LA Times: Liberate Political Speech

I haven't followed the LA Times' editorials on the matter, but I was surprised to read that it supports the grassroots lobbying exemption at issue in Wisconsin Right to Life. Most newspapers have staunchly defended BCRA, and indeed most prior versions of McCain-Feingold legislation through the years.

The question before the Court is whether there are instances when a broadcast ad that mentions a federal candidate close to an election (30 days primary, 60 days general) is consitutionally protected to the extent that federal law cannot force the broadcaster to pay for the ad through a PAC. Wisconsin Right to Life argues that their ad was lobbying... it asked for people to call both Wisconsin Senators and ask them to reject supporting a filibster. Only one, Sen. Feingold ironically, was up for re-election. Under the electioneering communications rules, this is an election ad that must be paid for with "hard money" through a political committee. Any other time of year, this is a lobbying ad that even a public charity 501(c)(3) can run... this is an interesting issue that has sparked a great deal of debate in the election law community. Many reform-oriented minds suggest that Wisconsin Right to Life's success in carving out an exemption would be the first step in the chipping away of this regulation. Opponents suggest that the law was overbroad to begin with, and only these as-applied challenges can bring it back to a consitutional status. To be continued...

Case summary

Still playing a bit of catchup after my trip out west... here's a good article describing the Wisconsin Right to Life case (thanks to Rick Hassen's blog for the pointer). I should note for full disclosure that I worked on an amicus brief that supported the position of WRTL while at Alliance for Justice. Note the strange political bedfellows this law created!

SCOTUS says yes

I'm a repeat victim of this season's norovirus... worse, while on vacation in Whistler, British Columbia. In the midst of my haze, the Supreme Court agreed to hear the Wisconsin Right to Life case I've blogged about here. The Washington Post has details...

Obama fundraising

Interesting tidbit from a draft Obama committee run by ActBlue. This is a group that is raising funds in advance of a potential presidential announcement by Sen. Obama... what struck me was the legality issue in the FAQ:

The process for collecting contributions to undeclared presidential candidates is new to this election cycle. The Federal Election Commission ruled on November 9, 2006 that ActBlue could legally collect earmarked funds for undeclared presidential candidates and hold those donations in individual escrow accounts. To see the ruling, click here (PDF).

It's interesting that campaign fundraising has moved into the hypothetical... give money to this candidate through us, but if he/she doesn't run, your contribution will go to another entity that you'll probably support. In this instance, that other entity is the DNC. What happens if a person gives a contribution to Obama here, and subequently maxes out on a contribution to the DNC? If Obama chooses not to run, would the individual be subject to FEC fines for an over-contribution to the DNC when ActBlue slides the pile over to the DNC? Whether that's the outcome or not, it's a pretty extreme hypothetical (lots of ifs and maxed contributions). Still, we're talking campaign finance law here... it's all about extreme hypotheticals coming to light...

Supreme Court update

More on Wisconsin Right to Life, thanks to the intrepid folks at SCOTUSblog...

The Court has received jurisdictional statements from all parties, and it looks like we'll have some answers by late next week. As far as the issue of whether the Court will accept the case, SCOTUSblog describes it better than I can:

Because the appeals reach the Court within special jurisdiction ordered by Congress, it would take the votes of at least five Justices to dispose of the case, either way. It would not be enough if four Justices did not vote for review. The Court is also under orders from Congress to handle such appeals on an expedited basis.

So, basically, it would be a major surprise (to me at least) if the Court does not put the case on the argument calendar sooner rather than later this term. More to come when I hear of it...

SCOTUS denies cert

The Supreme Court will not be hearing Nader v. Seroty or Wexler v. Anderson this term. Still no word on Wisconsin Right to Life v. FEC... that will be considered later this month, and most observers predict the Court will grant cert.

Issue ad case likely going to SCOTUS this term

Solicitor General Paul Clement's response (PDF) on the expedited hearing request by Wisconsin Right to Life suggests that everyone seems to be ready for the Supreme Court to take the issue ad case this term. Of course the Court has the final say, but I don't know of anyone who thinks it will dodge this one.

As a reminder, this is an "as-applied" challenge to the issue ad ban close to elections. Wisconsin Right to Life argues that it should be able to put out lobbying advertisements that mention elected officials even if there is an election pending.

Thanks to Marty Lederman on the election law listserv for the pointer...

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Update... Rick Hassen posts:

As soon as later today we will know if the Court will agree to the expedited schedule. I think it is likely that the Court will do so, which would mean oral argument in April and an opinion, presumably, at the end of the current term in June.

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Update #2 ... SCOTUSblog reports that the Court will consider the petitions on January 19th. To be continued...

Expedition strategy

From Rick Hassen's Election Law Blog:

Plaintiffs Move to Expedite WRTL Case in the Supreme Court
You can find the motion here. Lyle Denniston's SCOTUSBlog analysis is here and my earlier analysis of the district court opinion is here. As I have noted, I think the chances of the Supreme Court noting probable jurisdiction and hearing this case on the merits are high, and expediting makes sense, especially given this term's light docket and room on the March and April oral argument calendars. But the schedule proposed by Jim Bopp would be very tough for even lawyers well versed in the case. He wants the probable jurisdiction statement done in 10 days.

I suspect Jim Bopp's strategy is to push this through as quickly as possible in order to (a) keep the government attorneys off their game and (b) to get resolution on this particular applied challenge as soon as possible before the '08 election cycle begins in earnest. The FEC would probably have to consider some regulatory reaction if the Supreme Court upholds the DC Circuit Court of Appeals opinion, and those regs would need to be promulgated in time for the blackout dates during the primaries in early 2008. Tick tock, tick tock...

John Edwards on McCain-Feingold

According to the Concord Monitor:

[Edwards] allowed that the McCain-Feingold campaign finance reform legislation "hasn't worked," and called for publicly financed campaigns.

It will be interesting to see if other pesidential candidates evoke similar opinions... I suspect there will be a fair amount of McCain-Feingold/BCRA bashing from both sides of the aisle in 2007.