panel on the West Coast port worker lockout, the complaint says. -- Group Targeting Dems Prompts FEC Complaint (AP via

CREW's press release has a copy of the complaint and its attachments.

September 20, 2004

Federal court voids 15 FEC regulations adopted under BCRA

The Hill reports: U.S. District Court Judge Colleen Kollar-Kotelly has struck down 15 Federal Election Commission (FEC) regulations governing activities ranging from political coordination to state party fundraising, throwing candidates and election lawyers into confusion 43 days before the election.

The judge ruled in a lawsuit against the FEC filed by Reps. Christopher Shays (R-Conn.) and Martin Meehan (D-Mass.), who spearheaded passage of campaign-finance reform in the House two years ago.

Campaign-finance reformers heralded the sweeping opinion as a stinging rebuke to an agency that many of them want to replace with a single-administrator agency akin to the FBI. -- FEC is left in limbo by ruling (The

The opinion is available here on Bob Bauer's More Soft Money Hard Law. Commentary is available from Bauer and Democracy 21.

September 13, 2004

Solicitor General opposes Wisconsin RTL request

AP reports: A Bush administration lawyer on Monday urged the Supreme Court to reject a Wisconsin anti-abortion group's effort to run ads that criticize Democrats.

A 2002 campaign finance law restricts election-time commercials. Wisconsin Right to Life contends that its radio and television ads that mention Sen. Russ Feingold, a Wisconsin Democrat up for re-election, are not political campaigning. The ads complain about "gridlock" in the Senate in confirming President Bush's choice of judges.

The group has asked Chief Justice William H. Rehnquist to let the ads air.

Paul Clement, the acting solicitor general, said in a filing on behalf of the Federal Election Commission that many groups would want to get around the law's restrictions. -- Administration opposes Wis. Right to Life effort (AP via

September 8, 2004

Millionaire's amendment in Ohio

AP reports: A shopping center heiress contributed $800,000 to her congressional campaign this weekend, triggering an election rule that allows her opponent, U.S. Rep. Steven C. LaTourette to receive $6,000 per donor - three times the allowable amount.

Democrat Capri Cafaro has contributed a total of $1.33 million to her campaign, including $210,560 toward her primary victory in the 14th congressional district.

"It's a very significant investment, but the campaign needs a certain amount of money to compete in this race," Cafaro said. "It's amazing how much money it takes to communicate your message to voters."

Federal Election Commission rules permit congressional candidates to give up to $350,000 of their own money to their general election campaign. Once a candidate goes over that amount, the "Millionaire's Amendment" kicks in, said Kelly Huff, an FEC spokeswoman. -- Shopping center heiress' campaign contributions top $1 million (AP via

September 7, 2004

Wisconsin Right to Life asks Chief Justice for stay

AP reports: A Wisconsin anti-abortion group asked the Supreme Court on Tuesday to let it run ads this fall despite a campaign finance law's restrictions on election-time political commercials.

A three-judge panel ruled last month that the law barred Wisconsin Right to Life from running ads that mention Sen. Russell Feingold, a Wisconsin Democrat who is up for re-election. Feingold is also a co-author of the campaign law.

Under the 2002 law, interest group ads like the 30-second television commercial by the Wisconsin group are banned 30 days before the primary and 60 days before the general election. The Supreme Court upheld the law last year. -- Anti-Abortion Group Wants Its Ads to Run (AP via

August 28, 2004

States parties adjust to BCRA

From Party Lines by The Center for Public Integrity: The 100 Republican and Democratic state parties raised nearly $40 million for their federal accounts last year, a 54 percent increase over what they collected for them in 2001. Democratic state parties brought in $17.5 million to their federal accounts last year -- 52 percent more than they did two years earlier. Republican committees collected $22.5 million in 2003 and $14.4 million in 2001. Republican Party committees in Kentucky, Indiana and Massachusetts raised the most in federal money among GOP organizations, while Democratic parties in Kentucky, Minnesota and Michigan raised the most for their federal accounts. The GOP advantage in state party federal accounts is similar to the national fundraising scene, where Republicans have long enjoyed an advantage over Democrats in collecting federal dollars.

