Thursday, September 25, 2014
The Seventh Circuit this week reversed an earlier district court injunction halting a criminal investigation into coordination between Governor Scott Walker's campaign committee and "independent" groups on issue advocacy. We posted on the injunction here.
Recall that the Milwaukee County District Attorney asked a state court to initiate a "John Doe" criminal investigation into alleged coordination between Walker's campaign committee and "independent" groups on issue advocacy. As part of the investigation, the court issued subpoenas, including one to Eric O'Keefe, who manages the Wisconsin Club for Growth, Inc., one of these "independent" groups. The state court granted O'Keefe's motion to quash. The prosecutor took the issue to the state's higher courts, but, before those courts could rule, O'Keefe filed in federal court, seeking an injunction and monetary damages against the prosecutors. The district court granted the injunction (thus halting the investigation), ruled that the defendants did not enjoy qualified immunity, and ordered the defendants to return or destroy all documents obtained in the investigation.
The Seventh Circuit reversed the injunction and dismissed the case. It held that the Anti-Injunction Act and principles of equity, comity, and federalism prohibit it. The court said that the plaintiffs couldn't show irreparable injury, that they had adequate remedies under state law, and that federal relief was not appropriate. Because the state court judge "concluded that the investigation should end as a matter of state law, because [the prosecutor] lacks evidence that state law has been violated . . . [t]he result is an injunction unnecessary at best, advisory at worst."
The court also took the district judge to task for effectively anticipating a Supreme Court ruling that would allow the kind of coordination alleged here under the First Amendment. That hasn't happened (yet), said the court, and the district judge was wrong to base the injunction on it.
The court said that the district judge was also wrong to deny qualified immunity.
Plaintiffs' claim to the constitutional protection for raising funds to engage in issue advocacy coordinated with a politician's campaign committee has not been established 'beyond debate.' To the contrary, there is a lively debate among judges and academic analysts. . . . No opinion of the Supreme Court, or by any court of appeals, establishes ('clearly' or otherwise) that the First Amendment forbids regulation of coordination between campaign committees and issue-advocacy groups--let alone that the First Amendment forbids even an inquiry into that topic.
Thus, the defendants enjoy qualified immunity.
Finally, the court held that "Wisconsin, not the federal judiciary, should determine whether, and to what extent, documents gathered in a John Doe proceeding are disclosed to the public." The court said that the federal district court "should ensure that sealed documents in the federal record stay sealed, as long as documents containing the same information remain sealed in the state-court record."
This ruling almost surely marks the end of the federal case. Because of the Anti-Injunction Act and the state of First Amendment law on campaign finance, this is not a good candidate for en banc or Supreme Court review.
September 25, 2014 in Campaign Finance, Cases and Case Materials, Courts and Judging, Federalism, First Amendment, Jurisdiction of Federal Courts, Music, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)
Monday, September 15, 2014
In a 25 page opinion replete with bolded underlined language, Judge Timothy Black held Ohio's statutory provisions prohibiting political false statements in Susan B. Anthony List v. Ohio Elections Commission.
Recall that the United States Supreme Court heard the case as Susan B. Anthony List v. Driehaus last Term and unanimously held that the case was ripe for review, reversing the Sixth Circuit. The Court's opinion made little mention of the substantive First Amendment arguments, although at oral argument, counsel for the anti-abortion group Susan B. Anthony List, referred to the Ohio Election Commission as a "ministry of truth," a characterization later echoed by Justice Scalia.
Judge Black refrains from an explicit Orwellian allusion, but he expresses a similar sentiment: "we do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth." (bold underlining in original). However, Judge Black does resort to a phrase attributed to the character Frank Underwood in the television show House of Cards: “There’s no better way to overpower a trickle of doubt than with a flood of naked truth.” (bold underlining in original).
Doctrinally, Judge Black relies on United States v. Alvarez in which the Court found the “Stolen Valor” statute unconstitutional, noting that the four Justice plurality held that strict scrutiny should apply and concluding that the federal statute was not necessary to achieve compelling interests and that less restrictive alternatives existed.
