Tuesday, April 3, 2012

FEC Limited Reporting Reg Goes Down

Judge Amy Berman Jackson (D.D.C.) on Friday ruled that the FEC exceeded its regulatory authority by requiring corporations and labor unions to report only contributions made for the purpose of furthering electioneering communications, and not all contributors.

The ruling in Van Hollen v. FEC ends the case, at least for now, in favor of Maryland Representative Chris Van Hollen (D) against the FEC. Under Judge Jackson's ruling, the FEC could not limit reporting requirements by corporations and labor unions only to those contributions made for the purpose of furthering electioneering communication. Instead, under the Bipartisan Campaign Reform Act, or BCRA, corporations and labor unions who do not segregate their funds for electioneering communication (which segregation is no longer required under Citizens United) must report all contributions of $1,000 or more, apparently including "contributions" by customers, members, or others who give money, for whatever reason, to a corporation or labor union. (Recall that Citizens United held that the First Amendment allows corporations and labor unions to use general treasury funds for electioneering communication and thus did not require segregated funds for that purpose.)

Recall that Rep. Van Hollen sued the FEC over its December 26, 2007, disclosure regulation, which reads:

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 Rep. Van Hollen, was that the italicized limit on the disclosure requirement effectively allowed corporations to dodge disclosure requirements under the plain language of the BCRA. BCRA 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 parties didn't dispute that BCRA defined "person" to include corporations and labor unions. Thus under (F) any corporation or labor union that used non-segregated funds for electioneering communication must report contributors who contributed $1,000 or more. Rep. Van Hollen argued that the FEC reporting reg was inconsistent insofar as it limited reporting only of those who contributed for electioneering communication purposes.

Judge Jackson agreed and ruled that the FEC exceeded its authority by limiting the reporting requirement only to those contributions made for the purpose of furthering electioneering communication. Judge Jackson ruled that the FEC regulation violated the plain language and legislative purpose of the BCRA, and she rejected arguments that broader reporting requirements would be unduly burdensome and thus violate the First Amendment under Citizens United. (She ruled that Citizens United itself answered this question by upholding BCRA reporting requirements.)

Part of the analysis turned on the definition of the word "contributor," used the BCRA. Judge Jackson said that "contributor" does not contain a purpose or intent element and therefore covers anyone who gives money for any purpose to a corporation or a labor union.

The ruling, if upheld on appeal, means that the FEC must go back to the drawing board on this regulation and that it would have to require disclosure for all contributions, for any purpose, to any corporation or labor union that uses general, unsegregated funds for electioneering communication. That would certainly promote transparency. (Maybe even too much, without further requirements for disclosure by purpose of contribution (i.e., for electioneering purposes, or other purposes). Consider trying to make sense of a list of undifferentiated contributors to any major corporation, for example, when many contributors (e.g., ordinary customers) may have no idea how or even if the corporation spends money for electioneering communication.)

It may also encourage corporations and labor unions to create a segregated fund for electioneering communication (even though they don't have to under Citizens United) in order to avoid the hassle of reporting all their contributors. (Under (E), they'd only have to report those who contributed for electioneering communication.) On the other hand, it could encourage corporations the other way, because reporting on all contributors might help them better conceal those contributors who contributed only for the purpose of electioneering communication among their many other contributors who contributed for other purposes.

Another possibility: Congress could change the BCRA--either consistent with the FEC's rejected approach or in some other way. But don't look for this to happen anytime soon, and certainly not before the FEC can file an appeal. (No word yet whether the FEC will appeal.)

SDS

April 3, 2012 in Campaign Finance, Cases and Case Materials, Elections and Voting, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Sunday, February 19, 2012

Court Stays Montana Ruling on Citizens United

The Supreme Court on Friday stayed a Montana Supreme Court's ruling upholding the Montana state PAC requirement for corporate campaign expenditures, even in the face of Citizens United v. FEC.  We posted on the Montana Supreme Court case, American Tradition Partnership, Inc. v. Bullock, here.  Recall that the Montana court distinguished Citizens United, saying that the Montana PAC requirement wasn't onerous, that Montana campaign spending regulations are far less onerous than federal regulations and did not deter the plaintiff-corporations' spending, and that Montana has a unique history of powerful corporations, controlled by outsiders, dominating state politics.  In short, the Montana court said that the state PAC requirement satisfied strict scrutiny and thus met the high bar for restrictions on independent corporate spending set in Citizens United.

