"Battling over anti-Bush donors; Bush camp launches legal fight against large-dollar Democratic funders"

MSNBC.com offers this report, which suggests that President Bush and the RNC have filed a complaint in federal court related to the activities of Democratic-leaning 527s. The article says, however, that the complaint was filed with the FEC. I'd appreciate some clarification, and I'll post it here if I receive it.

UPDATE: Clarification comes via this Washington Post report. The Bush campaign and RNC filed a complaint with the FEC, and they want it immediately dismissed so that they can take their complaint to the courts. From the article:

In an unusual bid to get fast action on the complaint, Ginsberg said, the GOP plaintiffs want the FEC to immediately dismiss the charges. This would permit Bush and the Republican Party to appeal directly to the courts for quicker action.

A knowledgeable FEC staff member who did not want to be identified because he is not an official spokesman described the GOP request for immediate dismissal as "ridiculous."

The Republican chairman of the FEC, Bradley A. Smith, said, "we will consider the request" for immediate dismissal. But Smith cautioned that, even if the commission dismissed the complaint, "my gut instinct would be, 'Wouldn't the court just send it right back and say the statute requires you to investigate?' "

The Bush campaign and the RNC indicated that they are seeking prompt action because the FEC can take months to process a complaint, and the Nov. 2 election could arrive before there is a resolution.

Ginsberg said immediate court action is needed because the FEC is "ill-equipped to sanction such pervasive criminal conduct in a way that would be timely and meaningful."

As for the request that the election commission dismiss the case quickly, officials there said they were unlikely to abandon their entire process for managing complaints.

"My initial thinking is that the court might send it back and say, `Look, this is your job,' " said Bradley A. Smith, the commission's chairman and a Republican.

UPDATE 2: Bob Bauer has posted the complaint here. The Los Angeles Times article is here. The Hill is here.

"Rodriguez Smells 304 Ballot Rats"

The Hill offers this report, which begins: "The hotly contested March 9 Democratic primary between incumbent Rep. Ciro Rodriguez (D-Texas) and Laredo lawyer Henry Cuellar, which is the subject of an ongoing recount, took a dramatic turn yesterday when Zapata County found an additional 304 ballots."

Nader Hopes to Raise $15 Million for Presidential Run

See this New York Times report.

"Filing deadline law having effect on minor parties"

The Louisville Courier-Journal offers this report.

"Politics and Charities"

The Washington Times offers this editorial.

"Political Attack Ads Already Popping Up on Web"

The Los Angeles Times offers this report.

"Bush, GOP Accuse Dems of Using Soft Money"

A.P. offers this report.

Will There Be Further Litigation in Majors v. Abell?

So suggests the plaintiffs' lawyer in this article. The case involves Indiana's disclosure statute that was upheld by the Seventh Circuit. My earlier post on the Seventh Circuit opinion is here. UPDATE: You can find plaintiffs' petition for rehearing here.

"Ballot Error Effect Cited"

The Los Angeles Times offers this report, with the following subhead: "Orange County registrar says incorrect electronic ballots may have altered a race's outcome, but says results will be certified today." I'll have more to say on this topic soon.

"Taking the Initative on Redistricting Reform"

David Lublin offers this commentary.

First Circuit En Banc Decides Metts v. Murphy case, allowing Section 2 Coalitional District Case to Go Forward

I have posted the en banc opinion here. It was a 5-2 decision. As the dissent notes, the tone of the majority opinion is "measured," but it does recognize the possibility of a minority group bringing a coalitional district claim under Section 2 of the Voting Rights Act. From the majority opinion:

We are thus unwilling at the complaint stage to foreclose the possibility that a section 2 claim can ever be made out where the African-American population of a single member district is reduced in redistricting legislation from 26 to 21 percent. Yes, one would ordinarily expect the consequences to be small, but not always, and arguably not here (based on past history). At this point we know practically nothing about the motive for the change in district or the selection of the present configuration, the contours of the district chosen or the feasible alternatives, the impact of alternative districts on other minorities, or anything
else that would help gauge how mechanically or flexibly the Gingles factors should be applied.
On the other hand, the plaintiffs cannot prevail merely by showing that an alternative plan gives them a greater opportunity to win the election, DeGrandy, 512 U.S. at 1017 ("Failure to maximize cannot be the measure of § 2."), or that an otherwise justified boundary change happened to cost African-Americans a seat. This would convert section 2's all-circumstances test into the far more stringent "anti-retrogression" test of section 5, which imposes rigorous pre-clearance requirements on covered states to prevent redistricting plans with retrogressive consequences for African-American voters. Compare 42 U.S.C. §
1973(a)-(b) (2000), with 42 U.S.C. § 1973c (2000). See generally Beer v. United States, 425 U.S. 130, 141 (1976) (anti-retrogression test); Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 476-80 (1997) (discussing differences between sections 2 and 5). Rhode Island is not a covered state.
As the district court correctly pointed out, there is tension in this case for plaintiffs in any effort to satisfy both the first and third prong of Gingles. To the extent that African- American voters have to rely on cross-over voting to prove they have the "ability to elect" a candidate of their choosing, their argument that the majority votes as a bloc against their preferred candidate is undercut. But it is not clear on the pleadings alone how many cross-over votes are needed to win an election--unlike in Gingles, Rhode Island law allows a candidate to win with less than an absolute majority, see R.I. Const. art. IV, § 2 (general elections); R.I. Gen. Laws § 17-15-29 (2002) (primary elections)--nor do we have any evidence at this stage about how vigorously the majority votes as a bloc over time, nor the impact of the fact that the "majority" here is made up of both Hispanics and whites. Gingles itself warned that "there is no simple doctrinal test for the existence of legally significant racial bloc voting," 478 U.S. at 58, a further warning against deciding such issues in the abstract.
The burden of inquiry is on the plaintiffs--they are the ones challenging the redistricting plan--but in this case they are entitled (within ordinary limits) to develop the evidence that they think might help them. Whether a full-scale trial is needed is an entirely different matter; perhaps summary judgment will suffice
depending on how the evidence develops and the ultimate theory or theories offered by both sides--theories that hopefully will go beyond dueling claims as to what Gingles means. In all events, it is premature to close the door now.

"Sharpton May Lose Federal Campaign Funds"

A.P. offers this report. See also this New York Times report.

No Vieth opinion today

See here.

Three Election Law Professors Get Affirmative Votes of Tenure

Congratulations to Guy Charles, of Minnesota, Ellen Katz of Michigan, and Spencer Overton of George Washington on the good news.

If you have election law faculty-related news, or if you have published an election law-related article (or posted a draft somewhere), please don't hesitate to drop me a line so that I can share it with the rest of our community.

"Ballot Box Needs Some Backup Against Terrorism"

John Fortier and Norm Ornstein offer this Los Angeles Times oped, with the following subhead: "Make plans to ensure the continuity of government in the event of a disastrous attack against the nation's leaders." Thanks to Dan Lowenstein for the pointer.

"How E-Voting Threatens Democracy"

Wired News offers this lengthy article.

"Open primary proposal headed for state ballot"

The San Francisco Chronicle offers this report. Disclosure: I am a consultant for the proponents of this initiative.

