Friday, August 12, 2011

First Circuit Rejects NOM's Challenges to Disclosure Laws

National Organization for Marriage ("NOM"), a New Jersey-based nonprofit corporation organized for the purpose of providing "organized opposition to same-sex marriage in state legislatures,"  challenged state laws from both Maine and Rhode Island that require it to disclose its expenditures in the respective states. 

Both federal district judges considering the actions largely rejected NOM’s challenges and the First Circuit has also rejected the challenges in a lengthy opinion in National Organization for Marriage v. McKee, regarding the Maine laws, and a much more brief opinion on the Rhode Island statute in National Organization for Marriage v. Daluz, which relies upon McKee.  In addition, NOM wanted the trial proceedings to be sealed, which the court also rejected.

Money In part, NOM challenged Maine’s definition of NOM as a PAC (political action committee), arguing that “any law defining an organization as a PAC is subject to strict scrutiny"  because as "a matter of law, not fact,"  PAC status is burdensome and subjects an entity to "extensive regulations."   The First Circuit found the argument unpersuasive, and further distinguished Citizens United, because Maine's provision does not condition political speech on the creation of a separate organization or fund, establishes no funding or independent expenditure restrictions, and imposes three simple obligations on an entity qualifying as a PAC: filing of a registration form disclosing basic information, quarterly reporting of election-related contributions and expenditures, and simple recordkeeping.  

The First Circuit therefore applied  exacting scrutiny - - - rather than strict scrutiny - - - requiring a "substantial relation" between the law and a "sufficiently important governmental interest."  Again citing Citizens United, the panel concluded that the goal of providing "the electorate with information as to where political campaign money comes from and how it is spent" to be such a "sufficiently important" governmental interest capable of supporting a disclosure law.

Regarding the substantial relationship, the court considered various provisions in the Maine statutory scheme separately.  The court roundly rejected NOM’s contention that to be substantially related, the disclosure requirement could only be imposed upon a PAC that had as its “major purpose” the nomination or election of a candidate.  Quoting District Judge Hornsby, the panel agreed that NOM’s interpretation would "yield perverse results" :

Under NOM's interpretation, a small group with the major purpose of re-electing a Maine state representative that spends $1,500 for ads could be required to register as a PAC. But a mega-group that spends $1,500,000 to defeat the same candidate would not have to register because the defeat of that candidate could not be considered the corporation's major purpose.    

NOM also argued that the $100 threshold for disclosure was unconstitutional - - - as too low and as unchanging.  The First Circuit noted that it had upheld a $50 threshold a decade ago, and saw no need to depart from that view.

The panel agreed with the district court that "Citizens United has effectively disposed of any attack on Maine's attribution and disclaimer requirements.”  NOM had argued that the required disclosures will "distract readers and listeners from NOM's message."  Instead, the court held that the “requirements are minimal, calling only for a statement of whether the message was authorized by a candidate and disclosure of the name and address of the person who made or financed the communication, and again relying on Citizens United, stating that these were precisely the same requirements approved in Citizens United, and that indeed, the statute at issue in Citizens United was slightly more prescriptive.

The panel also rejected NOM’s arguments that the Maine statutory scheme was unconstitutionally vague.  Specifically, NOM posed challenges to three sets of terms: (1) "promoting," "support," and "opposition"; (2) "influencing"; and (3) "initiation." In addition, NOM claims that the definition of "expressly advocate" is unconstitutionally vague because it invites the use of context to determine the purpose of a communication.  The court upheld all of these terms, including reversing the district judge’s finding that “influencing” suffered from vagueness.  The panel considered state law, as it said it must, that had provided a limiting construction to the term.     

Regarding NOM's final complaint - - - that the district judge erred in not sealing the proceedings - - - the First Circuit reasoned that

NOM's argument flips the proper analysis on its head. The presumption here favors openness, and a court need make no finding, let alone one of "true necessity," in order to make the proceedings and documents in a civil trial public. Instead, it is the party seeking to keep documents sealed who must make a showing sufficient to overcome the presumption of public access.  

There was only minimal reliance by the First Circuit on Doe v. Reed, the decision by the Supreme Court last year regarding disclosure of names on a petition in Washington state.  The panel noted that NOM did not contend that it would be subject to threats or harassment given its disclosure.  In the context of the request to have the trial record sealed, the court stated that "NOM's claims that its contractors and service-providers could be subject to harassment also lack support, resting upon allegations of harassment against a vendor that performed work for supporters of California's Proposition 8."  Clearly, this was insufficient. 

[image:Victor Dubreuil, Money to Burn,1893, via]

August 12, 2011 in Campaign Finance, Elections and Voting, First Amendment, Opinion Analysis, Sexual Orientation, Sexuality, Speech, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 10, 2011

Court Upholds Ban on Foreign National Campaign Spending

A three-judge district court (D.D.C.) ruled this week in Bluman v. FEC that the federal ban on campaign spending by foreign nationals is constitutional.  The court thus upheld restrictions on foreign nationals' campaign contributions and expenditures against a First Amendment challenge.

The restrictions on foreign nationals' participation in U.S. elections, expanded under the Bipartisan Campaign Reform Act of 2002, prohibit foreign nationals from contributing to candidates or political parties, making expenditures to expressly advocate the election or defeat of a political candidate, and making donations to outside groups when those donations would be used to finance express-advocacy expenditures.  2 U.S.C. Sec. 441e(a).  The restrictions apply to all foreign nationals except those admitted as lawful permanent residents.  Foreign nationals are not barred from issue advocacy.

Citing the line of Supreme Court rulings that upheld restrictions on activities of foreign nationals "intimately related to the process of democratic self-governance," Bernal v. Fainter (1984), the court held that the government had a compelling interest in limiting the participation of non-Americans in the democratic political process. 

We read these cases to set forth a straightforward principle: It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government.  It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.

Op. at 10.

The court said that the restrictions were not underinclusive for allowing lawful permanent residents to spend and contribute, because lawful permanent residents have a long-term stake in the outcome of U.S. elections similar to the stake of citizens.  Moreover, it said that the restrictions were not underinclusive for allowing foreign nationals to make contributions and expenditures related to ballot initiatives, because "Congress may proceed piecemeal in an area such as this involving distinctions between citizens and aliens."  Op. at 15.

The court correctly wrote that the Supreme Court has yet not ruled on the question of foreign nationals' First Amendment rights to contribute or spend in campaigns.  But it quoted Justice Stevens' opinion in Citizens United to say that four justices have concluded that foreign nationals have no such rights, and that nothing in the Citizens United majority opinion says otherwise.


