shameless self promotion

I rarely bring up what I do for the day job, but I'll make an exception when a quote of mine makes it into the VoteLaw blog (via the Tulsa World). My Google rank just went up a notch... look out other Tim Mooney's... you're about to be passed!

(Thankfully, I'm really not lame enough to be serious on the last point.)

Changes for small 501(c)(3)s

Not sure if this has been on anyone's radar in the 501(c)(3) community, but it popped up for me recently in my role as a director for the Tranquil Space Foundation. It's a very new public charity that will not likely have more than $25,000 in gross receipts for this tax year. Previously, that meant the charity did not have to file a Form 990 return with the IRS. However, the Pension Protection Act of 2006 made some changes starting in 2008. The IRS says:

Beginning in 2008, exempt organizations with gross receipts under $25,000 must file an annual notice.*

*Information on how to comply with these provisions will be available on this site soon.

First, define "soon" and second, what kind of annual notice will that be? A 990? Some kind of a "990-EZ"?

This is a pretty big deal since small charities previously avoided the paperwork hassles (and they can only be described that way) of filling out a Form 990. Now, we at the Tranquil Space Foundation fully expected to be pulling in gross receipts larger than $25,000 by then, so this doesn't really change our plans. However, for small community groups and other 501(c)(3)s that benefitted from this exception... sharpen your pencils... you'll be filling out a 990 of some kind for FY2008.

More on 527s

The judge in Shays v. FEC has ordered both parties to brief whether or not the latest E & J (that's "explanation and justification" for those of you playing the home edition) from the FEC was enough to avoid having to draft new 527/political committee rules. Shays and the gang want new rules, while the FEC thinks the E & J should be enough. Briefing is to be completed by May 31, so expect a decision sometime in... let's see... two, carry the one... sometime in 2012. (Just kidding, Judge Sullivan.) The judge is actually quite committed to resolve this sooner rather than later so the campaign finance community will have a clearer idea on how 527s will be treated for '08. If you're a lucky BNA Money & Politics subscriber, check out the details here.

McCain and soft money

Sen. McCain has called today's Washington Post article a "hit job." The revelations that the finance co-chair of his campaign has raised millions of additional dollars for an independent 527 effort seems to fly in the face of the "evasion" arguments we hear so much from the dedicated campaign finance reform movement in DC. Should a person who has been dedicated to eradicating soft money be this closely aligned with a financer of soft money that will almost assuredly aid his presidential ambitions? (rehtorical question... blogger's privilege) It's too soon to tell if this will be a big deal or not. Needless to say, there is nothing illegal about this activity, but we shall see if there is additional political fallout. The straight talk express is hitting some early potholes, it seems...

WRTL press release

Check out Jim Bopp's statements regarding his client, WRTL here. As I posted earlier, he'll be arguing before the Court on April 25th.

Oral arguments set

I couldn't resist checking the blogs before I got on my plane back to frigid DC (Puerto Rico was 80s all week, than you very much!). SCOTUS has set the WRTL oral argument for April 25th according to the Court's website. (Hat tip... Rick Hassen's election law blog)

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...

---

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.

---

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.

Issue ads legal again

The DC Circuit Court of Appeals just handed down a 2-1 decision that will make things very interesting in federal election law... at least until the Supreme Court takes a look. The court in Wisconsin Right to Life v. FEC has held that electioneering communications regulatons cannot restrict groups from airing ads that are attempting to impact public policy... the argument WRTL sought was for a narrow grassroots lobbying exemption. The Supreme Court now has a chance to clarify the scope of the original McConnell decision upholding BCRA... Is this a reasonable exemption or is it a gigantic loophole? I think that remains to be seen... if the law only works by restricting legitimate lobbying communications, then perhaps it wasn't such a hot idea to begin with. To be continued.

I'll note again that I always considered BCRA to be the Election Lawyer Full Employment Act of 2002... that was both funny and true.

* * *

UPDATE... Rick Hassen has more at the Election Law Blog here. Opinion is here (PDF).

Light blogging month

I will be serving on a DC grand jury this month, which will keep me away from some of the usual daily exposure to the political and podcasting world. I'm hoping to use some of the downtime to pull out some tips from the podcast expo, as promised, however!

Speaking of audio content... I was interviewed for Air America's State of Belief recently... feel free to listen here (mp3). I have a few other interviews floating about that I will eventually post someplace on the blog or elsewhere on the site. Never fear... I'll keep you posted.

Still a few more House seats open

Reminds me of this blast from the past, circa 2000.

Virginia recount reality check

Good morning to all bleary-eyed election return watchers! Looks like I was wrong about where the drama would unfold... I should have guessed Richmond. With Montana looking more and more like a Dem pickup, control of the Senate hinges on the Webb-Allen race.

Here's the scoop on the looming VA recount. First rule... stop listening to the people with the styled hair on tv. They're nice people, but they don't know a thing about the recount rules. Anything below 1% difference (abour 22,000 votes or so) and the loser may request a recount. Anything below .5% difference, and the loser can request a recount and the Commonwealth pays the bill. The recounts don't happen until after the vote is certified, which is 10 days after the election.

Of course by then it won't matter.

Huh? Wuh? Yeah... it won't matter. In Virginia, recounts are pretty much just running the numbers again, not a second look at the ballots. We learned that in the 2005 Attorney General race. So, where's the real battle? Today... during the final canvass. Whoever is up at the end of that is probably the next Senator from Virginia. Now, that won't stop some crafty lawyers from making the arguments that the ballots should be looked at again, but if last year is any indication, I don't expect that kind of argument to hold any water.

UPDATE... here's a great post from Ned Foley at Ohio State that summarizes the Montana law. Seems to me the procedure favors Tester at this point over Burns given his margins as reported by the Montana Secretary of State.

This town's apparently big enough for two Tim Mooney's

I kept having people mention how great I was on NPR on Wednesday. Problem was... I wasn't on NPR yesterday. Tim Mooney, however, was on NPR.

Confused? So were dozens of people I know throughout the country who swore they heard me in an interview regarding education funding. Mystery solved... Tim Mooney is a spokesperson for a group called First Class Education here in DC.

Have a good weekend everyone... and Tim? Ever consider going by Timothy? Just wondering...