Baran, J atty

===

from camp fin ref

=<div>=</div><div>cult corrup winow --> smash and grab?</div><div>
</div><div><a href="https://www.ecowatch.com/scott-pruitt-epa-industry-2575035190.html">https://www.ecowatch.com/scott-pruitt-epa-industry-2575035190.html</a></div><div>
</div><div>see below</div><div>
</div><div>New Reports Highlight Industry Influence on EPA Head Pruitt</div><div id="utm_campaign" style="margin-top: 10px; background-color: rgb(255, 255, 255);" /><div class="body js-expandable clearfix js-listicle-body js-update-url" data-elid="2575035190" data-authors="Olivia Rosane" data-headline="New Reports Highlight Industry Influence on EPA Head Pruitt" style="margin: 10px; line-height: 24px;"><div class="body-description">New evidence emerged Friday and Saturday revealing how U.S. Environmental Protection Agency (<a href="http://www.ecowatch.com/tag/epa" style="text-decoration-line: none;">EPA</a>) Administrator <a href="http://www.ecowatch.com/tag/scott-pruitt" target="self" style="text-decoration-line: none;">Scott Pruitt</a>'s close relationships with industry leaders and lobbyists might impact his environmental decisions.On Friday, the lobbying firm Williams & Jensen disclosed evidence that its former chairman J. Steven Hart, whose wife <a href="https://www.ecowatch.com/pruitt-corruption-scandal-condo-2555549162.html" style="text-decoration-line: none;">rented a Washington, DC condo to Pruitt</a>, did in fact lobby the EPA on behalf of three clients during Pruitt's tenure despite his denials, <a href="http://thehill.com/policy/energy-environment/390344-firm-discloses-more-epa-lobbying-by-advocate-with-ties-to-pruitt" target="blank" style="text-decoration-line: none;">The Hill reported</a>.  Then, on Saturday, <a href="https://www.nytimes.com/2018/06/02/us/scott-pruitt-coal-joseph-craft.html" target="blank" style="background-color: rgb(255, 255, 255); text-align: center; text-decoration-line: none;">The New York Times</a> broke the news that Pruitt had attended a University of Kentucky basketball game in December in special, front-and-center seats belonging to <a href="http://www.ecowatch.com/tag/coal" target="self" style="background-color: rgb(255, 255, 255); text-align: center; text-decoration-line: none;">coal</a> billionaire Joseph W. Craft III, whose close relationship with Pruitt had not been previously examined.Hart, who stepped down from Williams & Jensen in April, told E&E news in March that he did not lobby the EPA in 2017 or 2018. But lobbying disclosures released hours after his departure revealed he did contact the EPA to lobby for Smithfield Foods during that period.In Friday's disclosures to the Senate, the firm revealed further that Hart did more for Smithfield Foods that previously believed and also contacted the EPA on behalf of Coca-Cola and the Financial Oversight and Management Control Board of Puerto Rico.The new information turned up after Williams & Jensen hired Jan Baran at Wiley Rein to review Hart's schedule and communications, as well as the firm's disclosure filings, from 2017 and the first three months of 2018, to make sure the firm was accurately disclosing Hart's activity.Hart and others lobbied the EPA for Coca-Cola on "environmental issues impacting the beverage industry; clean water supply and water conservation," according to the updated disclosures.The EPA told The Hill that the inclusion of Coca-Cola was an error."This meeting involving Coca-Cola and their clean water steward did not occur," EPA spokesman Jahan Wilcox said in a statement. "The request was submitted and it went unfilled."The disclosures said that lobbying by Hart and others for Coca-Cola to the EPA and other government agencies and Capital Hill also included "general market access issues in foreign countries; Commerce 232 investigations, including re: aluminum" and "[e]nvironmental issues impacting the beverage industry, including hydroflourocarbon replacement; commodity pricing legislation."In 2017, Hart also lobbied the EPA for more potable water for Puerto Rico following Hurricane Maria, on behalf of the Financial Oversight and Management Control Board of Puerto Rico.Even if he wasn't an official lobbyist, coal executive Craft's close ties to Pruitt suggest <a href="https://www.ecowatch.com/tag/fossil-fuels" style="text-decoration-line: none;">fossil-fuel</a> industry influence on key deregulatory moves such as October's repeal of the Obama-era <a href="https://www.ecowatch.com/clean-power-plan-repeal-2494810040.html" target="_self" style="text-decoration-line: none;">Clean Power Plan</a>, which Pruitt announced in Craft's hometown of Hazard, Kentucky with Craft in the audience. Craft also served on the board of an industry group that urged the EPA to postpone enforcement of a rule preventing coal plants from dumping toxic metals into rivers, a request Pruitt honored in September, The New York Times reported.The New York Times further uncovered the fact that Pruitt had met with Craft at least seven times during the first 14 months of his tenure at the EPA, more than he met with any environmental advocate. The two are close enough to be on texting basis, and their relationship has deep roots: Craft was a major donor to Pruitt's state government campaigns in Oklahoma.Heath Lovell, vice president for public affairs at Craft's company Alliance Resource Partners, told The New York Times that Pruitt paid "market value" for the basketball tickets.The game was not included on Pruitt's official calendar, but was videotaped and mentioned in university communications requested by The New York Times through public records requests. According to those communications, Kentucky state police provided additional security for Pruitt during the trip, backing up his own detail.</div></div><div><div style="background-color: rgb(255, 255, 255);">=</div></div><p style=" color: rgb(0, 0, 0); font-family: sans-serif; font-size: medium; font-style: normal; font-variant: normal; font-weight: normal; letter-spacing: normal; line-height: 16px; orphans: auto; text-align: left; text-indent: 0px; text-transform: none; white-space: normal; widows: 1; word-spacing: 0px; -webkit-text-stroke-width: 0px; background-color: rgb(255, 255, 255);">