August 10, 2011 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, July 21, 2011

Voter ID Commentary

Stephen Colbert gave his take on proliferating voter ID laws on last night's Colbert Report.  Several states have adopted voter ID laws in order to cut down on voter fraud, or to erect a barrier to voting, depending on who you talk to.  Evidence of voter fraud at the polls is scant, though, as Colbert correctly reports:

The Colbert Report Mon - Thurs 11:30pm / 10:30c
Voter ID Laws
Colbert Report Full Episodes Political Humor & Satire Blog Video Archive


The Supreme Court upheld Indiana's voter ID law in 2008 in Crawford v. Marion County.  The case resulted in three opinions, with the Court spliting 3-3-3.  Justice Stevens's opinion, joined by Chief Justice Roberts and Justice Kennedy, concluded that Indiana's law was an even-handed restriction on voting, designed to protect the integrity and reliability of the electoral process.  As such, the plaintiffs, who lodged a facial challenge, had to show that they were burdened.  According to Justice Stevens, they failed.  Justice Scalia, joined by Justices Thomas and Alito, were even more deferential to the state.  Justice Souter wrote a dissent, joined by Justices Ginsburg and Breyer.  (The Indiana Supreme Court later ruled that the voter ID law violated the Equal Privileges and Immunities Clause of the state constitution.)

The plaintiffs in Crawford had two principal problems: their evidence of burden was relatively weak; and they lodged a facial challenge.  Based on Justice Stevens's opinion, if they litigated the case differently, they might have picked up Justice Stevens, and maybe even Chief Justice Roberts and Justice Kennedy.

The Court's approach in Crawford stands in contrast to its approach in another political rights case this Term, Arizona Free Enterprise Club, in which a sharply divided Court overturned Arizona's public campaign financing scheme under the First Amendment.  The doctrines in the two cases are different, to be sure, but the Court's different treatment of the states' efforts to guard against malfunctions in politics is striking.  In Crawford, the Court was highly deferential to Indiana's interest in protecting against voter fraud at the polls (despite the scant evidence in the record) and suspicious of the plaintiffs' (admittedly not terribly well supported) claims that the ID requirement was a burden.  But in Arizona Free Enterprise Club, the Court reversed: it was highly suspicious of Arizona's stated interest in reducing corruption and highly deferential to the plaintiffs' claim that the campaign finance scheme burdened their free speech rights (despite scant evidence in the record).  In short, the plaintiffs' evidence of burden was greater in Crawford, and the state's evidence supporting its interest was greater in Arizona Free Enterprise Club, but the Court credited the state's interest over the plaintiffs' burden in Crawford and the plaintiffs' evidence over the state's interest in Arizona Free Enterprise.

The Court's approaches in the two cases, which both involve key political rights, seem at odds.  The difference is (maybe) explained by the different doctrines involved in the cases.  The "even handed" restriction in Crawford triggered a balancing test, relatively deferential to the state; but the speech-burdening campaign finance scheme in Arizona Free Enterprise Club triggered strict scrutiny, not at all deferential to the state.  The different deference required by the different tests thus explains why the Court defered in two different ways.

But on the other hand, the fact that the Court analyzed these cases under these levels of scrutiny wasn't at all inevitable.  The Court in Arizona Free Enterprise Club could have applied a more deferential test--"closely drawn" to achieve "sufficently important interests," the standard that the Court uses for less speech-burdening campaign finance laws (like reporting requirements).  The state argued for this in that case.  Similarly the Court could have applied a more rigorous standard in Crawford--the strict scrutiny standard that the Court has applied to substantial burdens to voting, as in a poll tax (Harper) , e.g.  The plaintiffs argued for that in that case.  (Thus the Court might have applied greater scrutiny to the voter ID law in Crawford than to the campaign finance scheme in Arizona Free Enterprise Club!)  If the Court's deference in these cases seems inconsistent, remembering that the level of scrutiny itself was disputed in both of these cases may only reinforce that sense.  All things considered, the Court's approaches in these two cases seem at odds, to say the least--and together put a heavy thumb on the political scale in favor of those with resources (and against those without).


July 21, 2011 in Campaign Finance, Cases and Case Materials, Fundamental Rights, News, Speech | Permalink | Comments (3) | TrackBack (0)

Tuesday, June 28, 2011

The Right to Campaign Without a Response: Analysis of Arizona Free Enterprise

The Supreme Court issued a surprising decision on Monday in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett by almost any measure.  Perhaps the only way to make sense of the 5-4 opinion, sharply divided along ideological lines, is that the majority (including CJ Roberts and Justices Scalia, Kennedy, Thomas, and Alito) has found a new right in the First Amendment: the right of well endowed political candidates to speak without a response.

To see this, start with the trend in the Roberts Court's free speech jurisprudence.  In just the last two terms, the Court has expressed a strong preference for more speech, not less speech, on something like a marketplace-of-ideas theory.  Thus the Court has overturned a ban on crush videos (U.S. v. Stevens) ruled against a state tort claim against highly offensive funeral protestors (Snyder v. Phelps) and ruled in against restrictions on corporate and union spending on electioneering communications (Citizens United v. FEC)  On the same day as it issued Arizona Free Enterprise Club, it overturned California's ban on violent video games (Brown v. Entertainment Merchants).  All of these cases, and others, are rife with language expressing the Court's preference for more speech.

120px-Unbalanced_scales_svg  So too Arizona Free Enterprise.  But this case is different.  Here, there was no evidence that Arizona's public financing system--which provided a lump sum to participating candidates, and then a supplemental grant matching nearly dollar-for-dollar the expenditures of a non-participating opponent (and his or her supporters) above the lump sum grant--reduced anyone's speech.  The lower courts in the case described the evidence of any reduction in campaign speech by non-participating candidates who were facing publicly financed candidates as "vague" and "scattered," at best.  Even the majority recognized this, writing that "it is never easy to prove a negative."  At the same time, Arizona's public financing system undoubtedly increased speech, because it allowed participating candidates to speak more.