Justices Ginsburg and Breyer wrote this on the Court's order:

Montana's experience, and experience elsewhere since this Court's decision in [Citizens United], make it exceedingly difficult to maintain that independent expenditures by corporations "do not give rise to corruption or the appearance of corruption."  [Citizens United.]  A petition for certiorari will give the Court an opportunity to consider whether, in light of the huge sums currently deployed by buy candidates' allegiance, Citizens United should continue to hold sway.  Because lower courts are bound to follow this Court's decisions until they are withdrawn or modified, however . . . I vote to grant the stay.

The decision on Friday doesn't mean necessarily that the Court will hear the case, although it makes it likely.  The stay remains in effect if the Court grants cert.; if not, it goes away.

SDS

February 19, 2012 in Campaign Finance, Cases and Case Materials, First Amendment, Fundamental Rights, News, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 1, 2012

First Circuit Rejects NOM's Challenges to Disclosure Laws Redux

In what the First Circuit calls the "second chapter" of challenges to the constitutionality of Maine's registration and disclosure laws regarding election-related advocacy, the court in National Organization for Marriage [NOM] v. McKee, essentially reaffirms its opinion last August in a case by the same name (and now to be known as NOM I).   The cases stem from the hard-fought same-sex marriage ballot initiative in Maine in 2009.  NOM II involves both NOM and American Principles in Action [APIA], although the court expressed doubt regarding APIA's standing as to some of the claims, and the principle arguments revolve around NOM.

MaineThe unanimous panel decision, authored by Judge Kermit Lipez, focuses on the "only substantively distinct issue" raised by this appeal as contrasted to NOM I:  the constitutionality of the definition of "contribution" in the "ballot question committee" [BQC] provision, Me. Rev. Stat. tit. 21-A, §1056-B.  The court concludes that the BQC provision, like the PAC provision at issue in NOM I survives the constitutional challenge.

The court quickly disposed of the First Amendment claims, on the basis of NOM I, but paid more attention to the assertion that the term "contribution" was unconstitutionally vague as a matter of due process, and that any reliance on subjective beliefs of a contributor were likewise void for vagueness. At issue were email communications such as:

"You can fight back! Can you help defend marriage in Maine and across the country, by donating $5, $10, or even, if God has given you the means, $100 or $500?"

The panel found that Maine can constitutionally require parties to determine whether or not a "reasonable listener would understand their advocacy as an invitation to contribute to a specific ballot question campaign"- - - such as that in Maine - - - based upon the specific earmarking words of the solicitor, in this case NOM.  

The court engaged in such reasoning after specifically faulting the appellants' attorneys for poor lawyering in terms of the as-applied challenges:

Appellants, however, do not address in their brief the vagueness problem with respect to donations received following any specific communication they distributed or proposed. Rather, they assert in conclusory language that subsections B and C of section 1056-B "are unconstitutionally vague as applied to most of Plaintiffs' speech." They make glancing reference to the content of the emails, noting that "some of NOM's solicitations mentioned Maine," and query whether, as a result of those mentions, donors' knowledge of the Maine ballot measure would be enough to make their donations covered "contributions" and NOM a BQC. They do not explain why they were unable, or would be unable, to link particular contributions received to their advocacy efforts on the Maine referendum, focusing their arguments instead on the language of the statute generally.

Thus, appellants are not only unable to bring a facial vagueness challenge to section 1056-B, but their failure to develop their as-applied challenges also would allow us to reject those claims summarily if we were so inclined. [citations omitted]. Given the importance of the issues raised, however, and the resources expended by all parties in this extensive litigation, we choose to explain why their vagueness contentions would in any event be substantially, if not entirely, unavailing. [citations omitted].

As the panel succinctly stated, it saw "no constitutional problem with expecting entities like appellants to make pragmatic, objective judgments about the nature of the contributions they receive where their own conduct and communications are the primary elements in the determination."

While NOM's attorney has reportedly vowed to take the case to the United States Supreme Court, there seems to be little here that would merit a grant of a writ of certiorari.

However, with the same-sex marriage issuepossibly again on the ballot in Maine in 2012, there may certainly be more litigation.

RR
[image via]

February 1, 2012 in Campaign Finance, Due Process (Substantive), Elections and Voting, First Amendment, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation, Speech, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 4, 2012

Montana Supreme Court Upholds Campaign Spending Limits for Corporations

The Montana Supreme Court last week upheld state campaign spending limitations on corporations against a free speech challenge under Citizens United v. FEC.  The court ruled that special circumstances distinguish the case from Citizens United, and that unique features of Montana politics justify the restrictions, even under strict scrutiny.

The statute under attack in Western Tradition Partnership v. Attorney General prohibits corporations from spending "in connection with" a candidate or a political committee, but it allows corporations to establish an independent political action committee for that purpose.  It says:

(1) A corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.

