Wednesday, August 20, 2014
Judge Christopher R. Cooper (D.D.C.) earlier this week in Rufer v. FEC granted a plaintiff's motion to send its First Amendment challenge to the restriction on contributions to political parties to the en banc D.C. Circuit for consideration. But in the same ruling, Judge Cooper denied a motion to temporarily enjoin the law.
The seemingly mixed ruling means that the court sees the challenge as both including "substantial, non-frivolous constitutional claims that are not clearly foreclosed by Supreme Court precedent" (thus meeting the statutory standard for appointment of an en banc circuit court under FECA) and "in tension with forty years of Supreme Court jurisprudence upholding contribution limits to political parties" (thus failing the likely-to-succeed-on-the-merits standard for a preliminary injunction).
In plain language, the ruling seems to reflect the court's view that while current Supreme Court doctrine supports contribution limits to political parties, that's likely to change.
He's probably right.
But Judge Cooper's decision is not a ruling on the merits. It only sends the constitutional question to the en banc D.C. Circuit ("after developing an appropriate factual record"), thus fast-tracking it to the Supreme Court, and presages the likely end result with this Supreme Court: the federal limit on contributions to political parties will almost surely go down.
The case was brought by the national and state Republicans and Libertarians challenging the federal restriction on base contributions to political parties. The plaintiffs argued that they could segregate contributions for independent expenditures in separate accounts, and therefore avoid quid pro quo corruption or its appearance--the two government interests that the Court has said justify contribution limits to candidates and political parties. Judge Cooper said it better:
This case sits at the confluence of two currents of First Amendment jurisprudence concerning federal campaign finance: the constitutional permissibility of limiting contributions to federal candidates and political parties, and the constitutional impermissibility of limiting contributions to independent entities whose campaign expenditures are not coordinated with candidates or parties. Plaintiffs rest their challenge on the latter current; the FEC resists it on the former.
Judge Cooper ruled that the plaintiffs' free speech challenge to the contribution limits raised significant enough questions to justify sending the issue to the en banc D.C. Circuit, a procedure available under FECA designed to get important issues quickly before a full circuit court and ultimately the Supreme Court. But at the same time, Judge Cooper denied a plaintiff's motion for a preliminary injunction, ruling that well settled (for now) Supreme Court precedent meant that the plaintiffs couldn't show that they were likely to succeed on the merits.
Taken together, the two sides of this ruling mean that the court understands the current state of the law, but can also read the tea leaves--which say that the law's likely to change.
Judge Cooper's decision isn't a ruling on the merits. Still, it fast-tracks the case to the en banc D.C. Circuit and then, inevitably, to the Supreme Court. It also presages the likely result in this Supreme Court: contribution limits to political parties will almost surely go down.
Tuesday, August 19, 2014
Can a city prohibit police officers from making monetary contributions to political campaigns, including contributions to their union's political action committee? The Third Circuit, in its opinion in Lodge No. 3, Fraternal Order of Police v. City of Philadelphia concludes that such a rule violates the First Amendment.
The history behind the prohibition is a fascinating one, which the court's opinion by Judge Thomas Hardiman discusses as great length because one "cannot understand" the prohibition without "reference to Philadelphia's efforts to combat patronage" given its unsavory history. As the court explains:
The nefarious relationship between Philadelphia’s Republican machine and its police force culminated in September 1917 with the scandal of the “Bloody Fifth” Ward, where officers beat an opposition candidate, terrorized his supporters, and killed a detective who attempted to intervene. The incident led to the arrest of the mayor and the conviction of six police officers, as well as public outcry for the insulation of the civic bureaucracy from politics. Amidst these calls for reform, in 1919 the Pennsylvania Assembly granted Philadelphia a new Charter, which enacted a series of reforms aimed at reducing corruption within government and the police department.
The present rule, adopted in 1951, prohibits political contributions by police officers as a method of combating corruption and promoting public confidence. The court analyzed the prohibition under United States v. National Treasury Employees Union (NTEU), 513 U.S. 454 (1995), requiring the government "demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." The Third Circuit agreed with the district court, although not with much enthusiasm, that the recited harms were real. However, the Third Circuit disagreed with the district judge that the second prong was satisfied, holding that the regulation did not alleviate the harms in a sufficiently direct and material manner.
In part, the direct and material failure was based on the exclusive application to police officers:
The City also fails to persuade us why the contribution ban should apply only to the police, and not to the approximately 20,000 other individuals in its employ. The record shows that the Republican machine historically extracted political assessments from all civic employees: the practice was so pervasive that, in the early 20th century, the machine collected contributions from 94 percent of the city’s workforce. If the Charter ban’s purpose was to end such compulsory wage contributions, it is unclear why the City would enforce the ban only against the police. Moreover, the City has made no attempt to show that the Democratic Party’s recent dominance in Philadelphia politics was achieved through corruption.