So given the Court's preference for more speech, why did the 5-Justice majority rule against Arizona's public financing system?  One possibility is that it valued the "vague" and "scattered" evidence of reduced speech by non-participating candidates over the State of Arizona's own findings and interests.  But this seems wholly inconsistent with the way the Court operates.  The Supreme Court, like other appellate courts, takes the factual record as basically established and ought not cherry-pick evidence (from 6 pages out of a 4500 page record) that favors its interpretation over the lower courts' interpretations.  But even if this kind of fact were wide open to reevaluation by the Court, the Court should at least balance the weight of evidence--the couple of anecdotal accounts, with no empirical support, against the State of Arizona's findings and interests.  In this balance, the State clearly wins.  But not so here.  Here, the Court doesn't seem interested in whether Arizona's public financing system deters speech in fact; it's only interested in whether it deters speech in its own theory

Another possibility is that the Court sees Arizona's system as a kind of punishment for a non-participating candidate's speech, when the non-participating candidate expends more than the initial grant for the publicly financed candidate.  The majority says as much, when CJ Roberts writes that a candidate's willingness to "bear the burden of spending above the cap . . . does not make the law any less burdensome."  But if this is right--as the majority itself says--then the majority sees a participating candidate's speech as a kind of punishment for the non-participating candidate.  In other words: more speech by the participating candidate is a punishment for the non-participating candidate.  This seems utterly at odds with the Court's own preference for more speech

The only possibility left is that the majority simply found a new First Amendment right: the right of non-participating candidates to speak without a response. 

Given that the Court did not touch traditional, lump-sum public financing schemes, this right is a somewhat limited one.  This new right extends only to campaign expenditures by non-participating candidates above the level of the initial lump sum grant to participating candidates.  And in theory, states can raise the lump sum amount to any level--of course, they cannot in reality--effectively eviscerating the right. 

But if the Court has effectively found this new First Amendment right of non-participating candidates to speak without a response, it seems the next target for this Court must be the traditional, lump-sum public financing scheme.  After all, if a state did raise its initial lump-sum in an way that interfered with the the right, then, well, it would interfere with the right.

For now, the traditional lump-sum scheme is safe.  But by the majority's reckoning, it looks like it could be next on the chopping block.


June 28, 2011 in Campaign Finance, First Amendment, Fundamental Rights, News, Opinion Analysis, Speech | Permalink | Comments (1) | TrackBack (0)

Monday, June 27, 2011

Supreme Court Overturns Arizona's Public Financing System

A sharply divided Supreme Court (5-4) ruled today in Arizona Free Enterprise v. Bennett  that Arizona's public financing system violates the First Amendment, dealing a(nother) blow to public financing schemes that deviate from a standard flat grant to participating candidates (but not overturning standard, flat-grant public financing schemes).

The case involves Arizona's public financing system that provides a flat grant to participating candidates plus additional, dollar-for-dollar matching funds if a privately financed opponent's expenditures, combined with the expenditures of independent groups in support of the opponent, exceed the publicly financed candidate's initial state allotment.  The supplement caps out at two times the initial state grant to the publicly financed candidate.

Chief Justice Roberts wrote for the majority (including Justices Scalia, Kennedy, Thomas, and Alito) that the case was governed by Davis v. FEC, the 2008 case overturning the "Millionaire's Amendment" of the Bipartisan Campaign Reform Act of 2002.  That Amendment allowed opponents of House candidates who spent more than $350,000 of their own money to accept donations up to three times the normal limit.  The Court ruled that the Amendment burdened speech of the candidate who spent more than $350,000 of his or her own funds.

Even more so here, ruled the Court.  According to the majority, Arizona's system burdens speech of non-participating candidates even more than the "Millionaire's Amendment," and it's purpose--to equalize the playing field--doesn't withstand the strict scrutiny triggered by the speech-burdening system.  (There's a dispute about the real purpose of the system.  Arizona argues that it is to curtail corruption and the appearance of corruption.  The Court ruled that even if that's the real purpose, the burdens on speech aren't justified.)

Justice Kagan wrote a dissent, joined by Justices Ginsburg, Breyer, and Sotomayor. 


June 27, 2011 in Campaign Finance, Cases and Case Materials, First Amendment, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 14, 2011

D.C. District Enjoins Restrictions on Independent PACs

Judge Rosemary M. Collyer (D.D.C.) today granted a preliminary injunction in Carey v. FEC to enjoin the Federal Election Commission from enforcing campaign contribution restrictions on the National Defense Political Action Committee (NDPAC), an independent PAC.  Judge Collyer ruled that NDPAC's likelihood of success on the merits was high, because the limits violate the First Amendment under Citizens United v. FEC and the D.C. Circuit's rulings in EMILY's List v. FEC (2009) and v. FEC (2010).


NDPAC challenged the campaign contribution restrictions in 2 U.S.C. Secs. 441a(a)(1)(C) and 441a(a)(3).  Section 441a(a)(1)(C) says that no person shall make contributions "to any other political committee . . . in any calendar year which, in the aggregate, exceed $5,000."  Section 441a(a)(3) provides:

During the period which begins on January 1 of an odd-numbered year and ends on December 31 of the next even-numbered year, no individual may make contributions aggregating more than -

(A) $37,500, in the case of contributions to candidates and the authorized committees of candidates;

(B) $57,500, in the case of any other contributions, of which not more than $37,500 may be attributable to political committees which are not political committees of national political parties.

Neither provision distinguishes between independent PACs (on the one hand) and PACs that are associated with, or channel money to, a candidate or a party (on the other). 

NDPAC proposed to segregate its contributions into two accounts--one for its independent expenditures (which would not be subject to these limits) and one for funeling funds to candidates or parties (which would be subject to these limits).  The FEC balked and would have required that NDPAC establish a new separate PAC to handle its hard money contributions.

Judge Collyer ruled that the case was governed by Citizens United, EMILY's List, and  She applied strict scrutiny to the contribution limits and held that they did not serve a compelling government interest for independent PACs (because there's no concern over quid pro quo corruption with an independent PAC) and that in any event they weren't narrowly tailored (because NDPAC's preferred solution of separating its bank accounts was a less restrictive way to satisfy any government interest).  She held that NDPAC therefore has a strong likelihood of success on its claim that contribution limits for an independent PAC violate the First Amendment.

The extension of Citizens United to independent PACs, which do not raise the same kind of concerns about quid pro quo corruption that, say, candidate-affiliated PACs raise, is hardly a surprise.  The interesting part of this case, instead, is the court's preference for NDPAC's solution (separate bank accounts--one for hard money contributions and one for soft money contributions) over the FEC's apparently preferred solution (separate PACs--one for hard money contributions and one for soft money contributions).  Judge Collyer ruled that the FEC's solution was overly burdensome in light of NDPAC's simpler, easier solution.  The analysis, if unchanged beyond the preliminary injunction, only makes it easier for hybrid PACs to operate and to accept unlimited contributions for independent expenditures: they'd just need to set up a separate bank account.


[Image: Reforme des differents droits feodaux et de la dime. Le 11 aout 1789. Library of Congress]

June 14, 2011 in Campaign Finance, Cases and Case Materials, First Amendment, Fundamental Rights, News, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, May 12, 2011

Draft EO Under Attack

President Obama's draft executive order requiring government contractors to disclose their political donations came under attack on two fronts today--in a joint hearing by the House Committee on Oversight and Government Reform and the House Committee on Small Business, and in a letter from a bipartisan quartet in the Senate.