<h1 class="print-title" style=" color: rgb(0, 0, 0); font-family: sans-serif; font-style: normal; font-variant: normal; letter-spacing: normal; line-height: 16px; orphans: auto; text-align: left; text-indent: 0px; text-transform: none; white-space: normal; widows: 1; word-spacing: 0px; -webkit-text-stroke-width: 0px; font-weight: normal; margin-bottom: 0.2em; background-color: rgb(255, 255, 255);">It Takes Dark Money to Make Dark Money</h1>

<div class="dek" style=" color: rgb(0, 0, 0); font-family: sans-serif; font-size: medium; font-variant: normal; font-weight: normal; letter-spacing: normal; line-height: 16px; orphans: auto; text-align: left; text-indent: 0px; text-transform: none; white-space: normal; widows: 1; word-spacing: 0px; -webkit-text-stroke-width: 0px; font-style: italic; margin-bottom: 0.5em; background-color: rgb(255, 255, 255);">Karl Rove's dark-money group doles out $2.75 million to an outfit fighting to keep dark money in the dark.</div>

<p class="submitted" style=" color: rgb(0, 0, 0); font-family: sans-serif; font-size: medium; font-style: normal; font-variant: normal; font-weight: normal; letter-spacing: normal; line-height: 16px; orphans: auto; text-align: left; text-indent: 0px; text-transform: none; white-space: normal; widows: 1; word-spacing: 0px; -webkit-text-stroke-width: 0px; background-color: rgb(255, 255, 255);">By <a href="http://www.motherjones.com/authors/andy-kroll">Andy Kroll</a> | Fri Apr. 20, 2012 3:00 AM PDT

When <a href="http://www.crossroadsgps.org/">Crossroads GPS</a> [1], the conservative nonprofit <a href="http://mobile.bloomberg.com/news/2011-05-19/secret-donors-multiply-in-u-s-with-finances-dwarfing-watergate" style=" background-color: rgb(255, 255, 255);">started</a> [2] by GOP political gurus Karl Rove and Ed Gillespie, isn't dropping millions of dollars on anti-Obama ads, it's doling out tens of millions more to like-minded groups. "The ATM of the Right," Politico recently <a href="http://dyn.politico.com/printstory.cfm?uuid=D1E422E9-801D-4A80-9FD6-870A6719B97B" style=" background-color: rgb(255, 255, 255);">called</a> [3] Crossroads. Between May 2010 and December 2011, new tax records show, Crossroads <a href="http://www.latimes.com/news/politics/la-pn-secret-donors-pour-millions-of-dollars-into-crossroads-gps-20120417,0,6124833.story?track=rss&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+latimes%2Fmostviewed+%28L.A.+Times+-+Most+Viewed+Stories%29">gave</a> [4] $4 million to Grover Norquist's Americans for Tax Reform and $500,000 to former Sen. Norm Coleman's American Action Network, among others.

But there was another recipient of Crossroads cash that stood out: the <a href="http://cfif.org/v/" style=" background-color: rgb(255, 255, 102);">Center for Individual Freedom</a> [5], which snagged $2.75 million. Among political money experts, CFIF is known for its aggressive legal strategy aimed at toppling disclosure laws at the state level. In other words, Crossroads GPS, which doesn't name its donors, gave millions to another dark-money group whose goals include fighting to keep dark money in the dark.

Spokesman Jonathan Collegio wrote in an email that Crossroads GPS' donations to "effective center right organizations" such as CFIF are intended to "help build an enduring infrastructure on the right—just as labor unions have funded organizations on the Left for decades."