As the court notes, the regulation also applied to firefighters, but the Philadelphia firefighters’ union "in a case remarkably similar to this one, successfully challenged the ban as an unconstitutional infringement on its members’ First Amendment rights" in 2003 and the city did not appeal. Moreover, the court notes that the city is "simultaneously condoning political activities by the police that have similar, if not more pernicious, implications" than the contribution bar.
The Third Circuit also relies on recent United States Supreme Court cases on campaign finance such as McCutcheon v. FEC and Citizens United v. FEC, gaining support for its conclusion that the regulation violates the First Amendment.
The opinion notes that the city has other ways to achieve its goals: "for example, the prohibition of automatic paycheck deductions, or greater enforcement of existing anti-solicitation measures." Even as it says it is "loath to disturb" a rule that has been in effect for decades given Philadelphia's history of corruption, the court makes clear that the rule has outlived its usefulness - - - and its constitutionality.
Wednesday, August 6, 2014
The D.C. Circuit ruled yesterday in Stop This Insanity, Inc., Employee Leadership Fund v. FEC that the federal restrictions on corporate PACs do not violate the First Amendment. But in the wake of Citizens United, which held that corporations didn't have to establish separate PACs to engage in political speech in the first place, the ruling probably won't much matter.
The case arose when Stop This Insanity, Inc., or "STII," a corporation, sought to establish a separate PAC to solicit and spend funds on political speech. But when STII realized that its PAC would be subject to federal regulations--in particular, restrictions on whom and when the PAC could solicit--it filed suit, arguing that the restrictions violated the First Amendment. On the other hand, STII did not complain (obviously) about the benefit its PAC received under federal regulations, that it did not have to disclose its fundraising expenses. The court summed up its claim:
Simply put, Stop This Insanity would like to use its segregated fund [its PAC] to solicit the entire public while concealing its expenses for such solicitation.
STII argued that Citizens United compelled this result. In particular, STII said that Citizens United prohibits restrictions based on distinctions between different organizational entities, and the regulations single out corporate PACs for restrictions on solicitation. STII claimed that the restrictions were therefore subject to the highest scrutiny, and failed.
The court disagreed. It said that the solicitation restrictions did not prevent a PAC from speaking (the way a corporation was prevented from speaking before Citizens United); instead, they simply regulated the speech in the nature of a disclosure. Moreover, the court noted that after Citizens United corporate PACs are functionally obsolete: they remain on the books, but they serve no particular purpose, because corporations can now spend on their own. Given that reality, restrictions on corporate PACs (which a corporation, like STII, voluntarily established) don't unduly restrict a corporation's speech, because the corporation itself can speak (with restrictions that "are less burdensome" than those on a corporate PAC). As the court said,
Despite the availability of a more robust option--at least, when it comes to independent expenditures--[STII] has decided to do things the hard way. And now, trapped in a snare it has fashioned for itself, STII decries its inability to use the [PAC] in the way it sees fit--without the limits Congress attached to the operation of these funds.
The ruling means that federal solicitation restrictions on corporate PACs stay on the books, at least unless and until the case is appealed.
But in practical terms the ruling probably won't mean much. That's because a corporation that wants to solicit and spend money for political speech today probably would opt for the more "robust option"--simply solicit and spend the money itself, the "less burdensome" way to do it--and not "do things the hard way" by establishing a corporate PAC. In other words, while corporate PACs and the restrictions on them stay on the books, it seems doubtful that any corporation today would use them for its political speech.
Wednesday, June 18, 2014
At the Cato Institute in Washington D.C. and live-streaming today at noon (EST), there's a discussion featuring Shaun McCutcheon - - - millionaire, plaintiff, and now author of Outsider Inside the Supreme Court: A Decisive First Amendment Battle- - - and Professor Ron Collins - - - First Amendment scholar and author of When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment.
They will be joining others to discuss the Court's decision this Term in McCutcheon v. FEC and the future of campaign finance under the First Amendment.
More information here.
Thursday, June 5, 2014
In her relatively brief essay Hobby Lobby and the Pathology of Citizens United, available on ssrn, Professor Ellen Katz (pictured) advances a doctrinal and jurisprudential argument - - - rather than political or consequentialist ones - - - for the "danger" of Citizens United v. FEC.