The draft EO requires that "all entities submitting offers for federal contracts to disclose certain political contributions and expenditures that they have made within the two years prior to submission of their offer."  This was the White House's answer to the failure of the Disclose Act in the Senate--a modest attempt to shine light on the political activities of government contractors, the only sector over which the executive might require such disclosure without the aid of Congress.  (The Disclose Act itself was a modest attempt to shine light on the political activities of corporations in the wake of Citizens United v. FEC, the Supreme Court case last term that overturned spending limits on corporations and labor unions under the First Amendment, but that upheld disclosure requirements.)

But the draft EO hit a roadblock: Charges in Congress that it would polticize government contracting, and allow the administration to target its political enemies.

Those worries hit a high point today in the House joint committee hearing, titled "Politicizing Procurement: Will President Obama's Proposal Curb Free Speech and Hurt Small Business?"  The hearing was stacked with opponents of the draft EO, all of whom testified that the draft EO would, well, curb free speech and hurt small business.  The lone supporter (other than the OMB rep), representing the Women's Chamber of Commerce, testified that the draft EO would increase transparency and ensure that procurement is based on "fair competition and not unscrupulous, undisclosed "pay to play" campaign donations."  The administration sent OMB Administrator for Federal Procurement Policy Daniel Gordon as a compromise fter Jack Lew, the head of OMB, declined to appear (sparking threats of subpoena by the committee chairs).

At the same time, Senators Joe Lieberman, Claire McCaskill, Susan Collins, and Rob Portman sent a letter to President Obama opposing the draft EO because it would politicize procurement.

There were even some murmurings that President Obama lacked authority to issue the EO--that it wasn't sufficiently tied to federal procurement to come within executive authority.

The Hill provides political coverage here.  We last posted on disclosure in the wake of Citizens United here, on Rep. Van Hollen's suit against the FEC.


May 12, 2011 in Association, Campaign Finance, Executive Authority, First Amendment, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Is The Roberts Court Really a Court? Eric Segall's Answer

In an article with the provocative title Is The Roberts Court Really a Court?, 40 Stetson Law Review 1 (2011), available on ssrn, Professor Eric Segall defines the judicial function as the resolution of "legal disputes by examining prior positive law, such as text and precedent, and then providing transparent explanations" for the decisions.  On this definotion, Segall concludes that the Roberts Court is not "really" a judicial body based upon an examination of three controversial cases:  Gonzales v. Carhart (Carhart II), 550 U.S. 124 (2007); District of Columbia v. Heller, 554 U.S. 570 (2008); and Citizens United v. Federal Election Commission, __ U.S. ___, 130 S. Ct. 876 (2010). 

Here's Segall's conclusion:

In Carhart II, the Roberts Court implicitly overturned an important decision without any discussion of stare decisis. In Heller, the Court created a brand new constitutional right, displacing centuries of caselaw, based on a controversial (at best) historical account that raised serious questions about how the Court actually reached its decision. And, in Citizens United, the Court reached out to decide an important and settled issue of constitutional law not raised by the parties, and it did so without any meaningful discussion of history or stare decisis concerns. In all three cases, the only persuasive descriptive account of why the Court veered from prior positive law is that the people on the Court changed (Justice Alito for Justice O’Connor). This is not judging according to the Rule of Law but judging according to the Rule of Five Justices, and it seriously calls into question whether the Roberts “Court” is, in fact, a court at all.

Segall's brief article provides execellent support for this conclusion, which is widely - - - although certainly not universally - - - shared. 

However, Segall also contends that the question of whether the Roberts Court is really a court "could just as easily be asked of the Rehnquist, Burger, and Warren Courts, as well as all of the other previous Supreme Courts."  Indeed, the conclusion that the Supreme Court is merely the "Rule of Five" is one that might even be more widely - - - although again not universally - - - shared than conclusions about any particular Court.  It is what can make Constitutional Law courses so challenging. 

Segall quickly retreats from the more comprehensive argument: "A comparative analysis of the various Supreme Courts’ reliance on prior law is well beyond the scope of this Article."   Yet he contends that regardless "of whether prior Courts can be accused of similar attitudes, the general indifference of the Roberts Court to these rule-of-law values is troubling."   With three controversial cases, Segall mounts an argument that many will find persuasive.


May 12, 2011 in Abortion, Campaign Finance, Cases and Case Materials, Courts and Judging, Due Process (Substantive), First Amendment, Interpretation, Recent Cases, Reproductive Rights, Scholarship, Second Amendment | Permalink | Comments (1) | TrackBack (0)

Sunday, April 24, 2011

Van Hollen's Suit Against the FEC

Representative Chris Van Hollen (D-Md) last week filed suit against the FEC seeking declaratory and injunctive relief to get the agency to change its regulations to come into line with reporting requirements under the Bipartisan Campaign Reform Act.  He also filed a petition with the FEC seeking the change.

Van Hollen argues that the BCRA requires corporations--including non-profits and labor unions--to report the names of contributors who give $1,000 or more.  But the FEC issued a regulation, initiated in 2007, that limited reporting to those contributions that are donated for the express purpose of furthering electioneering communication.  According to Van Hollen, the agency made the change because it found that corporations and labor unions receive many "donations" by a lot of different individuals--investors, customers, and political donors--and it's difficult and costly to keep track of them all.

This new "purpose" test in the regulation allows corporations, non-profits, and labor unions to sidestep reporting requirements and shield donors.  According to Van Hollen's complaint:

The U.S. Chamber of Commerce, a Section 501(c) corporation, spent $32.9 million in electioneering communications in the 2010 congressional elections, and disclosed none of its contributors; American Action Network, a Section 501(c) corporation, spent $20.4 million in electioneering communications in the 2010 congressional elections, and disclosed none of its contributors; Americans for Job Security, a Section 501(c) corporation, spent $4.6 million in electioneering communication in the 2010 congressional elections, and disclosed none of its contributors . . . .

The list goes on.

Van Hollen was the principal House sponsor of the Disclose Act, which would have expanded contribution reporting requirements for corporations, non-profits, and labor unions.  (The Court in Citizens United v. FEC upheld contribution reporting requirements for corporations and labor unions, even it overturned restrictions on "electioneering communications" by those entities.)  The Act passed the House, but fell one vote short of a supermajority (60 votes) to defeat a filibuster in the Senate.

