As the song asks, “What are you doing New Year’s Eve?“ Well, some of you visit SSRN, and I received an email telling me I’m on the Top 10 Downloads for the Justice Breyer’s Party paper. I’m not sure what it says about the “Law and Positive Political Theory” list that 59 downloads will put one in the Top 10.
Anyhow, enjoy some fine reading for the New Year!
A maker of fine hand-crafted wines (and an all-around great guy) has been appointed to the California Fair Political Practices Commission.
The former accountant for the campaign committee of US Representative Stephen F. Lynch admitted in court yesterday that he stole $24,000 from the campaign over an eight-month period in 2003 and 2004.
…
In court, Hurley admitted he wrote seven checks to himself of $3,000 each and one each of $2,000 and $1,000 between June 2003 and February 2004. The unauthorized checks were in addition to Hurley’s $3,000-a-month compensation as accountant for the Lynch committee and were discovered when the campaign’s treasurer tried to reconcile the books, Assistant Attorney General Dana D. Leccese told the court.
Apparently the FEC is of the view that a vague line in the caselaw about “major purpose” (or the retroactive application of regulations) trumps the statutory language requiring a $1,000 threshold in contributions or expenditures before a group can be regulated as a political committee. That is, the FEC has unanimously voted to accept conciliation agreements from The League of Conservation Voters 527 and 527II, MoveOn.org Voter Fund, and Swiftboat Veterans and POWs for Truth — and big fines — because they should have been following the political committee rules and limits.
Much is made in the press statement linked above about the “bipartisanship” shown by the FEC. You’ve all heard the one about the evil party and the stupid party. The evil party is, according to the story, the Democratic Party, and the stupid party is the Republican party. When officeholders do something that is both evil and stupid - that’s called bipartisanship.
Update: Faithful readers have contacted me to note that, in fact, the analysis in these settlements clearly places the “major purpose” test after the $1,000 statutory threshold. Apparently, the MURs determined that amount in “contributions” or “expenditures” had been breached, applying both an expanded notion of “express advocacy” and a contribution test that looks a lot like the new regulations. That’s what you get for blogging in a hurry. Sorry, all.
Who knew Survival Education Fund could be so useful? Don’t get me wrong - I think the new regulation that considers solicitations when determining whether fund taken in are “contributions” makes sense and is within the FEC’s administrative discretion. What bothers me is that this was NOT an interpretation the FEC was applying when these groups were out doing their thing.
Also, I’m not sure the Swift Boat Vets or the MoveOn Voter Fund would agree with the Supreme Court that “express advocacy” is “functionally meaningless.”
It’s the third anniversary of McConnell v. FEC!
A proper observation of any third anniversary requires . . . something in leather. Don’t think BCRA’s sponsors will appreciate the leather roses? Well, consider a donation to this organization in their names.
Look, when you Google “leather” and “reform” your choices are few.
California’s Third Circuit has held that contribution limits on candidate-controlled ballot measure committees are beyond the California FPPC’s statutory authority. The court noted:
Whatever the wisdom of the FPPC’s effort to plug loopholes in California’s campaign contribution regulatory scheme, we agree with the trial court’s determination that the regulation conflicts with multiple provisions of the Political Reform Act of 1974 (PRA; Gov. Code, § 81000 et seq.) and thereby exceeds the FPPC’s authority. Our conclusion that the FPPC overstepped its authority renders a consideration of plaintiffs’ constitutional claims unnecessary.
Paul Ryan, of the CLC and its blog, ever the sunny optimist, offers this:
Will the state legislature be willing to shut down its own soft money loophole? Can voters mount a successful initiative campaign in the face of stiff opposition from Governor Schwarzenegger (a plaintiff in this lawsuit), at least some legislators, and their well-heeled supporters? Only time will tell.
However, if the best predictor of the future is the recent past, well, no. As a Friend of the Skeptic reminds me, botht e legislature and the voters have been afforded the opportunity to enact just such a limit in quite recent memory (remember Prop. 89? Ouch.) And have declined the invitation with relish.
In the BNA coverage of the Toner announcement, we learn this:
… observers outside the agency have questioned the stability and direction of the FEC under the leadership of commissioners with tenuous appointments. Some said that the departure in recent years of veteran commissioners and FEC staff members has led the current commissioners to move away from past precedents and practices, with possible negative implications for the FEC’s legal rulings and other actions.
They might be more grounded in reality . . . the item continues:
One observer, former Democratic FEC Commissioner Scott Thomas, said he has noticed that the current FEC commissioners seem to be drafting regulations and other policy documents on their own, with limited input from the agency’s professional staff in the office of FEC General Counsel Lawrence Norton. The practice makes FEC actions less predictable for those outside the agency and presents risks that FEC rulings are not based soundly in the law and could be overturned in court, Thomas suggested.
Like that’s a new thing. Coming from Commissioner (And Former Chairman) “I know it when I see it” Thomas, that’s quite a statement. A sound basis in law and practice . . . hmm . . . for “major purpose” . . . let’s see . . . there’s FEC v. GOPAC . . . now I forget, was the FEC on the prevailing side of that one? Or the FEC’s longstanding practice of dumping enforcement documents onto the public record. Didn’t the court in AFL-CIO say something about that?
You see, it is possible to execute a “bad old days” rant without invoking “express advocacy.”
Commissioner Toner has announced his resignation (soon) from the FEC — adding another Former Chairman to the hearty band running about the countryside.
And meaning that FEC action will require the assent of 4 out of the 5 remaining commissioners. We will stipulate that it is harder to get to 4 when you have but 5 to draw upon.
Inquiring minds might ask at this point “Where are the various 527 enforcement matters in the pipeline?” Will Cmr. Toner have the “opportunity” to approve conciliations in them? Or to vote for enforcement? Maybe he’d rather not? I’d sympathize . . .
Brad Smith has a lot to say about FEC Hearings. Not surprising, since he vigorously advocated them while on the Commission.
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