Wednesday, June 19, 2013
Common Cause this week pursued its case against the Senate filibuster at the D.C. Circuit when it filed its appellate brief, arguing that Judge Emmett G. Sullivan (D.D.C.) was wrong to dismiss the case last December and pressing its argument that the filibuster is unconstitutional. Common Cause's press release is here; the brief is here. We posted on Judge Sullivan's decision here.
Recall that Judge Sullivan dismissed the case, Common Cause v. Biden, for lack of standing and for raising a political question. In its brief, Common Cause takes on Judge Sullivan's ruling and argues that the filibuster is unconstitutional.
As to standing, Common Cause argues that House-member-plaintiffs have standing to challenge Senate Rule XXII, the cloture rule that allows a filibuster if the majority can't muster 60 votes to close debate, because the Rule allowed a minority in the Senate to effectively nullify their votes in favor of the DISCLOSE and DREAM Acts. Common Cause relies on language from Raines v. Byrd (1997), which says that "legislators whose votes . . . would have been sufficient to . . . enact a specific legislative Act have standing to sue if that legislative action . . . does not go into effect on the ground that their votes have been completely nullified" by a procedural violation of the Constitution. (In Raines, the Court held that Senator Byrd lacked standing when he mounted a facial challenge to the Line-Item Veto Act but failed to show that his vote on any specific appropriation bill had been nullified by the Act.)
Common Cause also argues that it has standing in its own right, because the filibuster of the DISCLOSE Act frustrated its core mission of campaign reform. It argues that it has standing based on its members, because they cannot learn the identities of certain campaign contributors. And it argues that the "dreamer"-plaintiffs have standing, because the filibuster of the DREAM Act denied them the benefits of that Act.
As to political question, Common Cause says that rules of Congress are justiciable, that they must be constitutional, and that "[t]here is nothing in the record of the Federal Convention indicating that the Framers intended to delegate to either house the authority to depart from the principle of majority rule . . . ." Brief at 15-16.
Finally, on the merits, Common Cause says,
Rule XXII's supermajority vote requirement is inconsistent with the rules of parliamentary practice that preceeded the adoption of the Constitution, the intent of the Framers as reflected in The Federalist Papers, the text of the Quorum and the Presentment Clauses, the exclusive list of exceptions to the principle of majority rule in the Constitution which specify when a supermajority vote is required, the provision of Article I, Sec. 3, cl. 4 that gives the Vice President the power to cast the tie-breaking majority vote when the Senate is "equally divided," and the first rules adopted by the Senate and the House immediately after ratification.
Brief at 56.
June 19, 2013 in Campaign Finance, Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Monday, May 6, 2013
The 2009 sharply divided Supreme Court opinion in Caperton v. Massey Coal is the centerpiece of the new book, The Price of Justice: A True Story of Greed and Corruption by Laurence Leamer. Recall that the Court in Caperton ruled that due process required judicial recusal of a West Virginia Supreme Court of Appeals judge, Justice Brent Benjamin, in a case involving Massey Coal because of the contributions by Massey Coal to Justice Benjamin's campaign.
The starred review from Publisher's Weekly describes the book as
the riveting and compulsively readable tale of the epic battle between Don Blankenship, the man who essentially ran the West Virginia coal industry through his company Massey Energy, and two seemingly ordinary attorneys: Bruce Stanley and David Fawcett. The centerpiece of the story is a West Virginia mine owner whom Blankenship purposefully bankrupted, and on whose behalf Stanley and Fawcett won (in 2002) a $50 million dollar verdict that is still unpaid. In hopes of having the ruling overturned by the West Virginia Supreme Court, Blankenship sought to “buy” a seat on the court by contributing over $3 million to the successful campaign of a conservative judicial candidate. However, the U.S. Supreme Court eventually found that Blankenship’s contributions were too much to allow the new West Virginia justice to hear the case. Leamer has produced a Shakespearean tale of greed, corporate irresponsibility, and personal hubris on the one hand, and idealism, commitment to justice, and personal sacrifice on the other. Blankenship is a villain for all time, and Stanley and Fawcett are lawyers who bring honor to their profession.
A good addition to that summer reading list for anyone interested in constitutional law and anyone who might like a reminder that lawyers can, indeed, be heroic.
Friday, April 26, 2013
In an interesting advisory opinion from the Federal Election Commission (FEC), the ability of same-sex couples married under state law to make political contributions similar to opposite-sex married couples is thwarted by the Defense of Marriage Act (DOMA). Recall that the United States Supreme Court is currently considering the constitutionality of DOMA in United States v. Windsor, argued last month.
The advisory opinion explained the underlying regulatory scheme:
Notwithstanding the prohibition on contributions in the name of another, a Commission regulation governing “[c]ontributions by spouses” provides that “limitations on contributions . . . shall apply separately to contributions made by each spouse even if only one spouse has income.” 11 C.F.R. 110.1(i). Thus, under Section 110.1(i), a spouse with no separate income may make a contribution in his or her own name “through the checking account of the other spouse.”
It concluded that "so long as the relevant provisions of DOMA remain in effect, the Committee may not apply 11 C.F.R. 110.1(i) to contributions from same-sex couples married under state law," although the Commission recognized that DOMA was currently under review.
In a separately issued concurring statement, FEC Chair Ellen Weintraub (pictured) emphasized that her "vote today was in no way intended to endorse the discriminatory, irrational burden that DOMA places on political participation by individuals in same sex."