When Will the Supreme Court Issue Its Opinion in the Vieth (Partisan Gerrymandering Case)?

The Supreme Court heard oral argument in the partisan gerrymandering case in December. We do not know when the Court will issue its decision (it could come as late as the end of the term in June), but here is what we do know.

It has decided some of the cases on its December calendar (and some even on its January calendar), but Vieth and a four others still remain from the December calendar. The Court is expected to issue opinions tomorrow and Wednesday. Next Monday is the final possibility before a recess. If not by Monday, the Court takes a recess until April 19. See here.

Campaign finance disclosure bill for Ohio judicial races

See here.

Nader Targets Oregon Ballot

A.P. offers this report.

"Michigan Bill Would Limit 'Soft Money' Ads"

A.P. offers this report.

"Activists' funds worrying GOP in '04 elections"

The San Jose Mercury News offers this report.

"Fighting for Florida: Voting Rights of Florida Felons Scrutinized After 2000 Election"

Tomorrow's New York Times will offer this front-page report.

"Ky Race Studied as Test Run of New Law; Curbs on Party Coordinating with Its Candidate Complicate Campaign Tactics"

The Washington Post offers this report, on one of the effects of McCain-Feingold.

"Democrats' Ads in Tandem Provoke GOP"

The New York Times offers this report, which begins: "Senator John Kerry's advertising campaign is so closely complemented by those of two major liberal groups running commercials against President Bush that Republicans are accusing the Democrats of trying to evade campaign finance laws."
The most important snippet from the article:

Mr. Goldstein said it was entirely possible to devise advertising strategies that correlate this closely without speaking directly by monitoring purchases, highlighting the difficulty such cases will have before regulators or judges.

Persily Affidavit in Georgia Redistricting case now posted

Penn law professor Nate Persily, who assisted the special master in crafting the Georgia redistricting plan required by the court in Larios v. Cox, has filed a report available at this link.

"Florida-Based Coronet Fights Sierra Club Ad Criticizing Bush, Firm's Plant"

The Miami Herald offers this report. Thanks to Dan Smith for the pointer.

"Spinning a Web of Money and Politics"

Peter Overby offers this "Web Extra" report at NPR.

Three in Roll Call

GOP Rule Could Force DeLay Aside, which begins: "House Majority Leader Tom DeLay (R-Texas) has begun quiet discussions with a handful of colleagues about the possibility that he will have to step down from his leadership post temporarily if he is indicted by a Texas grand jury investigating alleged campaign finance abuses."

Questions Swril on Voting Reform, which begins: "Rep. Rush Holt (D-N.J.), who defeated Republican candidate Deforest “Buster” Soaries at the polls in 2002, is now hoping to beat his former opponent to the punch in an effort to address the perceived problems with security of new electronic voting systems."

Michigan Parties United to Defend FEC, which begins: "he Michigan Democratic and Republican parties don’t often see eye to eye, but the two diametrically opposed groups have teamed up to fight Reps. Christopher Shays (R-Conn.) and Marty Meehan’s (D-Mass.) effort to have a federal court throw out campaign finance regulations issued by the Federal Election Commission."

Paid subscription required for all articles.

"GOP Mulls Criminal Referrals"

The Hill offers this report, which begins: "Republicans are contemplating initiating criminal referrals against pro-Democratic 527 groups that are shadowing Sen. John Kerry’s (D-Mass.) campaign against President Bush." For reasons why I think the criminality charge is bogus, see here and here.

"Election Reform Funds About to Be Sent to States"

Stateline.org offers this report. (Link via Politicalwire.com.)

Weintraub on McConnell

The publishers of the Election Law Journal have made FEC Vice Chair Ellen Weintraub's contribution to the symposium on McConnell v. FEC available without charge at this link. View the entire table of contents, including some other free articles from the issue, here. To order the entire issue, or to subscribe to the journal, see here.

More Bauer on Corrado, Malbin

See here.

"FundRace Shows Neighbors Political Contributions"

See this CNET report. For my earlier coverage of this issue, see here.

"Democratic Spending Is Team Effort; Groups' Ads Level Field for Kerry"

The Washington Post offers this report.

Election Assistance Commission Holds First Public Meeting; Plans Hearing on Security of Electronic Voting

I've posted the press release here. Thanks to Dan Tokaji for the file and the pointer.

Pildes Gets Harvard Offer

Noted election law scholar Rick Pildes, currently at NYU and formerly of Michigan, has been given an offer to join Harvard Law School. Details via Brian Leiter. As anyone in the field knows, Pildes's work, particularly in the area of voting rights, has been very influential not only in academia, but before the Supreme Court. Congratulations.

"'Just Democracy' Project Seeks to Provide Clear Path to the Ballot"

Harvard Law School has posted this press release, which begins: "In an effort to prevent the confusion and mistakes that marked the 2000 election, a group of Harvard Law School students has launched a project to ensure that 2004 presidential election voters are given proper access to the ballot. The new group, Just Democracy, plans to recruit and place more than 1,000 law students with expertise in election law at what they believe could be high-risk polling places around the nation."

The group's website is here. If you are interested in starting a chapter at your law school, see here.

California Secretary of State's Voting Systems and Procedures Panel Meeting Agenda

The VSP panel will meet on April 21 and 22nd. Among the items on the agenda is the Diebold investigation. I have posted the entire agenda here.

"Ickes' Media Fund's First FEC Report Shows $3.4 Million Raised for TV Ads"

BNA's Money and Politics Report offers this report (paid subscription required).

MCFL Groups and Major Purpose

A.P. offers Some Groups to Run Ads Until Election Day.

"Districting Advances in North Carolina"

A.P. offers this report. Thanks to David Epstein for the pointer.

Bauer on Corrado

Bob Bauer offers comments here on Tony Corrado's recent paper on BCRA and party fundraising. I'll be interested to read Bauer's thoughts on Michael Malbin's fascinating article on the same topic in the new symposium issue of the Election Law Journal.

Brookings Redistricting Conference

I received the following from the Brookings Institution:

Dear Colleague:

Please join us for a conference on congressional redistricting, jointly hosted by the Brookings Institution and the Institute of Governmental Studies. The conference, “Competition, Partisanship, and Congressional Redistricting,” will take place Friday, April 16, 2004, in the Falk Auditorium at Brookings in Washington, DC. Leading scholars and practitioners of redistricting from across the country will come together to consider political, legal, and technological issues surrounding redistricting on the congressional level. The conference also will feature discussion on the desirability and possibility of alternatives to traditional redistricting processes.

The day will consist of five panels, the first four of which will feature the presentation of one or two original papers, followed by discussion. The first set of panelists will consider the impact of redistricting (relative to other factors) on a variety of contemporary features of the House and its elections. The second panel will describe the state of the art in the tools and techniques of redistricting, and will address the impact of new technology on the process. The next panel will consider both the role of the courts in redistricting and competing jurisprudential theories for altering that role. In the afternoon session, the discussion will shift to redistricting reform as the fourth panel considers the critical design issues for alternatives to the traditional process of redistricting. Finally, in the last panel, redistricting practitioners will share their perspectives on the politics and law of redistricting. Please see the attached agenda for further details.