Founded in 1998, the Center for Individual Freedom says its mission is to "protect and defend individual freedoms and individual rights guaranteed by the US Constitution." CFIF <a href="http://cfif.org/v/index.php/the-issues/56-health-care/1291-direct-pay-medicine-a-free-market-approach-to-healthcare-reform-">preaches</a> [6] free-market reforms, opposes government regulations, and <a href="http://cfif.org/v/freedom_line_blog/13455/spectrum-stall-fcc-and-big-labor-impeding-innovation-and-economic-opportunity/">slams</a> [7] labor <a href="http://cfif.org/v/freedom_line_blog/13562/louisiana-teacher-unions-happy-to-sell-out-kids-for-political-gain/">unions</a> [8]. The group blasts President Obama's Affordable Care Act as an <a href="http://cfif.org/v/index.php/commentary/56-health-care/1321-whats-really-at-stake-with-obamacare-legal-battle" style=" background-color: rgb(255, 255, 255);">assault on freedom</a> [9], wants <a href="http://cfif.org/v/index.php/press-room/1290-conservative-leaders-call-on-president-congress-to-pass-corporate-tax-reform" style=" background-color: rgb(255, 255, 255);">lower corporate tax rates</a> [10], and demands less government in the lives of Americans. (CFIF did not respond to four requests for comment.)

</div>

Little is known about who funds CFIF. Archival records at the University of California-San Francisco show that CFIF once received financial support (<a href="http://legacy.library.ucsf.edu/tid/qws17a00/pdf?search=%22center%20for%20individual%20freedom%22">PDF</a> [11]) from the National Smokers Alliance, a tobacco industry front group. But that's about all. In its legal filings, CFIF's says its willingness to tackle "controversial" issues means that many of its funders ask to remain anonymous. To that end, CFIF "staunchly and zealously" guards donors' privacy, the group says. Forcing CFIF to reveal those donors would hurt its revenue and "its ability to speak would be impaired." Disclosure requirements cause "irreparable injury," as the group argued in one case, and violate constitutionally protected speech.

Since 2004, CFIF has launched a broad legal campaign to roll back disclosure rules. It has filed lawsuits in Illinois, Louisiana, Pennsylvania, and West Virginia, arguing that those states' disclosure and reporting laws "chill" the free-speech rights of groups like CFIF. In Center for Individual Freedom v. Carmouche, a federal case filed in Louisiana in 2004, CFIF argued that it "wants to address citizens of Louisiana on matters of public importance, and many in Louisiana want to hear what the Center has to say." Yet Louisiana's laws requiring that groups behind political spending disclose their donors and disbursements "make it impossible for the Center to speak."

More recently, CFIF weighed in on the high-profile <a href="http://www.fec.gov/law/litigation/van_hollen.shtml">Van Hollen v. FEC lawsuit</a> [12] winding its way through the court system. At issue in Van Hollen is a Federal Election Commission loophole that lets donors bankroll so-called "issue" ads without having to disclose their names—a break from years prior. Last month, a federal judge struck down that loophole. The result could mean that the US Chamber of Commerce and Crossroads GPS <a href="http://www.huffingtonpost.com/2012/03/30/koch-brothers-rove-fec-campaign-donations_n_1392838.html" style=" background-color: rgb(255, 255, 255);">have to reveal</a> [13] more of their contributors. CFIF, which supports the FEC's loophole, joined the Van Hollen case as an "intervenor," which gives it the option of appealing the judge's decision.

Though little known, CFIF is a formidable player, say supporters and critics. It retained <a href="http://www.wileyrein.com/professionals.cfm?sp=bio&id=33#rep">Jan Baran</a> [14], a powerful DC election law attorney, to argue its disclosure cases in Louisiana and West Virginia, both of which it won. Known as the "dean of campaign finance," Baran has argued numerous campaign finance cases before the Supreme Court, including McConnell v. FEC in 2003 and Citizens United v. FEC in 2010.

Paul Ryan, an attorney with the Campaign Legal Center, which supports more campaign finance regulation, calls CFIF's anti-disclosure cases "meritless" but says the group shouldn’t be underestimated. "They don't come across as wingnuts who don't know what they're talking about," Ryan says. "They come across as skilled lawyers who need to be taken seriously."

CFIF's anti-disclosure efforts, Ryan adds, illustrate the latest salvo by conservatives and libertarians in their decades-long attack on campaign finance laws. Joining CFIF in this fight is Republican super-attorney James Bopp Jr., who has multiple disclosure cases in the works nationwide, and the libertarian Center for Competitive Politics. "Challenging disclosure laws," Ryan says, "is the new wave of campaign finance deregulation litigation."

Supporters of disclosure, like Ryan, hold out hope that such laws will survive these legal challenges, even if they make it all the way to Supreme Court. Although the Roberts court has repeatedly struck down political spending limits as unconstitutional, it has written in support of disclosure on multiple occasions. In the Citizens Uniteddecision, for instance, eight of the nine justices <a href="http://www.demos.org/publication/testimony-support-disclose-act-united-states-senate-committee-rules-and-administration">upheld the disclosure rules</a> [15] under challenge; in his written opinion, Justice Anthony Kennedy <a href="http://eshoo.house.gov/index.php?option=com_content&view=article&id=1151:the-prescription-to-citizens-united&catid=5&Itemid=100014">stressed</a> [16] the importance of transparency, which "permits citizens and shareholders to react to the speech of corporate entities in a proper way."

