Wednesday, July 30, 2008

Monahan and his buddies...going after free speech

marjorie says...

Hidden campaign? Back up buddy. Just who's campaign is that? Looking around the blogosphere lately, you kind of have to wonder.

It's interesting to see a certain blogger lockstep with a group of upset incumbent state legislators. You have to wonder, do some of these incumbents have the (somewhat overblown) status of "alligator"? It does cross one's mind.

Not to mention, that particular blogger has a pretty obvious position on the topic at hand, which is "ethics reform." Come on, let’s be real.

So, let's jump right in…since the water is cold.

Are state legislators not allowed to be spoken publicly about during election years? Even powerful ones who've been in office for decades? Even when summer special sessions are called to debate important things like health care, and to divvy up 400 million dollars at the same time?

If one of the most highly contested issues in the state is ethics reform, don't these go together? And isn't ethics reform an issue that permeates just about every other issue? How a person votes vis a vis campaign contributions is salient to all issues.

If they can be spoken about, during what periods of time this year can 501c3 organizations talk about the legislative record and the campaign contributions of specific legislators?

To hear some of these long-time powerful incumbents speak, 501c3 organizations can't speak about them at all in 2008. And boy are the crocodile tears flowing.

You know,

if you only read the press, you might sometimes get the impression that elections are decided solely based on mail and advertising. But that is decidedly not true.

Something tells me that had actual on the ground relationships been built in some of the Albuquerque districts with losing incumbents last spring, we'd have had a different outcome. But these guys would rather blame a few ethics reform mailers that went out months before the primary election. And now, one is complaining about a similar mailer sent out ahead of the special session…over three months before the general.

Its as though incumbency is sacred in and of some people's minds.

Regarding the mailers, 501c3s are barred from interfering in elections--as in, trying to get one candidate to win over another.

Following from this, the IRS code gives some the question has also been litigated in court, and addressed through federal legislation. In light of all of these, its reasonable for non-profits to believe these mailers constitute protected free speech. For one, they don't mention anything at all having to do with any election. Plus, there's no way to ascertain motivation even if it were relevant, which its not according to case law. Then there's timing.

In its plain-language 21-example fact sheet, the IRS discusses the permissibility of 21 cases. The document repeatedly uses the word "shortly" when discussing the timing of issues advocacy before an election. My general understanding from non-profit attorneys is that a rule of thumb for what “shortly” means is 30 days before a primary and 60 days before a general.

That rule of thumb was actually made into federal law in 2002 regarding just the sort of issues advocacy in question: Bipartisan Campaign Reform Act.

But then, interestingly, the Supreme Court in 2007 struck down the 30/60 day provision of that Reform Act, in a case regarding anti-abortion advocacy, saying that it was "...unconstitutional as applied to ads susceptible of a reasonable interpretation other than as an appeal to vote for or against a specific candidate."

In the spring, the last mailer in question was sent two months before the primary. If anything, the timeline in question more than accommodated concerns over timing of issues ads, as reflected in the 2002 federal law.

So, hypothetically: if 501c3’s aren't allowed to get their message out about issues, and the politicians who wield decision making power regarding those issues, before what has been interpreted up to now as an election period almost across the board, then are we to assume the entire year in New Mexico counts as an election period?

To infringe on free speech like these incumbents and their coterie would have state government do would be an infringement writ large across the 501c3 landscape.

Ps I work for one of those pesky non-profits. Feel free to ask me anything you like. I know you're curious. But since I'm not seeking to represent the public in very important decision making bodies, you can't in all serious honesty equate me with such people. Although the spin can try to go there.