There is no charge to attend this event, and morning coffee and lunch will be provided. Please RSVP no later than Monday April 5 by faxing the attached registration form to 202-797-6144 or by sending an e-mail to Rob Wooley at rwooley@brookings.edu.

We anticipate a stimulating session on a timely issue of interest to politicians, policymakers, and the press. There will be ample opportunity to involve conference attendees in each panel’s discussion, so we hope that you will join the conversation.

"FEC'S SMITH SAYS DEMOCRATIC GROUPS LEGAL UNDER BCRA DESPITE GOP COMPLAINTS"

BNA's Money and Politics Report offers this article (paid subscription required), with the following description: "Federal Election Commission Chairman Bradley Smith said March 19 that Democratic-leaning groups criticizing President Bush are 'operating in accordance' with the nation's new campaign finance law despite Republican charges that the groups' activities are illegal."

"Pritzker Becomes Major 527 Donor"

Roll Call offers this report (paid subscription required).

"Court Upholds Delaware's Candidate Fee"

A.P. offers this report. Thanks to Shannon Mader for the pointer. You can access the case itself here. Sneaking Suspicions offers this commentary.

Adam Cohen on Hayes-Tilden, Bush-Gore, and Partisan Gerrymandering

Adam Cohen offers this Editorial Observer column on Chief Justice Rehnquist's new book. Like others (see Eric Foner's review in The Nation), Cohen sees the book more about Bush v. Gore than about the Hayes-Tilden contest of 1876.

Cohen argues in the piece for a broad reading of Bush v. Gore's equal protection right, one broad enough to provide a remedy for partisan gerrymandering in the pending Supreme Court Vieth case:

Buried in that flawed decision is a bold vision of democracy. The court stopped the Florida recount because the procedures did not "satisfy the minimum requirement for nonarbitrary treatment of voters." Critics of the ruling charged that it created a "class of one," Mr. Bush, entitled to an extraordinary level of protection. The way for the court to prove them wrong is to start taking the right to vote more seriously, and to apply the standard in future election cases.

The court is about to decide a redistricting case that will have a major impact on American democracy. Pennsylvania voters are challenging the state's new Congressional lines, drawn to give its minority party two-thirds of the Congressional delegation. This sort of "partisan gerrymandering" is making contested Congressional races all but obsolete. If the court gives ordinary voters the same kind of vigorous protection it gave Mr. Bush, it will strike down Pennsylvania's undemocratic lines.

The court will no doubt hear other cases of electoral unfairness that could benefit from this approach. Poor and minority voters are still more likely to vote on machines that throw away a disproportionate number of valid votes. Local officials are still too free, as Katherine Harris proved in Florida in 2000, to purge eligible voters from the rolls.

"Loophole Politics"

The Albany Times-Union offers this campaign finance editorial.

"Soros Presses Anti-Bush Spending: Regulations May Affect Spending"

The Boston Globe offers this report.

"E-Vote Snafu in California County"

Wired offers this report, which begins: "After recounting more than 13,000 absentee paper ballots, Northern California's Napa County reported Thursday that an electronic voting machine used in the March 2 primary election missed more than 6,000 votes."

"State Initiatives Push for Open Primaries, Redistricting Reform"

The San Diego Union-Tribune offers this report. Thanks to Richard Winger for the pointer.

Election Law Journal Special Symposium Issue on the McCain-Feingold Case now published

You can access the table of contents here. In addition, you can access without charge the introduction to the issue ("The Party Line"), and commentaries by Senator John McCain, Senator Mitch McConnell, FEC Chair Brad Smith, and Brookings' Tom Mann and AEI's Norm Ornstein from this page. The other articles may be purchased online, seen in the hard copy, or (eventually) accessed via Westlaw.

Here is the publisher's press release:

Larchmont, NY, March 18, 2004-The landmark decision handed down by the U.S. Supreme Court in the case of McConnell v. Federal Election Commission is the focus of a series of articles and commentaries by prominent United States Senators, Commissioners at the Federal Election Commission, legal scholars, attorneys, and political scientists in the Spring 2004 (Volume 3, Number 2) issue of Election Law Journal, a peer-reviewed journal published by Mary Ann Liebert, Inc. (www.liebertpub.com). Included in this special issue are commentaries by Sen. John McCain, Sen. Mitch McConnell, Thomas Mann and Norman Ornstein, and FEC chair Bradley Smith, all of which are available free online (along with the issue's introduction and table of contents) at www.liebertpub.com/ELJ.
Senator John McCain (R-AZ), co-sponsor of the Bipartisan Campaign Reform Act of 2002 (BCRA, also known as the McCain-Feingold law), leads off the issue with "Reclaiming Our Democracy: The Way Forward." Senator Mitch McConnell (R-KY), the most prominent opponent of BCRA, follows with a commentary entitled "The Future is Now."
Three extended articles by leading scholars in the field-Lillian BeVier, Richard Briffault, and Michael Malbin-consider the consequences of the case for both constitutional law and the role of political parties in upcoming elections. Additional commentaries argue the merits and pitfalls of the Court's decision and present multi-faceted views on the transformation of campaign finance law. Some papers defend the Court's decision as a sensible and pragmatic decision, while others paint the McCain-Feingold law and the Court's decision as an "assault on the First Amendment."
The ELJ website offers a sample of these commentaries. Thomas Mann, Senior Fellow in Governance Studies at the Brookings Institution, and Norman Ornstein, a resident scholar at the American Enterprise Institute, co-author a defense of the McCain-Feingold law and the Supreme Court's decision in an essay entitled "Separating Myth from Reality in McConnell v. FEC." Presenting an opposing view, Bradley Smith, Chair of the Federal Election Commission, pens a commentary entitled "McConnell v. Federal Election Commission: Ideology Trumps Reality, Pragmatism."
"We are very excited about the publication of this symposium issue, which offers the first comprehensive and in-depth analysis of the Supreme Court's most important campaign finance case in a generation. The issue offers analysis by the leading policymakers, lawyers, and academic thinkers in the field of campaign finance regulation," says Richard L. Hasen, co-editor of Election Law Journal.
Election Law Journal is an authoritative peer-reviewed journal published quarterly in print and online. Co-edited by Daniel H. Lowenstein, UCLA Law School, and Richard L. Hasen, Loyola Law School, the Journal covers the emerging specialty of election law for practicing attorneys, election administrators, political professionals, and legal scholars. It covers election law on the federal, state, and local levels in the U.S. and in 75 countries around the world. A complete table of contents and a free sample issue may be viewed online at www.liebertpub.com/ELJ.
Mary Ann Liebert, Inc., is a privately held, fully integrated media company known for establishing authoritative peer-reviewed journals in many cutting-edge areas of biomedical research and law, including Biotechnology Law Report and Gaming Law Review. A complete list of the firm's 60 journals, books, and newsletters is available at www.liebertpub.com.

Programming Note

I'll be taking a few days off. Blogging will resume Monday.

Primary Confusion in Washington State

See this report in The Olympian, which begins: "Just when the future of voting in Washington's primary election couldn't get anymore confusing, it has."