Yet the conservative fight against disclosure laws isn't going away soon, says Fred Wertheimer, a leading advocate of campaign finance regulation with the groupDemocracy 21. "This is part of an effort that's based on the idea that they have a favorable Supreme Court majority," he says, "and they might as well try to take this as far as they possibly can."

</div>

<div class="print-source_url" style=" color: rgb(0, 0, 0); font-family: sans-serif; font-size: medium; font-style: normal; font-variant: normal; font-weight: normal; letter-spacing: normal; line-height: 16px; orphans: auto; text-align: left; text-indent: 0px; text-transform: none; white-space: normal; widows: 1; word-spacing: 0px; -webkit-text-stroke-width: 0px; background-color: rgb(255, 255, 255);">Source URL: <a href="http://www.motherjones.com/politics/2012/04/karl-rove-crossroads-gps-center-individual-freedom">http://www.motherjones.com/politics/2012/04/karl-rove-crossroads-gps-center-individual-freedom</a></div>

===

<h4>Academics and attorneys</h4>

<a href="http://en.wikipedia.org/wiki/Bradley_A.Smith" title="Bradley A. Smith">Bradley A. Smith</a>, professor of law at <a href="http://en.wikipedia.org/wiki/Capital_University_Law_School" title="Capital University Law School">Capital University Law School</a>, former chairman of the FEC, founder of the <a href="http://en.wikipedia.org/wiki/Center_for_Competitive_Politics" title="Center for Competitive Politics">Center for Competitive Politics</a> and a leading proponent of deregulation of campaign finance, wrote that the major opponents of political free speech are "incumbent politicians" who "are keen to maintain a chokehold on such speech". Empowering "small and midsize corporations—and every incorporated mom-and-pop falafel joint, local firefighters' union, and environmental group—to make its voice heard" frightens them.<a href="http://en.wikipedia.org/wiki/Citizens_United_v.Federal_Election_Commission#cite_note-Smith2010-32">[33]</a> In response to statements by President Obama and others that the ruling would allow foreign entities to gain political influence through U.S. subsidiaries, Smith pointed out that the decision did not overturn the ban on political donations by foreign corporations and the prohibition on any involvement by foreign nationals in decisions regarding political spending by U.S. subsidiaries, which are covered by other parts of the law.<a href="http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission#cite_note-Smith2010a-33">[34]</a>

Campaign finance expert Jan Baran, a member of the <a href="http://en.wikipedia.org/wiki/Commission_on_Federal_Ethics_Law_Reform" title="Commission on Federal Ethics Law Reform">Commission on Federal Ethics Law Reform</a>, agreed with the decision, writing that "The history of campaign finance reform is the history of incumbent politicians seeking to muzzle speakers, any speakers, particularly those who might publicly criticize them and their legislation. It is a lot easier to legislate against unions, gun owners, 'fat cat' bankers, health insurance companies and any other industry or 'special interest' group when they can't talk back." Baran further noted that in general <a href="http://en.wikipedia.org/wiki/Conservatism_in_the_United_States" title="Conservatism in the United States">conservatives</a> and <a href="http://en.wikipedia.org/wiki/Libertarians" title="Libertarians" class="mw-redirect">libertarians</a> praised the ruling's preservation of the First Amendment and freedom of speech, but that <a href="http://en.wikipedia.org/wiki/Liberalism_in_the_United_States" title="Liberalism in the United States">liberals</a> and campaign finance reformers criticized it as greatly expanding the role of corporate money in politics.<a href="http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission#cite_note-Baran-34">[35]</a>

Attorney Kenneth Gross, former associate general counsel of the FEC, wrote that corporations relied more on the development of long-term relationships, political action committees and personal contributions, which were not affected by the decision. He held that while trade associations might seek to raise funds and support candidates, corporations which have "signed on to transparency agreements regarding political spending" may not be eager to give.<a href="http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission#cite_note-WP-opinions-27">[28]</a>

