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PaperclipPerfector  5mo ago (text post)   27983 thread views

Culture War Roundup for the week of May 27, 2024

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I'm not sure I understand the question? Why would they be impacted by campaign finance laws at all?

While FECA is best-known for its direct contribution limits on candidate-specific communications, much of the point of McCain-Feingold in 2002 was to expand the law's definition of 'electioneering communications' to cover matters that did not target or support a specific politician directly, but also matters like 'issue ads', which focused on topic areas, if usually to highlight a candidate on those matters. In addition to restrictions on when they could run them and how they could fund them, candidates running issues ads (or coordinating with those running issue ads) were required to disclose their participation, known as the "Stand By Your Ad" provision.

This was mostly used where the third-party issue ads explicitly named politicians (such as Citizens United involving a movie about Clinton's history), but the law held a candidate was clearly identified a "specific candidate" where a communication asked to call their representative, even if this resulted in many different 'specific' candidates being involved. And while the Federalist Papers genuinely were more focused on the theoretical foundations, their calls to action and some of the more subtle components would pass this requirement.

The larger length of time between the issuance of the Federalist Papers and the local elections for the convention might have put it outside of the FECA safe harbor timeline, but I'm honestly not sure, and the Stand By Your Ad requirement probably would have applied by its strict text. (In practice, the FEC tends to avoid cases with that clear a First Amendment component, lest they get slapped by SCOTUS again.) And most FECA provisions have a 50k audience requirement and only covered audio and video, which obviously would have been hard to hit in the Founding era.

And, of course, New York law can be much more aggressive than federal law : a New York organization opposing or supporting even specific ballot issues, separate from any specific candidate, must register with the state, report to the state any donations above a certain (low) threshold, and refuse any anonymous contributions. The Federalist Papers would clearly hit that requirement by strict read of the text, though there's both official and unofficial exceptions for organizations whose free speech the ACLU cares about. I think the Federalist Papers could also hit the PAC requirements by a strict read of the text, but I'd have to look through that in more detail to say for sure.

I'm still not really getting it. I was under the impression that the Federalist papers were a series of essays published in newspapers. As far as I know, they weren't ads. Why would they be governed by the rules that apply to modern ads and not the rules that apply to modern newspaper editorials?

...

McCain-Feingold's (and I think NY law) definitions of electioneering communications are not limited to advertisements. Famously so, given that Citizens United revolved around a case where the FEC both prohibited ads for a movie and simply showing that movie.

There are exceptions for contributions (ie costs) by independent news media reporting bonafide news, but the "stand by your ad" rules, reporting provisions, and time provisions do not have such exceptions, and some of the Federalist newspapers probably would fail the modern independence test (if only because almost all newspapers at the Founding Era were tied heavily to local political parties, or were vanity press). In practice, the FEC almost never takes such charges, because at least some would fail Mills (though Mills was about uncoordinated expenditures, and Hamilton was clearly coordinating them), but the strict text would allow them.

Okay, so is the answer to the hypothetical then that yes the Federalist Papers would have been legal but they would have needed to include a "I'm James Madison and I approve this message" style notification?

Okay, so is the answer to the hypothetical then that yes the Federalist Papers would have been legal but they would have needed to include a "I'm James Madison and I approve this message" style notification?

...

Would the pseudonymous Federalist Papers have been legal? ... Pseudonymous? Or reporting requirement? Criminal?

I'm asking you! I sincerely don't have a strong understanding of the operation of the law in this respect and am trying to get my head around it. Have I understood you correctly?

Definitely not legal as pseudonymous pieces; coordinated works are required to disclose, even in newspapers. I'm moderately confident the law would trigger certain reporting requirements in New York, and probably those would be mandated by federal law for Hamilton, possibly some other writers. Not sure on the journals themselves; we have mixed information on what extent they were bonafide publishers or party outfits.

... by the text of the statutes. The First Amendment raises an absolute ton of legal questions, here, and the question of whether these disclosure, reporting, and 'stand by' requirements are legal gets complicated (albeit generally expressive association, rather than free speech). Many rules have been invalidated by SCOTUS jurisprudence as overly broad, ill-defined, or improperly tailored for how large of a chilling effect on free speech they have. And there is specific precedence on reporting requirements having massive chilling effects.

Ok. So is it your position then that by the text of the statutes, when the NYT publishes an anonymous article saying "I am part of the resistance inside the Trump White House", that article would be illegal? But no one prosecutes it because it would so obviously infringe on free speech?