If DOMA is not declared unconstitutional by the United States Supreme Court on the basis of equal protection, the FEC's opinion might be fertile ground on which to grow a First Amendment challenge.
[image of Ellen Weintraub via]
Tuesday, April 16, 2013
Now in print is the Fall 2012 Albany Law Review Symposium “What Are We Saying? Violence, Vulgarity, Lies . . . And The Importance Of 21st Century Free Speech."
-- Ronald K.L. Collins......Foreword: Exceptional Freedom—The Roberts Court, the First Amendment, and the New Absolutism
-- Robert M. O'Neil........Hate Speech, Fighting Words, and Beyond--Why American Law is Unique
-- Rodney A. Smolla........Categories, Tiers of Review, and the Roiling Sea of Free Speech Doctrine and Principle: A Methodological Critique of United States v. Alvarez
-- Jeffery C. Barnum.........Encouraging Congress to Encourage Speech: Reflections on United States v. Alvarez
-- Marjorie Heins..........The Supreme Court and Political Speech in the 21st Century: The Implications of Holder v. Humanitarian Law Project
-- R. George Wright.........Are There First Amendment “Vacuums?”: The Case of the Free Speech Challenge to Tobacco Package Labeling Requirement
-- Robert D. Richards & David J. Weinert.........Punting in the First Amendment’s Red Zone: The Supreme Court’s “Indecision” on the FCC’s Indecency Regulations Leaves Broadcasters Still Searching For Answers
-- Marvin Ammori & Luke Pelican.........Media Diversity and Online Advertising
-- Martin H. Redish & Michael J.T. Downey.........Criminal Conspiracy as Free Expression
-- Owen Fiss........The Democratic Mission of the University
-- Welcome & Opening Remarks.......Benjamin P. Pomerance
-- Debate on Citizens United v. Federal Election Commission.......Floyd Abrams and Alan B. Morrison, moderated by Ronald K.L. Collins
-- Panel Discussion on Recent U.S. Supreme Court Free Speech Cases and Their Implications......Adam Liptak (moderator), Ronald K.L. Collins, Susan N. Herman, Alan B. Morrison, Robert M. O'Neil, Robert D. Richards
Tuesday, March 12, 2013
We don't talk about economic inequality much these days in constitutional law--at least not as much as we should. And we certainly haven't heard enough about poverty, its causes, and its solutions in politics. ConLawProf Mike Zimmer (Loyola, Chicago) is out to do something about that in his excellent piece Inequality, Individualized Risk, and Insecurity, recently posted on SSRN and based on his Thomas E. Fairchild Lecture at the University of Wisconsin Law School last April.
Zimmer's core argument connects the dots between inequality in today's economy, government policy, and money in politics--in a way that we don't often hear, even in discussions about campaign finance reform. (Sure, there's plenty of talk about the vast amounts of money in politics, but we don't often connect that to poverty and economic inequality.) Here's Zimmer:
The thesis of this paper is that our extreme inequality in part results from government policy, that much government policy is the result of the undue influence of money in politics, and that, before any reform is likely, the dominance of money in politics must be substantially reduced. An important question is how that dominance can be reduced; however, the ansewr to that question is far from clear.
Zimmer takes us through the current state of economic inequality and connects that to government policy. He limits his focus to labor policy, but still he manages a wide-ranging discussion, tying federal labor policy to Supreme Court rulings (in Ricci v. DeStefano, Wal-Mart Stores, Inc. v. Dukes, AT&T Mobility LLC v. Concepcion, and even Ashcroft v. Iqbal) to show how the Court has aided and abetted Congress in tamping down labor rights at every turn. Again, Zimmer:
In sum, putting these decisions together, employers with collective bargaining agreements have a strong incentive to require an arbitration clause shifting all statutory claims to arbitration but at the same time precluding jury trials and class actions. That same incentive exists for employers without a union representing its workers.
If, somehow, an employee with a federal statutory claim is able to avoid having it shunted into arbitration, the Supreme Court has erected formidable procedural barriers to it reaching trial. Until recently, employment discrimination cases were not likely to be dismissed before the summary judgment stage, which was typically triggered once discovery was complete. In Ashcroft v. Iqbal, the Court moved up the possibility of dismissal to the earlier pleading stage before any discovery typically takes place.
Zimmer then persuasively ties federal policies that create inequalities to money in politics, again examining the Supreme Court's complicity (in Citizens United). He calls for campaign finance reform, but, recognizing that "the prospects . . . are not good," he alternatively suggests an economic equality social movement. Zimmer says the Occupy Movement is a start; so is popular culture (with, e.g., Steven Colbert's efforts to highlight the problems with super-PACs).
Zimmer's piece, with its tying-together of everything from poverty and extreme inequality to labor policy to campaign finance to social movements, is a joy to read. Highly recommended.
[Image: Vincent Van Gogh, The Potato Eaters, Google Art Project]
Tuesday, February 19, 2013
The Supreme Court today said it would take up McCutcheon v. FEC, a case testing federal biennial limits on contributions to candidates, PACs, parties, and committees. (The jurisdictional statement is here.) While the case directly challenges biennial limits under the Buckley framework, the petitioner also preserved the issue whether Buckley's contribution-expenditure scrutiny distinction violates free speech.