In considering the compelling government interest prong, Judge Black distinguished McIntyre v. Ohio Elections Committee (1995), the Court held unconstitutional a state statute prohibited the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature. This "right to be anonymous" seemed to rest in part on the government interest in ensuring truthfulness, but as Judge Black writes:
However, in McIntyre, the Supreme Court did not describe the state interest in preventing false speech as “compelling” or even “substantial,” saying only that it was “legitimate” and has “special weight during election campaigns.” McIntyre expressly refrained from any decision regarding the constitutionality of Ohio’s political false-statements laws. Moreover, Defendants cite no evidence that the false statements laws are “actually necessary” to achieve their interest. To be actually necessary, there must be a direct causal link between the restriction imposed and the injury to be prevented. Id.6 Here, instead, Defendants admit that “the consequences of deceptive false statements on elections are ... inherently difficult to quantify.”
As to the narrowly tailored prong, Judge Black found that the statute chilled protected truthful speech, especially important in the political context. Judge Black again emphasizes that the remedy for false speech is true speech, even as he notes that he is not convinced that "counterspeech will always expose lies," especially "in the wake of Citizens United." Nevertheless, the problem of government-determined truth is problematical:
we certainly do not want the Government (i.e., the OEC) deciding what is political truth anyway, for fear that the Government might persecute those who criticize the Government or its leaders. Ultimately, whether or not it is possible to create a system by which impartial citizens could identify lies from the truth is unclear. What is crystal clear, however, is that Ohio’s statutes fail in this respect. The process is inherently flawed.
Judge Black issued both a preliminary and permanent injunction so that the decision is a "final, appealable Order." Whether or not Ohio officials will choose to return to the Sixth Circuit remains to be seen.
Friday, September 12, 2014
Senate Republicans unanimously blocked the campaign finance constitutional amendment proposed by Democrats. The measure, S.J. Res. 19, failed 54 to 42, short of the 60 votes necessary to close debate and move to a vote on the merits.
The proposed amendment would have overturned Citizens United and allowed Congress and state legislatures to regulate campaign contributions and spending. It read:
Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.
Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.
Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.
Republicans argued that the measure infringed on free speech. Senator Ted Cruz captured the point when he said that SNL producer "Lorne Michaels could be put in jail under this amendment for making fun of any politician." That seems pretty unlikely, but still possible under the language. Politifact gave it a "half-true," based on interviews with several ConLawProfs.
Monday, September 1, 2014
In her new book, Corruption from Harvard University Press, ConLawProf Zephyr Teachout argues that campaign finance reform is constitutional and that the anti-corruption principle is one that originalists should embrace rather than disparage.
When Louis XVI presented Benjamin Franklin with a snuff box encrusted with diamonds and inset with the King’s portrait, the gift troubled Americans: it threatened to “corrupt” Franklin by clouding his judgment or altering his attitude toward the French in subtle psychological ways. This broad understanding of political corruption—rooted in ideals of civic virtue—was a driving force at the Constitutional Convention.
For two centuries the framers’ ideas about corruption flourished in the courts, even in the absence of clear rules governing voters, civil officers, and elected officials. Should a law that was passed by a state legislature be overturned because half of its members were bribed? What kinds of lobbying activity were corrupt, and what kinds were legal? When does an implicit promise count as bribery? In the 1970s the U.S. Supreme Court began to narrow the definition of corruption, and the meaning has since changed dramatically. No case makes that clearer than Citizens United.
Teachout has argued her position in op-eds in the Washington Post and in Politico after the Court's decision last term in McCutcheon v. FEC, (more of our McCutcheon discussion is here, here, here, and here).
Additionally, Teachout - - - along with Tim Wu, also a law professor - - - is running for state wide office in New York. Teachout is running for Governor against the incumbent Andrew Cuomo and Wu is running for Lieutenant Governor in next week's primary election. (Teachout prevailed in lawsuits brought by the Cuomo campaign challenging her eligibility based on residency). Interestingly, the New York Times endorsed Wu, but did not endorse either Teachout or Cuomo in the Governor's race, citing Teachout's lack of demonstrated "breadth of interests and experience needed to govern a big and diverse state" and Cuomo's failure to keep his "most important promise" of addressing "corruption." The primary is September 9.
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.