BCRA has put a new emphasis on large individual donors to state parties, which the GOP used to its advantage in 2003: Of the $22.5 million raised by Republican state party federal accounts, $3.7 million came in contributions of $10,000 -- the maximum permitted under the law. Democratic committees received $2.1 million in similar donations. The Republicans raised more in $10,000 increments last year than they did in $5,000 increments in 2001--the maximum at that time.

August 17, 2004

Wisconsin Right to Life appeals its loss in challenge to McCain-Feingold

Wisconsin Right to Life announces: Wisconsin Right to Life (WRL) is filing an appeal today in the U. S. Court of Appeals for the District of Columbia, of the U. S. District Court for the District of Columbia's decision that denied a preliminary injunction to allow Wisconsin Right to Life to air its anti-filibuster radio and television ads beyond August 14. McCain-Feingold stipulates that broadcast advertising that mentions a candidate's name that is running for a federal office must cease 30 days before a primary election. Because the U. S. District Court failed to provide injunctive relief to Wisconsin Right to Life, the ads stopped running at the end of the day on August 14. has most of the litigants' filings. The Campaign Legal Center filed an amicus brief on behalf of McCain,Shays, and Meehan. If there were other amici, please let me know.

August 8, 2004

Bringing new meaning to "pay to play"

The New York Times reports: Lunch at the Plaza Hotel. Dinner at Le Cirque. Cocktails at the New York Stock Exchange. That's the least the Republican Party could do to welcome its top fund-raisers to the convention in New York this month. Right?

Yes, but there's just one catch. They have to pay for it.

These supporters - some of whom have raised $200,000 or more for President Bush or the party - are being charged a "convention fee'' this year of up to $4,500 per person for themselves and each guest, according to a Web page run by LogiCom Project Management, the company handling the events and travel arrangements.

That's just for starters. The fund-raisers will also pay for airfare, several nights in a hotel and optional events they might choose - like a fashion show at Barneys or the U.S. Open tennis tournament. The result is that a couple could easily run up a tab of well over $10,000. ...

Republican officials say the fees have risen this year - they topped out at $1,750 in 2000 - because of the new McCain-Feingold campaign finance law, which eliminated the unlimited so-called soft money contributions that used to make up a large part of the party's finances and were traditionally used to pay for convention events. Now operating on a leaner budget, the Republican Party chose to pass the costs on to those attending the convention rather than spend cash that could be used to support President Bush in the election. -- Republican Donors Paying to Play at the Convention (New York Times)

July 28, 2004

Wisconsin Right To Life sues over ad blackout in BCRA

The New York Times reports: In the first major challenge to the new campaign finance law's restrictions on political advertising around elections, a Milwaukee group opposed to abortion rights plans to seek an injunction on Wednesday that would let it run radio and television spots during a time the law prohibits. ...

The law restricts interest groups that accept unrestricted donations called soft money from buying television or radio commercials that mention or depict a candidate within 30 days of a primary, or 60 days within a general election. In a motion expected to be filed against the Federal Election Commission with the United States District Court for the District of Columbia, lawyers for the anti-abortion group, Wisconsin Right to Life, argue that the ban violates the First Amendment rights of a grass-roots organization seeking to influence policy, not politics.

The group has already begun running advertisements that encourage Wisconsin voters to contact Mr. Feingold and the state's other Democratic senator, Herb Kohl, to urge them to drop their opposition to some of Mr. Bush's judicial nominations.

Under the McCain-Feingold law, which was upheld by the Supreme Court late last year, the commercials could no longer mention Mr. Feingold by name by mid-August, 30 days before he is a candidate in a primary election on Sept. 14. -- Group Plans to Challenge Law on Blackout Period for Ads (New York Times) ***

July 14, 2004

Millionaire's amendment in California

AP reports: Trailing in fund-raising and polls, [California] Republican U.S. Senate candidate Bill Jones said Wednesday he will spend $2 million of his own money on his race to unseat Democratic Sen. Barbara Boxer this November.

Made on the eve of the release of quarterly fund-raising reports expected to show him far behind Boxer in campaign cash, Jones told a luncheon gathering of the Sacramento Press Club he would spend the money because "this election is as critical as any election in generations." ...

Analysts called the gesture a sign of fund-raising trouble.

"Candidates dip into their own pocket when they can't raise the money," said Robert Stern, president of the Los Angeles-based Center for Governmental Studies. "It's a little bit of desperation, frankly."

