Skepticseye.com

Which has nothing to do with this.

I’m leavin’ on a jet plane, to beautiful (and warm) Orange County, for a symposium on campaign finance stuff.

Cool list of participants.

Because then it wouldn’t be an “exploratory committee.”

So when you’re asked to give money to McCain so he can “build the grassroots support across the country necessary to win this campaign“  of course they can’t say  what the campaign is for.  Maybe he’s running for the Nobel Peace Prize.

Straight talk, of course.  Mandated by law.  Fun.

Ross Johnson as Chairman of the California FPPC. That should be a ton of fun.

Tim Hodson, long laboring in the vineyards, as it were, gets a post too.

No I’m not dead yet. (I feel happy! Oh this is so hopeless).  I understand life is passing me by, John McCain is outraged, Randy Evans is silly and all the ships are at sea.

But I am trying to earn a paycheck honestly by teaching people Civil Procedure.  I did “supplemental” and “removal” today (thats 1367 and 1441 for the cogniscenti) and we’re starting Erie on Wednesday.  That is, if the ice storms don’t pummel us first.

You want Hayward?  The Skeptical Spouse is in this week’s Standard.

And while I’m flacking the Standard, here’s a great send off to the late Mrs. Marshall (”Anna Nicole” you know), too. Courtesy of Larry Miller.  Who observes:

I liked her, and so did you, even if you didn’t. No one in the public eye dies without making us stop and think. Shall we turn up our noses at her because she wasn’t Katharine Hepburn? She did pretty well with what she was given, so let’s not scoff because she wasn’t a great poet or leader. Will I mourn more deeply, say, when the sad day comes and Jimmy Carter passes away? Less, I think.

A Friend of the Skeptic writes:

I hear that Brad Smith is “emerging as a strong early candidate” for the GC [general counsel] position at the FEC.  These same sources say it is unclear, however, whether Smith would really return to Washington to serve in a rank below Commissioner.  But with several Commissioners likely to depart by year-end, they are looking for a way to preserve their legacy, and Smith’s appointment could fill the bill.

Yes, yes.  I know what you’re thinking.  (How does Brad’s presence “preserve” a “legacy?”)  But the Friend would be in some position to have a clue, whatever the motive, so in the interest of stirring up trouble, well, here you go!

The FEC’s draft justification of its political committee status is a great read for campaign finance geeks. No, really. As someone who generally supported the “contribution” and 50% allocation rules promulgated in 2004, you’d expect I’d be on board with a more thorough defense of their validity.

I’m not sure but that the FEC explanation invites more problems, however. That is, I suspect that its explanation and application of “major purpose” - which, as alert readers know is found nowhere in the statute or regs, just in a handful of confusing case precedents - will invite more trouble.

As the FEC explains it, to determine whether a group is a political committee, one first looks at whether they received contributions or make expenditures past the $1,000 statutory threshold. Fair enough. Then, the FEC recognizes that only groups with the “major purpose” of engaging in federal campaign activity can be required to register, report and follow the finance restrictions.

What counts as “federal campaign activity?” That’s where I think the articulated standards are a bit off, and may be better if promulgated in a regulation, with some notice and comment to hash out the vagaries.

The FEC’s declares that public statements are instructive of “purpose.” But are these weighed at all - that is, if the public statement says something about the importance of a federal election and a ballot measure, is this a statement supporting a “major purpose” finding? Or is this a “mixed message” “advocating both issue discussion and advocacy of a political result” that the courts say we protect from political committee status? Moreover, some of the statements considered in the discussion of specific enforcement matters are made to donors in “thank you” notes. One wonders how good an indication those would be of true “purpose” - groups tend to tell donors what they think they are interested in hearing.

How about communications with members - otherwise insulated from regulation as “expenditures.”? Do they count?
The standard hinted at in MCFL is clearer, but not as broad (so not as much fun). There, the Court suggests (in dicta, no less, but who’s counting?) that a group’s independent express advocacy could become so extensive as to give it a “major purpose” and political committee stattus. Does this mean we should only count statutory “expenditures” in the mix?

Again, I do not support a rule that treats 527s as presumed political committees. The FEC’s explanation on that point is persuasive, I think. But I’m not sure the FEC is presently using sufficiently clear or legally supported standards in its political committee matters. I’m still one of those who believes the world would be a better place if we really knew what “major purpose” meant.

Ordinary defendants get to keep confidential the identity of counsel, and what they’re paid.  But elected officials are no ordinary defendants, I suppose.