Skepticseye.com

The FEC has decided to enhance its explanation of its decision not to make 527s into political committees by some administrative wave of the hand. Thus the Commission will be taking the remand in Shays II.

This is the correct legal response, and I think this is the only real practical choice it has - especially when we see Congress with its knickers in a twist over how and whether to extend regulation to 527s. That judgment is clearly one for the legislative branch, not some unelected bureaucrats.

And the Center for Constitutional Politics agrees. From its press release:

“The FEC’s original decision not to treat all 527 organizations as political committees was correct,” said [Brad] Smith, noting that scholars such as University of Minnesota Law Associate Dean Guy-Uriel Charles have reached the same conclusion. “The Commission now just needs to better explain why 527 organizations were not reached by BCRA, which should be easy to do. BCRA opponents and sponsors alike agreed at the time that BCRA would create a vacuum to be filled by outside organizations,” Smith said.

Commissioner CVS has a different take. From his press release (UPDATE: the link is here):

Unfortunately, in the 30 years since the Buckley decision, the FEC has never issued a regulation defining the “major purpose” test in greater detail, leaving the regulated community without any guidance other than the case-by-case enforcement conducted by the agency. The issue that the FEC should be concentrating on is not whether 527 organizations qualify as political committees, but under what conditions any organization (including a 527) satisfies the “major purpose” test as a result of activities designed to influence federal elections. Providing a regulation on this issue would finally lay to rest these questions and provide a clear roadmap to the entities that participate in federal elections, enabling them to understand the conditions that subject them to federal regulation and oversight.

The Shays/Bush-Cheney ’04 decision is the perfect opportunity to remedy the Commission’s failure to provide adequate guidance. By not opening a new rulemaking, the Commission is foregoing an opportunity to better explain to the regulated community the requirements of federal law.

I agree with the statement in italics, and think CVS is correct that the scope of “major purpose” is the core of the problem - and we shouldn’t get distracted from that. I am not convinced that this particular barnacle-encrusted rulemaking IS the perfect opportunity, however. It was commenced at a particular time because of particular argument that related specifically to the “527″ problem. I think the necessary fresh start needs to be independent of that history. So I am wary that the problem would be well-addressed in the context of Shays II.

UPDATE: Professor Brad Smith has a lovely and more detailed Redstate Diary on this very topic.

Here’s Ennui playing the ponies at Churchill Downs.

Much to the chagrin/dismay of campaign finance lawyers everywhere, the Supreme Court did not grace us with an opinion in the Vermont spending limits case.

So, while you’re waiting, enjoy some pictures! This is Anomie and Ennui frolicking in Cherokee Park, Louisville Kentucky, last weekend. Along with their parents, they were attending a reunion of clerks celebrating the 20th anniversary of the ascension of a certain Article III life-tenured (on good behavior!) individual.

Speaking from their inner nihilists, the “reform groups” (they calls themselves this) Campaign Legal Center, Common Cause, Democracy 21, the League of Women Voters, Public Citizen and U.S. PIRG, say this about the lobbying reform measures now in conference:

With the Senate having passed unacceptable lobbying and ethics legislation, and the House having passed a completely fraudulent bill, our groups see no hope that this House-Senate conference can produce legislation that deserves to be supported by members of Congress.

So there’s nothing of any value in either measure? Not disclosure? Nothing? What happened to “reform” as an incremental process?

Dan Weintraub writes in the Sacramento Bee about one effect of contribution limits in California - that they favor candidates with personal wealth.

Wouldn’t this be an anti-competitive effect? Yet, recently I received a comment back on something I’d written about the “anti-competitive” effects of limits, in which the commenter complained that I obviously wasn’t familiar with the literature because these effects remained unproven.

Amusing, eh? How many anecdotes does it take before we have “data?”

You’re reading this, so you already know how I feel about the demented notion that Republicans, or political speech generally, will flourish once there’s greater regulation of outside groups, specifically 527s.

Yet this bad idea won’t die.

Still need information? The Club for Growth has compiled a bunch of stuff.

The FEC decided yesterday that a local party can advocate the election of their preferred candidate for mayor, without that message constituting federal election activity. Bob and Donna summarized the meeting.

Read the summary, then tell me whether you will subscribe, and I am about to, to the theory that office location is destiny. Substitute CVS for Brad Smith, and Walther for Thomas. Eerie, eh? The theory breaks down as you move further down the corridor to the McDonald/Lenhard complex. But just because a theory doesn’t explain everything doesn’t mean it lacks merit.

The Hill reports that the FBI is hiring more agents to focus on election and political crime. Is there more political crime?

[L]egislation Congress passed in 2002 making many election-law violations felonies has given law-enforcement officials greater incentive to investigate and prosecute.

So - yes and no, I guess. But wait:

“There’s no doubt it was an underpoliced area in the past,” said Norm Ornstein, a scholar at the conservative American Enterprise Institute who specializes in elections and politics, referring to activities covered by election law. “I think we’re seeing a lot more questionable activity. I trace a lot of it to the leadership PAC phenomenon.”

A bit confused about means and ends? Maybe.

Here’s a commentary from Michael Bindas, of the Institute for Justice, placing the Initiative 912/John Carlson/Kirby Wilbur case in perspective.

You can’t make this stuff up. And you don’t have to:

Sen. John McCain (R-Ariz.) returned $20,000 in campaign contributions from two prominent Texas businessmen after staff members for his political action committee discovered that there was an investigation into one of their companies. The donations were made to Straight Talk America — McCain’s leadership political action committee — by Sam and Charles Wyly, billionaire brothers who have been major players in Republican fundraising for years. Each cut a $5,000 check to Straight Talk, as did Sam’s wife, Cheryl, and Charles’s son, Charles III.

The contributions drew notice because the two brothers bankrolled Republicans for Clean Air, a soft-money 527 group that attacked McCain for his environmental record during his 2000 presidential campaign … The Wylys are the subject of state and federal investigations centered on their transfer of revenue from stock options to offshore family trusts. …

Craig Goldman, the executive director of Straight Talk, said the federal inquiry into the Wylys was uncovered during a routine background check of donors to the committee. “Once that was discovered, we have a policy internally not to accept contributions from people in that situation, so the checks were returned,” he said. The Wylys were also disinvited to a May 15 Dallas fundraiser for Straight Talk, Goldman said. McCain’s political operation initially touted the event as a sign of the inroads he had made among donors who worked against him in the 2000 presidential race.

What “situation” exactly? Being funders of the extremely high profile Republicans for Clean Air? Being participants, along with a number of other wealthy people, in one-time-touted-but-now-toxic tax shelters such as Homer? Being colorful, somewhat notorious, and the object of inconvenient press inquiries?