Citizens United read a number of prior decisions to adopt rules those decisions deliberately chose not to espouse. This is not an entirely new move for the Court as it has previously cast off a decision’s doctrinal limits and stated normative claims. The contribution of Citizens United, however, was to normalize this stance. The Roberts Court seems increasingly comfortable approaching precedent just as it did in that case. This Essay identifies this move as a consistent practice across a number of decisions, and explains both why it is likely to be used in the pending ACA cases and beyond, and why it is cause for deep concern.
It is a phenomenon Katz labels "fanciful precedent." She contends it was operative in last Term's controversial Shelby County v. Holder.
She argues that it was prominent in Citizens United related to the Court's use of First National Bank of Boston v. Bellotti (an issue of footnotes as we discuss here and here), in a manner that might foreshadow any Robert Court opinion in Hobby Lobby "relying" on United States v. Lee and Braunfeld v. Brown.
Katz's short piece is worth a read as we await the Court's decision in Sebelius v. Hobby Lobby Stores, Inc. (and Conestoga Woods Specialties, Corp. v. Sebelius) argued in March.
Wednesday, May 21, 2014
The Ninth Circuit yesterday rejected a challenge to California's political contribution disclosure requirement by a group of political committees that backed Prop 8, the state constitutional ballot initiative that defined marriage only as between one man and one woman. The ruling means that the California's disclosure requirement stays in place, and that Prop 8 Committees have to comply.
The Prop 8 Committees in ProtectMarriage.com v. Bowen challenged California's requirement that political committees disclose contributors who contribute more than $100, even after a campaign, arguing that some of their contributors had been harassed. The Prop 8 Committees challenged the requirement both on its face and as applied.
The court rejected the challenges. It applied the familiar "exacting scrutiny" standard to disclosures--that the requirement (and the burden it imposes) bears a "substantial relation" to a "sufficiently important" government interest. As to the facial challenge, the court said that the state obviously had sufficiently important interests in disclosure during the campaign, and that the state still had sufficiently important interests even after the campaign:
A state's interests in contribution disclosure do not necessarily end on election day. Even if a state's interest in disseminating accurate information to voters is lessened after the election takes place, the state retains its interests in accurate record-keeping, deterring fraud, and enforcing contribution limits. As a practical matter, some lag time between an election and disclosure of contributions that immediately precede that election is necessary for the state to protect these interests. In this case, for example, Appellants' contributions surged nearly 40% (i.e., by over $12 million) between the final pre-election reporting deadline and election day. Absent post-election reporting requirements, California could not account for such late-in-the-day donations. And, without such reporting requirements, donors could undermine the State's interests in disclosure by donating only once the final pre-election reporting deadline has passed.
As to the as-applied challenge, the court said they weren't justiciable: a request for an injunction to purge records of past disclosures is moot (and not capable of repetition but evading review); a request for an exemption from future reporting requirements is not ripe. Judge Wallace dissented on the as-applied challenge.
May 21, 2014 in Campaign Finance, Cases and Case Materials, Elections and Voting, First Amendment, Jurisdiction of Federal Courts, Mootness, News, Ripeness, Speech | Permalink | Comments (0) | TrackBack (0)
Friday, May 16, 2014
The Seventh Circuit this week issued a sweeping ruling on Wisconsin's campaign finance requirements and permanently enjoined a good part of the law. The ruling in Wisconsin Right to Life, Inc. v. Barland marks the end of the second round of this broadside challenge to Wisconsin's law. The first round ended with a Seventh Circuit ruling overturning the state's $10,000 cap on contributions under the First Amendment.
The ruling this week is long and detailed. That's because Wisconsin Right to Life, Inc., a 501(c)(4) organization, challenged "a dizzying array of statutes and rules" as vague, overbroad, violative of free speech. It's also because Wisconsin law, according to the court, is "labyrinthian and difficult to decipher without a background in this area of the law," and "has not been updated to keep pace with the evolution in Supreme Court doctrine . . . ."
Portions of the ruling were unsurprising. Thus the court ruled that Wisconsin's ban on corporate speech and its cap on corporate fundraising for an unaffliated PAC violated the First Amendment under Citizens United.
Other portions required a little more work:
Disclaimer Requirement. The court held that Wisconsin's regulatory disclaimer requirement for independent political communications, as applied only to 30-second radio ads (because that's all that was challenged), was unconstitutional. Wisconsin law required a certain disclaimer, but regulations went 50 words beyond that disclaimer, adding nothing to it, with no apparent good reason, and cutting into ad time.