The New York Times asked seven academics to opine on how corporate money would reshape politics as a result of the court's decision.<a href="http://en.wikipedia.org/wiki/Citizens_United_v.Federal_Election_Commission#cite_note-NYTdebate-35">[36]</a> Three of these wrote that the effects would be minimal or positive: Christopher Cotton, a <a href="http://en.wikipedia.org/wiki/University_of_Miami" title="University of Miami">University of Miami</a> School of Business assistant professor of economics, wrote that "There may be very little difference between seeing eight ads or seeing nine ads (compared to seeing one ad or two). And, voters recognize that richer candidates are not necessarily the better candidates, and in some cases, the benefit of running more ads is offset by the negative signal that spending a lot of money creates.<a href="http://en.wikipedia.org/wiki/Citizens_United_v.Federal_Election_Commission#cite_note-NYTdebate-35">[36]</a> University of California professor of law <a href="http://en.wikipedia.org/wiki/Eugene_Volokh" title="Eugene Volokh">Eugene Volokh</a> held that the "most influential actors in most political campaigns" are media corporations which "overtly editorialize for and against candidates, and also influence elections by choosing what to cover and how to cover it". Holding that corporations like <a href="http://en.wikipedia.org/wiki/Exxon" title="Exxon">Exxon</a> would fear alienating voters by supporting candidates, the decision really meant that voters would hear "more messages from more sources".<a href="http://en.wikipedia.org/wiki/Citizens_United_v.Federal_Election_Commission#cite_note-NYTdebate-35">[36]</a> Joel Gora, a professor at <a href="http://en.wikipedia.org/wiki/Brooklyn_Law_School" title="Brooklyn Law School">Brooklyn Law School</a> who had previously argued the case of <a href="http://en.wikipedia.org/wiki/Buckley_v.Valeo" title="Buckley v. Valeo">Buckley v. Valeo</a> on behalf of the <a href="http://en.wikipedia.org/wiki/American_Civil_Liberties_Union" title="American Civil Liberties Union">American Civil Liberties Union</a>, said that the decision represented "a great day for the First Amendment" writing that the Court had "dismantled the First Amendment 'caste system' in election speech".<a href="http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission#cite_note-NYTdebate-35">[36]</a>

===

bs <a href="http://www.wileyrein.com/professionals.cfm?sp=bio&id=33#rep">http://www.wileyrein.com/professionals.cfm?sp=bio&id=33#rep</a> bio

Mr. Baran, named by Washingtonian magazine as a “Top Campaign & Elections Lawyer” and one of the “Top 50 Lawyers” in Washington, DC, advises clients on all aspects of political law including federal, state and local campaign finance laws, government ethics requirements and lobbying laws. He has argued four cases before the U.S. Supreme Court and often provides legal commentary to the media, appearing frequently on FOX News and NPR and serving as a legal analyst for ABC News during the 2000 Florida recount.  Mr. Baran is the author of the book, The Election Law Primer for Corporations, published by the American Bar Association and he co-chairs the Practising Law Institute’s annual Corporate Political Activities conference. Chambers USA consistently recognizes Mr. Baran among the nation’s top tier of practitioners in the field.  He has been called “one of the top figures in the political law sphere” (2011), ”the dean of campaign finance” and “one of the best election lawyers in the U.S. with the most comprehensive knowledge of the law at both state and federal level” (2009), a view echoed by clients who commend him to Chambers for “his textured and informed view” (2010).

</div>

</div>

<ul>

<li>Cases before U.S. Supreme Court: Citizens United v. FEC; McConnell v. FEC; FEC v. Colorado Republican Federal Campaign Committee (II); Colorado Republican Federal Campaign Committee v. FEC (I); FEC v. DSCC; Common Cause v. Schmitt.</li>

<li>Advises corporations, trade associations, political groups, PACs and individuals on compliance with the laws regulating institutional and personal political activity, lobbying, fundraising and contributions.</li>

<li>Represents clients before the courts, Federal Election Commission (FEC), congressional ethics committees, the Office of Congressional Ethics (OCE) and state agencies.</li>

</ul>

</h3><h3 class="bioCats" id="prof">PROFESSIONAL EXPERIENCE</h3>

<ul>

<li>Special Counsel, Office of the Attorney General, 2005 Statewide Virginia Election Recount.</li>

<li>Member, Virginia Governor's Commission on Government Finance Reform (2001).</li>

<li>General Counsel, Republican National Committee (1989-1992) and Bush for President Campaign (1988).</li>

<li>Ambassador and Chairman, U.S. Delegation, World Administrative Radio Conference, Spain (1991-1992).</li>

<li>Member, President's Commission on Federal Ethics Law Reform (1989).</li>

<li>Executive Assistant, Federal Election Commission (1977-1979).</li>

</ul>

<h3 class="bioCats" id="associations">AFFILIATIONS</h3>

<ul>

<li>American Bar Association (ABA).

