Latest Shays Opinion

The D.C. Circuit just handed down its latest opinion in the Shays litigation.   The opinion discusses a number of issues, including the coordination standard, the FEC’s definition of GOTV, and the so-called carve out for candidate appearances at state and local party events (not so much of a carve out after all, it looks like).  It looks like the firewall safe harbor survives.  But add a few more regulations projects on to the list of what the newly-constituted FEC must tackle.  And a few more headaches for campaigns and parties (and perhaps other groups) planning to conduct voter outreach programs under a set of rules that today’s opinion seemingly casts asunder.

UPDATE:   In rejecting the 90/120 day windows in the coordination rule, the opinion concludes:

Under the present rules, any lawyer worth her salt, if asked by an organization how to influence a federal candidate’s election, would undoubtedly point to the possibility of coordinating pre-window expenditures. The FEC’s claim that no one will take advantage of the enormous loophole it has created ignores both history and human nature.

The opinion rejected regulations defining get out the vote activity and voter registration.

The FEC’s restrictive definitions of GOTV activity and voter registration activity run directly counter to BCRA’s purpose, and the Commission has provided no persuasive justification for them.

Regarding the FEC’s regualtion on federal candidate appearances at state and local party fundraisers, the opinion rejected the FEC’s rationale:

In our view, the regulation fails because it allows what BCRA directly prohibits.

UPDATE:  I may have been too eager to deem the case “Shays IV.”  The CLC discusses the case here.

Indiana Supreme Court to Hear Robocall Case

Campaigns & Elections reports that on Monday the Indiana Supreme Court will hear an important case involving restrictions on robocalls and automated dialing systems. 

The state parties have retained well-known First Amendment lawyer James Bopp, who filed an amicus brief in support of American Family Voices. Bopp claims the attorney general is going beyond the scope of the statute in applying the law to political calls. His interpretation is that the law only bans commercial calls.

“If you apply this statute to political calls,” Bopp says, “it severely limits the use of this technology and it hurts the ability of campaigns to communicate. That violates the First Amendment.”

The statute in question harkens back 20 years, and it took some research on the part of the state attorney general’s office to realize it was even on the books. After Indiana passed one of the toughest commercial do-not-call laws in the nation back in 2001, [AG Steve] Carter says his office was flooded with requests to do away with political calls. That was when Carter found the 1988 law banning auto calls, and he put the state parties on notice before the 2006 election cycle that he intended to enforce it. And, for the most part, the threat of enforcement has worked.  

Shaun’s site (The National Political Do Not Contact Registry) has more on the case.

S. 3123, A Bill to Amend the Foreign Agents Registration Act

The bill discusssed in yesterday’s Times amending the Foreign Agents Registration Act is apparently S. 3123.  I cannot locate the text online but Thomas should have it shortly.  The description on Thomas reads:  “A bill to require lobbyists who represent foreign politicians or political parties and foreign entities to register under Foreign Agents Registration Act of 1938.”  Until the text is available, it is not certain if the other provision (dealing with foreign-owned companies) mentioned in yesterday’s article is in the proposed law.  The bill was introduced by Senator Schumer with Senators McCaskill and Obama as cosponsors.

UPDATE:  Here is a link to the main THOMAS site if the above link does not work.  From the main site, enter “S.3123” and click the search by bill number option.  The text is still not available as of this writing, however.