Monthly Archives: March 2006

Amicus Letter in Monterey Initiative Case

I have written this letter supporting the emergency motion of plaintiffs-appellants in the Monterey initiative cases to get a stay. I wrote this pro bono on my own behalf—not for any client.
A snippet from the letter:

    Regardless of how this court ultimately resolves the application of section 203 to initiative petitions, the equities merit a stay of the district court’s order. There are strong reliance interests at stake for those who have participated in the initiative and recall processes: think of the many signature gatherers and proponents who have invested and are investing substantial time and money to qualify these measures. But beyond that, even initiative proponents who would wish to comply with section 203 cannot do so under existing state law. (See footnote 1, supra.) If section 203 ultimately is going to apply to initiative petitions, this court should give time for California authorities to rewrite their laws so as to accommodate multi-lingual petition requirements.
    As this court’s experience with the California recall illustrates, delaying an election is serious business when there are significant reliance interests at stake. Shelley, supra, 344 F.3d at 919 (“If the recall election scheduled for October 7, 2003, is enjoined, it is certain that the state of California and its citizens will suffer material hardship by virtue of the enormous resources already invested in reliance on the election’s proceeding on the announced date.”). This court should follow the path taken by a federal district court in Florida facing a similar claim under section 203. In United States v. Metropolitan Dade County, Florida, 815 F. Supp. 1475 (S.D. Fla. 1993), the court found that despite the county’s failure to provide a voter information pamphlet in multiple languages as required by 203, it should not enjoin or postpone the upcoming election. “Where an impending election is imminent and the election machinery is already in progress, a Court may take into account equitable considerations when prescribing appropriate relief.” Id. at 1478-79; see also Motion at 12-13.
    Finally, granting the stay pending appeal will not infringe on the voting rights of groups protected by section 203. As I noted in my Los Angeles Times oped, “The petitions serve merely to qualify initiative or recall questions for the ballot. Once those measures are on the ballot, then all voters in the jurisdiction get to vote and are entitled to relevant ballot materials in all languages required by the Voting Rights Act.”

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“Candidate Told to Alter Ballot Claim”

The LA Times offers this report, which begins: “A candidate for Orange County sheriff must remove a sentence from his ballot statement that describes the term of the incumbent, Michael S. Carona, as a ‘failure’ marked by ‘scandal after scandal,’ a judge ordered Thursday. Superior Court Judge Steven Perk ruled that the 19-word sentence in Sheriff’s Lt. Bill Hunt’s campaign statement violated the state election code, which restricts statements to a candidate’s qualifications and plans if elected. Personal attacks on an opponent are not allowed.”

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Profile of D.C. Lawyer Michael Berman in LA Times

[NOTE: CORRECTED POST] This profile of DC lawyer Michael Berman appears in the LA Times. It begins: “Michael Berman is a Democratic loyalist and lawyer who has helped organize 10 presidential nominating conventions, worked on 11 presidential campaigns and served two presidents. He is also a man known to eat an entire salami, 2 pounds of chocolate or a 40-ounce steak in a single sitting. Once during a starvation diet in a hospital, he hallucinated cheeseburgers. He has weighed as much as 337 pounds.” “His just-released book, ‘Living Large: A Big Man’s Ideas on Weight, Success and Acceptance,’ is a revealing memoir about being fat in the image-conscious business of politics.”
NOTE: An earlier version of this post incorrectly confused D.C.’s Michael Berman with Rep. Howard Berman’s brother, Michael Berman, a democratic strategist in California. I regret the error.

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“The Republican Flip-Flop on Campaign-Finance Reform”

Bryon York has this piece in National Review. It ends: “These days, however, Republicans seem more than willing to shut down the 527s. In the end, it is impossible to say whether 527 regulation would hurt or benefit either Democrats or Republicans. But it is possible to say that it would be yet another step in the wrong direction for political speech. ‘We are on the road to serfdom in American politics with campaign-finance reform,’ says Mike Pence. ‘We are eventually going to end up on the doorstep of George Soros’s house, telling him what he can and cannot say.’ And not just Soros: T. Boone Pickens and Bob Perry, too. Republicans and Democrats alike.”

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“The Watchdog Awakes”

The NY Times offers this editorial on the FEC internet rulemaking. One part that makes me wonder if the editorial writer understood the scope of protection offered to bloggers: “To the contrary, bloggers have now been assured of the same wide latitude to opine free of government control as newspapers enjoy, so long as they are not paid by a political campaign.” I think that under the rules bloggers can receive all kinds of political payments (such as for “consulting”) from campaigns (which need not be disclosed on the blog) so long as the resulting blog posts don’t constitute “paid advertising” from the campaign.

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“Judge Grants Partial Motion for Summary Judgment in Shays II Case”

So explains the Campaign Legal Center:

    On March 29, 2006, a U.S. District Court Judge issued a 34 page opinion granting in part plaintiffs’ motion for summary judgment in Shays and Meehan v. FEC (D.D.C.). This case was brought in 2004 challenging the FEC’s failure to regulate 527 groups. The found that the FEC had “failed to present a reasoned explanation for its decision that 527 organizations will be more effectively regulated through case-by-case adjudication rather than general rule.” The court also said, “Indeed, judging from the FEC’s track record in the 2004 election, case-by-case adjudication appears to have been a total failure.” The court remanded the case to give the FEC another opportunity to either issue a rule governing 527 organizations or to provide adequate justification and explanation for its failure to issue a rule.

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The opinion is here.
It is not clear to me how significant this is. I believe the FEC is already working on 527 rules. [SEE UPDATE BELOW.] And the court did not require the the FEC actually promulgate such rules:

    Plaintiffs seek an order directing the FEC to promulgate a rule defining the term “political committee” and when a 527 group must register as a political committee. This remedy, however, is reserved for “only the rarest and most compelling of circumstances.” See American Horse Protection Association v. Lyng, 812 F.2d 1, 7 (D.C. Cir. 1987) (quoting WWHT, 656 F.2d at 818). Such circumstances are not present here. Rather, the more appropriate remedy is to remand the case to the agency to explain its decision or institute a new rulemaking. Id.

See also this report in the NY Sun, and these thoughts from Bob Bauer.
UPDATE: A few readers (who have much greater knowledge of the day-to-day business of the FEC than I do) wrote to ask about my statement above that I believe the FEC is working on 527 rules. My memory on this point was faulty. Here is the FEC rulemaking page, and there is not any rulemaking listed there for when 527s should be considered as political committees. I had seemed to recall that when the FEC failed to enact rules for 527s in the summer of 2004, it put this on the agenda to consider after the 2004 elections. But that appears to be wrong.

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