Jones, a Fresno-area businessman, former secretary of state and 1990s Republican Assembly leader, can make the donation without triggering the new "millionaire's rule" that would allow Boxer to double amounts she can receive from individuals and political action committees. -- AP Wire | 07/14/2004 | Jones pledges $2 million in personal funds for race against Boxer (AP via

July 10, 2004

Millionaires' Amendment in Oklahoma Senate race

AP reports: Republican U.S. Senate candidate Kirk Humphreys is pumping $731,000 of his own money into his primary campaign for the U.S. Senate.

Humphreys, the former Oklahoma City mayor, made the announcement Friday, saying he is trying to counter out-of-state contributions -- particularly from one group -- to Tom Coburn, the former congressman from Muskogee. ...

He referred to reports that Club for Growth spent almost $200,000 on a television campaign that benefited Coburn. ...

Under the new federal campaign finance law, Humphreys' announcement means supporters of his opponents may now donate $6,000 each. They were limited to $2,000 per election cycle. -- Humphreys Pumps Personal Funds Into Senate Race (AP via

July 5, 2004

Pix of the prez nixed in campaign ads

As he readies his first political ads this month, Mel Martinez could have one less tool to advertise that he's the White House's chosen one in Florida's U.S. Senate race.

Thanks to a confusing new campaign-finance law, candidates like Martinez are finding it tougher to use what was once a staple image for presidential pals: made-for-TV shots of the commander-in-chief strolling with the candidate on the White House grounds.

From now on, this type of Bush-approved endorsement ad for another candidate could be considered a contribution to the president's own campaign -- because the president also benefits from it. That could exceed contribution limits, since the ads are hugely expensive.

A don't-ask-don't tell interpretation of the law will still allow Martinez, Bush's former housing secretary, to run ads of old footage of him and the president. But that's only if the two campaigns don't coordinate with each other. -- New law restricts ads for Martinez campaign (Miami Herald)

July 1, 2004

Michigan candidates squabbling over Millionaire's Amendment

One of the six Republicans in the race for Michigan's 7th District congressional seat is asking the Federal Election Commission to investigate whether a rival candidate is violating campaign fund-raising limits.

Sen. John "Joe" Schwarz of Battle Creek said Thursday that a fund-raising e-mail sent on behalf of Brad Smith implied donors could give more than the limit of $2,000 for individuals and $5,000 for political action committees because of the so-called "Millionaire's Amendment" in the new campaign finance law.

Under the amendment, which is designed to help candidates compete with wealthy rivals, Smith could collect up to $6,000 from individuals and $15,000 from political action committees.

Schwarz said Smith isn't eligible because he has loaned his own campaign $140,000. But according to FEC filings, all of the candidates became eligible after state Rep. Gene DeRossett spent more than $350,000 of his own money. DeRossett, of Manchester, has loaned his campaign $451,000 so far. -- Dingell planning to run for re-election (AP via MLive)

June 30, 2004

Kerry's debt

Among the many strategic decisions facing Senator John Kerry in the coming weeks, one may hit closer to home than others, whether to use campaign contributions to repay the $6.4 million that he lent his campaign or pay it off over time using his own money.

A provision in the new campaign finance law requires Mr. Kerry to pay back the loan shortly after the Democratic convention next month if he plans to use campaign money. Although Mr. Kerry has raised millions of dollars in recent months, using those contributions could not only reduce the money he can spend on his campaign, but also perhaps draw Republican attacks.

"No final decision has been made," a campaign spokesman, Michael Meehan, said.

Mr. Meehan declined to elaborate on how Mr. Kerry would make his decision. The Massachusetts senator mortgaged his house in Boston in December, when his fund-raising lagged as he dropped in the polls. Fund-raisers say the move was a well-timed display of faith that helped the campaign survive its darkest days and signaled supporters that he was not giving up. But the decision, of course, left him with this debt. -- Kerry Has to Decide Soon on Repaying a Big Loan (New York Times)

June 29, 2004

Millionaire's amendment to be used in Florida

Republican Karen Saull plans to begin television advertising on Wednesday in her fledgling bid for U.S. Senate, highlighting her roots as a successful business owner and a "conservative tax cutter." ...

In paperwork filed with the Federal Election Commission, Saull indicated plans to spend more than $4.8 million of her personal money in the race. Wilson said the figure was a "ballpark guesstimate" but expected the campaign would soon surpass the $1.3 million mark in expenditures.

