Or so Mike the K reports on Redstate. Mark Tapscott hears the same thing. So Congress may exempt the internet from “public communication” before the FEC puts their mystery rule up for a final vote (scheduled as of now for March 16). I would guess if that happens the rulemaking will be closed down, even if it was set to venture into the scope of the term “expenditure” and the “press exemption.”
Vicki Lynn Marshall, that is, Anna Nicole Smith, is a striking looking lady. Not just in pictures, where professionals control the lighting and airbrush all imperfections.
In person. My god. I was impressed. And I’m not a guy, nor am I known for cutting people a lot of slack.
Now the argument in Marshall v. Marshall (read this for background), focused on the breadth of the common-law “probate” exception to bankruptcy jurisdiction. Mrs. Marshall, that is, Anna Nicole, wants the bankruptcy court to award her lots of money based on a tort claim. OK so far - but the underlying tort claim requires certain decisions that are (arguably) assigned to Texas probate court jurisdiction. What if the bankruptcy court and the Texas court render inconsistent decisions? You get to answer questions from Justice Breyer and Scalia. Apparently the jurisdiction question is causing real trouble in lower courts, so this is about more than just the Marshalls.
Does the probate exception even apply to trusts and other “will substitutes”? Heck if I know. I did think all counsel came well prepared, knew their stuff, and did a good job. There’s a Bankruptcy Litigation Blog that hopefully will be posting more in the case. Meanwhile, here’s a post from a couple of weeks ago.
The Vermont argument at the Supreme Court this morning was a lot of fun, mostly because of the presence in the Bar line of New People. The Marshall v. Marshall gang were out in force, too, of which more in my next post.
On Vermont, my theory is this: Justice Breyer, having no investment in study or interest in campaign finance matters, acquires attitudes based on who among his colleagues he sits near. Now, with the addition of Justice Alito, Breyer has crossed sides and is now comfy next to Justice Thomas.
And boy can you tell.
(Editorial note: before they shuffled seats, I am told Breyer was sitting next to Thomas, just on the other side of the bench. Frankly, I don’t recall, but I feel compelled to acknowledge that it may not all be location, location, location.)
But first, the preliminaries: Justice Breyer delivered the Court’s decision in the Operation Rescue case, in which it concluded that the Hobbs Act does not extend to violence “plain and simple.” 8-0, and may I say that Justice Breyer did a great job presenting the opinion. Justice Thomas then delivered the Court’s 8-0 opinion in an antitrust case involving a joint venture. More of a snooze, unfortunately.
And, before I forget: Just because you cover the court for a big paper doesn’t mean you can carry on like you’re at some cocktail party when everyone else has been “encouraged” by the Marshalls to pipe down.
Then we had the swearing in ceremony, and I want to congratulate John Pomeranz as a new member of the Supreme Court Bar, and Bob Bauer for moving his membership.
THEN… The Vermont argument. Bauer has already posted on it in some rich detail, so I’ll try not to be repetitive. Remarkably, the Court gave Jim Bopp several minutes of uninterrupted explication before bouncing questions. Several of the Justices wanted him to explain why remand wasn’t appropriate (I counted Souter, Ginsberg and Stevens) - I’m not sure this option gained any traction during the argument, but it scares me that it might become appealing if the Court wants to buy some time. I thought Jim Bopp did a fine job of explaining that the Second Circuit decision contained legal flaws that should be corrected by the Supreme Court now, not later.
I have to say that the state expenditure limits seemed to have no friends, and the low contribution limits, receiving the pointed criticism from Justice Breyer they did, might be on shaky terrain too.
You read that right. I have given Justice Breyer a hard time in the past. Today I have no such remarks. Both Roberts and Breyer gave the state’s defense of the law a roughing up. Roberts early on asked whether corruption was a big problem in Vermont - predictably this was answered in the affirmative. “How many prosecutions for corruption have you brought?” he asked. “None” came the reply. I’m not sure how material that is, but it wasn’t a good moment for the state’s attorney.
Breyer in his questions brought out the fact the the contribution limits, which applied equally to parties and extend for a cycle (not just an election) would seem to give incumbents a tremendous advantage. The state responded that incumbents “had a bigger advantage before” to which Breyer replied “that doesn’t help you.”
Breyer seemed especially concerned about the ability of parties to help slates. I found his concerns about party efficacy very encouraging. How to make sense of him today? He may be someone who thinks that campaigns ought to be centralized within candidates and parties - I think other places his lack of interest in the rights of other entities is disturbing. But if that’s how he sees this area, in this case he may be refreshingly critical of Vermont’s regulatory regime.
Souter also seemed skeptical, especially about the Vermont law that treats independent expenditures as presumptively “coordinated” if they mention 6 or fewer candidates. The State argued that if a candidate produced some evidence - even just an affidavit swearing he didn’t coordinate — the presumption “disappeared.” In rebuttal, Bopp read the law to the Court and it didn’t sound like that was how it would work to me. I don’t think the Justices bought it, either.