The Anonymity Costs of Disclosing Small Donations

I'm all for disclosure of major contributors and spenders in federal campaigns, but every once and a while I'm reminded of the privacy costs that come from disclosing the identity of small contributors. The last time was when I read William McGeveran's fine article on the topic. Now comes a link from the excellent website Political Wire to Fundrace 2004's Neighbor Search. Just plug in your home address and find all of your neighbors who have given as little as $200 to a presidential candidate. I found out a number of interesting things about my neighbors through this simple search.

"289 blank ballots found in Palm Beach County's electronic voting machines"

Florida's Sun-Sentinel offers this report, which begins: "At least 289 Palm Beach County residents cast blank votes in the March 9 Democratic presidential primary election -- even though it was the only race on their ballots." Thanks to Dan Smith for the pointer.

Colorado Election Law Case

The Denver Post offers Court to Hear Election Law Appeal, which begins: "The Colorado Supreme Court has agreed to hear an appeal by Treasurer Mike Coffman of a lawsuit accusing him of violating a state election law by inappropriately using his office resources to campaign against a ballot initiative." Thanks to Ed Feigenbaum for the pointer.

"'527s': A New Way to Purchase Politicians"

The National Catholic Reporter offers this editorial.

"McCain-Feingold Helps the Little Guy"

Christopher Hayes offers this opinion piece on CBSNEWS.com, about the Millionaire's Amendment's role in the Illinois Senate race.

"Broadcasters Deny RNC Request to Reject Ads Sponsored by Moveon.org"

BNA's Money and Politics Report offers this story (paid subscription required), with the following summary: "Not a single local broadcaster rejected an ad sponsored by the MoveOn.org Voter Fund as a result of a letter sent by the Republican National Committee this month, which claimed that the ad was illegal because it was paid for by so-called soft money." You can access my earlier commentary on this issue here.

"Congress Must Act Now to Prevent '04 Election Debacle"

Norm Ornstein offers this Roll Call commentary (paid subscription required).

"The Beginning of the End of McCain-Feingold"

John Samples offers this commentary on the CATO organization website.

"Action Group Aims to 'Redefeat' Bush"

A.P. offers this report.

"Chadless but Clueless, City Council Suffers and Official Tie"

The New York Times offers this report (link via How Appealing).

"Correcting the Election Reporters"

Allison R. Hayward offers this insightful commentary at National Review Online.

Divided Eighth Circuit Issues Split Opinion on Remand from Republican Party v. White

In Republican Party of Minesota v. White, the Supreme Court struck down a portion of Minnesota's judicial campaign conduct code as violating the First Amendment. Other issues remained to be decided by the Eighth Circuit on remand, and today a 2-1 panel of the Eighth Circuit divided on other apsects of Minnesota's Code. The opinion is here. Link via How Appealing.

Keeping Track of 527s

The Center for Responsive Politics issued this report today, linking to this very useful page to keep track of 527s.

"Independent groups outspend Bush in campaign advertising"

St. Louis Today offers this report.

"Bid to curb groups' political ads may dim a Kerry bright spot"

The Boston Globe offers this report.

"Disclosure Rules in Holding Pattern; Senators Split Over Mandatory Electronic Filing for Candidates"

Roll Call offers this report (paid subscription required).

"Playing with Fire on 'Soft Money'

E.J. Dionne offers this column in the Washington Post.

"Suffrage Suffers in the Land of Rights"

Jamin Raskin offers this oped in the Los Angeles Times, which begins: "You have to admire President Bush's willingness to amend the Constitution over an issue of basic principles. But before we forever deny millions of Americans the chance to marry the persons they love, shouldn't we first pass an amendment guaranteeing all of us the right to vote and the right to have those votes counted?"

Seventh Circuit Decides Important Campaign Finance Disclosure Case

By a 2-1 vote, the Seventh Circuit has upheld a campaign finance disclosure statute in Majors v. Abell. Before the Supreme Court decided McConnell v. FEC, there were a number of open questions regarding the constitutionality of campaign finance disclosure laws, including the question whether government compelled disclosure on the face of a document (or other communication) is constitutionally permissible (or whether the First amendment creates a right to engage in anonymous speech).

I believe that McConnell did nothing to clarify this question, or two other important disclosure questions. (See the abstract of my forthcoming Election Law Journal article on this topic here. The article is part of a symposium on McConnell that will be out any day---the table of contents for that publication is here.)

In Majors, all three judges agree that McConnell is unhelpful in answering the question. Judge Posner, writing for the majority, holds the Indiana statute constitutional: "Reluctant, without clearer guidance from the Court, to interfere with state experimentation in the baffling and conflicted field of campaign finance law without guidance from authoritative precedent, we hold that the Indiana statute is constitutional." Judge Easterbrook, in dissent, notes many of the questions I raise in my article: "Still, the Justices’ failure [in McConnell] to discuss McIntyre, or even to cite Talley, American Constitutional Law Foundation, or Watchtower, makes it impossible for courts at our level to make an informed decision—for the Supreme Court has not told us what principle to apply. Does McConnell apply to all electioneering? All speakers? To primary communications (as opposed to notices sent to agencies)? The Supreme Court wrote that §304 is valid because it is (in the view of five Justices) a wise balance among competing interests. Yet the function of the first amendment is to put the regulation of speech off limits to government even if regulation is deemed wise. [citations] For the judiciary to say that a law is valid to the extent that it is good is to operate as a council of revision and to deny the power of a written constitution to constrain contemporary legislation supported by the social class from which judges are drawn. And when, as in McConnell, the judgment is
supported by a one-vote margin, any Justice’s conclusion that a particular extension is unwise will reverse the constitutional outcome. How can legislators or the judges of other courts determine what is apt to tip the balance?"

UPDATE: The ever precise Marty Lederman writes: "The Easterbrook opinion technically is not a dissent but instead an opinion "dubitante" (i.e., expressing doubts). Basically, Easterbrook writes that he has no way of deciding the question one way or the other. "[T]the Justices’ failure to discuss McIntyre, or even to cite Talley, American Constitutional Law Foundation, or Watchtower, makes it impossible for courts at our level to make an informed decision—for the Supreme Court has not told us what principle to apply." Of course, he has the luxury of being able to file an "I have no idea" opinion because he's the third vote.

Are 527 Ads "Illegal?"

Today I offered Commentary: Legality of TV Ads by Third Party Groups on NPR's "Day to Day." The commentary tracks many of the arguments I made in this L.A. Times oped. Scott Stanzel, spokesperson for the Bush-Cheney reelection committee responded to my commentary here in a "Day to Day" interview with Madeline Brand.

I think the Bush-Cheney committee made a mistake by putting on Stanzel rather than one of their campaign finance lawyers. Stanzel apparently misunderstood the Supreme Court's recent opinion in McConnell v. FEC, and spoke a bunch of gibberish about "issue ads." The constitutional question that I raised does not depend upon whether the Moveon ads "promote, support, attack or oppose" a candidate or whether the Moveon ads use words of express advocacy. The question is this: if it is unconstitutional to limit George Soros's independent spending on ads that oppose Bush, why would it be constitutional to limit contributions of Soros to a group that runs independent ads that oppose Bush, particularly when the group does not sell access to candidates? Stanzel did not even grasp the question, much less provide a cogent answer.

