Monday, October 15, 2012

Developments in Montana Campaign Contribution Case

Recall that District Judge Charles C. Lovell (Montana) ruled earlier this month in Lair v. Murry that Montana's low campaign contribution limits for individuals and political parties violated the First Amendment and permanently enjoined the state from enforcing those limits.  Judge Lovell wrote that he'd issue more detailed findings and conclusions soon.  (He did; see below.)

But late last week, before Judge Lovell issued his follow-up, the Ninth Circuit issued a temporary stay of Judge Lovell's ruling, putting the limits back into place pending further action by the Ninth Circuit.  The three-judge panel wrote that Judge Lovell's original ruling contained no findings and conclusions, and thus "the court is severely constrained in its consideration of the underlying issues raised in the emergency motion [for a temporary stay], including whether, in light of Randall v. Sorrell . . . our decision in Montana Right to Life Ass'n v. Eddleman . . . must be revisited."

A little background.  The Ninth Circuit previously upheld Montana's low limits against a First Amendment challenge in Montana Right to Life Ass'n in 2003.  The Ninth Circuit in Montana Right to Life Ass'n relied on the Supreme Court's Nixon v. Shrink Missouri Government PAC (2000), which rejected a claimed constitutional minimum on campaign contributions and instead said the test was whether Missouri's contribution limit was so low as to impede the ability of the candidates to amass the resources necessary for effective advocacy.  But since 2003, the Supreme Court overturned Vermont's ultra-low contribution limits in Randall v. Sorrell (2006).  Thus, the Ninth Circuit panel wondered whether Judge Lovell thought that Randall v. Sorrell abrogated circuit law in Montana Right to Life Ass'n.

Judge Lovell answered that question later last week, when he issued his promised findings and conclusions.  He wrote,

The Randall opinion is directly on point here.  The Randall decision undeniably paints a new gloss on the law and provides important insight into the lower bound for contribution limits.  Randall is intervening law that obviates Montana Right to Life's precedential value, particularly in light of the Randall plurality's expressed suspicion of Montana's contribution limits.

Op. at 28.

The case is now in the Ninth Circuit's court.  While its temporary stay is still in effect, the court may revoke it in light of Judge Lovell's findings, or it may not.  Whatever the court does with its temporary stay, it looks like the appeal will move forward.  The Ninth Circuit established a page for the case here.


October 15, 2012 in Campaign Finance, Cases and Case Materials, Courts and Judging, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, October 4, 2012

District Court Rules Montana Campaign Contribution Limits Unconstitutional

District Judge Charles C. Lovell (Montana) ruled in Lair v. Murry that Montana's low campaign contribution limits for individuals and political parties violated the First Amendment and permanently enjoined the state from enforcing those limits.

The State says that it will seek an emergency stay in the Ninth Circuit.  Barring a stay, however, or a quick appeal, the ruling means that Montana's limits on individual and political party contributions are unenforceable--this election cycle, and maybe beyond.

This is the second recent significant defeat for Montana in the area of campaign finance restrictions.  Recall that the Supreme Court summarily reversed a Montana Supreme Court ruling upholding the state's restrictions on corporate electioneering expenditures.  (The Montana court ruled that Montana's unique history of political corruption justified the restriction, even under Citizens United.  The Supreme Court disagreed.)

The restrictions at issue cap individual and political party contributions to candidates at very low levels.  For example, Montana Code Section 13-37-216(1)(a) caps contributions at $500 for candidates for governor and lieutenant governor, $250 for candidates for all other state-wide offices, and $130 for candidates to all other offices. 

The plaintiffs argued that these limits violated the First Amendment.  Judge Lovell agreed.  In a very short order, he wrote that "[t]he contribution limits prevent candidates from 'amassing the resources necessary for effective campaign advocacy.'"  (Quoting Randall v. Sorrell (2006) (overturning Vermont's low limits on campaign contributions)).

Judge Lovell wrote that he'd later issue findings of fact and conclusions of law in support of his order.


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

Sunday, September 16, 2012

Seventh Circuit Upholds State Campaign Finance Disclosure Requirements

A three-judge panel of the Seventh Circuit ruled last week in Center for Individual Freedom v. Madigan that Illinois's campaign finance disclosure requirements, which require registration and disclosure even of groups whose "major purpose" is not influencing electoral campaigns, were not unconstitutionally vague and overbroad in violation of the First Amendment.