Possibly. The NYT specifically is a lot more likely to be a bonafide publisher by FEC regs compared to the various Federalist-era papers, and some of the electioneering requirements only apply to 'broadcast' communications, but the disclosure requirements in the statutes did not have such exceptions.

See Buckley v. Valeo. It's a bit of a dogs breakfast of a decision with a ton of balancing tests, or where the government conceded a much more restricted version of the statute on, but on the specific matter a section of the law which mandated disclosure of independent contributions :

Section 434(e) applies to "[e]very person. . . who makes contributions or expenditures." "Contributions" and "expenditures" are defined in parallel provisions in terms of the use of money or other valuable assets "for the purpose of . . . influencing" the nomination or election of candidates for federal office. [Footnote 100] It is the ambiguity of this phrase that poses constitutional problems.

Due process requires that a criminal statute provide adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal, for "no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Harriss, 347 U. S. 612, 347 U. S. 617 (1954). See also Papachristou v. City of Jacksonville, 405 U. S. 156 (1972). Where First Amendment rights are involved, an even "greater degree of specificity" is required. Smith v. Goguen, 415 U.S. at 415 U. S. 573. See Grayned v. City of Rockford, 408 U. S. 104, 408 U. S. 109 (1972); Kunz v. New York, 340 U. S. 290 (1951).

There is no legislative history to guide us in determining the scope of the critical phrase "for the purpose of . . . influencing." It appears to have been adopted without comment from earlier disclosure Acts. [Footnote 101] Congress "has voiced its wishes in [most] muted strains," leaving us to draw upon "those common sense assumptions that must be made in determining direction without a compass." Rosado v. Wyman, 397 U. S. 397, 397 U. S. 412 (1970). Where the constitutional requirement of definiteness is at stake, we have the further obligation to construe the statute, if that can be done consistent with the legislature's purpose, to avoid the shoals of vagueness. United States v. Harriss, supra at 347 U. S. 618; United States v. Rumely, 345 U.S. at 345 U. S. 45.

In enacting the legislation under review, Congress addressed broadly the problem of political campaign financing. It wished to promote full disclosure of campaign-oriented spending to insure both the reality and the appearance of the purity and openness of the federal election process. [Footnote 102] Our task is to construe "for the purpose of . . . influencing," incorporated in § 434(e) through the definitions of "contributions" and "expenditures," in a manner that precisely furthers this goal.

In 424 U. S. we discussed what constituted a "contribution" for purposes of the contribution limitations set forth in 18 U.S.C. § 608(b) (1970 ed., Supp. IV). [Footnote 103] We construed that term to include not only contributions made directly or indirectly to a candidate, political party, or campaign committee, and contributions made to other organizations or individuals but earmarked for political purposes, but also all expenditures placed in cooperation with or with the consent of a candidate, his agents, or an authorized committee of the candidate. The definition of "contribution" in § 431(e), for disclosure purposes, parallels the definition in Title 18 almost word for word, and we construe the former provision as we have the latter. So defined, "contributions" have a sufficiently close relationship to the goals of the Act, for they are connected with a candidate or his campaign.

When we attempt to define "expenditure" in a similarly narrow way, we encounter line-drawing problems of the sort we faced in 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV). Although the phrase, "for the purpose of . . . influencing" an election or nomination, differs from the language used in § 608(e)(1), it shares the same potential for encompassing both issue discussion and advocacy of a political result. [Footnote 104] The general requirement that "political committees" and candidates disclose their expenditures could raise similar vagueness problems, for "political committee" is defined only in terms of amount of annual "contributions" and "expenditures," [Footnote 105] and could be interpreted to reach groups engaged purely in issue discussion. The lower courts have construed the words "political committee" more narrowly. [Footnote 106] To fulfill the purposes of the Act, they need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate. Expenditures of candidates and of "political committees," so construed, can be assumed to fall within the core area sought to be addressed by Congress. They are, by definition, campaign-related.

But when the maker of the expenditure is not within these categories -- when it is an individual other than a candidate or a group other than a "political committee" [Footnote 107] -- the relation of the information sought to the purposes of the Act may be too remote. To insure that the reach of § 434(e) is not impermissibly broad, we construe "expenditure" for purposes of that section in the same way we construed the terms of § 608(e) -- to reach only funds used for communications that expressly advocate [Footnote 108] the election or defeat of a clearly identified candidate. This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate.

Note that these restricted definitions, unlike many other components, were not conceded by the state at previous court hearings, but the result of SCOTUS trimming down the statute to avoid declaring the whole thing unconstitutional.

It would have been "I'm 'Publius' and I approve this message", so probably illegal I suppose.

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