Definitions of "political purposes" and "political committee." The court ruled that the statutory definition of "political purposes" and the regulatory definition of "political committee," which trigger certain registration, reporting, and disclosure requirements, were unconstitutionally vague and overbroad, imposing PAC duties on nearly any political communication. The court gave Wisconsin law a narrowing construction, ruling that "[a]s applied to political speakers other than candidates, their campaign committees, and political parties, the definitions are limited to express advocacy and its functional equivalent as those terms were explained in Buckley and Wisconsin Right to Life II."
PAC Registration and Reporting Requirements. The court ruled that the Wisconsin regulation that treats issue advocacy during the preelection period as fully regulable express advocacy if it mentions a candidate is unconstitutional. It also ruled that the regulation that "imposes PAC-like registration, reporting, and other requirements on all organizations that make independent disbursements, is unconstitutional as applied to organizations not engaged in express advocacy as their major purpose."
In short, the court said that the Wisconsin legislature failed to keep up with changes in the doctrine--in particular, the change that Citizens United wrought--and that the Wisconsin Government Accountability Board's attempts to fill in the gaps through regulations simply swept too broadly.
The court's ruling directs the lower court to permanently enjoin the above-mentioned provisions. The ruling is a sharp kick in the pants to the Wisconsin state legislature to update its campaign finance law.
Thursday, May 8, 2014
The Seventh Circuit yesterday stayed Judge Randa's ruling preliminarily enjoining further criminal investigation into political spending by the Wisconsin Club for Growth and its director, Eric O'Keefe. We posted on Judge Randa's ruling here.
The Seventh Circuit said that because the defendants filed a notice of appeal before Judge Randa issued his injunction, Judge Randa had to show that the appeal was frivolous before acting. This he did not do. Here's from the short opinion:
Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989), holds that, once a litigant files a notice of appeal, a district court may not take any further action in the suit unless it certifies that the appeal is frivolous. The district court failed to follow that rule when, despite the notice of appeal filed by several defendants, it entered a preliminary injunction. This court accordingly stays the injunction, and all further proceedings in the district court, until the judge has ruled definitively on the question posed by Apostol.
The ruling puts the ball back in Judge Randa's court, allowing him to certify that the appeal is frivolous and resume the case there. If he does not, then proceedings in the district court are stayed pending appeal on the merits.
The Seventh Circuit also stayed the portion of Judge Randa's ruling that required the defendants to return or destroy documents "as long as proceedings continue in this court."
Wednesday, May 7, 2014
Judge Rudolph T. Randa (E.D. Wis.) this week granted a preliminary injunction against a criminal investigation into political spending by the Wisconsin Club for Growth and its director, Eric O'Keefe. The criminal investigation sought information related to WCFG's coordination with Governor Walker's campaign committee and other 501(c)(4) groups, in violation of Wisconsin law, to promote the passage of Wisconsin Act 10, Governor Walker's (successful) effort to sharply restrict union strength in the state (among other things). Judge Randa's ruling means that the investigation must stop, at least for now.
The ruling is just the latest chapter in a long-running story involving Wisconsin Act 10, Governor Walker, and advocacy (and spending) around both.
Judge Randa ruled that the investigation violated free speech, because it "was commenced and conducted 'without a reasonable expectation of obtaining a valid conviction.'" According to Judge Randa, that's because it was based on an interpretation of Wisconsin law that would have banned coordination on issue advocacy (and not candidate contributions)--something that the First Amendment does not allow.
Judge Randa said that WCFG's issue advocacy was core political speech, and that its coordination with other 501(c)(4)s, and even with the Friends of Scott Walker, did not raise any risk of quid quo pro corruption. Therefore the state could not criminalize it.
Judge Randa rejected the defendants' argument that WCFG's coordination with Governor Walker's campaign created a quid pro quo problem. He said that that approach "would mean transforming issue advocacy into express advocacy by interpretative legerdemain and not by any analysis as to why it would rise to the level of quid pro quo corruption." He said WCFG simply held the same views that Governor Walker already held, and that therefore there was no risk of corruption.
Judge Randa cited McCutcheon throughout and made a special point of quoting Justice Thomas's concurrence on Buckley's demise:
Buckley's distinction between contributions and expenditures appears tenuous. As Justice Thomas wrote, "what remains of Buckley is a rule without a rationale. Contributions and expenditures are simply 'two sides of the same First Amendment coin,' and our efforts to distinguish the two have produced mere 'word games' rather than any cognizable principle of constitutional law." Even under what remains of Buckley, the defendants' legal theory cannot pass constitutional muster. The plaintiffs have been shut out of the political process merely by association with conservative politicians. This cannot square with the First Amendment and what it was meant to protect.
Op. at 25.
Friday, April 4, 2014
Peter Beinart argues over at The Atlantic that the Court's ruling this week in McCutcheon--that aggregate limits on campaign contributions violate the First Amendment--could haunt the Republican Party. His claim: Over the long haul, McCutcheon will contribute to the Republican Party's reputation as the party of plutocrats.