Van Hollen's suit is hardly a back-door way to get a Disclose Act in another form, though.  His suit is based on the Administrative Procedures Act and claims only that the FEC's regulation is arbitrary, capricious, and contrary to law (the BCRA).  In other words, the claim is merely that the "purpose" requirement in the regs is contrary to the broader disclosure requirement in the BCRA--a law already on the books.  If this is right, it only affirms what the law already says.


April 24, 2011 in Campaign Finance, Cases and Case Materials, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 20, 2011

Footnote of the Day: Express Advocacy's Magic Words

Footnote 52 in Buckley v. Valeo, 424 US 1, 44 (1976) is oft-cited for its "magic words" articulating advocacy 
Vote_For_Horgan in the context of campaign financing:

This construction would restrict the application of § 608(e)(1) to communications containing express words of advocacy of election or defeat, such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," "reject."

As footnote 8 of Justice Stevens' dissenting opinion in Citizens United, explains, "If there was ever any significant uncertainty about what counts as the functionalequivalent of express advocacy, there has been little doubt about what counts as express advocacy since the “magic words” test of Buckley v. Valeo, 424 U. S. 1, 44, n. 52 (1976) (per curiam)."  558 U.S. at ____ (2010), Dissenting Opinion at 11.



For an interesting discussion of the addition of the "magic words" of footnote 52 in Buckley v. Valeo, Professor Richard Hasen's The Untold Drafting History of Buckley v. Valeo, available on ssn, is illuminating.

[image via]

April 20, 2011 in Campaign Finance, Elections and Voting, First Amendment, Games | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 13, 2011

Senate Judiciary Hearing on Fair Elections Now Act

The Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights yesterday held a hearing titled, "The Fair Elections Now Act: A Comprehensive Response to Citizens United." 

The Subcommittee considered S. 750, the Fair Elections Now Act, which creates a public financing system for congressional elections.  The system would encourage campaigns based on small donations (under $100) from in-state contributors: candidates would need a certain number of such donations to qualify for public financing; and the system would match small donations up to five times the donation.  The Act would also cap the rates for television ads for participating candidates at 80 percent of the lowest charge during periods before the election and provide advertising vouchers for participating candidates.

According to Monica Youn of the Brennan Center, who testified yesterday, participants in public financing systems can compete in a post-Citizens United world, provided that the system offers candidates sufficient funds:

But the experiences of jurisdictions with public financing demonstrates that, as long as such systems offer candidates sufficient funds to run viable campaigns, publicly financed candidates can run competitive and successful races even in the face of high levels of hostile independent spending.

Under the Fair Elections Now Act, participating Senate candidates would get $1.25 million, plus another $250,000 per congressional district in their state, split 40 percent for the primary and 60 percent for the general.  But they would also qualify for matching funds at five times the contribution for each contribution of $100 or less from in-state contributors, up to three times the initial allocation for the primary, and again for the general.  And they would benefit from the television ad cap plus vouchers (worth $100,000 for each congressional district in their state).

The Brookings Institution estimates that the average cost of a Senate seat in 2008 was $7,500,052.

In addition to Monica Youn, former Senator and co-chair of Americans for Campaign Reform Alan Simpson, and president of the Republican National Lawyers Association Cleta Mitchell also testified.

Supporters of the Fair Elections Now Act have a web-site that explains the bill.


April 13, 2011 in Association, Campaign Finance, Elections and Voting, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, April 7, 2011

Wisconsin Supreme Court Election Update

In the contentious Wisconsin election for Supreme Court Justice, the challenger JoAnne Kloppenburg has declared victory although she reportedly has a margin of approximately 200 votes. {UPDATE: vote count reversed and fluctuating}.

The incumbent,  David Prosser, currently a member of the state supreme court, has not conceded. 

The election is widely viewed as an example of the politicization of judicial elections.  WISCONSIN COURT In Wisconsin, the political issues revolve around Governor Walker’s proposal the elimination collective bargaining for public employees; an issue that is in litigation that could reach the state supreme court.  The Wisconsin election could be compared to the recent Iowa election which was seen as a referendum on same-sex marriage; the nomination process after that election resulted in an all-white all-male state supreme court.

Additionally, however, Prosser’s personal judicial temperament was a campaign issue.  Prosser reportedly called one of his fellow justices, a woman, a sexist slur.  In an interview with FoxNews, Prosser admited regret engaging in the name-calling, but says it was not all his fault and there was "some provocation."   A brief report with video clip is here; a longer video also discussing other issues is here.

The seemingly inevitable recount could result in litigation before the state supreme court.  However, the first step would be a trial.  And, according to the latest report from Milwaukee Journal Sentinel:

In one twist, state law calls for Chief Justice Shirley Abrahamson to appoint the state judge who would hear the case if the loser of a recount in a statewide election goes to court over the outcome. Abrahamson and Prosser have clashed on the court. Prosser's private remark calling Abrahamson a "total bitch" was the subject of a recent political ad attacking Prosser.



April 7, 2011 in Campaign Finance, Current Affairs, State Constitutional Law, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Footnote of the Day: Citizens United and "the Bellotti footnote" Part II

In First National Bank of Boston v. Bellotti, 435 U. S. 765 (1978),  Corporate Building relied upon by the Court in Citizen’s United v. Federal Election Comm’n, __ US __, 130 S.Ct. 876 (2010), the Court considered a Massachusetts statute that prohibited banks and other businesses from making contributions or expenditures to influence the outcome of a vote on any question submitted to voters other than questions materially affecting the property, business or assets of the corporation.

We’ve previously discussed footnote 26 of Bellotti.  

But perhaps footnote 15 is even more trenchant:

It has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394(1886); see Covington & Lexington Turnpike R. Co. v. Sanford, 164 U.S. 578 (1896).

 435 U.S. at 780 n.15. 


[image via]

April 7, 2011 in Campaign Finance, Elections and Voting, First Amendment, Fourteenth Amendment, Games | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 6, 2011

Footnote of the Day: Citizens United and "the Bellotti footnote" Part I

The opinions in Citizen’s United v. Federal Election Comm’n, __ US __, 130 S.Ct. 876 (2010) display a Court in deep disagreement, including disagreement over a footnote.

