Daily Media Links 5/30: Amending the First Amendment: The Udall Proposal is Poorly Drafted, Intellectually Unserious, and Extremely Dangerous to Free Speech, Rand v. The State of Kentucky, and more…


Amending the First Amendment: The Udall Proposal is Poorly Drafted, Intellectually Unserious, and Extremely Dangerous to Free Speech

Under the Udall amendment, it may be possible to regulate speech on a generic favoritism or influence theory. No one can say with certainty what such a theory would look like, except that it would be broader and less defined than the law at present.

In particular, it invites Congress to discriminate amongst entities that have differing levels of “influence,” based upon public perception, instead of any kind of hard data. Judges are routinely asked to defer to Congress in this area. Under this amendment, they may be asked to defer to Congress’s determination that corporations, but not unions, may contribute to candidates,[10] or that nonprofit corporations like the Sierra Club may be banned from mentioning candidates for office when discussing environmental issues, or that family members of prominent media personalities may be regulated differently from less-connected Americans. A corruption standard helps prevent such gamesmanship; an “integrity” or “political equality” standard would not.

Next, the amendment permits “Congress…to regulate the raising and spending of money and in-kind equivalentswith respect to Federal elections.” What qualifies as an “in-kind equivalent” is unclear, but this would likely be read to permissibly restrict, for instance, a person from volunteering for a campaign.[11]

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In the News

NRO: Rand v. The State of Kentucky

By Eliana Johnson

Stafford, Paul’s senior adviser, points to the Supreme Court’s 1995 decision in U.S. Term Limits v. Thornton, which held that states cannot add to the constitutional requirements for federal office. He says it’s one precedent that would help Team Paul get the Kentucky law thrown out. “I think [the term-limits case] would hold sway here,” says Brad Smith, a former commissioner on the Federal Election Commission and founder of the Center for Competitive Politics. While the state could potentially prohibit a candidate from running for state office if also running for federal office, it probably can’t limit somebody from running for federal office.

“Paul most likely wins in court,” Smith says. “It’s hard to see how the commonwealth benefits from this law, and the legislature would be wise to decide early if it really wants or needs that challenge.”

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Amending the First Amendment

Washington Post: A constitutional amendment wouldn’t really limit the power of money in politics


Without Buckley v. Valeo – that is, if the post-Watergate limits on both contributions and spending had been allowed to stand — much of the last 40 years of political history might be quite different, and it’s possible that we would have settled into a system of relatively low-cost politics, with a fairly strong role for parties, much like many Western European democracies. But if we were to lift the dead hand of Buckley v. Valeo now, giving Congress and the states the freedom to limit both total spending and external spending intended to influence an election, we would still face three big structural changes in American political life. These changes pose challenges not only for the Constitutional Amendment, but any effort to restore a limits-based regulatory regime. 

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More Soft Money Hard Law: Circling Back (a Full 360°) to the RNC and Libertarian Party Lawsuits

By Bob Bauer

Another complaint, or perhaps on Rick’s part only an observation, is that I have circled back a full 360° to my position on these issues before the current Administration. Rick presumably has in mind the DNC’s participation in the defense against an RNC challenge to the McCain-Feingold national party soft-money prohibitions. RNC v. FEC, 698 F. Supp. 2d 150 (2010), aff’d, 130 S. Ct. 3544 (2010). But that was not an independent spending case like the current one, and the RNC did not make any claim to that effect in any of its pleadings to the court. Before the three-judge District Court, the RNC argued that only in funding activities that were “unambiguously related” to a federal candidate could the Committee be subject to the limits imposed by McCain-Feingold. By the time the case moved to the Supreme Court, Citizens United had been decided and the RNC contended that the limits could no longer be supported with reference to the power of soft money to facilitate access to officeholders or inspire their gratitude. In neither phase of the case did the RNC assert that it was relying on the right to make independent expenditures under Colorado Republican Federal Campaign Committee v. FEC. 

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NY Times: Polar Vision

By Linda Greenhouse

I don’t relish connecting these dots; I have sometimes felt like the last person standing who still insisted, even after living through Bush v. Gore, that law and not politics is what drives the Supreme Court. In the newsroom of The Times, I lobbied periodically against the routine journalistic practice of identifying judges by the president who appointed them.  