From the piece:
A CNN poll this February found that . . . Americans . . . said Republican policies favored the rich over the middle class by a whopping 46 points.
The Supreme Court has now made overcoming that reputation harder.
. . .
In the 1970s, a liberal Supreme Court fueled right-wing cultural populism. Today, a conservative Supreme Court is breeding left-wing economic populism. For the contemporary GOP, the danger of looking like the plaything of America's super-rich outweighs the benefits of increased support from America's super-rich. Even in the age of the Roberts Court, winning elections generally requires more than just raising more money. It requires winning more votes.
Published on the same day that the Court rendered its 5-4 decision in McCutcheon v. Federal Election Commission, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment is an ebook by ConLawProfs Ron Collins and David Skover.
A taste of the authors' analysis is apparent in their "foreward" to the SCOTUSblog symposium on the case, "It's all forward now." They write that in "the past eight years, since Chief Justice John Roberts and Justice Samuel Alito have been on the Court, the Justices have handed down six First Amendment campaign finance opinions" all of which have declared a campaign finance regulation unconstitutional under the First Amendment, and five of which were 5-4 decisions. They also provide some "takeaways" from the opinion.
The book will certainly be a must-read for anyone interested in campaign finance and the First Amendment.
Wednesday, April 2, 2014
A sharply divided Supreme Court today in McCutcheon v. FEC struck the aggregate federal campaign contribution limits. The five-justice majority ruled that the limits violated the First Amendment.
Chief Justice Roberts wrote the majority opinion, joined by Justices Scalia, Kennedy, Thomas, and Alito. Justice Breyer wrote the dissent, joined by Justices Ginsburg, Sotomayor, and Kagan.
Recall that aggregate limits restrict the total amount of money an individual can contribute to all candidates, PACs, and parties. Base limits, which were not at issue in the case, restrict the amount an individual can contribute to an individual candidate. (The Court said that base limits are still constitutional, as are disclosure requirements.)
The majority said that under aggregate limits
A donor must limit the number of candidates he supports, and may have to choose which of several policy concerns he will advance--clear First Amendment harms that the dissent never acknowledges.
It also said that aggregate limits do not control quid pro quo corruption or the appearance of corruption--the reasons that the Court has upheld individual limits.
The Court said that the government had other ways to advance its anti-circumvention interest--the interest in preventing a single donor from circumventing base limits by giving to multiple recipients with the expectation that they funnel the contributions to one candidate.
The ruling deals another major blow, after Citizens United, to efforts to restrict the amount of money in politics.
Friday, February 28, 2014
Judge John D. Bates (D.D.C.) yesterday dismissed a case brought by Citizens for Responsibility and Ethics in Washington, or CREW, challenging the IRS rule that allows donors to certain political organizations to remain under the radar.
The ruling means that CREW's effort in this court to get the IRS to rewrite its rule on 501(c)(4) organizations fails, and that unless and until the IRS rewrites its rule, 501(c)(4) organizations can continue engaging up to 49% of their activity in political spending while keeping their donors hidden from public view.
The case, Citizens for Responsibility and Ethics in Washington v. IRS, challenged the IRS rule implementing Section 501(c)(4) of the tax code. That provision grants a tax exemption for organizations "not organized for profit but operated exclusively for the promotion of social welfare." (Emphasis added.) But the IRS rule implementing that provision applies to organizations that are "primarily engaged in promoting in some way the common good and general welfare of the people of the community. An organization embraced within this section is one which is operated primarily for the purpose of bringing about civic betterments and social improvements."
In short: The statutory "operated exclusively" became a regulatory "primarily engaged," giving 501(c)(4)s considerably more latitude to engage in electioneering.
That matters, because 501(c)(4) status allows organizations to spend money in politics while at the same time shielding the names of donors. Some 501(c)(4)s have taken the position, based on the IRS rule, that they qualify for tax exemption if they engage 49% of less in political donations. That's a lot of political donations--and a lot of shielding of donors--especially when the statute requires them to be "operated exclusively" for social welfare purposes.
So CREW sued, arguing that the IRS regulation let 501(c)(4)s get away with way more political spending, and shielding, than the Internal Revenue Code allowed.
But Judge Bates dismissed the case for lack of standing. He ruled that CREW could not establish informational injury, because its injury--lack of information on donors--was hypohetical and speculative. In particular, Judge Bates wrote that it wasn't the IRS regulation that prevented CREW from getting information on donors, but instead the organizations' decision on how to organize. In other words, if the IRS rewrote its regulation to conform to the Internal Revenue Code, 501(c)(4)s might drop their tax-exempt status or reorganize under another tax-exempt provision to maintain donor confidentiality; but they wouldn't necessarily reorganize as 527s (which would require donor disclosure). Judge Bates wrote that this also prevented CREW from showing causation and redressability.