Writing for the Court, Justice Kennedy opined:

A single footnote in [First National Bank of Boston v. ] Bellotti purported to leave open the possibility that corporate independent expenditures could be shown to cause corruption. 435 U. S., at 788, n. 26. For the reasons explained above, we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.  Dicta in Bellotti's footnote suggested that “a corporation's right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office.” Ibid. Citing the portion of Buckley that invalidated the federal independent expenditure ban, 424 U.S., at 46, 96 S.Ct. 612, and a law review student comment, Bellotti surmised that “Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections.” 435 U.S., at 788, n. 26, 98 S.Ct. 1407. Buckley, however, struck down a ban on independent expenditures to support candidates that covered corporations, 424 U.S., at 23, 39, n. 45, 96 S.Ct. 612, and explained that “the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application,” id., at 42, 96 S.Ct. 612. Bellotti 's dictum is thus supported only by a law review student comment, which misinterpreted Buckley. See Comment, The Regulation of Union Political Activity: Majority and Minority Rights and Remedies, 126 U. Pa. L.Rev. 386, 408 (1977) (suggesting that “corporations and labor unions should be held to different and more stringent standards than an individual or other associations under a regulatory scheme for campaign financing”).

__ U.S. at ___, 130 S.Ct at 909.

In Justice Stevens’ dissenting opinion, he argued:

The Court’s critique of Bellotti ’s footnote 26 puts it in the strange position of trying to elevate Bellotti to canonical status, while simultaneously disparaging a critical piece of its analysis as unsupported and irreconcilable with BuckleyBellotti, apparently, is both the font of all wisdom and internally incoherent.

___ U.S. at ___, 130 S.Ct. at 959  (Stevens, J. dissentng).

In First National Bank of Boston v. Bellotti, 435 U. S. 765 (1978), the Court found unconstitutional a Massachusetts statute that prohibited banks and other businesses from making contributions or expenditures to influence the outcome of a vote on any question submitted to voters other than questions materially affecting the property, business or assets of the corporation.

The troublesome footnote, footnote 26, including its "cf" signals and citations, provides:

In addition to prohibiting corporate contributions and expenditures for the purpose of Corporate Building influencing the vote on a ballot question submitted to the voters, 8 [of the state law] also proscribes corporate contributions or expenditures “for the purpose of aiding, promoting or preventing the nomination or election of any person to public office, or aiding, promoting, or antagonizing the interests of any political party.” See n. 2, supra. In this respect, the statute is not unlike many other state and federal laws regulating corporate participation in partisan candidate elections. Appellants do not challenge the constitutionality of laws prohibiting or limiting corporate contributions to political candidates or committees, or other means of influencing candidate elections. Cf. Pipefitters Local Union No. 562 v. United States, 407 U.S. 385 (1972); United States v. United Automobile Workers, 352 U.S. 567 (1957); United States v. CIO, 335 U.S. 106 (1948). About half of these laws, including the federal law, 2 U.S.C. § 441b (1976 ed.) (originally enacted as the Federal Corrupt Practices Act, 34 Stat. 864), by their terms do not apply to referendum votes. Several of the others proscribe or limit spending for “political” purposes, which may or may not cover referenda. See Schwartz v. Romnes, 495 F.2d 844 (2nd Cir.1974).

 The overriding concern behind the enactment of statutes such as the Federal Corrupt Practices Act was the problem of corruption of elected representatives through the creation of political debts. See United States v. United Automobile Workers, supra, 352 U.S., at 570-575; Schwartz v. Romnes, supra, at 849-851. The importance of the governmental interest in preventing this occurrence has never been doubted. The case before us presents no comparable problem, and our consideration of a corporation's right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office. Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections. Cf. Buckley v. Valeo, 424 U.S., at 46; Comment, The Regulation of Union Political Activity: Majority and Minority Rights and Remedies, 126 U.Pa.L.Rev. 386, 408-410 (1977).

435 U. S. at 788, n. 26.

In the next segment of "footnote of the day,"  April 7, Part II of Citizens United and "the Bellotti footnote."


[image via]

April 6, 2011 in Campaign Finance, Cases and Case Materials, Courts and Judging, First Amendment, Fourteenth Amendment, Games | Permalink | Comments (0) | TrackBack (0)

Monday, March 28, 2011

Arizona's Campaign Finance Law and Matching Funds: Oral Argument Analysis

Arizona Free Enterprise Club v. Bennett and McComish v. Bennett, consolidated cases challenging Arizona’s statutory system of public campaign financing, were before the Supreme Court today for oral argument.

According to William Maurer, attorney for the Petitioners challenging the law, the issue before the Court is “whether the government may insert itself into elections and manipulate campaign spending to favor its preferred candidates. . . .whether the government can turn my act of speaking into the vehicle by which my political opponents benefit with direct government subsidies.”

On the other hand, Bradley Phillips, arguing for Arizona and the named Respondent, Ken Bennett, Arizona’s Secretary of State, contended that “public funding of elections results in more speech and more electoral competition and directly furthers the government's compelling interest in  combating real and apparent corruption in politics.”

The Arizona scheme, The Arizona Citizens Clean Elections Act, Ariz.Rev. Stat. §§ 16-940 et seq. (2010) includes a “Matching Funds Provision,” which is triggered when the spending of groups making independent expenditures, combined with the spending or fundraising of privately financed candidates, is more than the amount a publicly financed candidate may spend under the Act’s expenditure limits for participating candidates.

The challengers characterize such a provision as a restriction and a penalty on groups making independent expenditures and privately financed candidates.  The state argues that the provision is a subsidy.

The goal and practical effect of the scheme was subject to much disagreement. As Justice Kagan phrased it, the law would seemingly result in “more speech all the way around.” Justice Kennedy asked Maurer if it “would be a  fair characterization of this law to say that its purpose and its effect are to produce less speech in  political campaigns?,”  to which Maurer obviously agreed.  Later, Kennedy asked Phillips a question intended, he explicitly stated, “to probe this idea that this somehow does not deter independent expenditures. I frankly am tempted to believe the opposite view, so you can tell me about that.”  Phillips attempt to analogize to the deterrence that might occur when disclosure was mandated was quickly rejected by Justice Kennedy because of the longstanding different First Amendment standards regarding expenditures and disclosures.

As for the governmental purpose, Chief Justice Roberts asked William Jay, arguing for the Solicitor General in support of Respondents to agree that “under our precedents, leveling the playing field for candidates is not a legitimate State purpose?” Jay agreed, and Roberts revealed his research abilities:

Azgov Well, I checked the Citizens' Clean Elections Commission website this morning, and it says that this act was passed to, quote,"level the playing field" when it comes to running for office. Why isn't that clear evidence that it's unconstitutional?

Earlier, Justice Kagan was less enthusiastic about whether the government purpose was the impermissible "level the playing field" or the more acceptable "prevent corruption":

JUSTICE KAGAN: I think the purpose of this  law is to prevent corruption. That’s what the purpose  of all public financing systems are.

MR. MAURER: Your Honor, I would respectfully disagree that the purpose of this law is to prevent corruption, and I would like to read from the  executive director of the Clean Elections Commission who said that: “It cannot be disputed that the purpose of the Clean Elections Act is to equalize the playing field."