That would trigger the "millionaire's amendment" under federal election law, allowing primary rivals to increase the amount of money they can collect from donors. Republican businessman Doug Gallagher recently crossed the figure, having spent more than $2.5 million. -- Saull to begin advertising in her Senate campaign (AP via

March 31, 2004

GOP files FEC complaint against Kerry and 527's

The Republican National Committee and President Bush's campaign opened a new field of fire Wednesday on Democratic "soft money" groups that are raising millions of dollars to air anti-Bush ads and do grass-roots organizing to defeat him.

In an unprecedented move, the RNC and the Bush campaign filed a complaint with the Federal Election Commission (FEC) accusing anti-Bush Democratic "527" groups such as the Media Fund and America Coming Together (ACT) of a conspiracy to violate federal election laws.

The Republicans will ask the FEC to immediately dismiss the complaint, a legal gambit which would allow the Republicans to immediately go before a federal judge and seek an order blocking the 527 groups from using the unlimited contributions on which they now rely for the funding. -- Battling over anti-Bush donors (MSNBC)

For the Republican press release with lots of background information, including the full text of the 67-page FEC complaint, go here.

February 22, 2004

George Will does not like McCain-Feingold

Today McCain-Feingold itself does not just appear to be corrupting. It is demonstrably and comprehensively so. -- Rendering Politics Speechless (

How can Teresa help John?

Teresa Heinz Kerry can explore two possibilities: financing "independent" ads and other political activities benefiting her husband's presidential bid, or contributing to some of the pro-Democratic independent groups planning to spend millions of dollars to defeat Bush. Both options, however, face significant legal obstacles, according to Democratic, GOP and independent lawyers, none of whom would speak on the record about a hypothetical case involving the Kerry campaign.

Foremost is whether Teresa Heinz Kerry's relationship to the candidate would bar her from making independent expenditures of her own or financing one or more of the Democratic groups. An unresolved issue is whether she has become an "agent" of her husband's campaign. FEC regulations prohibit "agents" of federal candidates from "soliciting, receiving, directing, transferring or spending" large, unregulated contributions known as "soft money." The FEC defines an agent as "any person who has actual authority, either express or implied . . . to solicit, receive, direct, transfer or spend funds" in a federal campaign.

Lewis said Teresa Heinz Kerry's lawyers will try to determine whether she is an agent of the Kerry campaign, but the FEC would have the final say. If she is, it would appear to bar her from an independent effort and from giving large sums to the pro-Democratic groups. -- Major Kerry Asset Could Become Liability (

February 21, 2004

Why we (my readers and I) now matter to the Democrats

Daily Kos says that the passage of the McCain-Feingold bill forced the Democrats to pay attention to the rank and file -- and particularly to opinion leaders like bloggers:

I hope you all realize the significance of all of this. Having lost the million dollar checks that previously funded the party, they suddenly look to people like us for answers. For the first time in decades, we matter more than the party's special interest groups. And the party and candidates (see the Blogads on this site) are now trying to figure out how to earn our support.

I firmly believe that Dean is getting too much credit for this. The blogosphere existed, and was healthy, before Dean came along. And it's healthy and still existing post Dean. What Trippi did was simply recognize the value of the blogosphere and harnessed it for his campaign. He didn't create it. In exchange for $20 million raised online the Dean campaign gave the blogosphere political legitimacy.

But the circle wasn't complete until Chandler [Ben Chandler, the successful Democratic candidate in the special congressional election this week] came around. Pre-Chandler, the most common question I would get was, "Can all of this 'netroots' stuff work for candidates other than Dean?" Chandler put that question to rest.

February 12, 2004

Effort to repeal part of McCain-Feingold

A House Republican on Thursday began a legislative effort to allow special interest groups to target congressional candidates with ads close to elections, a move that would undo a key part of the nation's new campaign finance law.

Maryland Rep. Roscoe Bartlett's proposal would rescind restrictions barring the use of corporate or union money on ads mentioning federal candidates in their districts within 30 days of a primary and 60 days of a general election.

-- AP

The third-ranking member of the House Republican leadership is a co-sponsor of a bill to repeal the anti-free-speech sections of the McCain-Feingold campaign finance "reform" law.

House Majority Whip Roy Blunt, R-Mo., has signed on to the measure, just introduced, to "restore Americans' First Amendment rights," in the words of the prime sponsor of the repeal, Rep. Roscoe Bartlett, R-Md.