Judge Bates also ruled that CREW did not have standing based on programmatic injury--the injury to its ability to collect donor information and fulfill its watchdog mission. That's because CREW's injury isn't "fairly traceable" to the IRS decision not to rewrite its rule--there are other intervening causes of CREW's injury.
Here's the video:
Our discussion of the oral arguments in McCutcheon and its relationship to Citizens United is here.
Monday, February 24, 2014
The Brennan Center at NYU launched its new newsletter Money in Politics last week. According to the announcement, the newsletter "will highlight the latest news on the role of big money in politics, its potential impact on the 2014 election, and reform efforts nationwide." Here's the first issue, published on February 20, covering New York's moves toward public financing, super-PAC donations from both sides of the aisle, a federal public financing bill, and various news related to spending and campaign finance reform.
Sunday, January 26, 2014
Tenth Circuit Holds Colorado's Campaign Finance Scheme Unconstitutional as a Violation of Equal Protection
In its opinion this week in Riddle v. Hickenlooper, a panel of the Tenth Circuit unanimously held unconstitutional a differential contribution limit in the Colorado campaign finance scheme as violating the Equal Protection Clause.
The scheme, deriving from Colorado's Amendment 27 and statutes, provided that the campaign limit for contributions to candidates who ran in a primary election, even if unopposed, was $200 per person and there was an additional campaign limit of $200 per person for all candidates running in the general election. This meant that a candidate who was a member of a major party holding a primary had a per person limit of $400, while minor party and write-in candidates had a per person limit of only $200.
The panel held that because "the statutory classification affects a fundamental right, the right to political expression" the correct equal protection standard should be a "standard that is at least as rigorous as the standard applied under the First Amendment," and that under standard the classification fails. The panel found that the anti-corruption (or appearance of corruption) governmental interest was "sufficiently important," but the means chosen "are ill-conceived to advance these interests."
The statutory classification might advance the State’s asserted interest if write-ins, unaffiliated candidates, or minor-party nominees were more corruptible (or appeared more corruptible) than their Republican or Democratic opponents. But the Defendants have never made such a suggestion. In the absence of a link between the differing contribution limits and the battle against corruption, the means chosen are not closely drawn to the State’s asserted interest.
Concurring, Judge Gorsuch began by stating:
I confess some uncertainty about the level of scrutiny the Supreme Court wishes us to apply to this contribution limit challenge, but I harbor no question about the outcome we must reach. My colleagues are surely right that, as applied, Colorado’s statutory scheme offends the Constitution’s equal protection guarantee, whatever plausible level of scrutiny we might deploy.
Interestingly, both the concurring opinion and the panel majority opinion, authored by Judge Bacharach, clearly rest their analysis on the Equal Protection Clause, and thus do not reach the First Amendment challenge. Nevertheless, First Amendment doctrine and precedent permeate the reasoning. Yet given that the Colorado campaign finance scheme results in such an untenable classification, the conclusion of an equal protection classification seems the right one.
Wednesday, November 27, 2013
The Treasury Department yesterday announced that it will propose new guidance for social welfare organizations that will better define the requirements for tax-exempt status for those organizations engaged in candidate-related political activities.
The new proposed guidance is aimed at 501(c)(4) organizations, which are organized under the IRC for social welfare purposes, but nevertheless engage in significant political activities. The 501(c)(4) form allows these organizations to fly under the radar while still engaging in politics. For example, 501(c)(4) organizations need not disclose their donors to the FEC, and they need not disclose all of their political activities to the IRS. (The Center for Responsive Politics notes that "Americans for Tax Reform, for instance, told the FEC it spent $15.8 million on independent expenditures in 2012, while it told the IRS it spent just $9.8 million.) An organization can retain its 501(c)(4) status so long as less than half (up to 49%) of its activity is political.
These "dark money" organizations have exerted dramatically increased influence in elections: "While nonprofit organizations spent just $5.2 million on federal elections in 2006, that number rocketed to more than $300 million by 2012," according to The Daily Beast. These organizations include tea party groups and others that the IRS targeted, leading to an IG report earlier this year, which led to the proposed rules.