The Intervenor’s counsel was hit early by Justice Roberts, who noted that their argument contains an inconsistency. On the one hand they argue that low limits are fine in Vermont because Vermont campaigns aren’t very expensive, but on the other they contend there is a state need to restrict spending in campaigns with limits. Intervenors argued that this was because candidates raise more than they need. Well - according to whom?
Breyer here did not seem convinced that Intervenors has successfully distinguished the facts here from Buckley, and made the case that Buckley’s conclusion that expenditures limits are unconstitutional somehow didn’t control.
I couldn’t help but wonder what Anna Nicole Smith was thinking as she sat through this argument. Is she worried about how Vermont legislators spend their time? I would assume that she would be against spending limits (in the abstract) and this assumption was “confirmed” by one of the many Marshall-related counsel sitting near me.
Update: Ed Foley’s report predicts that Vermont is in trouble, though he shies away from predicting how much trouble. I think the presumptive coordination and expenditure limit are toast, and I will go out on a limb and predict that the contribution limits are found unconstitutionally restrictive as well.
Wouldn’t that be something?
The Campaign Finance Institute announced this presentation for next Monday, March 6:
SMALL DONORS, ONLINE DONORS AND FIRST-TIMERS IN THE PRESIDENTIAL ELECTION OF 2004
EVENT: Release of a national survey of political donors to the 2004 presidential election. The report, Small Donors and Online Giving, looks closely at the two to three million Americans who made contributions to the presidential campaigns and candidates in 2004. We specifically focus our attention on:
* Small donors, or those who gave $100 or less;
* Donors who gave money over the Internet; and
* Donors who made political contributions for the first time.The results redraw the portrait of who gives money to political campaigns in America and who may give in the future.
WHEN: Monday, March 6, 10 a.m.
WHERE: National Press Club – Holeman Lounge (529 14th St. NW, 13th Floor)
WHO: Joseph Graf (Project Director, Institute for Politics, Democracy & the Internet)
Michael J. Malbin (Executive Director, Campaign Finance Institute)Commenting:
Phil Noble (Political consultant and President of Politics OnLine)Please RSVP to Erika Starr (events@cfinst.org)
is here. Just in case there’s someone out there for whom this remain a live matter of interest.
A quotable quote from this story, covering state lobbying reform activity in reaction to the Abramoff scandal:
State lobbyists say they’re just as outraged by the Abramoff scandal as others in the public. The congressional lobbying furor has given their profession a bad name.
“I’d like to neuter Jack Abramoff and take him out of the gene pool so he can’t reproduce,” said Stan Boyd, a lobbyist for the Idaho Cattle Association, the Idaho Wool Growers Association and the Idaho Elk Breeders Association.
Ouch.
The Idaho Wool Growers, naturally, have a Web page. (”Wool growers?” What is wrong with “sheep rancher?” “Shepherd?” Too Biblical?). Check out the Idaho Elk Breeders site — their motto is “Idaho, the Friendly Elk State.”
We can’t neglect the site for the Idaho Cattle Association. They offer for sale the Healthy Beef Cookbook. As well as vaccination news, to ensure there will be plenty of healthy beef, I would guess.
Want to watch? Get there early, since this case is being argued too, involving limits of another sort.
Update: Here’s the order of argument for tomorrow (and Wednesday, too for you partisan gerrymandering types who are interested in the two hour Texas argument). The Vermont argument is first, followed by Marshall v. Marshall. On Wednesday the Texas argument is last.
The IRS has released a report on political intervention by charities in the 2004 cycle. The news release is here. The executive summary summarizes the findings:
132 [cases] were assigned to the field for examination. Twenty-two of those cases were closed after additional review conducted in preparation for the examinations indicated they did not merit further use of IRS resources. Of the remaining 110 cases, as of the date of this report, 82 examinations have been completed and the cases are closed.
In three of the 82 cases, the IRS not only substantiated that prohibited political campaign activity occurred, but that the activity warranted, and the Service proposed, revocation of the organization’s exempt status.
In 55 of the cases, the IRS issued written advisories indicating the Service’s view that prohibited campaign activity had occurred, but that revocation was not recommended. In one case, the Service assessed excise tax. (snip)
In 5 cases, the IRS found non-political intervention violations (including delinquent returns).
In 18 cases, the IRS found that the organization did not engage in prohibited political campaign activity.
