Does that early draft matter?
By krempasky Posted in FEC — Comments (3) / Email this page » / Leave a comment »
A couple weeks ago, I posted an early draft of the FEC rules regarding political activity on the internet, mainly in response to critics of Commissioner Brad Smith who crowed that bloggers never had anything to worry about. The early draft showed the FEC's (specifically the professional staff of the FEC)first whack at these rules was an absolutely draconian approach. I certainly hoped that some of the loudest voices might revise and extend their earlier remarks and admit that Smith was right. I was too optimistic, I'm afraid.
Bob Bauer, a Democrat who is rightly described as a skeptic when it comes to campaign finance reform - gets to the heart of it.
This draft may not answer the question of what the agency might have approved in the absence of public pressure, but it is significant for other reasons. Representing a considered view of regulation within the Office of General Counsel, it will have a life of its own, with repercussions for the development of the law beyond the conclusion of the current rulemaking.
Read the whole thing.
On the other hand, Rick Hasen (one of Smith's critics and supporter of campaign finance reform) seems a heck of a lot more concerned about the leak itself. Oh please. I suppose if you're willing to place absolute (and blind, for that matter) faith in the professional staff of agencies like the FEC, then sure - seeing the process might not matter. But go read Bauer's article and tell me again how the public ought not have the right to see inside the process - *especially* when so much freedom is at stake.
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Does that early draft matter? 3 Comments (0 topical, 3 editorial, 0 hidden) Post a comment »
All the Scott Thomas and Clarence Thomas stuff is starting to get distracting.
Encouraging others to disregard federal campaign laws cannot even be construed as civil disobedience:
Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them. - Miranda Vs. Arizona, 384 US 436 p. 491. - http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=384&i
nvol=436
Note may be made of the legal reference 16th American Jurisprudence 2d, Section 177 late 2nd, Section 256 stating: "No one is bound to obey an unconstitutional law and no courts are bound to enforce it." [emphasis added]
"The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it."
"All laws which are repugnant to the Constitution are null and void." Marbury Vs. Madison, 5 US (2 Cranch) 137, 174, 176, (1803). - http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/marbury.html
"An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed." Norton Vs. Shelby County 118 US 425 p. 442
Finally, when they say the State has the 'authority' and power to 'regulate,' you might mention Schick vs United States [(1904) 195 US 65, 49 L.Ed. 99, 24 S. Ct. 826] which clearly says otherwise:
"If there is any conflict between the provisions of the Constitution [enumerated powers to make law] and the provisions of the Amendments [Bill of Rights], the Amendments must control."
Nor Brad Smith seemed very concerned about the "chilling" of internal debate at the FEC during the panel discussion I listened to. If they were, they sure didn't mention it. In fact, it seemed to me that Thomas was looking forward to the very vigorous debate that's taking place, and I can't recall anyone on that panel using the word "chill" in any context whatsoever. What evidence does Hasen have to support his claim that:
I'm not a big fan of leaks myself, mind you. But speaking for myself, I viewed those early drafts as exactly what you said they were -- early drafts, "back of the napkin" sketches, if you will, that made me hope that a lot more debate, internal and external, was undertaken, not less.