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Huffington Post: National Organization For Marriage Broke Campaign Finance Law

By Lila Shapiro

NOM is “still a force to be reckoned with,” Karger said. “But my goal is scare away their donors, and that’s what today really did.”  

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Washington Post: Harry Reid’s attacks on Koch brothers send GOP donors into the shadows

By Matea Gold

Senate Majority Leader Harry M. Reid’s relentless attacks on the billionaire Koch brothers are having an unforeseen impact: spurring other wealthy Republican donors to give more money to groups that keep their supporters’ names secret.

Several prominent pro-Republican advocacy groups say they are benefiting from a burst of cash as some donors — fearful of harsh public attacks such as those aimed at the Kochs — turn away from political committees that are required by federal law to reveal their contributors.

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Politico: Big Money, the Koch Brothers and Me

By Kenneth P. Vogel

Tickets for the speech—a fundraiser for Obama’s reelection campaign—cost $17,900 apiece, so it was unlikely anyone in the small crowd gathered in Medina, Washington, was going to end up in a breadline anytime soon. In the living room of the hosts, Costco cofounder Jeff Brotman and his wife, Susan, Microsoft founder Bill Gates—the richest man in the country—leaned against a black grand piano, while others, including fellow Microsoft billionaire Steve Ballmer, were scattered about, some standing with their backs to muted off-white walls decorated with colorful bursts of abstract expressionist art. They listened attentively to Obama’s speech, which lasted all of 16 minutes. But they really perked up when he finished and the traveling press pool was escorted from the room, which allowed them to talk candidly with the president.

In their private question-and-answer session, Obama let his guard down and eventually shared some thoughts that revealed more about his view of American politics than perhaps anything he said publicly during the entire campaign. Election Day was still more than eight months away. But Obama, in a previously unreported riff, signaled surrender on one of the fights that had drawn him to politics in the first place: the effort to limit the flow of big money. It was a remarkable concession, one that would have stunned the campaign volunteers who believed so deeply in his promise to change the way politics works. It wasn’t just that he was admitting that his own election prospects would be disproportionately influenced by super-rich donors like those he was addressing. He had already done that 11 days earlier, when he blessed a so-called super PAC collecting million-dollar checks to boost his reelection. What really distinguished his remarks to Gates and company from his carefully calibrated official position was the admission that the grassroots, people-powered politics he had long glorified might never again trump the swelling political buying power of the very richest donors.

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Washington Post: Three top Republican lawyers leaving Patton Boggs to establish practice with Jones Day

By Reid Wilson and Catherine Ho

Three leading Republican attorneys will leave lobbying and law firm Patton Boggs for Jones Day to establish a new political and election law practice.

Jones Day will announce Friday morning that Benjamin Ginsberg, Donald McGahn and William McGinley will join the firm’s government regulation practice as partners beginning Monday.

The three attorneys have been involved in Republican legal circles for decades. Ginsberg, who headed the Patton Boggs practice, served as national counsel to President George W. Bush’s presidential campaigns in 2000 and 2004, and as counsel for former Massachusetts Gov. Mitt Romney’s 2012 presidential campaign.

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Candidates, Politicians, Campaigns, and Parties

Roll Call: Costly Midterms Fuel Hundreds of Joint Fundraising Committees

By Eliza Newlin Carney

House and Senate candidates are stockpiling campaign cash for the costliest midterms on record by making good use of the multi-politician war chests known as joint fundraising committees.

Since the Supreme Court’s April 2 McCutcheon v. Federal Election Commission ruling to overturn aggregate campaign contribution limits, 37 federal candidates have set up joint committees to raise campaign cash. The total number of joint fundraising accounts registered with the FEC now tops 450, according to the Center for Responsive Politics.

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Independent Groups

CPI: ‘Radical animal rights movement’ gets new foe

By Michael Beckel

An Iowa-based organization dedicated to combating “the radical animal rights movement” and led by a former Missouri Republican senator’s chief of staff has launched a new super PAC, according topaperwork filed with the Federal Election Commission.

The Protect the Harvest Political Action Committee told the elections regulator that it “intends to raise funds in unlimited amounts” to call for the election or defeat of federal candidates.

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The Center for Competitive Politics is now the Institute for Free Speech.