Unity '08 Wins Very Valuable Decision on Campaign Finance

Posted on by March 2, 2010
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On March 2, the U.S. Court of Appeals, D.C. Circuit, ruled that the Federal Election Commission’s 2006 decision, limiting the amount of money individuals may donate to a new political party that is not yet an FEC-recognized “national committee”, was erroneous. The FEC had ruled that individuals may only contribute $5,000 to new political parties that intend to run a candidate for President. Here is the 14-page opinion.

The FEC ruling was catastrophic for any new political parties that may come into existence in the future. Ross Perot founded the Reform Party in the autumn of 1995, and he spend lavishly for petition drives to get the Reform Party on the ballot. If the 2006 FEC ruling had not been reversed, that kind of activity would not have been legal in the future.

The McCain-Feingold law of 2002 limits an individual contribution to an already-established nationally-organized political party to approximately $29,000. That amount is indexed for inflation. The McCain-Feingold limit only applies to parties that are recognized as “national committees”. The FEC won’t recognize a party as a “national committee” until after it has run a presidential nominee and at least a dozen or so congressional candidates. The McCain-Feingold law doesn’t limit individual contributions to a new political party that isn’t yet a “national committee.” The FEC had classed Unity ’08 as a “political committee”, but the opinion says a “political committee” is a group that is supporting a particular candidate for federal office. Unity ’08 never had any nominees. Similarly, the Reform Party, when it was launched in 1995, didn’t have any nominees, and the FEC had never considered the Reform Party to be a “political committee”, fortunately for the Reform Party.

Six Organizations File Amicus Brief in U.S. Supreme Court in Case on Petitioning at the Polls

Posted on by March 2, 2010
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Petitioning at the polls is an excellent technique for any group that is trying to get signatures on petitions. Virtually everyone at that location is a registered voter. The U.S. Supreme Court is being asked to hear a case involving petitioning at the polls, Citizens for Police Accountability Political Committee v Browning, 09-861.

Florida says exit pollsters may station themselves 25 feet from the entrance to polling places, but petitioners must be at least 100 feet away. The case involves whether Florida can discriminate in favor of exit pollsters, and against petitioners. Both groups only want to talk to people on their way out of voting.

Recently, six organizations filed this amicus curiae brief, asking the Court to hear the case. The organizations are: The Marion B. Brechner First Amendment Project (part of the School of Journalism at the University of Florida); the Rutherford Institute; National Voter Outreach; The Initiative & Referendum Institute; Citizens in Charge Foundation; and the Brechner Center for Freedom of Information.

As noted before, the U.S. Supreme Court has asked Florida to file a response, so the Court is somewhat interested in this case. Florida’s response is due March 19. Florida’s government refused consent for the amicus brief to be filed, so the organizations are asking the U.S. Supreme Court for permission to file their brief. Florida’s refusal to grant consent is unusual; typically both sides give consent for other groups to file amici briefs.

Oklahoma Ballot Access Bill in the Hands of 7 State Senators and 21 Representatives

Posted on by March 2, 2010
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Oklahoma HB 1072, the bill to improve ballot access for minor and new parties, is in a conference committee, which will shape the final bill.

The Senators on the Committee are: Randy Brogdon, Sean Burrage, Mike Johnson, Todd Lamb, Bryce Marlatt, Jim Reynolds, and Mike Schulz. All except Burrage are Republicans.

The Representatives are: John Auffet, Neil Brannon, John Carey, Marian Cooksey, Doug Cox, Lee Denney, Dale DeWitt, Glenn Dorman, Jeff Hickman, Chuck Hoskin, Mike Jackson, Tad Jones, Guy Liebmann, Scott Martin, Steve Martin, Ken Miller, Danny Morgan, Ron Peters, Randy Terrill, Weldon Watson, and Paul Wesselhoft.

Law Professor Mark Brown Article Explains U.S. Constitutional Requirements that Only State Legislatures Can Write Ballot Access Laws

Posted on by March 2, 2010
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Law Professor Mark R. Brown of Capital University, Columbus, Ohio, has this article in Volume 7 of the Dartmouth Law Journal, on page 260. The title is “Structural Limitations on the Non-Legislative Regulation of Federal Elections.”

Generally, when the U.S. Constitution talks about state government, it uses the simple term “state”. But in the parts of the U.S. Constitution that talk about federal elections, it uses the term “legislature”, saying that only legislatures (not “states”) can write laws on selection of presidential electors, and election of members of Congress. This characteristic of the U.S. Constitution was not thought about very much, in recent times, until the 2000 election. Three justices of the U.S. Supreme Court said in their concurrences in Bush v Gore that the Florida Supreme Court was overstepping its authority by seeming to issue rules for counting the presidential vote that, arguably, the legislature had not approved. Professor Brown discusses the consequences for ballot access laws, in states in which state executive officers (such as the Secretary of State) have tried to fill in the gaps, or alter, ballot access laws passed by the legislature. Brown has represented either the Socialist Party or the Libertarian Party, or both of them, in ballot access lawsuits in Ohio, Louisiana, and Mississippi, and he is probably the leading thinker on this aspect of the U.S. Constitution and election law.