It's not clear how much the case could matter to the sheer amount of money in politics. That's because contributors already have ample and growing opportunities to contribute to proliferating super-PACs and 501(c)(4) organizations. But if the Court takes on Buckley's contribution-expenditure distinction, the ruling could be quite significant both for First Amendment doctrine and money in politics. (That distinction means that the government can regulate contributions to prevent political corruption, but expenditures get full First Amendment protection.) It could be the next step after Citizens United in further opening the money spigot.
The case directly attacks federal biennial expenditure limits under the Bipartisan Campaign Reform Act. BCRA limits an individual's contribution to a candidate, a national party, a local party, and a PAC in each calendar year. These are called "base limits." But BCRA also limits an individual's total contributions to all federal candidates, party committees, and PACs every two years. These are the "biennial limits."
McCutcheon argues that the biennial limits restrict his ability to contribute to as many candidates and parties as he'd like, thus restricting his First Amendment rights. In particular, he says that the biennial limits under BCRA have no justification and therefore must be struck.
To see why, start with the old biennial limit upheld by the Court in Buckley. Back then, there were no base limits for contributions to PACs or national or local parties. (There was a base limit on contributions to candidates, though--$1,000 per.) McClutcheon argues that the Court in Buckley upheld the biennial limit because it was designed to prevent a contributor from circumventing the base limit on candidates. How? By contributing massive amounts through political committees that would simply funnel the money to the candidate.
McClutcheon says that BCRA--with its base limits and biennial limits on candidates, committees, PACs, and parties--can't be designed to prevent circumvention in the same way. This is because BCRA's base limits themselves restrict circumvention. (BCRA's base limit on a party, e.g., prevents a contributor from funneling massive amounts of money through the party to the candidate). McClutcheon says that the only effects of BCRA's biennial limits are to restrict the total amount of cash he can spend and, with the base limits, to restrict the number of candidates, committees, PACs, and parties that he can spend on--thus violating his First Amendment rights. (E.g.: He would've liked to give $25,000 each to the RNC, the National Republican Senatorial Committee, and the National Republican Congressional Committee before the 2012 election, but that would have exceeded the biennial limit.) McClutcheon says his case against the biennial limit on contributions to candidates is even stronger, because even Buckley didn't hold that there's an anti-circumvention interest in that limit. He claims that that limit serves only to prevent him from contributing to as many people as he'd like.
McClutcheon also argues that the biennial limits are too low.
The Court could rule on the narrow issue whether the biennial limits violate Buckley's anti-circumvention interest (which supported the old biennial limit). This kind of ruling (if, as expected, it overturns the biennial limits) could give contributors another way to spend more money in politics, but it would retain Buckley's contribution-expenditure scrutiny distinction. Alternatively, the Court could take on BCRA's biennial limits and Buckley's contribution-expenditure distinction. This could fundamentally change how we approach campaign finance restrictions under the First Amendment (even if it's not obvious that it would necessarily result in a ton more money in politics).
Thursday, February 14, 2013
Writing in The New York Review of Books in 2011, the late Ronald Dworkin described two recently rendered United States Supreme Court cases as "embarrassingly bad." The cases were Arizona Christian School Tuition Organization v. Winn and the then-pending Arizona Free Enterprise Club PAC v. Bennett.
Both were 5-4 decisions and both continue to be controversial, although the Bennett is overshadowed by Citizens United.
Dworkin's article is worth a (re)read.
For those in a more reflective mood, the New York Review of Books has highlighted his 2011 essay "What is a Good Life?" Dworkin wrote:
We are charged to live well by the bare fact of our existence as self-conscious creatures with lives to lead. We are charged in the way we are charged by the value of anything entrusted to our care. It is important that we live well; not important just to us or to anyone else, but just important.
Dworkin's voice will be missed.
February 14, 2013 in Affirmative Action, Campaign Finance, Cases and Case Materials, Current Affairs, First Amendment, Religion, Speech, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Wednesday, November 7, 2012
With the election of Elizabeth Warren to the United States Senate, today might a good time to reread her article Unsafe at Any Rate, published in Democracy: A Journal of Ideas in 2007.
Warren was arguing for the creation of a new federal agency, the Financial Product Safety Commission. In doing so, she not only argued in favor of regulation (using an originalist argument among others), but also argued that federal regulation was appropriate:
The credit industry is not without regulation; credit transactions have been regulated by statute or common law since the founding of the Republic. Traditionally, states bore the primary responsibility for protecting their citizens from unscrupulous lenders, imposing usury caps and other credit regulations on all companies doing business locally. While states still play some role, particularly in the regulation of real-estate transactions, their primary tool–interest rate regulation–has been effectively destroyed by federal legislation. Today, any lender that gets a federal bank charter can locate its operations in a state with high usury rates (e.g., South Dakota or Delaware), then export that states’ interest rate caps (or no caps at all) to customers located all over the country. As a result, and with no public debate, interest rates have been effectively deregulated across the country, leaving the states powerless to act. In April of this year, the Supreme Court took another step in the same direction in Watters v. Wachovia, giving federal regulators the power to shut down state efforts to regulate mortgage lenders without providing effective federal regulation to replace it.
Recall that in Watters, the Court found no merit in the Supremacy Clause (preemption) and Tenth Amendment arguments.
Warren also argued that a federal agency could intervene more successfully than Congress because "the financial services industry is routinely one of the top three contributors to national political campaigns, giving $133 million over the past five years" and thus "the likelihood of quick action to respond to specific problems and to engage in meaningful oversight is vanishingly slim."