"Tough Choices: Chief Justice Rehnquist Explains Bush v. Gore"

Dahlia Lithwick has posted this essay on Slate.

"A GOP Flip-Flop on Ads"

Here is my L.A. Times oped on the Republican attack on the left-leaning 527s.

"Recount Lawyers Plan for Supreme Court Test"

See this story out of Indiana.

"Newcomers Provide Fuel for Bush Money Machine"

The New York Times offers this report. An excerpt: "About 455 people have raised at least $100,000 each for Mr. Bush — they are assigned a tracking number so the campaign can keep count — and many more have collected smaller amounts. Among the president's fund-raisers are chief executives at Verizon Communications, FedEx Corporation, Pfizer Inc., Waste Management Inc. and other large companies."

"Democrats Fall Off Campaign Finance Reform Wagon"

Philip Gailey writes this oped in the St. Petersburg Times. It begins: "Well, what do you know. Soft money is back, and it's making hypocrites of all those Democrats who fervently championed the McCain-Feingold campaign reform law, not to mention those Republicans who objected to the law's restrictions on issue advocacy."

"Loophole May Let GOP Spend Bush Cash in Fall"

The Chicago Tribune offers this very important report.

"McCain's Rude Awakening"

The Wall Street Journal offers this editorial, which begins: "If they weren't so damaging to free speech, we'd say there's something naively charming about John McCain's episodic fulminations about campaign finance reform." Thanks to Steven Sholk for the pointer.

California Electronic Voting Woes

The Los Angeles Times offers O.C. Ballot Glitch May Affect Race and Delay in State E-Voting is Suggested.

"60 days later, little resolved on new state primary"

The Seattle Times offers this report on Washington State's new primary bill passed by both houses.

Day to Day Commentary on 527s

I should be on NPR's Day to Day Friday talking about 527s, though the feature could be bumped to another day for breaking news. I'll post a link later if the audio appears on the NPR website. UPDATE: Looks like this is being bumped to Monday.

"Inside the Dems' Shadow Party"

Businessweek offers this report.

Letter on 527 Rulemaking Delay

Following up on this post, here is the letter from a number of interest groups opposing the timing of the FEC's current 527 rulemaking.

Corrado on Party Finance Under BCRA

Anthony Corrado has posted Political Party Finance under BCRA: An Initial Assessment on the Brookings website.

"Senate Hearings Target Soft-Money Ads"

NPR offers this audio report.

"Klayman Watch"

The Nation offers this report, which begins: "Did Larry Klayman, the conservative lawyer/provocateur who spent much of the 1990s suing Clinton-related targets via his Judicial Watch and accusing the Bill-and-Hillary crowd of vast corruptions, recently try to skirt campaign-finance law to obtain an illegal million-dollar boost for his back-of-the-pack US Senate campaign in Florida?"

"In White House Race, Kerry's $75 M Won't Equal Bush's $75 M"

Stuart Rothenberg offers this oped at Roll Call, which begins: "While most political reporters, television producers and political insiders are focusing on the Bush campaign’s huge war chest and financial advantage in the pre-convention period, they have overlooked a potentially more interesting story: the Bush campaign’s financial positioning for the general election. Although the presidential nominee of each major party receives $74.6 million in public funds for the general election, the Kerry campaign will actually already be at a financial disadvantage by the time both parties have formally nominate their candidates. The discrepancy follows from the fact that Democratic Sen. John Kerry (Mass.) will receive his $74.6 million as soon as he officially becomes the Democratic nominee on the evening of Wednesday, July 28, while President Bush will receive his $74.6 million on the evening of Sept. 1. "

Coverage of Yesterday's 527 Hearing and Related News

The Washington Post; New York Times; PoliticsNH; The Independent (UK); Cox News Service; Mother Jones; Washington Times; Roll Call (registration required).
The New York Times also issued this editorial.

"Legal Threats Fly as Shadow Groups Kick Off Operations"

The Hill offers this report. I would appreciate a link to or copy of the letter if one is available.

"Sens. Push Law for Receipt of Votes Cast"

A.P. offers this report. Thanks to Dan Tokaji for the the pointer.

"Many Major Kerry Donors Actually Give More to Bush"

The New York Times has just posted this story on its web page.

Missing Vote Rates from Florida

Votewatch offers this analysis of the recent primary.

Report on 527 hearings

Bob Bauer reports on the Senate's hearing on 527 organizations here. He also has posted Sen. McCain's prepared testimony and Sen. Feingold's prepared testimony.

"Legal Experts Scrutinize Voting Methods"

NPR offers this audio report.

"Democrat Upset in Redrawn Texas District"

A.P. offers this report.

"Tag Line Could Alter Tone of Ads"

USA Today offers this report.

Issacharoff on the Political Center

Sam Issacharoff has posted Collateral Damage: The Endangered Center in American Politics on SSRN. Here's the abstract:

Focusing on the election of Arnold Schwarzenegger as governor in California, this article examines the curious reemergence of direct democracy. The article begins by tracing the disfavored status of any direct democratic mechanism in the original constitutional design. In addition, the use of recalls further violates the Framers' commitment to fixed terms of office to insulate wise political leadership from immediate accountability to the potentially inflamed desires of political majorities. Despite this background, the Article argues that a significant part of the current impulse toward plebiscitary forms of governance owes to the increasing unaccountability of legislative branches of government toward median preferences. As a result of gerrymandering and other distortive features of modern districting, there is a growing gulf between increasingly polarized and fractious legislative delegations and the centrist preferences of the bulk of the voting public. Schwarzenegger provides a striking example with a candidate able to muster half the votes in a crowded field, yet running on a platform that could not have prevailed in the primary of either major party. This article was originally presented as the 2004 Cutler Lecture at William and Mary.

"Political Groups Spend Millions to Take on Bush in Ad Campaign"

The New York Times offers this front-page article. Along similar lines, the Washington Post offers Democrats Forming Parallel Campaign: Interest Groups Draw GOP Fire.

"Primary fix back in Senate's court; Locke mum on veto"

A.P. offers this report, which begins: "Washington's new primary system remained in limbo Tuesday, as the Senate considered big changes made by the House to a 'Top 2' proposal, and worried that the governor might uncap his veto pen." UPDATE: See this editorial in the Seattle Post-Intelligencer.

"7,000 Orange County Voters Were Given Bad Ballots"

The Los Angeles Times offers this front-page report, which begins: "Poll workers struggling with a new electronic voting system in last week's election gave thousands of Orange County voters the wrong ballots, according to a Times analysis of election records. In 21 precincts where the problem was most acute, there were more ballots cast than registered voters." Note how the article uses "principal" for "principle" and puts the error into a Henry Brady quote.

"527 Battle Moves to Senate"

Roll Call offers this report, which begins: "The fight over the future of so-called 527 groups is headed for a potential showdown in the Senate Rules and Administration Committee on Wednesday, when opponents of the groups are slated to square off with lawmakers favoring a hands-off approach to the controversial entities.

Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) — the chief Senate sponsors of the Bipartisan Campaign Reform Act of 2002 — will weigh in on the thorny issue at the 9:30 a.m. hearing in Russell Building Room 301, which was organized at the behest of Rules Chairman Trent Lott (R-Miss.). House hearings on the topic last fall erupted into chaos, when Democrats characterized House Administration Chairman Bob Ney’s (R-Ohio) inquiry as a 'witch hunt,' and a number of groups declined to testify."

"Lawsuit Challenges Paperless Voting System"

The Palm Beach Post offers this report, which begins: "WEST PALM BEACH -- After being rejected in state court last month, U.S. Rep. Robert Wexler turned to federal court Monday and filed another lawsuit challenging the paperless electronic voting systems used by Palm Beach County and 14 other Florida counties."

"Oliphant Charged with 55 Count of Election Law Violations"

The Orlando Sentinel offers this report, which begins; " Suspended Broward Supervisor of Elections Miriam Oliphant has been charged with 55 counts of violating election laws. Oliphant, already facing a Senate trial for her conduct in office, is accused of not opening polls on time and not keeping them open late enough during the September 2002 primary."

Floyd Abrams on McCain-Feingold

See here.

"Bush Campaign Seeks Probe of Election Ads"

See this A.P. report. Now the issue is the Media Fund 527. The RNC has raised similar complaints against Moveon.org. See here. No doubt these moves are meant to put pressure on the FEC as it goes through its rulemaking, as well as intimidate some local stations against running these ads.

"Kerry Prepared in Case of Another Recount"

A.P. offers this report. I'd be interested to know if the Florida legislature has done anything to better define the "intent of the voter" for those voting systems that will be in place for the November vote.

New article on Felon Disenfranchisement and Voter Turnout

Thomas J. Miles has published Felon Disenfranchisement and Voter Turnout in Volume 33 (1) (January 2004) of the Journal of Legal Studies. Abstract:

Several states permanently disenfranchise convicted felons, and according to existing estimates, the population of disenfranchised felons is disproportionately male and African-American. This paper examines the impact of felon disenfranchisement on state-level voter turnout. First, the paper shows that the number of disenfranchised felons is so large that conventional measures of voter turnout, which fail to correct for the ineligibility of disenfranchised felons, significantly understate the participation rates of eligible African-American men. Second, the paper uses a triple-differences framework to test whether disenfranchisement actually reduces the turnout of African-American men. The estimates reveal that disenfranchisement has no discernible effect on state-level rates of voter turnout. The absence of an effect is consistent with the view that on average felons belong to demographic groups that, although eligible to vote, infrequently exercise that right. The estimates suggest that the impact and purpose of these laws are more modest than previously thought.

Drudge: Rehnquist on Bush v. Gore and Retirement

See here.

"Instant Runoffs Would Improve Electoral Process"

John Anderson (yes, that John Anderson) offers this Roll Call oped (paid registration required).

"Caution on Election Reform Urged"

Roll Call offers this report (paid registration required), which begins: "Congressional sponsors of the Help America Vote Act of 2002 cautioned their colleagues that ongoing efforts to amend the law to deal with security issues could do more harm than good. In a 'Dear Colleague' letter last week, Reps. Bob Ney (R-Ohio) and Steny Hoyer (D-Md.) and Sens. Mitch McConnell (R-Ky.) and Chris Dodd (D-Conn.) warned against a rush to judgment on HAVA, urging lawmakers to let the new Election Assistance Commission examine issues related to the security of electronic voting systems." Dan Tokaji has more coverage of this issue here. The letter is posted here.

"The Battle for Florida Heats Up, Stirring Memories of the Recount"

The New York Times offers this report.

"Judge Says New Map OK"

A.P. offers this report, which begins: "PHOENIX - A judge who ordered the state's map of legislative districts redrawn signaled likely approval of a new version that includes twice as many districts winnable by either major party."

"Illinois Senate Race Attracts 7 Candidates in Millionaire Range"

The New York Times offers this report.

"The Third Man"

Sean Wilentz offers this essay on Ralph Nader's attack on the two party "duopoly" in the New York Times Magazine.

"Ashcroft Funds Under Scrutiny"

The Washington Post offers this report, which begins: "Attorney Gen. John D. Ashcroft's 1998 leadership PAC, Spirit of America, and his Senate reelection campaign committee, Ashcroft 2000, raised more than $100,000 last year in order to pay a fine and legal costs for violating campaign finance laws, according to Federal Election Commission records and Garrett Lott, treasurer of both committees."

Poll Workers and Electronic Voting Machines

See this Los Angeles Times report.

"Rehnquist's Book on a Disputed Election (No, Not That One)"

The New York Times offers this Q&A with the Chief Justice.

"Republicans and Democrats Step Up Efforts to Register Voters"

The New York Times offers this report.

Where is Mitch McConnell, Speaking Out on Free Speech Rights?

A.P. offers GOP Wants Ads That Criticize Bush Pulled. It begins: "The Republican National Committee on Friday asked about 250 television stations to pull a liberal group's ads critical of President Bush. The RNC sent the stations a letter Friday suggesting the outlets may be complicit in breaking campaign finance laws if they air the MoveOn.org Voter Fund ads. It asked them to decline to broadcast the ads." Many praised Republican FEC Chair Brad Smith for sticking with principles by not reading the Supreme Court's McConnell opinion to reach independent group expenditures. Will Senator McConnell take a similar stand?

Fascinating Election Law Controversy from the 1800 Election

Bruce Ackerman and David Fontana have written, "How Jefferson Counted Himself In; Something was funny about the Georgia ballot during the 1800 election. Did Thomas Jefferson act properly in making himself President in 1801? A historical detective story." This appears in the March 2004 issue of The Atlantic, beginning at page 84. (It is not available online for nonsubscribers.) A longer version of the article will appear in the Virginia Law Review. The article is of more than historical interest, as the end of the article makes clear. A must read.

California Secretary of State and Four Counties to Be Sued Monday for Violating Voting Rights of the Disabled

A coalition of disabilty rights groups will be filing a suit on Monday. Here are some details from the press release:

The suit, on behalf of California voters with vision and manual dexterity impairments, will be filed against California Secretary of State Kevin Shelley and the counties of Los Angeles, San Francisco, Sacramento and Santa Barbara. The suit will allege violations of the Equal Protection Clause of the Constitution, the Americans with Disabilities Act, and other state and federal laws.

The suit will demand accessible touchscreen voting machines for voters with disabilities for the November, 2004 elections and will challenge the legality of the Secretary of State’s November 2003 Directive requiring touchscreen voting machines to include voter verified paper audit trails.

Common Cause Comes Out for Electronic Voting Paper Trail

See their statement here.

"FEC, Nonprofits at Odds Over Proposed Changes to Regulations"

Roll Call offers this breaking news report. (Paid registration required.)

Primary Choices in Washington State

See news reports here and here.

Articles on Yeserday's FEC Actions

The New York Times offers Election Rules Proposed By Panel May Curb Interest Groups' Work. The Washington Post offers Reining in Anti-Bush Groups; But Key FEC Member May Oppose Immediate Changes in Rules.

Bauer and Wertheimer Debate 527s on CNN's Inside Politics

The transcript is here. The segment is about halfway down (simply search for "Bauer" to find it).

