U.S. District Judge Mary Lisi held an in-chambers conference on NOM’s lawsuit against the Rhode Island Board of Elections today. (That’s lawyer-speak for a hearing on scheduling a hearing for the case.) The basic issue is this: NOM hopes to run political ads on behalf of Rhode Island gubernatorial candidate John Robitaille and other local candidates who oppose same sex marriage. The state could potentially prosecute the group for any number of things — like failing to register as a PAC and avoiding disclosure requirements — so the group is arguing for a preliminary injunction against prosecution. The tentative date to hear NOM’s request, according to Jeffrey Gallant, counsel on behalf of NOM for the case, is October 21.
Gallant is an associate at the firm of Bopp, Coleson & Bostrom. The firm’s head, James Bopp, Jr., is the conservative lawyer behind much of the turmoil in election law these days: he argued the Citizens United case at every level up to the Supreme Court, for instance. The firm is currently arguing approximately 50 cases around the country for NOM and other groups that center around the issues of nonprofit organizations, political speech, and their First Amendment rights in the wake of Citizens United.
In short, Gallant told me, groups like NOM, which are registered as 501(c)4 “social welfare organizations” and not political committees, are making the case that states are acting unconstitutionally by compelling them to register as political committees (PACs) when they decide to spend money on elections. The brief that NOM filed on September 14, argues as much; however, it is 42 pages long and full of legalese, so I asked Gallant to explain it a bit.
The first claim NOM makes in its brief is that the group’s “injury is the chill to speech caused by Defendant’s prospective enforcement of Rhode Island law or prosecution of NOM,” and that, therefore, “NOM has standing to seek relief from the chill.” It seems a little odd for the group to claim injury based on the State of Rhode Island potentially enforcing its laws and prosecuting NOM in the future, but Gallant argues that such claims — called “pre-enforcement challenges” — actually aren’t that odd at all:
“That’s typical. It’s what’s called a pre-enforcement challenge and its often recognized in First Amendment contexts in which an organization is faced with either doing its speech and being charged by an enforcement agency or holding off on its speech The speech is said to be ‘chilled’ and the organization can seek relief with a preliminary injunction.”
Another important claim in the brief is that “The Rhode Island Law is Vague, and therefore Overbroad.” Vague and Overbroad, again, are legal terms of special significance, explains Gallant:
“In a First Amendment context, vagueness is a special concern. If a group or individual doesn’t know if what they want to do is regulated, then they take a wide berth around it… Overbreadth is when the law sweeps in conduct or communications that cannot constitutionally be regulated.”
In the case of NOM, Gallant is saying that while NOM might make individual election expenditures that can legally be regulated, it can’t be swept into a state regulatory scheme designed for political action committees because, well, it isn’t one:
“An organization can’t be swept into the political action committee regulatory scheme unless its either under control of a candidate or its major purpose is the election or defeat of a candidate [NOM is neither]. The communication itself may be regulable — in other words it may fall under a constitutionally proper definition of an expenditure — but a lot of states, based on that, sweep the organization itself into regulation as a political committee and you can’t do that.”
Basically, NOM is testing the waters in a number of states, challenging state laws that place restrictions on corporations spending in state elections after the Supreme Court ruled in Citizens United that they have a right to do so. In that same ruling, however, the Supreme Court upheld current federal disclosure laws 8-1, so NOM’s claim that it shouldn’t be compelled to disclose its donors to state election boards seems like it’s on more shaky ground.
Rep. Paul Ryan to deliver SOTU response
Chairman of the House Budget Committee Rep. Paul Ryan (R-Wis.) will deliver the Republican response to the State of the Union Tuesday, according to Mike Allen
Rep. Parker Griffith (R-Ala.)
One of the most conservative Democrats in the House -- a freshman who said he couldn’t support Nancy Pelosi again -- is going to switch over to the GOP. Josh
Rep. Paulsen allies with medical device industry to relax FDA oversight
Source: Flickr; Republicanconference (www.flickr.com/photos/republicanconference) On the heels of the Minnesota Independent story last week about U.S. Rep. Erik Paulsen’s cozy financial relationship with the medical device industry, the New York Times reported Tuesday that some health professionals are alarmed by Paulsen’s push to relax Food and Drug Administration (FDA) oversight
Rep. Paulsen touts balanced budget constitutional amendment
In a post for the conservative blog True North , U.S. Rep
Rep. Paulsen, Karl Rove the latest to get ‘glittered’
Rep. Erik Paulsen and former Bush staffer Karl Rove were both showered with glitter at the Midwest Leadership Conference Friday
Rep. Patrick McHenry: Please, Conservatives, Fill Out Your Census Forms!
The conservative congressman from North Carolina, a constant critic of the census -- one of the people who sounded the alarm about politicization when the
Rep. Perlmutter to hold constituent meet-up in grocery store
Colorado Congressman Ed Perlmutter will hold a Government in the Grocery constituent meet-up this evening from 5-7 at the Safeway at 38th and Wadsworth in Wheat Ridge. The address is 3900 Wadsworth. The meeting, where Perlmutter typically sits at a folding table and talks to whomever shows up, is free and open to the public
Rep. Perlmutter criticizes House measure that would eliminate 800K federal jobs
Congressman Ed Perlmutter today issued a scathing statement criticizing the House of Representatives for passing a spending bill that could put nearly a million federal employees out of work. The Colorado delegation voted strictly on party lines, with all four Republicans voting in favor of the bill and the three Democrats voting in opposition. Perlmutter’s statement: “My number one priority is to get people back to work because that’s the best thing we can do to pay our debt and move forward toward economic stability
Rep. Pete Hoekstra Bashes Global Currency
I was just talking to Rep. Pete Hoekstra (R-Mich.), who’s leaving Congress to run for governor of Michigan, about his proposed Parental Rights Amendment—a
School of Hock
A growing number of college grads are defaulting on their student loans as the economy worsens.