Although Congress eventually passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, with a FPSC agency, Elizabeth Warren was not named as its head given strong opposition to her by the Senate - the legislative body she will now be joining.
[image: Elizabeth Warren via]
Monday, November 5, 2012
PBS's Frontline released a documentary last week on campaign finance in Montana that's well worth a look. The documentary provides background on American Tradition Partnership v. Bullock, the case challenging Montana's restriction on independent campaign expenditures. The Supreme Court summarily reversed a lower court ruling in that case upholding the restriction.
We covered the Supreme Court's recent rejection of an application to vacate the Ninth Circuit's stay of a lower court ruling that Montana's campaign contribution limits violated the First Amendment.
Tuesday, October 23, 2012
The Supreme Court today rejected an application to vacate the Ninth Circuit's stay of District Judge Lovell's earlier decision that Montana's low campaign contribution limits violated the First Amendment. (Thanks to Emily Phelps over at the Constitutional Accountability Center's Text and History Blog for the tip.) This latest ruling in Lair v. Bullock means that Montana's contribution limits will remain in place pending appeal to the Ninth Circuit and, in particular, through the election. All signs now point to a Ninth Circuit reversal of Judge Lovell's ruling that the contribution limits violated the First Amendment.
Wednesday, October 17, 2012
A three-judge motions panel of the Ninth Circuit in Lair v. Bullock granted Montana's motion to stay District Judge Lovell's earlier decision that Montana's low campaign contribution limits violated the First Amendment. (Recall that the panel previously granted a temporary stay. Here's some background.) The ruling means that Montana's campaign contribution limits remain in place pending appeal and sends a strong signal that the Ninth Circuit will reverse Judge Lovell's decision and uphold the limits.
The panel reaffirmed its own ruling in Montana Right to Life Ass'n v. Eddleman (upholding Montana's low campaign contribution limits against a First Amendment challenge) and rejected any notion that the Supreme Court's ruling in Randall v. Sorrell (overturning Vermont's low campaign contribution limits) abrogated Eddleman. Here's what the Ninth Circuit panel said:
We conclude that the State of Montana has made a strong showing that a merits panel of this Court will likely conclude that, absent en banc proceedings or an intervening decision of the Supreme Court, we remain bound by our decision in Eddleman. We also conclude that a merits panel is likely to hold that the analytical framework of the Supreme Court's decision in Randall does not alter the analysis of Buckley or Shrink Missouri in a way that affects our decision in Eddleman, for three reasons. First, there is no opinion of the Court in Randall. Second, even if we thought that Justice Breyer's plurality opinioin represented the narrowest view of a majority of the Court, it did not depart from the principles of Buckley and Shrink Missouri that we applied in Eddleman. Third, even if we applied Randall to [the Montana limits], we cannot find, on the basis of the district court's findings, reason to disagree with, much less overturn, Eddleman. In light of Montana's interest in regulating campaign contributions, the lack of evidence that other parties will be substantially injured, and the public's substantial interest in the stability of its electoral system in the final weeks leading to an election, we will stay the order pending the state's appeal.
Op. at 3-4.
Monday, October 15, 2012
Recall that District Judge Charles C. Lovell (Montana) ruled earlier this month in Lair v. Murry that Montana's low campaign contribution limits for individuals and political parties violated the First Amendment and permanently enjoined the state from enforcing those limits. Judge Lovell wrote that he'd issue more detailed findings and conclusions soon. (He did; see below.)
But late last week, before Judge Lovell issued his follow-up, the Ninth Circuit issued a temporary stay of Judge Lovell's ruling, putting the limits back into place pending further action by the Ninth Circuit. The three-judge panel wrote that Judge Lovell's original ruling contained no findings and conclusions, and thus "the court is severely constrained in its consideration of the underlying issues raised in the emergency motion [for a temporary stay], including whether, in light of Randall v. Sorrell . . . our decision in Montana Right to Life Ass'n v. Eddleman . . . must be revisited."
A little background. The Ninth Circuit previously upheld Montana's low limits against a First Amendment challenge in Montana Right to Life Ass'n in 2003. The Ninth Circuit in Montana Right to Life Ass'n relied on the Supreme Court's Nixon v. Shrink Missouri Government PAC (2000), which rejected a claimed constitutional minimum on campaign contributions and instead said the test was whether Missouri's contribution limit was so low as to impede the ability of the candidates to amass the resources necessary for effective advocacy. But since 2003, the Supreme Court overturned Vermont's ultra-low contribution limits in Randall v. Sorrell (2006). Thus, the Ninth Circuit panel wondered whether Judge Lovell thought that Randall v. Sorrell abrogated circuit law in Montana Right to Life Ass'n.
The Randall opinion is directly on point here. The Randall decision undeniably paints a new gloss on the law and provides important insight into the lower bound for contribution limits. Randall is intervening law that obviates Montana Right to Life's precedential value, particularly in light of the Randall plurality's expressed suspicion of Montana's contribution limits.
Op. at 28.
The case is now in the Ninth Circuit's court. While its temporary stay is still in effect, the court may revoke it in light of Judge Lovell's findings, or it may not. Whatever the court does with its temporary stay, it looks like the appeal will move forward. The Ninth Circuit established a page for the case here.