The ruling means that Illinois state law stands, even as to those groups whose "major purpose" is not influencing electoral campaigns--the 504(c)(4) groups who famously escape disclosure requirements under federal campaign finance disclosure laws.  It means that even those groups--which are often designed with the purpose of shielding their donors from disclosure--have to report under state law.  The ruling also deepens a circuit split on this point, with a Tenth Circuit case, New Mexico Youth Organized v. Herrera, 611 F.3d 669 (2010), invalidating a state disclosure law as applied to an organization because it did not "satisfy the 'major purpose' test," which "sets the lower bounds for when regulation as a political committee is constitutionally permissible," and a Fourth Circuit case, North Carolina Right to Life, Inc. v. Leake, 525 F.3d 274 (2008), concluding that before Citizens United state disclosure law violated the First Amendment because "an entity must have 'the major purpose' of supporting or opposing a candidate to be designated a political committee."

Illinois law requires groups and individuals that accept "contributions," make "expenditures," or sponsor "electioneering communication" in excess of $3,000 to make regular financial disclosures to the State Board of Elections.  The plaintiff, a 501(c)(4) organization, challenged Illinois's disclosure law, arguing that five of its definitions--"electioneering communications," "political committee," "contribution," "expenditure," and "independent expenditure"--were facially vague and overbroad. 

Illinois disclosure law tracked federal law, with three key differences: (1) Illinois disclosure requirements cover election activity relating to ballot initiatives (which have no federal analog); (2) Illinois law does not exempt from regulation those groups that lack the "major purpose" of influencing electoral campaigns; and (3) Illinois disclosure requirements cover campaign-related advertisements that appear on the Internet.  Recall that the Supreme Court upheld federal disclosure requirements in Citizens United, so the court here only analyzed whether these three distinctions were unconstitutional.

The court rejected the plaintiff's claim that these three provisions make the law unconstitutionally vague and overbroad.  As to the second difference--the one that sweeps in 501(c)(4) organizations that so famously hide their contributors under federal disclosure requirements--the court rejected CIF's argument that the "major purpose" test is a constitutional test, so that those organizations that do not have as a "major purpose" the election of a candidate must be exempt from disclosure.  The court gave four reasons.  First, it said that when Buckley v. Valeo came down--and first ruled on the "major purpose" question, interpreting language in the FECA (and not the Constitution)--political committees faced much greater disclosure burdens under FECA than they do today under Illinois's disclosure requirements.  Next, Illinois law defines political committee more narrowly than FECA by covering only groups that accept contributions or make expenditures "on behalf of or in opposition to" a candidate or ballot initiative.  Third, application of a "major purpose" test could yield the perverse result that a small group dedicated to electing a state representing and that spends $3,000 could be required to register and disclose, while a major organization that spends millions could dodge registration requirements because its "major purpose" isn't electing a candidate.  Finally, groups covered under a "major purpose" test could easily dodge disclosure requirements by dilluting its own message by broadening it beyond electioneering activities.

Judge Posner dissented, arguing that a handful of provisions in the Illinois law are vague.


September 16, 2012 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 12, 2012

West Virginia Supreme Court Strikes Public Campaign Finance Law

The Supreme Court of Appeals of West Virginia ruled in State of West Virginia ex rel Loughry v. Tennant that the matching funds provision in the state's public campaign finance law violated the First Amendment.  The ruling follows the Supreme Court's decision in 2011 in Arizona Free Enterprise Club's Freedom PAC v. Bennett striking a similar Arizona law.

West Virginia's law, enacted in 2010, before Arizona Free Enterprise came down, provided a lump-sum initial payment to any participating candidate in a state election for the state Supreme Court of Appeals.  It then provided matching funds for a participating candidate when a privately-financed opposing candidate spent the amount equivalent to the lump-sum payment plus twenty percent.  In short, this meant that a participating candidate would receive matching funds from the state above the initial lump-sum payment whenever his or her privately-funded opponent spent more than the initial lump-sum payment plus twenty percent.  Thus West Virginia's scheme forced the same kind of speech-restricting choice on a non-participating candidate that the Supreme Court said was foisted on a non-participating candidate in Arizona Free Enterprise: spend more (i.e., speak more) and trigger matching funds for your opponent, or don't spend/speak more.