(2) A person, candidate or political committee may not accept or receive a corporate contribution described in subsection (1).

(3) This section does not prohibit the establishment or administration of a separate segregated fund to be used for making political contributions or expenditures if the fund consists only of voluntary contributions solicited from an individual who is a shareholder, employee or member of the corporation.

Montana Code, Sec. 13-35-227.

Three corporations challenged the law: a sole proprietor; a firearm safety and gun-rights group; and a shell corporation designed to influence Montana politics while concealing the identity of contributors.

The court ruled that three things distinguished this challenge from Citizens United.  First, the court ruled that the PAC requirement was not onerous, especially for these three plaintiffs, who failed to show that their political spending was at all impacted by it.  Next, the court said that Montana campaign spending regulations are far less onerous than federal regs and, again, did not deter or impact these plaintiffs' spending.  And finally, the court wrote at length than Montana has a unique history of powerful corporations, controlled by outsiders, directing and corrupting the politics of the State. 

The court said that the spending restriction was narrowly tailored to meet the compelling interest of reducing corruption by corporations in the State, given the unusual features of Montana politics and its economy, thus satisfying strict scrutiny:

Issues of corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transporation corridor, and low campaign costs make Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government.

Op. at 22.

The court said the state also had an interest in the full political participation of its electorate:

With the infusion of unlimited corporate money in support of or opposition to a targeted candidate, the average citizen candidate would be unable to compete against the corporate-sponsored candidate, and Montana citizens, who for over 100 years have made their modest election contributions meaningfully count would be effectively shut out of the process.

Op. at 23-24.

Finally, the court said that the State had compelling interests in preserving its system of elected judges, and in an independent, fair, and impartial judiciary that are served by the statute.

Because the law satisfied strict scrutiny, the court held, it also satisfied lesser scrutiny applicable to the sole proprietor and to the firearms group, whose speech was not sufficiently burdened by the law to justify strict scrutiny review.

Justices Baker and Nelson dissented, arguing that Citizens United prohibits all bans on corporate campaign spending.  Justice Baker argued further that State election authorities could constitutionally extend disclosure requirements to corporations; that, at least, would give Montana voters some protection against corruption (through disclosure), if the Supreme Court were ultimately to overturn Montana's spending restriction.

SDS

January 4, 2012 in Campaign Finance, Cases and Case Materials, First Amendment, Fundamental Rights, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, December 29, 2011

Second Circuit Upholds NYC's "Pay-to-Play" Campaign Finance Law

The Second Circuit rejected a First Amendment challenge to New York City's laws which seek to prevent so-called "pay-to-play" schemes that link campaign contributions to city contracts. 

In a panel opinion rendered last week in Ognibene v. Parkes, authored by Judge Paul Crotty, a district judge sitting by designation, and with two concurring opinions, the Second Circuit upheld the law.  The challenged provisions were those that

  • limit campaign contributions by individuals and entities that have business dealings with the City (from the generally applicable limit of $4,950 to $400 for mayor, comptroller, and public advocate, with similar schemes and reductions for borough presidents and members of city council);
  • exclude such contributions from matching with public funds under the public financing scheme; and
  • expand the prohibition on corporate contributions to include partnerships, LLCs, and LLPs.

300px-Charging_Bull_statueThe district judge had upheld the city laws in 2009, but the Second Circuit now had to consider both Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010) and  Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011).  Ultimately, the panel found that neither case altered the district judge's conclusion.

As to Citizens United, the panel opinion rejected the appellants' attempt - - - through "selective and misleading quotes" from Citizens United - - - to broaden Citizens United and obliterate the Supreme Court's "clear distinction between limits on expenditures and limits on contributions."  (at 18).  For the panel, Citizens United "confirmed the continued validity of contribution limits, noting that they most effectively address the legitimate governmental interest, identified by Buckley [v. Valeo], in preventing actual or perceived corruption." 

More contentious, however, was the nature of the actual or perceived corruption required.  As the panel opinion noted, although "Citizens United stated that mere influence or access to elected officials is insufficient to justify a ban on independent corporate expenditures, improper or undue influence presumably still qualifies as a form of corruption," citing Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011).  Judge Debra Ann Livingston concurred separately to disagree with any notion that improper influence was a form of corruption that could be constitutionally addressed.   However, the panel lauded the city's fact-finding about corruption and the perception of corruption, stating both that the city need not wait until the "dog" actually bit before enacting legislation (at 27) and that there were actual recent "scandals involving exchanges of money for favors," (at 31 n.15 citing news reports).  