FEC Votes 5-1 to Approve Rulemaking on 527s

Bob Bauer has the details here. What does this vote say about the ultimate rules the FEC may or may not craft for this election season? As I've indicated here, not much. During the April hearing we may get some better sense of where the commissioners are leaning. We'll have to wait until mid-May's promulgation of the final rule to see if and how the FEC acts on 527s for this election year. UPDATE: Bob Bauer has posted Commissioner Toner's written comments here and Vice Chair Weintraub's comments here. A.P.'s story is here.

In today's Roll Call

See Post-BCRA Senate Fundraising Up 72 Percent, which begins: "Fundraising by Senate candidates jumped 72 percent during 2003, as compared to the first half of the 2001-02 campaign cycle, according to a Federal Election Commission analysis of campaign finance records."

See Kerry's E-mail Moves Irk Privacy Experts, which begins: "Sen. John Kerry’s (D-Mass.) presidential campaign used a controversial marketing practice offered by one of the country’s three credit bureaus to collect additional information last year about people who, according to the campaign, indicated that they would like to help the candidate in the primaries and caucuses."

Paid subscription required for access.

"Election Panel Fines Fannie Mae, Republican Committees $132,000"

The Wall Street Journal offers this report. Thanks to Steven Sholk for the link.

"Light Voter Turnout Raises Questions"

Newsday (NY) offers this report.

"Kerry Faces New Climb: Bush's Mountains of Cash"

The New York Times offers this report. See also this Los Angeles Times report.

"Court: Calif. Can Sue Tribes Over Funds"

A.P. offers this report, which begins: "A state appeals court ruled Wednesday that California can sue an American Indian tribe to force it to abide by state campaign contribution laws." The opinion itself is here. The FPPC press release is here.

One of the interesting things about the opinion is that the court holds that the State of California has the power under the Tenth Amendment to enforce its election laws against the tribes to protect its "republican form of government" under the Guarantee Clause.

Symposium on the California Recall

PS: Political Science and Politics (Jan 04) has just published a symposium, Recalling the Recall: Reflections on California's Recent Political Adventure. The short introduction to the symposium by Shaun Bowler and Bruce Cain is available here. The rest of the symposium is not on line. Here is a list of the articles:
Minority Participation and the California Recall: Latino, Black, and Asian Voting Trends, 1990-2003
Matt A. Barreto and Ricardo Ramirez

Is the Personal Political? Gender, Sexual Misconduct, and the California Recall
Lisa Garcia Bedolla and Carole J. Uhlaner

Rationalizing the California Recall
Walter J. Stone and Monti Narayan Datta

The Complexity of the California Recall Election
R. Michael Alvarez, Melanie Goodrich, Thad E. Hall, D. Roderick Kiewiet, and Sarah M. Sled

Postponing the California Recall To Protect Voting Rights
Henry E. Brady

More on Kerry home appraisal

Responding to this post linking to a Washington Times article questioning whether John Kerry got a fair appraisal for the market value of his house used to make a campaign loan, a Kerry supporter pointed me to a February 26, 2004 Boston Globe article, Glen Johnson, "3 Boston Brokers See a Fair Appraisal," Feb. 26, 2004, at A20. The article is no longer free on the newspaper's website, but those with Lexis access can find it here. It begins: "The home appraisal that allowed John F. Kerry to make a much-needed $6.4 million loan to his presidential campaign set an aggressive but not unreasonable value for the property, given the exclusiveness of his Beacon Hill neighborhood and the distinct nature of his townhouse, three high-end Boston real estate brokers said yesterday."

"Now the Money Race Begins"

The Christian Science Monitor offers this commentary.

"Bush Plans Ad Campaign Using 9/11 Imagery"

The Washington Post offers this report.

"FEC Audit Shows Crane Did Not Disclose Key Information"

The Hill offers this report.

"Hearings, Please"

Roll Call offers this editorial, which begins: "Last July, Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) launched their latest salvo in the campaign reform wars in the form of legislation calling for replacement of the Federal Election Commission, which Feingold lampooned as “the Failure to Enforce Commission.” Over the years, we’ve been critical of the FEC, too, but before replacing it we’d like to see full hearings on the McCain-Feingold proposal. Not one has been held or even scheduled."

Moveon.Org 527 Anti-Bush Ads to Run

See this A.P. report.

"GOP Fund-Raiser May Have Broken Law"

The Dallas Morning News offers this report (free registration required), with the following subhead: "Grand jury investigates; Republicans say use of corporate money legal."

"In Money Race, Bush Carries Big Advantage"

The Boston Globe offers this report.

A.P. Update on E-Voting Issues

See here.

Should the FEC's Rulemaking Go Into Effect for this Election Cycle?

I have now had a chance to give an initial read through the FEC General Counsel's draft proposed rulemaking which will be considered initially by the FEC on Thursday. The FEC's decision on Thursday won't mean much; right now all we are talking about is an initial publication of the proposed rules with an invitation for comments. The real action will come when the FEC holds its April hearings and issues its final rules, scheduled for May.

It may be that there is no majority on the FEC to agree on the appropriate rules. It is certainly possible that the FEC could deadlock 3-3 on some or most of these issues. But it is also possible that a majority will craft some sort of compromise.

The draft raises literally dozens of questions for comment, but perhaps the most important one appears on page 6:

[T]he Commission seeks comment on whether the effective date of any final rules that the Commission may adopt should be delayed until after the next general election and whether there is a legal basis for delaying the effective date. The Commission also seeks comment on whether changing the definition of basic terms such as "political committee," "expenditure," and "contribution," in the middle of an election year would cause undue disruption to the regulated community.

If the FEC acts and changes the rules of the game in June, there is potential for serious disruption. But I would predict that if the FEC acts, the rules could change yet again in this election season, because the FEC's rules could themselves be struck down as unconstitutional if challenged in court. As I have discussed here and on the blog, there are serious constitutional questions raised by treating 527s that make only independent expenditures as political committees and therefore subject to the FECA's $5,000 individual contribution limit.

These challenges would all have to take place right during the period when the 527 organizations want to engage in the activity, so everything would have to be on an expedited schedule.

It may be that a majority of commissioners believe that it is important enough on policy grounds that 527 organizations be regulated this election cycle. But in considering the balance with disruption, they should also consider the serious possibility that whatever change they make could become subject to immediate challenge and engender great uncertainty.

"Technical Problems Reported in E-Voting"

A.P. offers this report.

"Chads Out, But Controversy Remains"

The Los Angeles Times offers this report, with the subhead: "An electronic ballot awaits 43% of the state's registered voters today. Some experts worry."

"Campaign Finance: The Sequel"

The Wall Street Journal offers this report, with the following subhead: "Election Panel Tackles Job Of Regulating Groups Spawned In McCain-Feingold Law's Wake." Thanks to Steven Sholk for the link.

Bob Bauer has provided more analysis of the proposed rulemaking here.

As I understand the timing of events from what I've heard, the FEC will vote Thursday on whether to send out the Notice of Proposed Rulemaking. At that point, it will likely be inundated with comments. A hearing is then set for April 14-15, with a final rule due May 13 (with a 30 day period for Congress to act before the law can go into effect).