The very fact that a major player in the House GOP leadership would affix his name to Bartlett's bill sends an unmistakable signal to the rank-and-file Republican lawmakers, i.e., let's get rid of this turkey now before it does us in.

-- NewsMax

February 7, 2004

McCain-Feingold helps GOP more than Dems

Tom Edsall writes in the Washington Post:

After one full year in effect, the McCain-Feingold campaign finance law has helped the Republican Party extend its fundraising advantage over Democrats.

As many strategists had predicted, disclosure records confirm that Republicans have done a better job of collecting thousands of limited "hard money" donations, a type of giving that soared in importance when the law took effect. The national parties no longer may accept unlimited "soft money" donations, which, proportionately, were more vital to Democrats than to the GOP.

As a result, the major Republican campaign committees ended 2003 with a huge cash advantage over their Democratic counterparts. The GOP's cash on hand minus debts exceeded $52 million on Dec. 31, far outdistancing the Democrats' $19 million, according to PoliticalMoneyLine, which tracks campaign money.

The new law has taken a bite from both parties' fundraising, but Democrats have been hit harder.

January 9, 2004

Suit against FEC regulations not dismissed

The Hill's Tipsheet reports in today's edition:

Expect the U.S. District Court for the District of Columbia to review a challenge by House campaign finance reformers Chris Shays (R-Conn.) and Martin Meehan (D-Mass.) to election regulations adopted last year by the Federal Election Commission (FEC). On Wednesday, U.S. District Court Judge Colleen Kollar-Kotelly rejected a proposal by the FEC to dismiss Shays and Meehan’s case on the basis that they lacked standing. The favorable ruling for the reformers could be a sign that the court is inclined to throw out new FEC regulations that reformers have criticized for undermining the new campaign finance law.

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December 12, 2003

And the winner is ...

In my contest on when the Supreme Court would decide the McConnell v FEC case, the winner is Richard Winger. He predicted 11 December and the Court decided the case on 9 December. Congratulations, Richard.

December 10, 2003

Supremes uphold most of BCRA

he Supreme Court has upheld most of the provisions of the Bipartisan Campaign Reform Act. The 298-page opinion is here -- the syllabus alone is 19 pages.

The Washington Post and New York Times have short articles on their websites.

One provision that was struck down was the ban on contributions by minors. ACLJ's press release on the decision is here.

September 10, 2003

Contest: when will the McConnell decision be announced?

Don't forget to make a prediction about the date the Supreme Court will decide the campaign finance case. Go to this post and click the Comment link.

You could be a winner.

September 8, 2003

McConnell v FEC arguments

For the best collection of the links to stories on today's argument in McConnell v FEC, go to Howard Bashman's How Appealing. Great job, Howard. And thanks to Rick Hasen for his insightful comments on the arguments.

September 7, 2003

How to hear or read about the McCain-Feingold argument

The Supreme Court will make a tape of the argument available immediately after the argument ends. C-SPAN will begin about 3:45 ET to play to tape.

The Campaign Legal Center will post excerpts and the full audio (morning and afternoon sessions will be separate) by 10 p.m. ET Monday; by noon on Tuesday it promises

Specific highlights will be featured, identified by topic and speaker. (For example, "The Chief Justice questions Mr. Starr about the soft money provisions in Title I.") Arguments will be available arranged by speaker and topic.

Rick Hasen is in Washington and will attend the Supreme Court argument and will blog about the argument at the lunch break and after the session ends.

Howard Bashman on How Appealing asks for those attending to send him emails about the argument.

Thanks to all those who will put in so much work to make this argument available to all of us.

September 5, 2003

Soft money makes hard cases

In case you had not heard, the US Supreme Court will hold a late and long session on Monday to hear McConnell v. FEC. Late because this is still the October 2002 Term which usually ends in June and long because argument will be 4 hours. Here are major stories previewing the argument:

New York Times, Fund-Raising Law Goes Before Supreme Court

Scripps-Howard News Service, High court set to hear arguments over campaign finance law

And in Canada, the CBC reports that the Supreme Court of Canada will hear a government appeal of a decision striking down a law "putting limits on spending by special interest groups during federal election campaigns."