West Virginia's law only applied to judicial candidates for the state Supreme Court of Appeals, though.  This was by design: the legislature was concerned about the reputation of the judiciary in light of the problems that gave rise to Caperton v. A.T. Massey Coal Co., among others.  The petitioner here argued that West Virginia's law was distinguishable from Arizona's for that reason--that judicial elections raise especial concerns that exempt them from the analysis in Arizona Free Enterprise.

The court rejected that argument and ruled that Arizona Free Enterprise applied with full force to all elections,including judicial elections.  It went on to say that the matching fund scheme wasn't narrowly tailored: the state could have adopted a less speech-restrictive means to achieving its interest by simply increasing the amount of the initial lump-sum payment; and the matching fund scheme didn't advance the state's interest in protecting the impartiality and integrity of the judiciary in an election where three of the four candidates were self-financed.

The court allowed the petitioner to keep his initial lump-sum payment, however, saying that there was no constitutional problem with that.

The case means that the petitioner, a participating candidate who sought matching funds by way of mandamus after the state itself concluded that the matching fund scheme was unconstitutional and declined to pay, will not get matching funds for his election.  And because the court ruled the scheme unconstitutional, neither will anybody else.


September 12, 2012 in Campaign Finance, Cases and Case Materials, Courts and Judging, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 7, 2012

Nebraska Court Overturns Campaign Finance Law, Stretches Doctrine

The Nebraska Supreme Court last week in State of Nebraska ex rel. Bruning v. Gale ruled that Nebraska's public campaign finance law violated the First Amendment.

The ruling extends and stretches the Supreme Court's rulings in Davis v. FEC and Arizona Free Enterprise Fund v. Bennett.  (We also posted on Bennett here.)  It also forecloses yet one more policy option for encouraging participation in a public campaign finance system and to reduce the dramatic disparaties in spending in certain elections.

Nebraska's law, the Campaign Finance Limitation Act (CFLA), provides public financing for participating candidates in exchange for those candidates' agreement to limit their spending in a particular election.  But the CFLA doesn't start with a state block grant for participating candidates.  Instead, the CFLA requires participating candidates to raise 25% of the spending cap on their own before the public financing system kicks in.  Then, after a participating candidate raises 25% of the spending cap, that participating candidate receives a state grant in the amount of the difference between the spending cap and their non-participating opponent's estimated or actual expenditures.

An example: If the public financing spending cap for an election for a particular office is $100,000.00, a participating candidate has to raise $25,000.00 on his or her own.  Now suppose that candidate's non-participating opponent either estimates or actually spends $120,000.00.  The participating candidate receives $20,000.00 from the state (the difference between the spending cap and the estimated or actual expenditures of the non-participating opponent).  That leaves the participating candidate with $45,000.00 total.  The participating candidate can continue to raise money up to $100,000.00--that is, another $55,000.00--on his or her own.  Thus the CFLA provided only $20,000.00 to the participating candidate--an amount determined by the estimated or actual expenditures of the non-participating candidate, to be sure, but not an amount that equalizes expenditures in any meaningful sense or provides the participating candidate with much of a tail wind.

One  more feature of the Act: The candidates have to determine whether to participate within 10 days after they form a candidate committee.  This means that a non-participating candidate has to indicate his or her intention to exceed the CFLA cap (that is, not to participate) before he or she knows whether an opponent will participate.

The court ruled that the scheme violated the First Amendment.  Following Bennett, the court said that the state's interests in ensuring elections free of corruption or the appearance of corruption, providing the electorate with information, and gathering data to detect violations of the CFLA were not compelling.  And the court said that the Act wasn't narrowly tailored (largely because there wasn't a compelling interest).  

The court also ruled that the provision at issue (described above) was entwined enough with other provisions of the CFRA that the whole Act failed--that is, that the provision at issue was not severable.

But the court's ruling misses a threshold issue: whether the CFRA impinges on non-participating candidates' speech in the first instance.  There's a key difference between the CFRA and the scheme in Bennett and Davis (upon which Bennett relies): under the CFRA, the non-participating candidate's level of speech is determined independently of the participating candidate's speech.