JUSTICE KAGAN: Well, Mr. Maurer, some people may use certain buzz words and other people don’t  use those buzz words, but isn’t it true that for years what public financing systems have been based upon is the idea that when there is a lot of private money floating around the political system, that candidates and then public office holders get beholden to various  people who are giving that money and make actions based on how much they receive from those people, and that’s the idea of a public financing system is to try to prevent that?

Another deeply problematic issue was whether the Arizona provision was content-neutral or discriminated against certain types of speech.   Answering Kennedy's query as to whether the law was content-neutral, Maurer argued that

the only thing that will trigger matching funds, particularly for  independent expenditure groups, is the content of the  message. If an independent expenditure group speaks in favor of a privately financed candidate, they will not trigger matching funds. If they speak against a  publicly financed candidate, they will trigger matching  funds. That not is only content-based; it is also a  rejection of the standard this Court enunciated in Citizens United that the government cannot make distinguishing burdens on the basis of an identity of a  speaker.

In response to a similar query during his argument, Phillips later stated,

the  discrimination, if you want to -- if you call it  discrimination or different treatment, is based on the  initial choices of the candidates as to how they're going to finance their campaigns. It's not based on the  content of the speech.  There's -- matching funds do not turn in any way on the ideas or the messages or the viewpoints or the subject matter of the candidate or the independent group's speech or on the identity of the speaker. It turns entirely on what choice the candidate made at the  outset. 

If the questions of the Justices are predictive, a divided Court seems likely to find Arizona's matching funds provision unconstitutional.

UPDATES: Lyle Denniston over at SCOTUSblog focuses on Justice Kennedy's comments, finding them predictive.

Howard Bashman at How Appealing collects today's commentary on the arguments.


March 28, 2011 in Campaign Finance, Elections and Voting, First Amendment, Oral Argument Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Saturday, February 19, 2011

Can Congress Regulate Supreme Court Ethics?

At least one representative thinks so.  Chris Murphy is suggesting legislation that would: 2150038_big

  • apply the Judicial Conference's Code of Conduct, which applies to all other federal judges, to Supreme Court justices.  This would allow the public to access more timely and detailed information when an outside group wants to have a justice participate in a conference, such as the funders of the conference;
  • require the justices to simply publicly disclose their reasoning behind a recusal when they withdraw from a case;
  • require the Court to develop a process for parties to a case before the Court to request a decision from the Court, or a panel of the Court, regarding the potential conflict of interest of a particular Justice.

According to the Congressperson's press release, Murphy is prompted by the actions of Justices Scalia and Thomas in relation to "Charles and David Koch, billionaire brothers who operate a Kansas-based energy company." 

The press release does not mention the controversy which swirled around Justice Alito last year regarding an American Spectator event.


February 19, 2011 in Campaign Finance, Congressional Authority, Courts and Judging, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, January 7, 2011

Challenge to Foreign National Campaign Contributions To Go Forward

Judge Ricardo Urbina (D.D.C.) today granted an application by two foreign nationals, plaintiffs in Bluman v. FEC, for a three-judge panel under the Bipartisan Campaign Reform Act of 2002 (BCRA) to challenge the Act's restriction on campaign contributions and expenditures by foreign nationals.

Section 303 of the BCRA makes it unlawful for a foreign national to make

(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;

(B) a contribution or donation to a committee of a political party; or

(C) an expenditure, independent expenditure, or disbursement for an electioneering communication[.]

2 U.S.C. Sec. 441e(a)(1).  The provision replaces the former, similar ban in the Federal Election Campaign Act (FECA).

Under the BCRA, a constitutional challenge against any section of the BCRA must go before a three-judge court.  That's just what plaintiffs applied for here.

But the FEC balked, arguing under McConnell v. FEC that a three-judge panel lacks authority to hear a constitutional challenge to Section 303 of the BCRA, because the activities it prohibits were already illegal under FECA.  (The FEC thus effectively challenged standing: plaintiffs lacked standing, they claimed, because any ruling by the three-judge panel that Section 303 was unconstitutional wouldn't redress their harm.  After all, they claimed, even if Section 303 were unconstitutional, FECA previously prohibited the same activity.  The ruling would only affect Section 303, not FECA, and the activity would therefore still be prohibited under FECA.  (FECA requires constitutional challenges to go before an en banc circuit court.))

Judge Urbina rejected the argument.  He ruled that Section 303 of the BCRA replaced the similar prohibition in the FECA, and therefore a ruling that Section 303 was unconstitutional would redress the plaintiffs' harms.  "Unlike McConnell, if a three-judge court were to strike down Section 303 as unconstitutional, then no other law (or at least none which the defendant has identified) would prohibit the plaintiffs from engaging in their desired conduct."  Op. at 5.

(Judge Urbina rejected the plaintiffs' request for a three-judge panel for their challenge to the FEC regulations implementing Section 303.  The BCRA authorizes the three-judge panel for constitutional challenges to the BCRA.  But here the regs are different than the BCRA.)

The ruling allows the plaintiffs' case challenging Section 303 to move forward before a three-judge panel of the district court. 


January 7, 2011 in Campaign Finance, Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Monday, November 29, 2010

High Court to Rule on Arizona's Public Campaign Funding Act

The Supreme Court today agreed to hear Arizona Free Enterprise v. Bennett (consolidated with McComish v. Bennett), a case involving Arizona's public campaign funding system.  Under the system, candidates who participate in the State's public campaign finance program qualify for additional public matching funds when expenditures by and on behalf of a nonparticipating opponent exceed the participating candidate's original public grant.  The system thus seeks to even up expenditures between participating candidates and nonparticipating candidates who can vastly outspend them. 

The Court previously issued an order reinstating the trial court's injunction against the Arizona law and staying the Ninth Circuit's mandate overturning that injunction.  The law was therefore not in effect for the recent election.  We posted on the case here and here.

Arizona enacted its system in response to a rash of political scandals in the state.  Under the system, participating candidates get a lump sum grant for the primary campaign.  If funds spent by and on behalf of the nonparticipating opponent exceed that grant, the participating candidate receives state "matching funds" equal to the combined spending of the nonparticipating opponent, plus independent expenditures against the participating candidate, minus six percent and less the amount of early contributions raised by the nonparticipating opponent during preprimary fundraising.  (Why minus six percent?  Because the State determined that six percent represents fundraising costs for the nonparticipating opponent.)  The system works similarly in the general election.