<ul>

<li>ABA Joint Commission to Evaluate the Model Code of Judicial Conduct (2003-2007).</li>

<li>Chair, Task Force on International Election Standards, Section of International Law (2006).</li>

<li>Special Advisor, Standing Committee on Judicial Independence (2002-2005).</li>

<li>Commission on Public Financing of Judicial Campaigns (2000-2002).</li>

<li>Chair, Standing Committee on Election Law (1990-1993).</li>

</ul>

</li>

<li>National Advisory Board, University of Virginia, Journal of Law & Politics.</li>

</ul>

<h3 class="bioCats" id="honors">HONORS & AWARDS</h3>

<ul>

<li>Named one of Washington's "Best Lawyers" (2011), one of "Washington's Top Lawyers" (2004, 2007, 2009) and one of the "Top 50 Lawyers" in Washington, DC (2004) by Washingtonian magazine.</li>

<li>Listed by Chambers USA as one of "America's Leading Lawyers for Business" (2006-2011).</li>

<li>Named one of DC's "Super Lawyers" by Super Lawyers magazine (2007-2010).</li>

<li>Selected by Lawdragon as one of the 3,000 Leading Lawyers in America (2007, 2010, 2011).</li>

<li>Recognized by the George Washington University's Graduate School of Political Management (GSPM) and the National Association of Business Political Action Committees (NABPAC) with the establishment of the Jan Baran PAC Management Scholarship in 2007. The annual scholarship is awarded to a student in The George Washington University's PAC certificate program.</li>

<li>AV Peer Review Rating, Martindale-Hubbell's highest ranking by peers for general ethical standards and legal ability.</li>

</ul>

<h3 class="bioCats" id="pub">PUBLICATIONS</h3>

RICHMOND — A little-known vote this week among a mere 81 people will help determine the next governor of Virginia.

The state GOP’s governing board will reconsider Friday whether to hold a primary or a convention next year to nominate its candidate in what is shaping up to be a <a data-xslt="_http" href="http://www.washingtonpost.com/local/dc-politics/in-virginia-governors-race-could-fracture-the-gop/2012/01/29/gIQAHAzBCR_story.html">contentious and expensive race</a>.

Attorney General Ken Cuccinelli II, a <a data-xslt="http" href="http://www.washingtonpost.com/wp-dyn/content/article/2010/03/23/AR2010032304224.html">tea party favorite </a>whose causes have prompted national headlines, is widely expected to win the nomination if the Republicans hold a convention. Lt. Gov. <a data-xslt="http" href="http://www.washingtonpost.com/local/dc-politics/after-elections-lt-gov-bolling/2011/11/10/gIQAuIG0FN_story.html">Bill Bolling</a>, running as a pragmatic problem-solver in the <a data-xslt="_http" href="http://www.washingtonpost.com/local/dc-politics/mcdonnell-walks-fine-line-with-conservative-general-assembly/2012/02/08/gIQAakUjaR_story.html">mold of Gov. Robert F. McDonnell</a>, is fighting to hold a primary.

In Virginia, the parties choose how to nominate their candidates. A primary is open to all voters — with more than 100,000 casting ballots in recent years — while a convention is attended by a few thousand die-hard activists elected by the party at the local level for the day-long event. Republicans have alternated between primaries and conventions in recent years; Democrats have usually opted for a primary.

In the final days before Friday’s GOP board meeting, both sides are trying to line up votes, with Cuccinelli and Bolling making calls personally. The decision rests with a handful of undecided board members, but Cuccinelli and those who favor a convention are expected to prevail. Bolling has hired high-profile elections lawyer Jan Baran to look at legal options in case that happens.

Others in the party just want supporters to return their attention to the critical races of 2012 for <a data-xslt="http" href="http://www.washingtonpost.com/blogs/virginia-politics/post/obama-leads-romney-in-new-virginia-poll/2012/06/07/gJQAq5aiKV_blog.html">president</a> and <a data-xslt="http" href="http://www.washingtonpost.com/blogs/virginia-politics/post/george-allen-airs-radio-ads-criticizing-tim-kaine/2012/06/06/gJQANccaIV_blog.html">U.S. Senate. Virginia’s choices could be crucial in determining who resides in the White House and which party controls the Senate.</a>

<table border="0" cellpadding="5" cellspacing="0" width="100%"><tbody><tr><td width="32%"> http://writ.news.findlaw.com/dean/20020329.html</td><td align="right" width="68%">

</td></tr></tbody></table>

<h2>LET THE NEXT FIGHT BEGIN:

Campaign Finance Reform Goes To Court</h2>

</td></tr><tr><td class="wiauthor"><a href="http://writ.news.findlaw.com/dean" class="graybold">By JOHN W. DEAN</a></td></tr><tr><td class="widate">Friday, Mar. 29, 2002</td></tr></tbody></table>

President Bush recently, and reluctantly, signed on the Bipartisan Campaign Reform Act of 2002 - better known as McCain-Feingold or Shays-Meehan, after the Senate and House sponsors. But before the ink had dried, the new law's opponents had filed legal actions to kill the law.

Opponents want to rip the heart out of the effort. Proponents have been gathering potent defensive ammunition for years. In the end, the Supreme Court will decide who prevails. And what the Court will do will likely come down, as it often does, to Justice O'Connor's crucial swing vote.

The Leading Opponents of the Bipartisan Campaign Reform Act

Senator Mitch McConnell actually seems to enjoy playing the Darth Vader of campaign finance reform. He claims that Congress's efforts to control unlimited spending by fat cats and special interest groups seeking federal favors violate the Constitution.