In Bennett, the Supreme Court ruled that Arizona's scheme infringed on a non-participating candidate's free speech, because that scheme provided a dollar-for-dollar match from the public fisc for a participating candidate when a non-participating candidate exceeded the statutory cap on spending.  Bennett relied on Davis for this result.  In Davis, the Court ruled that the "Millionaire's Amendment" infringed on an independently-financed candidate's speech, because that speech triggered asymmetrical contribution limits (allowing a non-independently-financed candidate to raise more in individual contributions) when it exceeded a certain level.

The free speech threshold in both Bennett and Davis was that a non-participating candidate's additional speech triggered an asymmetrical system to the benefit of the participating candidate.  In other words, the non-participating candidate--at the time he or she decided to spend that additional dollar that put his or her campaign over the statutory limit--had to decide to speak more (and thus trigger the asymmetrical benefit to his or her opponent), or not.  The Court in Bennett and Davis said that this decision infringed on free speech.

But that's not at all how the CFRA operates.  The CFRA, by the Nebraska court's own reckoning, requires a candidate to elect to exceed the cap before he or she knows whether his or her opponent will participate.  This is not the same kind of infringement on free speech that concerned the Court in Bennett and Davis.  Indeed, this is no infringement on free speech at all: the non-participating candidate makes the decision completely independently of his or her opponent's decision.

The Nebraska court skates right by this distinction.  It said only that under the CFRA, "public funds are disbursed to abiding candidates in response to the political speech of privately financed candidates."  This is true, of course, but it misses the core reason why the Supreme Court said that the schemes in Bennett and Davis involved free speech in the first place--because the non-participating candidate had to choose between marginally more speech (and providing a benefit to his or her opponent), or not.

More: The CFRA plainly does not equalize the spending and contribution playing fields the way that the schemes in Bennett and Davis sought to do.  As illustrated above, the CFRA likely provides just a fraction of additional funding to a participating candidate, and requires the participating candidate to come up with the 25% in the first place (rather than starting with a state grant, as other public financing schemes do).  The court skates right by this, too, focusing instead on the fact that the participating candidate's award from the state is keyed (in any way) to the non-participating candidate's expenditures.  Again, this ignores the reason why the Supreme Court said that the schemes in Bennett and Davis impinged on speech.

The ruling stretches the logic of Bennett and Davis well beyond its breaking point.  In so doing, it also limits yet one more way that public financing systems can seek to address the gross disparities in spending in certain elections--at least in Nebraska.  

So for now, the lesson in Nebraska (and any court following its lead) is this: The First Amendment prohibits a public campaign finance scheme from keying the state grant to a non-participating opponent's expenditures in any way.


August 7, 2012 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, August 6, 2012

Sixth Circuit Overturns Ban on Medicaid Provider Campaign Contributions

A three-juge panel of the Sixth Circuit ruled in Lavin v. Husted that Ohio's law making it a crime for state Attorney-General or county-prosecutor candidates to accept campaign contributions from Medicaid providers violated the First Amendment.  The court held that the law wasn't "closely drawn" to meet a "sufficiently important interest," Buckley v. Valeo, because the state didn't sufficiently support its stated interest in preventing corruption and because the law swept too broadly.

The case only says that there are some teeth in the First Amendment jurisprudence involving campaign contributions--the case says nothing about restrictions on expenditures--and that a government seeking to restrict contributions has to do some homework in tailoring its law.  Still, the case leaves plenty of room for the government to regulate contributions, just so long as the government demonstrates its problem with corruption and appropriately tailors its law to meet that problem.

Ohio Revised Code Section 3599.45 prohibits a candidate for the office of attorney general or county prosecutor from knowingly accepting any contribution from a Medicaid provider or any person with an ownership interest in a Medicaid provider.  The state justified the ban based on its interest in preventing corruption--that is, preventing an attorney general or county prosecutor from using a campaign contribution as a factor in deciding whether to prosecute for Medicaid fraud.