The proposed guidance is designed to make it easier for the IRS to determine whether a social welfare organization exceeds the threshold for candidate-related political activities by better defining those activities. "These proposed rules reduce the need to conduct fact-intensive inquiries, including inquiries into whether activities or communications are neutral and unbiased." The likely net result is that some or many of these organizations will find that their activities now increase the percentage of "candidate-related political activity" in which they're involved, forcing them either to reduce their political activities or to lose their non-profit status.
The proposed guidance "defines the term 'candidate-related political activity,' and would amend current regulations by indicating that the promotion of social welfare does not include this kind of activity." In particular, the guidance defines certain communications, grants and contributions, and activities closely related to elections or to candidates as "candidate-related political activity."
Citizens for Responsibility and Ethics in Washington has a statement here and a resource page here. The Center for Responsive Politics has a statement here and a resource page, with a nice graphic, here.
Friday, November 22, 2013
The Federal Election Commission split 2-2 and thus denied a request from the Tea Party Leadership Fund for an exemption from FEC disclosure requirements of names of individual contributors who contributed more than $200 to the group. The non-action means that the Tea Party Leadership Fund will have to disclose contributors like everybody else subject to the FEC's disclosure requirement. NPR reports here.
The Tea Party argued that its donors are subject to harassment and hostility from government officials and private actors--with over 1,400 pages of evidence. Two Commissioners reportedly agreed, and two disagreed. The two competing draft FEC opinions are here. The Commission, splitting 2-2, didn't accept either. That meant that the Tea Party's request was denied.
The Court upheld disclosure requirements against a facial challenge in Buckley v. Valeo. But it also said that the disclosure requirements might be unconstitutional as against a minor party that could show a "reasonable probability" that its contributors would be subjected to threats, harassment, and reprisals if their contributions were disclosed. Buckley at 69-74 (discussing NAACP v. Alabama).
Courts and the FEC have awarded an exemption under this standard only in very narrow cases, to the Communist Party and the Socialist Workers Party, minor parties that "rarely have firm financial foundation." On the other hand, a court in 2011 denied an exemption to ProtectMarriage.com, a group that raised $30 million and supported California's Prop 8 (banning same-sex marriage in the state). (Doe v. Reed, the Court's 2010 case, involved disclosure, but by way of a state's Public Records Act, not the FEC regs.)
Friday, October 25, 2013
A few days after hearing oral argument, a Second Circuit panel has reversed the district judge and entered an order enjoining the enforcement of New York Election Law §14-114(8) and §14-126(2) in its 14 page unanimous opinion in New York Progress and Protection PAC (NYPPP) v. Walsh.
NYPPP challenged New York's $150,000 individual contribution limit to a PAC alleging that it has a "donor waiting to contribute $200,00 to its cause" and that the contribution limit violates NYPPP's "core First Amendment right to advocate in favor of Joseph Lhota in the upcoming New York mayoral election." According to the NY Times, that "donor" is none other than Alabama businessman, Shaun McCutcheon - - - the plaintiff in the campaign finance challenge McCutcheon v. FEC heard by the United States Supreme Court earlier this month as we discussed here.
While stating that the court expressed "no opinion on the ultimate outcome," it did hold that there was a substantial likelihood on the merits, citing Citizens United v. FEC for the proposition that the government "has no anti-corruption interest in limiting independent expenditures." The panel rejected the district court's finding that the "so-called independent expenditure only committees" have "only one purpose - advancing a single candidacy at a single point in time - - - " and are thus "not truly independent as a matter of law." Instead, the panel concluded that NYCPP was independent and its choices "irrelevant." Thus, a donor to an independent expenditure PAC such as NYPCCC is "even further removed from the candidate and may not be limited in his ability to contribute to such committees." The panel noted that this issue has been resolved "consistently" by all the federal courts that have considered it.
Balancing the equities, the panel easily concluded that the hardship faced by NYPPP and its donors was significant: "Every sum that a donor is forbidden to contribute to NYPPP beacuse of this statute reduces constitutionally protected polictical speech."
The Second Circuit's injunction against the enforcement of the NY campaign finance statutes was criticized by the rival of Republican Joe Lhota: a spokesperson for Democrat Bill deBlasio, reportedly stated the ruling would "empower the right-wing billionaires, like the Koch Brothers, and Tea Party groups who support Joe Lhota to drown out the voices of New Yorkers."
The race between the mayoral candidates remains heated, if not especially close so far. The question is whether an influx of money can change the outcome on November 5.
Meanwhile, watch the most recent debate between the candidates:
Tuesday, October 8, 2013
The Supreme Court today heard oral arguments in McCutcheon v. FEC, the case testing whether aggregate campaign contribution limits violate the First Amendment.