However, the quick-triggered National Rifle Association raced, and beat, McConnell to the courthouse, with their own lawsuit. Their spokesperson commented, "we believe this law cannot be allowed to stand - not even for a moment." It seems the law might restrict the NRA's ability to pour buckets of money gathered from gun-toting enthusiasts throughout the country into ousting candidates who don't support their world-view.

In addition to Senator McConnell, and the NRA, other opponents are likely to file similar complaints for declaratory and injunctive relief in the coming days and weeks. The opponents are an unusual alliance. Campaign reform, obviously, makes for strange bedfellows.

For example, during the Congressional debate the usual right wing suspects like the U.S. Chamber of Commerce, the National Association of Manufacturers, the Christian Coalition and the National Right to Life Committee were stoking the fires of opposition. But also climbing into bed with them was the left-leaning American Civil Liberties Union.

Similarly striking is the diversity among the lawyers signing on to kill the new law. The lead team is the pro bono squad of five listed on Senator McConnell's complaint: Ken Starr (former Solicitor General, U.S. Circuit Court Judge and Independent Counsel Plenipotentiary and Extraordinaire), Floyd Abrams (First Amendment specialist typically associated with liberal causes), Kathleen Sullivan (Dean of Stanford Law School, certainly no hard right-winger, but rather as able a constitutional scholar as can be found, with expertise on campaign finance), Jan Witold Baran (from the political law firm Wiley, Rein & Fielding), and James Bopp, Jr. (a Terre Haute attorney active in conservative causes - Right to Life, Christian Coalition, etc.--who has been involved in campaign reform for many years). And this lineup only represents one plaintiff, Senator McConnell.

The Leading Proponents of the Act

The defendants in the lawsuits are the independent federal agencies responsible for implementing and enforcing the new law: the Federal Election Commission and the Federal Communications Commission. They will be represented first by the Department of Justice's Civil Division, and later when the case goes to the Supreme Court, by the U.S. Solicitor General, Theodore Olson.

Attorney General Ashcroft and Solicitor General Olson, of course, are both staunchly conservative, onetime opponents of campaign reform. (Olson is also a Federalist Society member.) If you are wondering how enthusiastically they will fulfill their Executive Branch responsibility of defending the constitutionality of Bipartisan Campaign Reform Act of 2002, you are not alone.

Indeed, the sponsors of this law are sufficiently concerned about Ashcroft and Olson's lack of enthusiasm that they have hired their own attorneys to intervene. Senators John McCain (R. AZ) and Russell Feingold (D. WC), along with Representatives Chris Shays (R. CN) and Marty Meehan (D. MA), have retained former U.S. Solicitor General (during the Clinton Administration) Seth Waxman, and Burt Neuborne (the former legal director of the ACLU, and currently director of the Brennan Center for Justice at NYU Law School).

It is still too early to know who might join the proponents by filing a friend of the Court amicus brief. However, there are any number of powerful organizations that have supported campaign finance reform from the outset. Groups like Common Cause and People for the American Way are only two of many who may enter the Court battle.

The President Straddles the Campaign Finance Reform Divide

President Bush demonstrated his ambivalent (no doubt, in private, his negative) feelings toward the new law by signing it while conducting other business with Vice President Cheney and National Security Advisor Condoleezza Rice. No Rose Garden signing ceremony, the President might have resolved, for anything John McCain might sponsor, or endorsed by moderate Republicans.

Shortly after signing the bill, the President headed off to South Carolina for some heavy lifting fund-raising for Republicans in three states. The new law doesn't go into effect until November 6, 2002, which is immediately after the coming Congressional elections, so Bush plans to make political hay while the sun still shines on GOP fat cats.

As Bush was winging South, the White House issued a statement from the President. Reform has widespread public support - with somewhere between 75 to 85 percent of Republicans, and the overwhelmingly majority of Democrats and Independents wanting better campaign finance laws. As a result, the President had to publicly straddle the campaign finance gulf.

His less-than-rhapsodic statement on the law notes that "although far from perfect," the new law would "improve the current financing system for federal campaigns." The ban on unregulated "soft money" from unions and corporations was okay, according to the President, but the law should not have closed the loophole for individuals.

The President did not quibble that it was time to raise the old limits on individual contributions, from $1000 to $2000 - as the law did - for it will mean more hard money can now be collected from individuals. And he had no problem with the "new disclosure requirements" and "speedier compliance with existing ones."

Sending signals to his troops, however, he was quick to say the new law "does have flaws. Certain provisions present serious constitutional concerns." He named the limits on individuals' giving soft money (or unlimited contributions) to political parties, and the "ban on issue advertising." The President likes these present loopholes - which is understandable, since they are large enough to drive a fleet of Brinks trucks through.

Expedited Appeal To Resolve The Constitutional Issues

Anticipating constitutional challenges from the opponents, the sponsors included special (and unusual) provisions creating an expedited procedure to take these constitutional questions first to a three judge panel in the U.S. District Court from the District of Columbia, and then to the U.S. Supreme Court.