The Sixth Circuit ruled that Ohio didn't sufficiently support its interest in preventing corruption, and that the ban swept too broadly.  As to the former, the court ruled that Ohio simply recited its interest in preventing corruption, but failed to demonstrate its interest, as required by Buckley.  (In fact, the balance of the evidence in the case only suggested the opposite--that Ohio had no problem of selective prosecution for Medicaid fraud based on campaign contributions.)  The court contrasted Ohio's ban with Connecticut's ban on contributions by state contractors to candidates for state offices--a ban that the Second Circuit upheld in Green Party of Connecticut v. Garfield, based on Connecticut's demonstrated history of bribes and kick-backs involving state contractors.

As to the latter, the court said that the ban applied to all Medicaid providers and persons with an ownership interest in a Medicaid provider, even though only .003% of them were implicated in Medicaid fraud in a recent year.  The court wrote that "[i]t is not hard to imagine what a less restrictive ban might look like" and held that this sweeping ban was not sufficiently tailored to meet Ohio's stated (but, as above, not sufficiently demonstrated) interest in preventing corruption.


August 6, 2012 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (2) | TrackBack (0)

Tuesday, May 15, 2012

D.C. Circuit Denies Emergency Stay in Van Hollen Suit Against FEC

The D.C. Circuit yesterday denied motions for an emergency stay pending appeal of the district court's ruling in Van Hollen v. FEC.  That case involved Representative Chris Van Hollen's (D-Md) suit challenging the FEC's regulation on corporate disclosure of contributors in the wake of Citizens United.  The district court ruled for Van Hollen, effectively requiring corporations to disclose all their contributors (and not just contributors who contributed for electioneering communication), or to establish a separate fund for electioneering communication (even though Citizens United held that such a fund is not required).  The court's denial yesterday means that the district court ruling remains in effect pending the appeal to the D.C. Circuit.

The court's ruling yesterday, and the district court's ruling before, are both victories for Van Hollen and for greater disclosure of those who contribute to corporations and labor unions (which then use those contributions for electioneering communication).  As it stands under BCRA, corporations and labor unions that engage in electioneering communication can now either (1) disclose all contributors (whether for electioneering communication or not), including anyone who gives a corporation money for any purpose, or (2) establish a segregated fund for contributions for electioneering communication and disclose only contributors to that fund.  This may give corporations and labor unions an incentive to establish a segregated fund.  (It's either that or disclose the names and addresses of anyone who paid more than $1,000 for any purpose.  This could indeed create a hassle for corporations and labor unions, and it's not clear exactly how useful this kind of undifferentiated disclosure of any and all contributors would be.)  But here's the twist: Citizens United held that corporations and labor unions can't be required to use a segregated fund for electioneering communication.  

Still, nothing in the rulings in Van Hollen's case challenges Citizens United.  Indeed, the rulings are in harmony with it and underscore the value of transparency.  The rulings only mean that BCRA requires disclosure--even of all contributors, when a corporation or labor union declines to establish a segregated fund.  

But this is certainly not the end of the case.  The appeals court only ruled that the appellants hadn't established the stringent requirements for an emergency stay; it did not rule finally and definitively on the merits (even if it gave strong clues in favor of Van Hollen).

Here's some background:

Van Hollen sued the FEC over its December 26, 2007, disclosure regulation, which required disclosure of corporate and labor union contributors as follows:

If the disbursements were made by a corporation or labor organization pursuant to 11 CFR Sec. 114.15, the name and address of each person who made a donation aggregating $1,000 or more to the corporation or labor organization, aggregating since the first day of the preceding calendar year, which was made for the purpose of furthering electioneering communication.

11 CFR Sec. 104.20(c)(9).  The problem, according to Van Hollen, was that the italicized limit on the disclosure requirement violated the plain language of the BCRA, which says:

(E) If the disbursements were paid out of a segregated bank account which consists of funds contributed . . . directly to this account for electioneering communications, the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to that account . . . .; or

(F) If the disbursements were paid out of funds not described in subparagraph (E), the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more to the person making the disbursement during the period beginning on the first day of the preceding calendar year and ending on the disclosure date.

2 USC Sec. 434(f)(2).  The problem was that Citizens United said that corporations and labor unions didn't have to use a segregated fund for electioneering communications--telling corporations and labor unions that they didn't have to use subsection (E).  But without (E)--that is, without a segregated fund--corporations and labor unions apparently had to disclose all contributors (for electioneering purposes or not) under subsection (F).  Yet the FEC regs--the italicized part above--requires disclosure of only those contributors who contributed for electioneering purposes.

