Monthly Archives: June 2011

Colbert’s Knock-Knock Joke

One more.  I can’t resist. Via TPM:

“Knock knock?” Colbert said.

“Who’s there?” asked the crowd.

“Unlimited union and corporate campaign contributions,” Colbert said.

“Unlimited union and corporate campaign contributions who?” the crowd replied, not quite in unison.

“That’s the thing, I don’t think I should have to tell you,” Colbert replied.

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The Bigger Story at Today’s FEC: No New Soft Money Loophole; Jim Bopp, Like Stephen Colbert, Brings Some Unanimity to the FEC

While Stephen Colbert got all the attention at the FEC today (link to commission audio), the more important substantive decision was the unanimous vote of the FEC to prevent the reopening of a soft money loophole in campaign finance law.  It’s not every day (in fact, it’s usually not any day) that the FEC’s actions get praise from Fred Wertheimer.

What happened and why?

Here’s the back story: Jim Bopp announced the formation of a Republican “super PAC”–a political committee which does not make any contributions directly to federal candidates, and which, thanks to recent court and FEC rulings may take unlimited contributions (from individuals, corporations, and labor unions) to be spent on independent ads supporting or opposing federal candidates. What made Bopp’s proposal unique is that he would use Republican officeholders to raise unlimited sums for the Super PAC.  It would not only create a “shadow” Republican party—it would get elected officials back in the business of raising unlimited sums from corporate, union, and wealthy contributors, effectively reversing the “soft money ban” put in place by McCain-Feingold.  Not only did the Supreme Court uphold that ban in McConnell v. FEC (in a portion of the opinion not touched by Citizens United), even Justice Kennedy voted to uphold key parts of the ban on elected officials soliciting unlimited funds to benefit their political parties.

Democratic lawyers, including Marc Elias, in a savvy move, then filed an Advisory Opinion request, asking the FEC to rule on whether such unlimited fundraising is legal, or whether such solicitations need to be within the $5,000 limit for PACs which are not “super-PACs.”  So Elias got the FEC to rule on whether Bopp’s plan is legal.

Today the FEC voted on that advisory opinion request, saying that elected officials may not raise unlimited funds for super-PACs. I have not seen any news reports yet, but Sean Parnell tweets that the Commission, on a 6-0 vote, approved a revised version of Draft A to AO request 2011-12. It’s a good thing too, because it really would have eviscerated the soft money limits.

Why was the FEC vote 6-0, when we’ve been seeing lots of 3-3 FEC deadlocks recently, with the Republican Commissioners refusing, in my view, to fairly enforce the law?

I think Jim Bopp’s proposal was a bridge too far, even for the three FEC Commissioners.  Not only would there have been a public outcry, but I imagine the issue would have ended up in the courts, and created great uncertainty as the 2012 election season gets into full swing.  It reminds me of when Judge Kavanaugh rejected a lawsuit by Bopp seeking to end the soft money limits.  Judge Kavanaugh, no friend of campaign finance regulation, said that the time may come when the Supreme Court would overturn McConnell and hold the soft money limits clearly imposed by Congress as unconstitutional.  But until then he was bound by Congress and the Court.

So the three Republican commissioners deserve great praise today for their vote in this case, but I have low expectations going forward, given the Commissioners’ recent votes in coordination and disclosure cases, as well as their position on the post-Citizens United rulemaking.

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Was I Right After All About Democrats’ Support for Colbert Draft A?/Majority Super PAC Ruling

Following up on this and this, someone at the hearing just emailed me to say that the Democratic Commissioners supported Colbert Draft A as it was, and that the Republican Commissioners were the ones who needed the changes that came in the draft last night.

The revised draft passed.  Sean Parnell further reports a 6-0 vote on the Majority PAC superpac issue.  The soft money loophole sought by Bopp defeated.

More to come.

UPDATE: A source tells me the following about the Colbert draft: Draft A always had the support of 5 commissioners, but there were continuing negotiations over some minor language changes in the final document, including those proposed as part of the amendments that were voted on at the table. Draft A was never a “Democratic” or “Republican” draft.


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A Different View of the Colbert Compromise

A reader writes in to say that I making an unsubstantiated assumption in viewing the original Draft A as the position of the Democratic commissioners.  A fair point:  Both Drafts A and B came from the staff, and so we don’t know exactly who supported and wrote what behind the scenes.  My assumption was based upon the idea that Draft A was less willing to give a broad press exemption than draft B, and therefore more likely to come from the Democratic Commissioners.

Meanwhile, I’m following Ken Vogel’s live tweets of the meeting.

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Breaking News: Stephen Colbert Brings Temporary Bipartisan Harmony to the FEC

An eagle-eyed reader notes a new item posted in connection with tomorrow’s meeting of the FEC: amendments to Draft A of the Colbert advisory opinion, proposed by five of the six commissioners (all besides Republican Commissioner McGahn).  This signals that things will go very smoothly (and I would guess rather quickly) at tomorrow’s FEC meeting.

The draft comes closer to the position of the Democratic Commissioners rather than the Republican Commissioners’ initial position, and it seems to lessen the possibility that the Colbert opinion could have (inadvertently) opened up a wide expansion of the “press exemption” to further undermine campaign finance laws.

Why would the Republican commissioners have agreed to this?  The likely reason, as my tipster suggests and I agree, is the negative publicity that would come to the Republican commissioners had the FEC deadlocked and not issued an AO resolving all of Colbert’s issues.

But don’t worry.  Once the Colbert circus leaves the FEC tomorrow, the agency will go back to its usual partisan deadlocks and Republican Commissioner obstructionism, and be as good as dead.

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Reminder: Supreme Court Term in Review, July 13, UCI Law

[Bumping to the top]

I’ll be moderating this event at UC Irvine on July 13 at noon. The event features an all-star cast: Erwin Chemerinsky, John Eastman, Dahlia Lithwick, Laurie Levenson, and David Savage.

The event is free, but an RSVP is required and space is limited (CLE credit available). The event will also be webcast. I’ll post a link to webcast on my blog the day of the event.

A great excuse to come to beautiful Orange County this summer!

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