This means that the earliest that the rules can go into effect is mid-June, assuming (a big assumption) that a majority of the commissioners can actually agree on rules to vote for. By mid-June, a lot of the action will be over that the Democratic-leaning 527s care about. I assume that Bush will have spent much of his $100 million+ beating up on John Kerry (or whoever else looks likely to get the nomination), and that the 527s will spend whatever amount they have (but likely to be considerably less than $100 million) beating up on Bush. Once the Democratic convention begins over the summer, Kerry gets a large pot of public financing money to use.

So how much will the FEC rulemaking matter for this presidential election? Maybe not as much as initially appeared.
UPDATE: Beth Kingsley sent the following reactions to the election-law listserv:

I believe that's 30 legislative days before FEC regs can take effect, which bear little resemblance to "days" in the lives of ordinary humans. So technically the effective date might be much later. Though with pending final regs., and depending on what they say, some organizations may feel the need to conform their behavior to the new rules that are about to kick in. In fact, as I understand it, some of the transition rules provided in the draft require repayment of nonfederal funds with federal funds after an organization triggers PAC status. So rules that go into effect late summer may reach back and have an effect on spending that occured in the spring. And of course, there are some people arguing that new rules aren't needed and these new 527s are already breaking the law as it stands.

Also, my assumption had been that Bush would do most of his "primary" spending in July/August, after the Dem. and before the Republican convention. That way he gets to spend huge amounts that Kerry (presumably Kerry) can only counter by using up his general election pot of money, which Bush won't have to touch until some time in September. As a result, that may be the period when 527 spending on the other side may be most needed. In any case, it will be interesting to see how it plays out.

You might think about the observation you made just now on the timing of the rule i.e. too late to do much harm. It is one I've heard from several people, but it doesn't square with what the "shadow" party groups (I hate that term, but everyone is using it) say they want to do. Many of the groups talk alot about their plans for the "ground war" - Voter ID, registration and GOTV, as much or more than they talk about advertising. Those are things groups do in the Fall, not so much in June.

Limiting Contributions to Gov. Rowland's Legal Defense Fund

The Hartford Courant offers Donations Bill Proposed, which begins: "State lawmakers are considering a bill that would both limit contributions to Gov. John G. Rowland's legal defense fund to $100 per person and require the governor to divulge the name of every donor. The way the fund is currently set up, donations are made anonymously and the cap on contributions is considerably higher: $2,500 per person. " Thanks to Shannon Mader for the pointer.

"FEC Challenges Reform Leaders' Standing in Suit"

Roll Call offers this article. (Paid subscription required.)

"Kerry Loan to Campaign Questioned"

The Washington Times offers this report, which begins: " Sen. John Kerry was asked yesterday to make public all documents involving the emergency $6.4 million bank loan he secured on his Boston town house late last year to finance his then-sagging presidential campaign.
At issue is the Mellon Bank's $12.8 million appraisal of Mr. Kerry's house on Boston's Beacon Hill — substantially higher than the city's $6.95 million property-value assessment. That has raised questions from the Massachusetts Democrat's critics about whether he has loaned far more to his campaign than his assets justified and thus violated, or at least stretched, campaign-finance laws."

"A Sign of the Political Times"

See this Palm Beach Post editorial on anonymous campaign mailings.

"Did Your Vote Count? New Coded Ballots May Prove that It Did"

The New York Times offers this report.

"FEC to Consider 'Soft Money' Curbs"

The Washington Post offers this report. See also Wraps Off Tough FEC 527 Options in The Hill.

"So Far, So Good on Campaign Finance Reform"

Tom Mann and Norm Ornstein offer this Washington Post oped.

Draft Notice of Proposed Rulemaking on 527 Issue

Today the FEC posted this draft proposed rulemaking on the 527 issue. This document is essentially what the general counsel believes should be the starting point for rulemaking, subject to notice and comment by others and ultimate decision by the six FEC commissioners.

I have not had a chance to even print the document yet, so analysis will have to come later. You can find some preliminary analysis by Bob Bauer here. In somewhat related news, Americans Coming Together has withdrawn its request for an advisory opinion on its activities. (Thanks to Marty Lederman and others for pointers to these materials.)

"FEC Wants Campaign finance Suit Dismissed"

The A.P. story is here. The McCain and Feingold amicus brief supporting Shays and Meehan is here. UPDATE: The plaintiffs' brief is here and the FEC's brief is here.

"Girding for Another 'Bush v. Gore'"

Legal Times offers this report, which has the following subhead: "With Nader's decision to run adding urgency, the parties are mobilizing in the event of a November electoral showdown."

"This Time, Ralph's Run Doesn't Make Much Sense"

Micah Sifry offers this analysis in the Washington Post. He also has an analysis here in Mother Jones.

"Split on Policy But United on Process When It Comes to 527s"

FEC Chair Brad Smith and Vice Chair Ellen Weintraub offer this Roll Call oped (paid subscription required). (Update: you can find the entire oped posted here by the Campaign Legal Center.)
From the oped:

The commission is about to begin a rulemaking in which we will consider whether the Supreme Court’s McConnell decision leads us to rethink our regulations governing political committees. For practical reasons, a rulemaking is better suited for consideration of these fundamental questions. The commission may consider the universe of available options for policy-making, unrestricted by the limited facts (or particular agenda) raised by the requester of a particular Advisory Opinion.

The commission can receive comments, hold hearings to take oral testimony and probe the views of witnesses. This rulemaking will permit the commission to consider carefully the scope of options available under our act, the ramifications of a change in its approach, and the conforming revisions necessary to other parts of our regulations. The two of us may or may not end up agreeing on the content of the resulting regulations, but we do agree on the process.

"Republican 527s Lack Energy"

Roll Call offers this report (paid subscription required). The paper also offers FEC Recusals Irk Watchdogs.

"Legislators Musn't Pass Primary Buck"

The Seattle Post-Intelligencer offers this editorial.

"New Process May Complicate Voting"

See this report on new HAVA-related identification requirements.

527s Battle in Ohio Battleground

See In Ohio, The War Has Already Begun at Salon.

"Does campaign finance reform level field, or confuse it?"

Adam C. Smith offers this column in the St. Petersburg (Fla) Times, which has the subhead: "The rationale behind the restrictions was to limit the influence of big donors. But state and local parties may be caught in the cross-fire."

Oped on electronic voting

Adam Cohen offers The Results are In: And the Winner Is...Or Maybe Not in yesterday's New York Times.

"Extreme Gerrymandering"

These two letters ran in yesterday's New York Times.

"Democrats Scale Back Ambitions for the House"

Yesterday's New York Times offered this report, which includes the following:

One major reason Democrats are pessimistic about taking back the House can be found in Texas. In redrawing the boundaries of Congressional districts last year in favor of Republicans, the Texas Legislature built a fire wall against potential losses elsewhere in the country. The formerly Democratic-dominated House delegation from Texas is now evenly divided, with 16 members of each party, and Republicans say they hope to end up with a minimum of 20 seats. That number, they say, would better reflect the state's political bent.

The new lines have already persuaded one Texas Democrat to switch parties and created one district where Democrats are not even fielding a candidate. "We've already picked up two seats and we haven't even had an election," observed Tom DeLay of Texas, the House majority leader, who was a main architect of the redistricting.