Twenty eight cases remain open…A review of the files indicates some of the more common types of prohibited political activities alleged and found to date through the course of the examinations. Although taxpayer privacy rights preclude us from discussing specific instances, cases included miscellaneous alleged violations ranging from allowing candidates to put up signs at organization facilities to voter registration drives conducted in a way that favors or opposes certain candidates. Violations alleged and determined include:
Charities, including churches, distributing diverse printed materials that encouraged their members to vote for a preferred candidate (24 alleged; 9 determined),
Religious leaders using the pulpit to endorse or oppose a particular candidate (19 alleged; 12 determined),
Charities, including churches, criticizing or supporting a candidate on their website or through links to another website (15 alleged; 7 determined),
Charities, including churches, disseminating improper voter guides or candidate ratings (14 alleged; 4 determined),
Charities, including churches, placing signs on their property that show they support a particular candidate (12 alleged; 9 determined),
Charities, including churches, giving improperly preferential treatment to certain candidates by permitting them to speak at functions (11 alleged; 9 determined), and
Charities, including churches, making cash contributions to a candidate’s political campaign (7 alleged; 5 determined).
According to Mike the K and Roll Call, a final vote on the FEC Internet rule will occur March 16.
Here’s a quickie reminder about the issues:
First, are there internet communications that should be regulated as “public communications.” If so, what are they? Some people like the “paid ads and spam” approach. Is there a way of articulating that position with sufficient clarity?
If the rule goes further, we then get into how websites, blogs and other stuff needs to be funded. I think it makes sense to draw a line based on what communications are “involuntary” - like advertising on someone’s site or pop-up ads - the recipient doesn’t choose to see these, they went to where they are to see something else, but the communicator is renting that other site’s audience to get his message to people. That - it would seem to me, is what we should capture when we regulate public communications and general paid political advertising.
When people go to a site on purpose, or sign up to receive email from a committee, it is voluntary. It is akin to checking a book out of the library, or renting a DVD, or buying the latest “Rage Against the Machine” CD, or tuning into Rush Limbaugh. Leave it alone.
I’d apply the same principal to party committees, individuals, outside groups, corporations, unions, and foreign nationals. So long as the communication is “pushed” by the recipient, the speaker shouldn’t need to worry about the source of funds or “time and space allocation.”
As far as I can tell, no one else finds this way of bifurcating the issue all that useful. I’ve trotted it out before to yawns all around. But for whatever reason it is the only way I can make sense of the area. So, I think this makes me a “paid ads and spam” camp follower, but I would define the regulatory terms much more along the voluntary-involuntary line, rather than naming kinds of ads, using contemporary terms that will be out of date before the Federal Register hits the streets.
So, when it comes to blogs, news aggregators, “on-line magazines” and all that stuff, they can do what they want using whatever kinds of funds they might able to scrape up. But a blog advertising on another blog that Candidate X Must Go - use hard dollars for that. And, no I don’t care if fiber optics advances mean that Mike the K, Scott Johnson, or Kos can beam me expensive videos expressly advocating the election or defeat of Howard Dean. As long as it is my choice whether I want to see it.
But the underlying laws the FEC is working with aren’t very coherent. So, accommodating the statute - yes, the press exemption should apply; yes, the volunteer exemption should apply; yes, it should extend to stuff the volunteer can use not just stuff he owns; no, groups that do these things should not be political committees, and so on.
In Phoenix on March 29? Then attend this nifty panel, featuring your’s truly as she stumbles her way through empirical social science.
The Goldwater Institute invites you to Arizona’s Clean Elections Experiment featuring:
Todd Lang, Executive Director, Citizens Clean Elections Commission
Bradley A. Smith, Professor of Law, Capital University Law School and Former Chairman of the Federal Election Commission
Allison Hayward, Former Counsel to Bradley A. Smith of the Federal Election CommissionWhen Arizona’s Clean Elections law was adopted, supporters hoped it would increase citizen participation in the electoral process, attract candidates from diverse backgrounds, and stymie the influence of special interests. Opponents were concerned about the increased role of the state in the campaign process and the rights of citizens to voluntarily participate in the process. After six years—three election cycles—what have we learned, and where should we go from here?
Join us for the release of a new report on Arizona’s campaign finance system and a robust discussion with the nation’s leading experts on campaign finance.
Expert Allison Hayward, former counsel to Bradley A. Smith of the Federal Election Commission, will present her findings in a new Goldwater Institute report, Arizona’s Clean Elections Experiment.
To further the discussion, Bradley A. Smith, former chairman of the Federal Election Commission, will discuss the constitutional implications of publicly financed elections and Todd Lang, executive director of the Citizens Clean Elections Commission, will address the history and impact of the Clean Elections system in Arizona.Please join us for this important discussion about publicly financed elections with the nation’s leading experts in the field. Reception to follow.
Wednesday, March 29, 2006, 5:00~6:30 p.m.
Goldwater Institute: 500 East Coronado Road, Phoenix
One block north of McDowell, west of 7th StreetTo register, email rsvp@goldwaterinstitute.org, fax (602) 256-7045, or call (602) 712-1144 by
5:00 p.m. March 24. Media inquiries call (602) 712-1257. This event is free of charge.
(Like you could get people to pay). There’s a reception involved! At least come for the beer!
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