August 31, 2003

Rehnquist and the BCRA case

The Washington Post article, Rehnquist May Be Key for Campaign Finance, points out three aspects of the McConnell v FEC case on which Chief Justice Rehnquist may be key:

Normally a reliable member of a three-justice voting bloc on the right with Justices Antonin Scalia and Clarence Thomas, Rehnquist, 78, is much less predictable on campaign finance regulation. And McCain-Feingold supporters believe that, based on his record, the chief justice -- appointed to the bench by President Richard M. Nixon, whose Watergate excesses triggered campaign finance legislation -- could be their best friend in court.

Scalia, Thomas and a more moderate conservative justice, Anthony M. Kennedy, have written opinions suggesting that most of the current campaign finance law is unconstitutional. But Rehnquist was a member of the court majority in 1976 that permitted regulation of campaign fundraising, and since then, he has consistently supported the power of Congress to rein in corporate and union political spending.

At the same time, other parts of Rehnquist's record suggest that he may balk at those parts of the new law that arguably hobble political parties, including aspects of the soft-money ban.

In 2001, Rehnquist joined Scalia, Thomas and Kennedy in dissenting from a 5 to 4 ruling that upheld federal limitations on the amounts political parties may spend in coordination with the campaigns of their House and Senate candidates.

Seeing no possibility of parties corrupting their own candidates, Rehnquist reasoned that "parties are linked to candidates and . . . breaking this link would impose significant costs on speech."

"The fact that he might be going to sustain corporate and union limits doesn't mean he is going to sustain the rest of the statute," said Roy Schotland, who teaches campaign finance law at the Georgetown University Law Center.

Meanwhile, on campaign finance, O'Connor is "even more inscrutable than usual," Schotland said. Though she has participated in several key cases -- voting to uphold the party limits in the 2001 case, but to strike down the corporate limits in the 1990 Michigan case -- she has written relatively little about the issue.

Schotland suggested that both Rehnquist and O'Connor may be interested in arguments based on states' rights that have been advanced by Sen. Mitch McConnell (R-Ky.), the Republican National Committee and other opponents of the soft-money ban.

The opponents argue that the law's provisions, which prevent donations to state parties from being used in support of federal candidates, touch on areas traditionally regulated by state authorities, thus exceeding Congress's authority to supervise federal elections.

Rehnquist and O'Connor, along with Scalia, Kennedy and Thomas, have been part of a solid five-vote majority on the court that has sought to shore up state power in relation to Washington.

August 28, 2003

When will the Supreme Court decide McConnell v FEC?

At the APSA today, I attended a panel about the BCRA case in the district and Supreme Court. Someone asked how quickly the Supreme Court will decide the case. Various members of the panel, including Rick Hasen of Election Law blog, made suggestions about the answer. I decide that we should have a little contest. Leave a comment with your prediction about the date on which the Supreme Court will decide the McConnell v. FEC case.

(Members of the Supreme Court and their staffs are not eligible. Entries must be received at least 14 days before the predicted date.)

June 9, 2003

The Davis Recall and the BCRA

The San Diego Union-Tribune has a good article, "New campaign rules bring into question Issa funding of recall," quoting Rick Hasen as a 'neutral expert."

May 25, 2003

Liberal groups plot strategy to held Dems

"Major liberal organizations, from labor unions to civil rights groups, have begun to meet privately to develop a coordinated strategy to oppose President Bush's reelection in 2004. Their goal is to buttress the Democratic Party and its nominee by orchestrating voter mobilization and independent media in as many as a dozen battleground states.

"All of the organizations are free to accept unlimited contributions, or "soft money" from wealthy individuals, unions and corporations. These donations are the kind that the new campaign finance law prohibits political parties and federal candidates from collecting."

Read the rest in Tom Edsall's article in the Washington Post.

April 17, 2003

BCRA allows larger contributions and

BCRA allows larger contributions and (what a surprise) people are making them

According to a study by US Public Interest Group, about 40% of the funds raised by Democratic presidential candidates are from contributions above the pre-BCRA $1000 limit. See this story in the New York Times.

February 19, 2003

Dems alter strategy for reports today,

Democratic congressional leaders are shifting unprecedented responsibility for party fundraising to rank-and-file lawmakers even as they aggressively pursue corporate contributions for their 2004 campaign.
As part of a multi-faceted effort to narrow what some party strategists view as a huge Republican fundraising advantage, they also plan to rely more heavily on celebrity allies in the entertainment industry to increase their party’s small donor base.

