The Federal Election Commission (FEC) will allow hearings for those accused of federal election law violations. According to CQ Politics;

The decision, which makes permanent a pilot hearing program that began in February, is an attempt to make the enforcement process more transparent and participatory. For the first time, candidates and other political groups and operatives will have the opportunity to argue their case directly before the commissioners. It will create what Commissioner Ellen Weintraub, whose office shepherded through the rule change, called "a dialogue." And it's what election lawyers and those regulated by the FEC have been calling for years.

Meanwhile, the Washington Post reports on the FEC nominees that are still in limbo. These conflicting blog posts discuss the ramifications here and here.

On October 18, Senators Charles Schumer (D-NY), Arlen Specter (R-PA), Thad Cochran (R-MS), and Tom Harkin (D-IA) introduced SJR 21, a proposed Constitutional amendment that would overturn the 1976 Supreme Court opinion in Buckley v. Valeo. The proposed amendment states, "Congress shall have power to regulate the raising and spending of money, including through setting limits, for campaigns for nomination for election to, or for election to, Federal office."

The Center for Competitive Politics refers to the resolution as the "anti-first amendment resolution," for allowing "further regulation of political speech by imposing restrictions on campaign spending."

Politico reports, "[t]he senators did not offer any plans for a new campaign finance system, but instead voiced their disapproval of the current, increasingly arcane regulatory scheme. . . . All in all, a real long shot."

Don't miss this hilarious video clip of Stephen Colbert doing a spoof of the Federal Election Campaign Act's (FECA) application to his campaign for presidency. He has signed papers to get on the Democratic and Republican primary ballots in South Carolina. Now many are asking whether Colbert risks violating election law with the show promoting the campaign. What would happen to the show as the election nears? Faced with a similar situation earlier this year, NBC decided to stop airing Law & Order reruns featuring Fred Thompson.

Bob Bauer at moresoftmoneyhardlaw.com describes Colbert's candidacy as it relates to campaign finance restrictions.

The split screen he used to make the point is about as good a jab at the inner contradictions and porous boundaries of the law as any found in standard anti-reform critiques. It might end here, or it might go farther. It appears that Colbert will flirt with violating the law, or build a piece or two around the flirtation, but since he has hired Wiley Rein, he seems also prepared to keep to the legal side of the line—mostly. If he just walks the line from time to time—as visible as the line can be—regulators will have little appetite for challenging Colbert.

Colbert's first-line of defense is to establish that his show is a news show, entitled to the protections of the "media exemption." Assuming that he is successful there—as he would be, most likely— then the question is whether his hosting of the show as a candidate presents any special issues, now and perhaps under the electioneering communication prohibition, effective within the 30 day period prior to the South Carolina primary.

BNA Money and Politics ($$) reports that the Federal Election Commission (FEC) "hopes to approve 'within the next couple of weeks' a final regulation governing corporate and union funding of political advertising in line with the Supreme Court's decision in FEC v. Wisconsin Right to Life Inc. (WRTL)." It has not been decided if the regulation would be considered at an FEC open meeting or circulated in writing for commissioners to approve. Unfortunately, given the early primary season approaching, this time constraint should not produce a regulation considered hastily. For example, in Iowa the period that restricts ads related to the Republican presidential race begins Dec. 5. "Although there is no public comment period required for a final rule, its effective date will have to be delayed for a congressional review period, the chairman noted."

Svoboda [. . . ] told the FEC commissioners that preserving disclosure of those who fund ads referring to candidates was important to his clients at the DCCC--incumbent House members and challengers running for election. He said the candidates have an "urgent" political need to know who is funding ads in their races so that they effectively respond to such ads. Svoboda was challenged by the two Republican commissioners on the FEC, Mason and Hans von Spakovsky, who asked about the constitutional basis for requiring disclosure. Svoboda acknowledged that the courts have not yet established a clear standard in this area and indicated that an rule requiring disclosure based on the right of candidates and the public to know the identity of those paying for ads was likely to be challenged.

The Federal Election Commission (FEC) hearing on the electioneering communication rulemaking continued today. BNA Money and Politics ($$) reports that yesterday attorney James Bopp told the commissioners "they should exempt grass roots lobbying ads from regulatory requirements, including disclosure of who finances the ads. He also called on the FEC to repeal its current rule defining express advocacy, which he said was vague and inconsistent with the Supreme Court's decision in WRTL."