Aggregate limits, established under the Bipartisan Campaign Reform Act, or BCRA, cap the total amount that a contributor can give to candidates, political parties, and political committees. Aggregate limits supplement base limits, also in the BCRA, which cap the amount that a contributor can give to a particular candidate. Aggregate limits are designed to prevent a contributor from circumventing the base limits (and thus to prevent corruption and the appearance of corruption) by funneling total contributions in excess of the base limits through a variety of different recipients and to a particular candidate.
Here's how it would work: Suppose Congress capped campaign contributions at $5,000 per candidate per cycle, so that a contributor could give only $5,000 to his or her preferred candidate. Without more, that contributor could easily bypass that base limit by simply contributing $5,000 to a number of different organizations that could, in turn, support or contribute to the contributor's preferred candidate. The contributor could thus effectively circumvent the base limit and corrupt his or her preferred candidate by funneling contributions through intermediaries.
Congress recognized this circumvention problem and imposed a cap on aggregate contributions in order to avoid it. The Court in Buckley v. Valeo (1976) upheld both the base contribution limit and an aggregate contribution limit, holding that they work to prevent actual and apparent corruption and circumvention. Later, in BCRA, Congress restructured and increased previous base and aggregate contribution limits and provided for automatic adjustments for inflation.
McCutcheon, a wealthy contributor, challenged the aggregate limits as violating the First Amendment. (For more on the background, my ABA Preview piece is here.)
The arguments today focused on whether the current aggregate contribution limits continue to do any work with regard to corruption or circumvention. The RNC and McCutcheon argued that they don't. They said that other features of the law already prevent circumvention and corruption, and that the aggregate limits therefore only serve to limit free speech and association. The FEC, on the other hand, said that they do--that they are necessary to close circumvention opportunities even with the other protective features of federal law, and that they prevent corruption.
The right answer, of course, turns on how money can flow in politics. There were plenty of hypotheticals today (and in the briefing) designed to illustrate how aggregate limits work to prevent corruption and circumvention (and counter-points on why they don't). Justices Breyer and Kagan led the charge with hypos showing why aggregate limits were necessary; Justice Kennedy expressed interest, as well. But for every hypo, the petitioners had an explanation why current law already solved the corruption and circumvention problem, even without aggregate limits. The lack of context and record on this point led Justices Breyer and Sotomayor to wonder whether the case might benefit from further development at the lower court. (Don't bet on this outcome.)
Justice Alito turned this line of questions on the government and asked SG Verrilli why other features of federal law don't already solve the corruption and circumvention problems. SG Verrilli seemed to back away from the circumvention interest and answered that a single contributor's very large contribution, dispersed across like-minded candidates and organizations, is itself a corruption problem, and that aggregate limits address this. The answer didn't seem to satisfy.
Chief Justice Roberts had a different concern: how the aggregate limits affect a contributor's ability to give the maximum amount to as many candidates as he or she wants--and how this limits a contributor's speech and association rights with regard to, say, the tenth candidate that the contributor wants to support. He also wondered whether there weren't less speech- and association-infringing ways to prevent corruption and circumvention.
In short, both the Chief Justice and Justice Alito, who together may well control the outcome of this case, seemed accutely concerned that the aggregate limits weren't the best-tailored way for the government to achieve its interests in preventing corruption and circumvention. At the same time, though, neither Chief Justice nor Justice Alito (nor anybody else today) directly took on Buckley's holding on base and aggregate contribution limits. (Justices Kennedy, Scalia, and Thomas are all on record against Buckley's holding that the government can regulate contributions in the interest of preventing corruption.) Instead, the arguments focused on whether the non-aggregate-limiting features of BCRA can do the work of preventing corruption and circumvention--and therefore whether the aggregate limits only serve to infringe the First Amendment. So if the arguments today are any indication, we may see a 5-4 Court striking the aggregate limits because they're not sufficiently tailored to prevent corruption or circumvention--and because they limit too much speech and association.
If so, we'll likely see more total money going directly to candidates, political parties, and committees. But remember that under Citizens United individuals can already spend as much as they want on "independent" electioneering. This case won't change that, even if it directs some of that "independent" money to candidates, political parties, and committees for better coordinated expenditures. (Justice Scalia argued today that the anti-corruption purpose of aggregate limits seems as weak as, or weaker than, an anti-corruption purpose for the independent expenditure restrictions that the Court struck in Citizens United.) At the same time, this case probably won't upset Buckley's holding that the government can cap base contributions in the interest of preventing actual or apparent corruption. Indeed, it may not even upset Buckley's holding on aggregate contributions. Instead, it may only say that under BCRA aggregate limits aren't doing the anti-corruption and anti-circumvention work that they were designed to do, and that they're unduly infringing on the First Amendment.