'McCain-Feingold School' Finds Many Bewildered

That was the headline in the NY Times today. A short excerpt:

"We sometimes leave our audiences in a state of complete shock" at what they hear, said Robert F. Bauer, a lawyer for the Democrats' House and Senate campaign committees. "A sort of slack-jawed amazement at how far this thing reached" is not uncommon at the seminars, Mr. Bauer said. Nor are "a lot of very anxious questions."

January 27, 2003

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 23, 2003

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.)

January 4, 2003

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.)

December 30, 2002

Op-ed on McCain Feingold

Charles Fried, former Solicitor General, former Justice of the Massachusetts Supreme Judicial Court, and professor of con law at Harvard has an op-ed in today's New York Times. Fried points out a provision in the McCain-Feingold law that will prohibit 501(c)(4) organizations from making "electioneering communications" (that is, menitoning a federal candidate via an ad on TV, radio, cable, or satellite) within 60 days before a general election or 30 days before a primary. This is one of those exceptions to an exception -- but Section 204 (the provision Fried mentions) completely swallows the exception for 501(c)(4) organizations found in Section 203.

This is one provision I am fairly sure will be struck by the courts.

December 18, 2002

A great way to evade the coordination rules

Klausfiles on had this comment on 14 November:

In an earlier post, I noted Eric Black's point that Minnesota GOP candidate Norm Coleman was able to communicate publicly what it might have been illegal (under campaign finance laws) for him to communicate privately -- namely that he really didn't want the National Republican Senatorial Campaign Committee to run negative TV ads against Mondale... But, as alert kf reader B.B. points out, this public/private distinction is a little more subtle now than it used to be, no? What if Coleman had just had a blog, where he routinely hinted at the kinds of new ads, media buys and other free speech activities he hoped other concerned citizens might undertake against Mondale? ... And what if the URL for this "public" blog wasn't all that widely known? ... Maybe most candidates would decide that the safer course is to be as public as possible, as Coleman in fact was. But the blog route might allow pols to "publicly" communicate more detailed instructions to those "independent" campaigners they aren't allowed to "coordinate" with. ...(e.g.:"Our campaign is doing really well in the St. Paul area. Duluth is coming around and we certainly hope and expect to be where we want to be in that area by election day. They are really worried about high taxes up there, aren't they?")

December 9, 2002

Commentary on the BCRA case

In today's Washington Post, David Broder has a thoughtful column on the competing rights in the BCRA and the suit pending against it. See Defining The Limits Of Political Advocacy.

The Newhouse News Service is distributing a piece by John Farmer of the Newark Star-Ledger expressing some incredulity over the distinction made by some lawyers between
"corruption" and the "appearance of corruption."

November 25, 2002

Soft Money

Roll Call reports today that a group called the National Committee for a Responsible Senate has incorporated as a 501c(6) nonprofit. 501c(6) is designed for trade associations. The reason for such a designation is that the NCRS will not have to disclose donors but can publish issue ads.

November 14, 2002

GOP gives away soft money

Roll Call reports that the Republican congressional committees had enough soft money left at the end of the campaign that they were almost shoveling it out the door. Of course, soft money turns into play money at the end of this year.

November 6, 2002

A different take on the BCRA

John Samples and Patrick Basham of Cato Institute have an op-ed in yesterday's New York Times, Meet the New Loopholes, predicting that under BCRA, "The person with the most lawyers wins."

November 5, 2002

New Soft Money Groups

The Washington Post reports on the efforts of the R's and D's to set up new soft money groups to beat the deadline of the BCRA. There is an interesting point made by some lawyers not involved in the new groups, pointing out that the leaders of the Leadership Forum (a GOP group) may have problems in carrying on their lobbying activities because of the restrictions in the BCRA. See Campaign Money Finds New Conduits As Law Takes Effect (

November 2, 2002

Parties Create Ways to Avoid Soft Money Ban

The New York Times has an article today entitled,
Parties Create Ways to Avoid Soft Money Ban. McCain and Larry Noble and Fred Wertheimer make all the usual noises about parties creating loopholes, etc. But if these organizations (both the Dems' and Reps') were set up a week from now -- after BCRA goes into effect -- and the respective national chairmen said nothing about them, what would actually be different?

October 22, 2002

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.