Jan Baran, representing the U.S. Chamber of Commerce, and Laurence Gold, Representing the AFL-CIO, said that the FEC should not require disclosure of funding for ads dealing with policy issues and should take the opportunity to repeal a provision of its regulations--11 CFR Section 100.22(b)--which says that express advocacy that does not rely entirely on use of certain "magic words" relating directly to elections. . . . Gold hinted that the federation might accept a rule that did not require the name of every dues-paying member of a union to be listed in an FEC report.

Today the Federal Election Commission (FEC) began its two day public hearing on the proposed electioneering communications rulemaking. Commissioner Ellen Weintraub's opening statement notes the questions that will challenge the FEC, looking for answers from the witnesses. The FEC hopes to have a complete rule by the end of November.

CQ Politics covered the story here. This article also picked up on a point that OMB Watched addressed in our comments; "Similar provisions to document grass-roots lobbying were proposed during debate of the recently passed lobbying disclosure bill but were voted down." Kay Guinane, director of nonprofit speech rights was quoted in the article.

But while many advocates from campaign finance watchdog groups are asking the FEC for more disclosure, at least one is advocating the exact opposite. Kay Guinane, director of nonprofit speech rights for OMB Watch, said she is against disclosure and other restrictions because it could infringe on First Amendment issues. "If you have to risk an FEC investigation when you put out your grass-roots lobbying message, you might think twice about doing it, and that would be a loss in terms to the quality of public dialog on legislation and public policy issues," she said.

The Federal Election Commission (FEC) will hold a hearing spanning two days and hear from 15 witnesses as part of a rulemaking to incorporate the Supreme Court's recent decision in Wisconsin Right to Life v. FEC. The FEC announced the agenda for the hearing yesterday. On Oct. 17-18 the FEC will consider the notice outlining a proposed rulemaking issued in August which put forth two alternatives to interpret the Court's decision. OMB Watch submitted comments, and for more information, see this article from the latest Watcher.

During the hearing, some witnesses will be calling on the FEC to not require disclosure of those who fund the ads and will hear from those who want the disclosure requirement left intact. For a list of those who will be testifying, see the FEC agenda.

Democracy 21 President Fred Wertheimer has asked the Federal Election Commission (FEC) to issue a clear notice so that 527 groups understand that the organization and its funders could face penalties in the future. The message from the FEC has been that the recent settlements will provide sufficient guidance to others thinking of carrying out similar activities in the future.

The Democracy 21 letter states; "We strongly urge the FEC to issue a Statement of Policy that provides clear notice that 527 groups that engage in the kind of illegal activities the FEC found to have occurred in the 2004 election, and the individuals who organize and manage these groups, including major donors who play such a role, will face substantial penalties, commensurate with the size of the violations, and that such violations face being treated by the FEC as 'knowing and willful' violations."

According to BNA Money and Politics ($$), the Wisconsin Right to Life (WRTL) case has been refered to in ongoing litigation challenging a regulation that the FEC has relied upon in its settlements with Section 527 groups. The rule says the FEC can regulate organizations if they solicit money based on an appeal to support or oppose particular federal candidates, and groups with a federal political action committee (PAC) must finance their activities with at least 50 percent FEC-regulated "hard money." The rule was challenged by Emily's List, a federal PAC that also has a 527 geared towards state and local elections. In recent court filings, Emily's List attorney said the WRTL ruling prevents the FEC from regulating the organization's state and local activities just because its messages included references to federal candidates.

A filing by the FEC said the commission has wide latitude to regulate organizations involved in federal elections and that the WRTL case had nothing to do with Emily's List. The Supreme Court ruling involved corporate and labor union funding of "grass roots lobbying" messages that referred to candidates but were intended to influence legislation or policy, not elections.

Last week the Washington State Supreme Court ruled in a 5-4 decision that a state law intended to punish political candidates for false advertising is an unconstitutional infringement on free speech. The Seattle Post-Intelligencer reported; "the majority said that under that ruling, only defamatory statements are not constitutionally protected speech, and that the new law did not require proof of the defamatory nature of the prohibited statements. Thus, the current law 'extends to protected political speech and strict scrutiny must apply.'"