Thursday, October 4, 2012
District Judge Charles C. Lovell (Montana) ruled in Lair v. Murry that Montana's low campaign contribution limits for individuals and political parties violated the First Amendment and permanently enjoined the state from enforcing those limits.
The State says that it will seek an emergency stay in the Ninth Circuit. Barring a stay, however, or a quick appeal, the ruling means that Montana's limits on individual and political party contributions are unenforceable--this election cycle, and maybe beyond.
This is the second recent significant defeat for Montana in the area of campaign finance restrictions. Recall that the Supreme Court summarily reversed a Montana Supreme Court ruling upholding the state's restrictions on corporate electioneering expenditures. (The Montana court ruled that Montana's unique history of political corruption justified the restriction, even under Citizens United. The Supreme Court disagreed.)
The restrictions at issue cap individual and political party contributions to candidates at very low levels. For example, Montana Code Section 13-37-216(1)(a) caps contributions at $500 for candidates for governor and lieutenant governor, $250 for candidates for all other state-wide offices, and $130 for candidates to all other offices.
The plaintiffs argued that these limits violated the First Amendment. Judge Lovell agreed. In a very short order, he wrote that "[t]he contribution limits prevent candidates from 'amassing the resources necessary for effective campaign advocacy.'" (Quoting Randall v. Sorrell (2006) (overturning Vermont's low limits on campaign contributions)).
Judge Lovell wrote that he'd later issue findings of fact and conclusions of law in support of his order.
Sunday, September 16, 2012
A three-judge panel of the Seventh Circuit ruled last week in Center for Individual Freedom v. Madigan that Illinois's campaign finance disclosure requirements, which require registration and disclosure even of groups whose "major purpose" is not influencing electoral campaigns, were not unconstitutionally vague and overbroad in violation of the First Amendment.
The ruling means that Illinois state law stands, even as to those groups whose "major purpose" is not influencing electoral campaigns--the 504(c)(4) groups who famously escape disclosure requirements under federal campaign finance disclosure laws. It means that even those groups--which are often designed with the purpose of shielding their donors from disclosure--have to report under state law. The ruling also deepens a circuit split on this point, with a Tenth Circuit case, New Mexico Youth Organized v. Herrera, 611 F.3d 669 (2010), invalidating a state disclosure law as applied to an organization because it did not "satisfy the 'major purpose' test," which "sets the lower bounds for when regulation as a political committee is constitutionally permissible," and a Fourth Circuit case, North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (2008), concluding that before Citizens United state disclosure law violated the First Amendment because "an entity must have 'the major purpose' of supporting or opposing a candidate to be designated a political committee."
Illinois law requires groups and individuals that accept "contributions," make "expenditures," or sponsor "electioneering communication" in excess of $3,000 to make regular financial disclosures to the State Board of Elections. The plaintiff, a 501(c)(4) organization, challenged Illinois's disclosure law, arguing that five of its definitions--"electioneering communications," "political committee," "contribution," "expenditure," and "independent expenditure"--were facially vague and overbroad.
Illinois disclosure law tracked federal law, with three key differences: (1) Illinois disclosure requirements cover election activity relating to ballot initiatives (which have no federal analog); (2) Illinois law does not exempt from regulation those groups that lack the "major purpose" of influencing electoral campaigns; and (3) Illinois disclosure requirements cover campaign-related advertisements that appear on the Internet. Recall that the Supreme Court upheld federal disclosure requirements in Citizens United, so the court here only analyzed whether these three distinctions were unconstitutional.
The court rejected the plaintiff's claim that these three provisions make the law unconstitutionally vague and overbroad. As to the second difference--the one that sweeps in 501(c)(4) organizations that so famously hide their contributors under federal disclosure requirements--the court rejected CIF's argument that the "major purpose" test is a constitutional test, so that those organizations that do not have as a "major purpose" the election of a candidate must be exempt from disclosure. The court gave four reasons. First, it said that when Buckley v. Valeo came down--and first ruled on the "major purpose" question, interpreting language in the FECA (and not the Constitution)--political committees faced much greater disclosure burdens under FECA than they do today under Illinois's disclosure requirements. Next, Illinois law defines political committee more narrowly than FECA by covering only groups that accept contributions or make expenditures "on behalf of or in opposition to" a candidate or ballot initiative. Third, application of a "major purpose" test could yield the perverse result that a small group dedicated to electing a state representing and that spends $3,000 could be required to register and disclose, while a major organization that spends millions could dodge registration requirements because its "major purpose" isn't electing a candidate. Finally, groups covered under a "major purpose" test could easily dodge disclosure requirements by dilluting its own message by broadening it beyond electioneering activities.
Judge Posner dissented, arguing that a handful of provisions in the Illinois law are vague.
Wednesday, September 12, 2012
The Supreme Court of Appeals of West Virginia ruled in State of West Virginia ex rel Loughry v. Tennant that the matching funds provision in the state's public campaign finance law violated the First Amendment. The ruling follows the Supreme Court's decision in 2011 in Arizona Free Enterprise Club's Freedom PAC v. Bennett striking a similar Arizona law.