The District Court ruled that the system violated the First Amendment, but the Ninth Circuit reversed.  The Ninth Circuit ruled that the system has a hybrid effect on both contributions and expenditures, and therefore "affects fully protected speech," but that any burden it imposes "is indirect or minimal."  Op. at 9161.  The court ruled that the system's restriction on speech was merely theoretical (not actual), and that the plaintiffs failed to show that it resulted in any restriction on their speech.  Thus the burden on speech "is most analogous to the burden of disclosure and disclaimer requirements in Buckley and Citizens United."  Op. at 9166.  The court thus applied intermediate scrutiny (and not strict scrutiny).

The Ninth Circuit distinguished Davis v. FEC, the Court's OT '07 case striking down the "Millionaire's Amendment."  That federal law increased the cap on contributions for U.S. House candidates who were significantly outspent by self-financed opponents.  The Court held that the law substantially burdened fully protected speech and therefore applied strict scrutiny.  The Ninth Circuit ruled that the Millionaire's Amendment, unlike Arizona's law, applied to privately financed candidates, and thus Davis had nothing to do with a public funding system like the one here.  The Ninth Circuit also noted that the Davis Court wrote that "had the law 'simply raised the contribution limits for all candidates, Davis' argument would plainly fail.'"  Op. at 9160 (quoting Davis).  This is exactly what Arizona tried to do.

The Ninth Circuit ruled that the Arizona system satisfied intermediate scrutiny: there is a substantial relation between the system's matching funds provision and the sufficiently important governmental interest in preventing quid pro quo corruption and the appearance of corruption.  The system also encourages candidates to use the public funding system, which further promotes these interests.  Participating candidates "have both reduced opportunities and reduced incentives to trade legislative favors for financial favors."  Op. at 9167-68.

The case goes to a Court that has been hostile to any effort that restricts or burdens campaign expenditures, most recently in Citizens United.  The difference here is that the law seeks to level up, not level down--yielding more campaign speech, not less--and it seeks to do it through a public funding system.  Moreover, the plaintiffs have not been particularly persuasive in showing that the law actually burdened their speech. 

A few things to watch in the case:

  • The level of scrutiny that the Court applies to this hybrid law.  The Ninth Circuit applied the more lenient intermediate scrutiny; the Supreme Court may apply strict scrutiny.
  • The fitness analysis at either level of scrutiny.  The State's case for actual quid pro quo corruption is weak; its case for the appearance of corruption is stronger.  Either way, the fitness between the scheme and these interests may push the bounds of even intermediate scrutiny for the Court.
  • The plaintiffs' burdened speech.  How will the Court treat the plaintiffs' case that their speech is burdened?  The Ninth Circuit rejected their "theoretical" claims.  The Supreme Court may take these claims more seriously.

More generally, if the Court's recent cases stand for the principle that more speech is better, then this case could turn in part on whether the Court thinks the participant's increased speech from matching funds exceeds the nonparticipant's merely theoretical speech lost from self-imposed restrictions.  If, instead, the Court's recent cases say that no burden on campaign speech can stand (even if the burden is mostly theoretical, and even if the burden is outweighed by countervailing increased speech on the other side), then the Arizona law will surely fail.


November 29, 2010 in Campaign Finance, Cases and Case Materials, First Amendment, Fundamental Rights, News, Recent Cases, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 10, 2010

How do you spell Bush v. Gore?: Miller sues over ballot interpretations of Murkowski's name in Alaska Senate race

In a Complaint filed late yesterday in the Alaska District Court, United States Senate Candidate Joe Miller is seeking to exclude write-in ballots for incumbent Senator Lisa Murkowski unless her name is spelled correctly.  As background, there is good reporting from the Anchorage Daily News and a prediction of this lawsuit by Rick Hansen over at Election Law Blog.

Miller's Complaint states four claims for relief:

First, citing the Elections Clause, Article I section 4, cl 1, which provides  that the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof," Miller argues that the state executive branch is usurping the power of the state legislative branch.

Second, relying on the Equal Protection Clause as interpreted in Bush v. Gore, Miller alleges that the state officials “quixotic quest” to determine the intent of the voter will result in the “arbitrary and disparate treatment of write-in ballots in clear violation of the U.S. Constitution.”

In counts three and four, Miller raises state law claims under the Alaska Election Code and the Alaska Administrative Procedure Act.

As in Bush v. Gore, the candidate who otherwise advocates "states rights" and disparages "federal activist judges" is asking a federal court to intervene and enjoin state officials from implementing their interpretation of state law.


Before the election, Miller filed a complaint with the FEC against Alaskans Standing Together,  a PAC with Native Alaskan support that opposed his candicacy and supported Murkowski (as illustrated by the image above from its website).  The PAC will undoubtedly be relying upon Citizens United v. FEC.


[image via]


November 10, 2010 in Campaign Finance, Elections and Voting, Equal Protection, Federalism, Fourteenth Amendment, Interpretation, News, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Saturday, October 30, 2010

Arizona SB1070, Legislative Process, and Constitutional Consequences

As so-called "copycat" legislation of Arizona's SB 1070 is being contemplated by 25 other states, some provocative reporting from NPR discusses the genesis of such laws.  In part one of the report, NPR states that it "spent the past several months analyzing hundreds of pages of campaign finance reports, lobbying documents and corporate records. What they show is a quiet, behind-the-scenes effort to help draft and pass Arizona Senate Bill 1070 by an industry that stands to benefit from it: the private prison industry."  In part two, NPR continues its reporting on American Legislative Exchange Council, ALEC,and states:

Here's how it works: ALEC is a membership organization. State legislators pay $50 a year to belong. Private corporations can join, too. The tobacco company Reynolds American Inc., Exxon Mobil Corp. and drug-maker Pfizer Inc. are among the members. They pay tens of thousands of dollars a year. Tax records show that corporations collectively pay as much as $6 million a year.

With that money, the 28 people in the ALEC offices throw three annual conferences. The companies get to sit around a table and write "model bills" with the state legislators, who then take them home to their states.

Again, NPR focuses on SB1070 and similar legislation, as the NPR image below illustrates.

Picture 2



This reporting raises several constitutional issues.  First, and perhaps most obviously, are the First Amendment issues regarding lobbying, disclosure, and campaign finance, especially from the perspective of the public's "right to know."   Second, the "government interests" prong of analysis in constitutional challenges is implicated.  Might a court reject a government's proferred statement of interest in favor of an unarticulated - - - and illegitimate - - - interest such as improving business for a private corporation?


October 30, 2010 in Campaign Finance, Current Affairs, Due Process (Substantive), Equal Protection, First Amendment, Fourteenth Amendment, Interpretation, News, Speech | Permalink | Comments (0) | TrackBack (0)