BNA Money and Politics ($$) reported on a Heritage Foundation event that focused on the Federal Election Commission's (FEC) proposed electioneering communication rulemaking and the Wisconsin Right to Life Supreme Court ruling. "The June Supreme Court decision that struck down restrictions on corporate and labor union funding of political advertisements said nothing about disclosure of who is paying for ads, but disclosure is shaping up as the key question confronting the Federal Election Commission in the wake of the Court's ruling, according to experts debating the issue at an Oct. 4 roundtable discussion." One of the alternative proposals the FEC put forth would remove the disclosure requirements for exempt ads, which OMB Watch supports. However, some say that because the Supreme Court did not address the disclosure issue, the FEC should not either.

Click here to see all of the comments the FEC received.

Roll Call ($$) reports that Senator Barack Obama (D-Ill.) "derailed a plan blessed by Senate leaders to vote on controversial Federal Election Commission White House nominee Hans von Spakovsky, a move giving Democrats time to breathe in the ongoing Senate stalemate on FEC nominees." Senate Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY) agreed to a deal that included having a voice vote on the commission nominees only if no Senators objected to von Spakovsky's nomination. However, Obama and others expressed concern that von Spakovsky's nomination was too controversial and should therefore go through regular proceedings. The latest news is that there still is no agreement regarding an individual vote for von Spakovsky. If he is not confirmed the other three FEC nominees would remain pending, but if von Spakovsky is confirmed, the Senate would then vote on the remaining nominees. The Hill reports that "Von Spakovsky's opponents agreed to the deal because it would allow senators to vote against his appointment while voting in favor of the other nominees."

This comes as organizations continue to pressure Congress to oppose von Spakovsky. Read letters from the Campaign Legal Center, the Brennan Center, and the Lawyers Committee for Civil Rights Under, and Public Citizen. Click here to read the letter from the Campaign Legal Center, Common Cause, Democracy 21, the League of Women Voters, Public Citizen and U.S. PIRG urging that there are separate votes on the nominees.

Comments were due yesterday (Oct.1) on the Federal Election Commission's (FEC) proposed rulemaking to make its regulations consistent with the U.S. Supreme Court decision in FEC v. Wisconsin Right to Life. An FEC hearing on proposed rulemaking is scheduled for Oct. 17, with the goal of having a final regulation in place by the end of the year. BNA Money and Politics ($$) reports that the comments focused on the main difference between the two alternatives the FEC proposed, whether to require disclosure of the funding sources for the exempt grassroots lobbying ads.

James Bopp, the attorney who represented WRTL before the Supreme Court, filed comments with the FEC arguing that the logic of the Court's decision was to exempt all grass-roots lobbying messages from BCRA's requirements, including reporting requirements. But, other comments called on the FEC to leave in place its existing rules on disclosure and express advocacy, while implementing the WRTL decision with a narrow exception regarding funding sources.

OMB Watch submitted comments opposing the reporting requirement (alternative 1) for being inconsistent with the Supreme Court ruling.

The OMB Watch comments also addressed the FEC question regarding proposed safe harbors. "The proposed general rule would exempt communications that are 'susceptible of a reasonable interpretation other than as an appeal to vote for or against a clearly identified Federal candidate.' We do not believe this is the best approach, since the proposed general rule is too vague, and the proposed safe harbors are overly restrictive. In the absence of concrete guidance in regulations, safe harbors have a tendency to become de facto rules.

For more information on the FEC proposed rulemaking, click here.

In July we reported that the Congressional Management Foundation (CMF) is working on a project to attempt to solve a problem facing Members and their staff, excessive amounts of e-mail that often causes their systems to crash. Congressional staffers are frustrated with the amount of email while advocates are upset and worried that the correspondence they send to Members might not be getting any attention. Participants in online action campaigns often rely on organizations to research the issues, track legislation, and write correspondence, making participating quick and easy.

CMF hosted a forum bringing together advocacy groups and congressional offices. The forum will result in a report with recommendations for Congressional offices and advice to advocacy groups and vendors trying to get messages to Congress.

Technical barriers such as logic puzzles, misperceptions that vendors send out spam, confusing user experiences and a lack of universal standards (keep in mind Members' offices basically are 540 small businesses) contribute to the problem, according to Mike Panetta, assistant vice president of public affairs and emerging media for the consultant group Grassroots Enterprise. "It's an arms race," said Panetta, also D.C.'s shadow representative. "And at the end of the day, an arms race really hurts the people."