West Virginia's law, enacted in 2010, before Arizona Free Enterprise came down, provided a lump-sum initial payment to any participating candidate in a state election for the state Supreme Court of Appeals. It then provided matching funds for a participating candidate when a privately-financed opposing candidate spent the amount equivalent to the lump-sum payment plus twenty percent. In short, this meant that a participating candidate would receive matching funds from the state above the initial lump-sum payment whenever his or her privately-funded opponent spent more than the initial lump-sum payment plus twenty percent. Thus West Virginia's scheme forced the same kind of speech-restricting choice on a non-participating candidate that the Supreme Court said was foisted on a non-participating candidate in Arizona Free Enterprise: spend more (i.e., speak more) and trigger matching funds for your opponent, or don't spend/speak more.
West Virginia's law only applied to judicial candidates for the state Supreme Court of Appeals, though. This was by design: the legislature was concerned about the reputation of the judiciary in light of the problems that gave rise to Caperton v. A.T. Massey Coal Co., among others. The petitioner here argued that West Virginia's law was distinguishable from Arizona's for that reason--that judicial elections raise especial concerns that exempt them from the analysis in Arizona Free Enterprise.
The court rejected that argument and ruled that Arizona Free Enterprise applied with full force to all elections,including judicial elections. It went on to say that the matching fund scheme wasn't narrowly tailored: the state could have adopted a less speech-restrictive means to achieving its interest by simply increasing the amount of the initial lump-sum payment; and the matching fund scheme didn't advance the state's interest in protecting the impartiality and integrity of the judiciary in an election where three of the four candidates were self-financed.
The court allowed the petitioner to keep his initial lump-sum payment, however, saying that there was no constitutional problem with that.
The case means that the petitioner, a participating candidate who sought matching funds by way of mandamus after the state itself concluded that the matching fund scheme was unconstitutional and declined to pay, will not get matching funds for his election. And because the court ruled the scheme unconstitutional, neither will anybody else.
Tuesday, August 7, 2012
The Nebraska Supreme Court last week in State of Nebraska ex rel. Bruning v. Gale ruled that Nebraska's public campaign finance law violated the First Amendment.
The ruling extends and stretches the Supreme Court's rulings in Davis v. FEC and Arizona Free Enterprise Fund v. Bennett. (We also posted on Bennett here.) It also forecloses yet one more policy option for encouraging participation in a public campaign finance system and to reduce the dramatic disparaties in spending in certain elections.
Nebraska's law, the Campaign Finance Limitation Act (CFLA), provides public financing for participating candidates in exchange for those candidates' agreement to limit their spending in a particular election. But the CFLA doesn't start with a state block grant for participating candidates. Instead, the CFLA requires participating candidates to raise 25% of the spending cap on their own before the public financing system kicks in. Then, after a participating candidate raises 25% of the spending cap, that participating candidate receives a state grant in the amount of the difference between the spending cap and their non-participating opponent's estimated or actual expenditures.
An example: If the public financing spending cap for an election for a particular office is $100,000.00, a participating candidate has to raise $25,000.00 on his or her own. Now suppose that candidate's non-participating opponent either estimates or actually spends $120,000.00. The participating candidate receives $20,000.00 from the state (the difference between the spending cap and the estimated or actual expenditures of the non-participating opponent). That leaves the participating candidate with $45,000.00 total. The participating candidate can continue to raise money up to $100,000.00--that is, another $55,000.00--on his or her own. Thus the CFLA provided only $20,000.00 to the participating candidate--an amount determined by the estimated or actual expenditures of the non-participating candidate, to be sure, but not an amount that equalizes expenditures in any meaningful sense or provides the participating candidate with much of a tail wind.
One more feature of the Act: The candidates have to determine whether to participate within 10 days after they form a candidate committee. This means that a non-participating candidate has to indicate his or her intention to exceed the CFLA cap (that is, not to participate) before he or she knows whether an opponent will participate.
The court ruled that the scheme violated the First Amendment. Following Bennett, the court said that the state's interests in ensuring elections free of corruption or the appearance of corruption, providing the electorate with information, and gathering data to detect violations of the CFLA were not compelling. And the court said that the Act wasn't narrowly tailored (largely because there wasn't a compelling interest).
The court also ruled that the provision at issue (described above) was entwined enough with other provisions of the CFRA that the whole Act failed--that is, that the provision at issue was not severable.
But the court's ruling misses a threshold issue: whether the CFRA impinges on non-participating candidates' speech in the first instance. There's a key difference between the CFRA and the scheme in Bennett and Davis (upon which Bennett relies): under the CFRA, the non-participating candidate's level of speech is determined independently of the participating candidate's speech.
In Bennett, the Supreme Court ruled that Arizona's scheme infringed on a non-participating candidate's free speech, because that scheme provided a dollar-for-dollar match from the public fisc for a participating candidate when a non-participating candidate exceeded the statutory cap on spending. Bennett relied on Davis for this result. In Davis, the Court ruled that the "Millionaire's Amendment" infringed on an independently-financed candidate's speech, because that speech triggered asymmetrical contribution limits (allowing a non-independently-financed candidate to raise more in individual contributions) when it exceeded a certain level.
The free speech threshold in both Bennett and Davis was that a non-participating candidate's additional speech triggered an asymmetrical system to the benefit of the participating candidate. In other words, the non-participating candidate--at the time he or she decided to spend that additional dollar that put his or her campaign over the statutory limit--had to decide to speak more (and thus trigger the asymmetrical benefit to his or her opponent), or not. The Court in Bennett and Davis said that this decision infringed on free speech.
