RETURN OF THE SPEECH POLICE: 2012 It was the IRS. This Election? Watch the DOJPosted: June 9, 2015
You won’t read much about it in the Beltway press corps, but a behind-the-scenes effort is under way to lobby the Federal Election Commission and Justice Department to stifle free political speech the way the Internal Revenue Service did in 2012. Don’t be surprised if the subpoenas hit Republican candidates at crucial political moments.
“Justice’s involvement elbows in on the regulatory province of the FEC, an agency explicitly designed with a 3-3 partisan split to prevent it from being co-opted by one party. And that’s the point. Democracy 21 says it is lobbying Justice because the FEC has become ‘dysfunctional.'”
In late May the Campaign Legal Center and Democracy 21 asked the Justice Department to appoint a special counsel to investigate former Florida Governor Jeb Bush and his Right to Rise Super PAC for violating campaign-finance law. According to the letter to Attorney General Loretta Lynch, “If Bush is raising and spending money as a candidate, he is a candidate under the law, whether or not he declares himself to be one.”
“We don’t recall any such cry when the FEC dismissed a similar complaint against the Ready for Hillary PAC regarding an email sent by the independent group to a list-serve provided by Friends of Hillary.”
The theory behind this accusation is campaign “coordination,” the new favorite tool of the anti-speech political left. Earlier this year the Justice Department invited such complaints with a public statement that it would “aggressively pursue coordination offenses at every appropriate opportunity.”
Under federal law, illegal coordination occurs if a campaign expenditure (say, a TV ad) mentions a candidate by name in the 120 days before a presidential primary, or if it advocates for a candidate and if the candidate and Super PAC have coordinated the content of the ad.
“The liberal accusers say Mr. Bush is over the line because the law defines political contributions and expenditures as money spent ‘for the purpose of influencing an election.'”
The liberals claim that a Super PAC raising and spending money in favor of a Bush candidacy should be treated as coordinated expenditures, making them de facto contributions to his campaign. Candidate is the operative word here, a designation that has always been applied to those who announce they are running for public office.
“The problem with that argument is that in Buckley v. Valeo the Supreme Court ruled that the ‘purpose of influencing’ language was unconstitutionally vague unless it refers to advertising that calls for the election or defeat of a candidate.”
Democracy 21 President Fred Wertheimer says Mr. Bush should be considered a candidate who is illegally coordinating because if you asked “100 ordinary Americans” if he is a candidate, they will say yes. What a bracing legal standard. What would the same 100 Americans have said about Hillary Clinton in 2013, or Ted Cruz in high school? Where is the limiting principle?
Under actual law, a politician becomes a candidate for federal office when he declares he is, and when he has raised or spent more than $5,000 on the candidacy. Once a candidate declares, he must abide by federal contribution limits of $2,700 each for the primary and general elections ($5,400 per donor per election cycle) and report contributors to the FEC. Candidates considering a run must also abide by the contribution limits to fund specific “testing the waters” activities like taking a poll, but they needn’t disclose donors or expenditures until they make it official.
The liberal accusers say Mr. Bush is over the line because the law defines political contributions and expenditures as money spent “for the purpose of influencing an election.” The problem with that argument is that in Buckley v. Valeo the Supreme Court ruled that the “purpose of influencing” language was unconstitutionally vague unless it refers to advertising that calls for the election or defeat of a candidate…..(read more)