The district court ruled that the FEC reg violated the BCRA.

The appeals court yesterday denied motions for an emergency stay of this ruling, writing that appellants hadn't satisfied the stringent requirements.  The court was untroubled by the fact that the district court's ruling means that corporations must disclose all contributors (and not just those who contribute for electioneering communication): the appellants failed to show that they'd be silenced by such an interpretation.  The court also said that corporations and labor unions could still establish a segregated fund under subsection (E), above, even though that's not required, and thus disclose only those contributors who contribute for electioneering communication.  Finally, the court said that Van Hollen would be harmed by granting a stay, because he wouldn't be able to respond to electioneering communication funded by anonymous, non-disclosed sources.


May 15, 2012 in Campaign Finance, Cases and Case Materials, First Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 17, 2012

No Preliminary Injunction Against Federal Pay-to-Play Ban

Judge James E. Boasberg (D.D.C.) yesterday denied the plaintiffs' motion for a preliminary injunction in their facial First Amendment challenge against the federal ban on contractor donations to candidates for federal office, political committees, and parties in connection with federal elections. 

The case, Wagner v. FEC, arose out of three federal contractors' claims that the so-called pay-to-play ban violates free speech.  The contractors refiled their claim in federal district court after they agreed to abandon their expedited en banc review at the D.C. Circuit (permitted under the FECA).  They argued that the ban violates the First Amendment and Fifth Amendment equal protection and sought a preliminary injunction.

Judge Boasberg denied the injunction, ruling that they lacked a likelihood of success on the merits of either claim.

Judge Boasberg applied "closely drawn" scrutiny, not strict scrutiny, to the ban and ruled that it served a sufficiently important interest and was closely drawn to achieve that interest.  As to the interest, Judge Boasberg wrote that "[t]here can thus be no doubt that preventing 'pay-to-play' deals or pressure on contractors to give--or the appearance that either is occurring--is sufficiently important to warrant restrictions on political contributions by federal contractors."  As to "closely drawn," Judge Boasberg looked to the history of the ban:

When Congress first enacted the ban on political contributions by federal contractors, it was responding to a recent history of corruption.  As just discussed, the ban was originally passed in 1940 on the heels of the "campaign-book racket," in which those seeking government contracts were effectively required to buy copies of the Democratic campaign book at highly inflated prices in order to secure government business.  In the wake of this scandal, it was eminently reasonable for the legislature to ban contributions by federal contractors.  Doing so would not only insulate prospective contractors from pressure to give money to politicians, but it would also help ensure a merit-based system of awarding contracts and "reassure[] citizens that its politicians are acting on their behalf and not on behalf of the highest bidder."  Because . . . Congress reacted to recent scandals in imposing the ban on contractor contributions, its restrictions are more easily characterized as closely drawn. . . .

An absence of [current] corruption does not necessarily mean, however, that the ban is no longer needed.  It could simply be an indication that the ban is working.

Op. at 11-12.  Judge Boasberg also looked to the contractors' other ways of expressing political support and association as a factor suggesting that the ban is a good fit for the government end.  (Note that the ban allows contracting corporations to donate by way of their PAC.)

As to equal protection, Judge Boasberg ruled that intermediate scrutiny applied, and that the contractors did not demonstrate a likelihood of success in comparing their ban to FECA treatment of government employees, contracting corporation officers or PACs, or sole proprietor contractors--all of whom may contribute.  Judge Boasberg said that these others did not raise the same kind of problems that contracting corporations raised, and that these retained their own distinct identity (and could contribute under their distinct identity).


April 17, 2012 in Association, Campaign Finance, Cases and Case Materials, Equal Protection, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 3, 2012

Speaking of Campaign Finance Reform . . .

Speaking of campaign finance reform, you might check out NPR's This American Life this week, which explores the world of money and politics, with a segment looking at the impact of Citizens United and another segment with an interview with Senators John McCain and Russ Feingold. Check it out here.


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

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.)


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.


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.

[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.


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."

[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 v. FEC and the Ninth Circuit's 2010 ruling in Long Beach Area Chamber of Commerce v. Long Beach, among others. 


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. 

[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)