But that's not at all how the CFRA operates. The CFRA, by the Nebraska court's own reckoning, requires a candidate to elect to exceed the cap before he or she knows whether his or her opponent will participate. This is not the same kind of infringement on free speech that concerned the Court in Bennett and Davis. Indeed, this is no infringement on free speech at all: the non-participating candidate makes the decision completely independently of his or her opponent's decision.
The Nebraska court skates right by this distinction. It said only that under the CFRA, "public funds are disbursed to abiding candidates in response to the political speech of privately financed candidates." This is true, of course, but it misses the core reason why the Supreme Court said that the schemes in Bennett and Davis involved free speech in the first place--because the non-participating candidate had to choose between marginally more speech (and providing a benefit to his or her opponent), or not.
More: The CFRA plainly does not equalize the spending and contribution playing fields the way that the schemes in Bennett and Davis sought to do. As illustrated above, the CFRA likely provides just a fraction of additional funding to a participating candidate, and requires the participating candidate to come up with the 25% in the first place (rather than starting with a state grant, as other public financing schemes do). The court skates right by this, too, focusing instead on the fact that the participating candidate's award from the state is keyed (in any way) to the non-participating candidate's expenditures. Again, this ignores the reason why the Supreme Court said that the schemes in Bennett and Davis impinged on speech.
The ruling stretches the logic of Bennett and Davis well beyond its breaking point. In so doing, it also limits yet one more way that public financing systems can seek to address the gross disparities in spending in certain elections--at least in Nebraska.
So for now, the lesson in Nebraska (and any court following its lead) is this: The First Amendment prohibits a public campaign finance scheme from keying the state grant to a non-participating opponent's expenditures in any way.
Monday, August 6, 2012
A three-juge panel of the Sixth Circuit ruled in Lavin v. Husted that Ohio's law making it a crime for state Attorney-General or county-prosecutor candidates to accept campaign contributions from Medicaid providers violated the First Amendment. The court held that the law wasn't "closely drawn" to meet a "sufficiently important interest," Buckley v. Valeo, because the state didn't sufficiently support its stated interest in preventing corruption and because the law swept too broadly.
The case only says that there are some teeth in the First Amendment jurisprudence involving campaign contributions--the case says nothing about restrictions on expenditures--and that a government seeking to restrict contributions has to do some homework in tailoring its law. Still, the case leaves plenty of room for the government to regulate contributions, just so long as the government demonstrates its problem with corruption and appropriately tailors its law to meet that problem.
Ohio Revised Code Section 3599.45 prohibits a candidate for the office of attorney general or county prosecutor from knowingly accepting any contribution from a Medicaid provider or any person with an ownership interest in a Medicaid provider. The state justified the ban based on its interest in preventing corruption--that is, preventing an attorney general or county prosecutor from using a campaign contribution as a factor in deciding whether to prosecute for Medicaid fraud.
The Sixth Circuit ruled that Ohio didn't sufficiently support its interest in preventing corruption, and that the ban swept too broadly. As to the former, the court ruled that Ohio simply recited its interest in preventing corruption, but failed to demonstrate its interest, as required by Buckley. (In fact, the balance of the evidence in the case only suggested the opposite--that Ohio had no problem of selective prosecution for Medicaid fraud based on campaign contributions.) The court contrasted Ohio's ban with Connecticut's ban on contributions by state contractors to candidates for state offices--a ban that the Second Circuit upheld in Green Party of Connecticut v. Garfield, based on Connecticut's demonstrated history of bribes and kick-backs involving state contractors.
As to the latter, the court said that the ban applied to all Medicaid providers and persons with an ownership interest in a Medicaid provider, even though only .003% of them were implicated in Medicaid fraud in a recent year. The court wrote that "[i]t is not hard to imagine what a less restrictive ban might look like" and held that this sweeping ban was not sufficiently tailored to meet Ohio's stated (but, as above, not sufficiently demonstrated) interest in preventing corruption.
Tuesday, May 15, 2012
The D.C. Circuit yesterday denied motions for an emergency stay pending appeal of the district court's ruling in Van Hollen v. FEC. That case involved Representative Chris Van Hollen's (D-Md) suit challenging the FEC's regulation on corporate disclosure of contributors in the wake of Citizens United. The district court ruled for Van Hollen, effectively requiring corporations to disclose all their contributors (and not just contributors who contributed for electioneering communication), or to establish a separate fund for electioneering communication (even though Citizens United held that such a fund is not required). The court's denial yesterday means that the district court ruling remains in effect pending the appeal to the D.C. Circuit.
The court's ruling yesterday, and the district court's ruling before, are both victories for Van Hollen and for greater disclosure of those who contribute to corporations and labor unions (which then use those contributions for electioneering communication). As it stands under BCRA, corporations and labor unions that engage in electioneering communication can now either (1) disclose all contributors (whether for electioneering communication or not), including anyone who gives a corporation money for any purpose, or (2) establish a segregated fund for contributions for electioneering communication and disclose only contributors to that fund. This may give corporations and labor unions an incentive to establish a segregated fund. (It's either that or disclose the names and addresses of anyone who paid more than $1,000 for any purpose. This could indeed create a hassle for corporations and labor unions, and it's not clear exactly how useful this kind of undifferentiated disclosure of any and all contributors would be.) But here's the twist: Citizens United held that corporations and labor unions can't be required to use a segregated fund for electioneering communication.