Having found the government interests sufficient, the panel opinion then analyzed whether the provisions were closely drawn.  The panel opinion rejected the argument that the provisions were poorly tailored because they were not "indexed for inflation" and because they discriminated based upon viewpoint.   The viewpoint argument was largely based upon the exclusion of nonprofits such as neighborhood associations from the city law, but the panel stated that appellants never specified the viewpoint, and that neighborhood associations (for example) did not have a unified viewpoint.

The panel also rejected the challenge to the matching funds provision, distinguishing Bennett, and found that the entity ban, including not only corporations but partnerships, was sufficiently closely drawn.

Judge Guido Calabresi's interesting concurring opinion merits a close and full read.  Beginning with a Biblical passage, Calabresi states his disagreement with the Supreme Court's belief in the majority opinion in Citizens United that a government antidistortion interest (to "level the playing field") is inconsistent with the First Amendment.  Instead, courts should recognize that interest in the same manner that they recognize the validity of noise ordinances:

If an external factor, such as wealth, allows some individuals to communicate their political views too powerfully, then persons who lack wealth may, for all intents and purposes, be excluded from the democratic dialogue. In much the same way that anti-noise ordinances help to prevent megaphone users from drowning out all others in the public square, contribution limits can serve to prevent the wealthiest donors from rendering all other donors irrelevant—from, in effect, silencing them.

Moreover, the problem with the loudness of the megaphone in the public square

is not just that it drowns out the voices of others, but also that it misrepresents, to an outside observer, the relative intensity of the speaker’s views. That is, even if the megaphone user cares little about the issue being discussed, his voice gets heard above all others, while the voices (and intensity of feelings) of those who care passionately about the issue (and shout their beliefs at the top of their lungs) seem small in comparison. The one speaker’s relative loudness— along with the other speakers’ relative softness—obscures the depth of each speaker’s views, thereby degrading the communicative value of everyone’s message.

Calabresi's opinion articulates some of the same criticisms of campaign financing that animate the Occupy Wall Street movement.  He concludes by criticizing the Supreme Court's lack of deference to the legislature and essentially suggesting that the Court's activism (although he does not use that term) will be eventually ameliorated, whether through a "constitutional amendment or through changes in Supreme Court doctrine."

RR
[image: "Charging Bull" on Wall Street]

December 29, 2011 in Campaign Finance, Current Affairs, Elections and Voting, First Amendment, Fourteenth Amendment, Opinion Analysis, Recent Cases, Speech, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Saturday, December 17, 2011

Seventh Circuit: Contribution Cap to Independent Group Violates First Amendment

A unanimous three-judge panel of the Seventh Circuit ruled this week in Wisconsin Right to Life v. Barland that Wisconsin's cap on contributions to independent political action committees violates the First Amendment. 

Here's Wisconsin's law:

No individual may make any contribution or contributions to all candidates for state and local offices and to any individuals who or committees which are subject to a registration requirement under s. 1105, including legislative campaign committees of a political party, to the extent of more than a total of $10,000 in any calendar year.

Wisconsin Right to Life, an independent organization according to the court, sought preenforcement review after two individuals were foreclosed from contributing to it because they exceeded the $10,000 contribution cap.

The court ruled that the cap violated free speech, insofar as it restricted contributions to independent organizations.  The court explained:

Importantly for our purposes here, Citizens United made it clear that the government's interest in preventing actual or apparent corruption--an interest generally strong enough to justify some limits on contributions to candidates--cannot be used to justify restrictions on independent expenditures. . . .

"The separation between candidates and independent expenditure groups negates the possibility that independent expenditures will result in the sort of quid pro quo corruption with which [the Court's] case law is concerned."  In short, "[t]he candidate-funding circuit is broken."  Citizens United thus held as a categorical matter that "independent expenditures do not lead to, or create the appearance of, quid pro quo corruption."  [Quoting Arizona Free Enterprise Club.] 

Op. at 25-26.

The court rejected the state's argument that the cap addressed indirect quid pro quo corruption and the appearance of corruption, saying that Citizens United set a categorical rule: Independent expenditures do not lead to these problems.

The court's ruling is hardly a surprise in the wake of Citizens United and the D.C. Circuit's 2010 ruling in FreeSpeechNow.org v. FEC and the Ninth Circuit's 2010 ruling in Long Beach Area Chamber of Commerce v. Long Beach, among others. 

SDS

December 17, 2011 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

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. 

RR
[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.

SDS

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
www.colbertnation.com
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).

SDS

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.

SDS

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. 

SDS

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 SpeechNow.org v. FEC (2010).

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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 SpeechNow.org.  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.

SDS

[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.

SDS

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. 

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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.

RR

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.

SDS

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.

RR
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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.

SDS

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.

 

RR

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. 

RR

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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."

RR

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