A shadowy conservative group is backing off its effort to undermine state laws restricting robo-calls.
Lawyers for American Future Fund Political Action (AFFPA) informed the FEC yesterday afternoon that they were withdrawing their request for an advisory opinion on whether those state laws were pre-empted by a less restrictive federal law. AFFPA had argued in its request that the state laws were indeed pre-empted, and indicated that it planned a barrage of robo-calls for 2010.
The move came after the FEC had issued two draft opinions that largely rejected AFFPA’s argument. And several attorneys general from the states involved had submitted briefs urging the FEC to uphold the state laws.
Because of AFFPA’s withdrawal of their request, FEC will no longer rule on the issue. That means the state laws — which in some cases place significant restrictions on robo-call operations — remain in force.
Jason Torchinsky and Michael Bayes, lawyers for AFFPA, did not immediately respond to TPMmuckraker’s request for comment. But according to a veteran election lawyer, it’s common for requests to be withdrawn if the requestor expects an adverse ruling.
AFFPA has ties to the high-powered GOP operatives behind a range of dirty tricks over the years. Torchinsky was one of the architects of the American Center for Voting Rights (ACVR). That was the bogus “voting-rights” group that was set up by GOP operatives in 2005 to “give ‘think tank’ academic cachet to the unproven idea that voter fraud is a major problem in elections,” as election law expert Rick Hasen has written. AFFPA also has ties to DCI Group, the notorious Republican consulting firm that has represented the Burmese junta and helped create “Smokers Rights” grops on behalf of RJ Reynolds.
Late Update: AFFPA lawyer Jason Torchinsky has given a statement to Politics magazine explaining the withdrawal, which seems to confirm that it was prompted by concerns that the FEC would issue an adverse ruling.
The FEC requested a second extension of time to answer what we thought was a simple, straightforward, and easy legal question according to 30 years of FEC precedent. So far, they have released three draft responses. One of those drafts correctly concludes that the state robocall restrictions are pre-empted by federal law. The other two drafts further confuse the state of the law and the adoption of either one could make it even more difficult for us to exercise our First Amendment rights.
Even if the FEC ruled in our favor, the submitted comments from the state attorneys general suggest we would still be forced to litigate this issue. Given the delay and the likelihood that some state attorneys general would simply disregard a ruling in our favor, we withdrew our request. We intend to continue pursuing this matter in the future, but on a narrower and more selective basis.