Still, nothing in the rulings in Van Hollen's case challenges Citizens United. Indeed, the rulings are in harmony with it and underscore the value of transparency. The rulings only mean that BCRA requires disclosure--even of all contributors, when a corporation or labor union declines to establish a segregated fund.
But this is certainly not the end of the case. The appeals court only ruled that the appellants hadn't established the stringent requirements for an emergency stay; it did not rule finally and definitively on the merits (even if it gave strong clues in favor of Van Hollen).
Here's some background:
Van Hollen sued the FEC over its December 26, 2007, disclosure regulation, which required disclosure of corporate and labor union contributors as follows:
If the disbursements were made by a corporation or labor organization pursuant to 11 CFR Sec. 114.15, the name and address of each person who made a donation aggregating $1,000 or more to the corporation or labor organization, aggregating since the first day of the preceding calendar year, which was made for the purpose of furthering electioneering communication.
11 CFR Sec. 104.20(c)(9). The problem, according to Van Hollen, was that the italicized limit on the disclosure requirement violated the plain language of the BCRA, which says:
(E) If the disbursements were paid out of a segregated bank account which consists of funds contributed . . . directly to this account for electioneering communications, the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to that account . . . .; or
(F) If the disbursements were paid out of funds not described in subparagraph (E), the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to the person making the disbursement during the period beginning on the first day of the preceding calendar year and ending on the disclosure date.
2 USC Sec. 434(f)(2). The problem was that Citizens United said that corporations and labor unions didn't have to use a segregated fund for electioneering communications--telling corporations and labor unions that they didn't have to use subsection (E). But without (E)--that is, without a segregated fund--corporations and labor unions apparently had to disclose all contributors (for electioneering purposes or not) under subsection (F). Yet the FEC regs--the italicized part above--requires disclosure of only those contributors who contributed for electioneering purposes.
The district court ruled that the FEC reg violated the BCRA.
The appeals court yesterday denied motions for an emergency stay of this ruling, writing that appellants hadn't satisfied the stringent requirements. The court was untroubled by the fact that the district court's ruling means that corporations must disclose all contributors (and not just those who contribute for electioneering communication): the appellants failed to show that they'd be silenced by such an interpretation. The court also said that corporations and labor unions could still establish a segregated fund under subsection (E), above, even though that's not required, and thus disclose only those contributors who contribute for electioneering communication. Finally, the court said that Van Hollen would be harmed by granting a stay, because he wouldn't be able to respond to electioneering communication funded by anonymous, non-disclosed sources.
Tuesday, April 17, 2012
Judge James E. Boasberg (D.D.C.) yesterday denied the plaintiffs' motion for a preliminary injunction in their facial First Amendment challenge against the federal ban on contractor donations to candidates for federal office, political committees, and parties in connection with federal elections.
The case, Wagner v. FEC, arose out of three federal contractors' claims that the so-called pay-to-play ban violates free speech. The contractors refiled their claim in federal district court after they agreed to abandon their expedited en banc review at the D.C. Circuit (permitted under the FECA). They argued that the ban violates the First Amendment and Fifth Amendment equal protection and sought a preliminary injunction.
Judge Boasberg denied the injunction, ruling that they lacked a likelihood of success on the merits of either claim.
Judge Boasberg applied "closely drawn" scrutiny, not strict scrutiny, to the ban and ruled that it served a sufficiently important interest and was closely drawn to achieve that interest. As to the interest, Judge Boasberg wrote that "[t]here can thus be no doubt that preventing 'pay-to-play' deals or pressure on contractors to give--or the appearance that either is occurring--is sufficiently important to warrant restrictions on political contributions by federal contractors." As to "closely drawn," Judge Boasberg looked to the history of the ban:
When Congress first enacted the ban on political contributions by federal contractors, it was responding to a recent history of corruption. As just discussed, the ban was originally passed in 1940 on the heels of the "campaign-book racket," in which those seeking government contracts were effectively required to buy copies of the Democratic campaign book at highly inflated prices in order to secure government business. In the wake of this scandal, it was eminently reasonable for the legislature to ban contributions by federal contractors. Doing so would not only insulate prospective contractors from pressure to give money to politicians, but it would also help ensure a merit-based system of awarding contracts and "reassure citizens that its politicians are acting on their behalf and not on behalf of the highest bidder." Because . . . Congress reacted to recent scandals in imposing the ban on contractor contributions, its restrictions are more easily characterized as closely drawn. . . .
An absence of [current] corruption does not necessarily mean, however, that the ban is no longer needed. It could simply be an indication that the ban is working.
Op. at 11-12. Judge Boasberg also looked to the contractors' other ways of expressing political support and association as a factor suggesting that the ban is a good fit for the government end. (Note that the ban allows contracting corporations to donate by way of their PAC.)
As to equal protection, Judge Boasberg ruled that intermediate scrutiny applied, and that the contractors did not demonstrate a likelihood of success in comparing their ban to FECA treatment of government employees, contracting corporation officers or PACs, or sole proprietor contractors--all of whom may contribute. Judge Boasberg said that these others did not raise the same kind of problems that contracting corporations raised, and that these retained their own distinct identity (and could contribute under their distinct identity).
Tuesday, April 3, 2012
Speaking of campaign finance reform, you might check out NPR's This American Life this week, which explores the world of money and politics, with a segment looking at the impact of Citizens United and another segment with an interview with Senators John McCain and Russ Feingold. Check it out here.