Not since Bush v. Gore has a more politically charged case been before the nine members of the U.S. Supreme Court. The Court now must tell Americans - who overwhelmingly want reform - what they can and cannot do about a political system run amok with money, a system that forces federal office holders to spend as much, if not more, time fundraising than dealing with the people's business.

Following the Watergate reforms adopted by Congress in 1976, the conservatives on the Supreme Court partially gutted the efforts of lawmakers to control campaign contributions and spending. In <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=424&invol=1" class="left-link">Buckley v. Valeo</a>, the Court said there could be no limits on spending, but Congress could limit contributions (through measures such as the original, $1000 hard money ceiling). Today, most conservatives believe that is bad law.

In the ensuring years, lower court, and Supreme Court, rulings since Buckley have created a mess of loopholes that campaign finance reform aims to close. Most egregious are the loopholes that have resulted in the flow of "soft money" to political parties that is then used to aid candidates, and the use of "issue ads," which are in truth campaign ads by another name, since when it is clear where a candidate stands on the issues, an ad in favor of an issue is plainly in favor of the candidate too - as many issue ads make quite clear.

The lawsuit filed by Ken Starr is a let's-throw-everything-including-the-kitchen-sink-at-it approach. But the central constitutional issues relate to the ban of soft money, and issue ads. Let's look at each.

The Constitutional Issue: Banning Soft Money

Opponents claim that soft money raised by political parties is not related to federal elections. They conclude that, therefore it has not been, and should not be, regulated because to do so would violate the First Amendment. This premise, however, is absurd. Congress could fill a warehouse with evidence that soft money is used to get candidates elected.

As for the claim that the restrictions on soft money violate the First Amendment, the reformers have followed the ruling in Buckley v. Valeo, which was recently reaffirmed in the 2000 case of <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=98-963" class="left-link">Nixon v. Shrink Missouri PAC</a>. The Court says that political contributions are not protected speech; that Congress can regulate such money not only to prevent corruption but to prevent even the appearance of corruption; and that it can regulate such influences on governmental actions even if they do not come close to bribery, which is obviously already prohibited.

Unless a conservative majority overturns Buckley, and its progeny - to write a new chapter of First Amendment law - soft money is dead.

The Constitutional Issue: Issue Advertisements

"Issue ads" are ads used in a political campaign that look like, walk like, and quack like campaign ads. But they are not campaign ads, according to current law, because they don't contain certain magic words that would directly connect them to influencing voters - words such as "Vote (or Don't Vote) for So-and-So."

So-called issue ads were born when the Supreme Court ruled in Buckley that when a federal candidate was not involved, Congress's language seeking to regulate ads "relative to" or "in connection with" a federal election was too vague. Congress failed, according to the court, to draw the line between campaign activity (which could be regulated) and mere discussion of issues.

Issue ads are a bad joke. Anyone who has ever seen an issue ad knows that it is not very difficult to design it to sway votes for or against a given candidate without using the magic words that would bring it within the federal law. This is particularly obvious when these so-called issue ads run just a few months, or even weeks, before an election.

To close this glaring loophole, through which millions of dollars have been expended by groups like the NRA, Christian Coalition and Right To Life, the new law redefines political ads. The prohibited ads, which are narrowly and clearly defined, must refer to an identified federal candidate; must target that candidate's electorate; and must be broadcast 60 days before a general election or 30 days before a primary election.

This new definition of "electioneering communication" (which reaches issues ads that are really campaign ads) seeks to provide a clear "bright line" test to avoid the charge of being unconstitutionally vague. The definitions are, in fact, quite explicit.

If regulation of issue ads that are really campaign ads violates the First Amendment, then it is time to further amend the Constitution. If not, it may be time to simply eliminate elections, and declare the winner to be the person who can raise the most money.

The Supreme Court's Position

While predicting Supreme Court rulings is a foolish undertaking, I can't escape feeling that the five justices who awarded the presidency to George W. Bush have already spent so much of the Court's limited political capital, that they dare not render another purely political decision. To do so could mortally wound the Court. Surely, the five Justices themselves realize this.

The Court's existing precedents are anything but clear or unanimous. Partly for this reason, many High Court pundits think that the constitutionality of soft money and issue ads will come down to Justice Sandra Day O'Connor's swing vote, and no one is sure how she will swing.

Hopefully she swings with the times, and thus with the desperately needed and much wanted reforms found in the Bipartisan Campaign Reform Act of 2002. Not withstanding all the legal mumbo jumbo, this - like so many of the Supreme Court's decisions - is more about political philosophy than law. And since it is a political philosophy that now enjoys a bipartisan near-consensus, let us hope the Court will embrace it too.

<a id="bio" name="bio">John W. Dean, a FindLaw columnist, is a former counsel to the President. </a>

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