In the News
Daily Caller: Senator Sanders’ campaign finance hysteria
By Bradley A. Smith
Poor Bernie Sanders. Senator Sanders set out last week to write what he no doubt thinks is a blistering attack on Citizens United. Unfortunately, the self-described socialist from Vermont can’t even get through the first sentence without a factual error.
Taking to the pages of the Huffington Post, he begins, “As a result of the disastrous Citizens United Supreme Court decision, billionaires and large corporations can now spend an unlimited amount of money to influence the political process.”
Sorry, but thanks for playing. Prior to Citizens United, billionaires were perfectly free to spend all of their billions to “influence the political process.” Indeed, there has never been a time in American history when billionaires were prohibited from spending “an unlimited amount of money,” unless we count the 15 months between passage of the Federal Election Campaign Act Amendments of October 1974 and the date they were struck down as unconstitutional by the Supreme Court in January, 1976.
When you can’t get through the first sentence without a factual error, you’ve got to figure the fact checkers were not merely bored, but non-existent.
Nonprofit Law Prof Blog: Nonprofits Challenge Donor Disclosures Required by California AG, IRS, and FEC
By Lloyd Mayer
A tax-exempt nonprofit that solicit contributions in California is challenging a demand from the California Attorney General’s office that they provide unredacted copies of their IRS Form 990 Schedule B, which lists major donors. As most readers of this blog likely know, while Schedule B is submitted to the IRS the IRS is required to keep the names and other identifying information of the donors listed confidential. Similarly, while tax-exempt organizations are generally required to provide copies of their Forms 990 upon request, they can redact this donor identifying information before they do so. The organization that is challenging the demand is the section 501(c)(3) Center for Competitive Politics, which has filed a lawsuit in federal district court as detailed at the link above.
Quick Hits from the SBA List Oral Argument
By David Keating
Michael Carvin on behalf of Susan B. Anthony List (on the Catch-22 standard by the Appeals court):
Before the campaign it will be premature. During the enforcement proceeding, Federal courts have to abstain under Younger. And afterwards, it’ll be deemed moot, and then no no possibility of capable of repetition yet evading review. So you have this this regime which has existed for decades in Ohio, where they continue to impose very serious burdens on speakers on what we consider a facially unconstitutional law, yet it has consistently evaded judicial review precisely because of the short time frames of the election.
“…[the Appeals Court] put us in this Catch 22 endless cycle of suppressing speech, deterring speech, chilling speech, 19 but never being able to get to a court to adjudicate our First Amendment [rights]“
Dysfunction and Belief at the FEC
By former FEC Commissioner David Mason
Former FEC GC Larry Noble has offered his take on the public dispute between FEC Vice Chair Ann Ravel and theFEC’s Republican commissioners. Noble ultimately calls for “fundamental changes” at the FEC “including the appointment of commissioners who believe in the law and its enforcement.”
This question of “belief in the law” reminds me of the fundamentalist minister who was asked if he believed in total immersion baptism. “Believe it in?” he thundered in response, “why, I’ve seen it done!”
There is no question about whether Republican FEC Commissioners believe in the law. The law sits in ready sight in a bound book on their desks.
So, the “belief” question appears to have something to do with enforcement philosophies. Noble’s complaint is akin to law and order conservatives bemoaning the appointment of liberal judges who don’t “believe” in lengthy and inflexible prison terms. Some reformers apparently believe they have a special claim on enforcement policy at the FEC, and that those who believe election law should be enforced more flexibly, more leniently, or with stricter adherence to constitutional limits should be disqualified from service as FEC Commissioners.
Christian Adams, the Election Law Listserv, and Private Speech
By Allen Dickerson
More broadly, the confusion of issue speech with political advocacy, and the attempt to regulate and constrain the first in the same manner as the second, is an intellectual and philosophical error that has already caused, and will continue to cause, significant harm to the rights of ordinary Americans. But vilifying private issue speech is exactly what we on the free speech side of the aisle fight every day. Doing so ourselves does not further that cause.
More Soft Money Hard Law: Ohio before the Supreme Court, Defending the Power to Police Political Speech: Is the End Near, or Now?
By Bob Bauer
The State of Ohio is playing for time in its defense of its “false campaign statements” statute. It wants the case now before the Supreme Court decided on ripeness, win or lose; it wants to hold off a decision on the constitutionality of its law. Some, Rick Hasen among them, believe that this might work. But then again, it might not, and the law could well be put out to pasture without further ado. The petitioner has argued in clear terms that the law is unconstitutional and that, on this point, the recent decision in United States v. Alvarez is dispositive. Petition for Writ of Certiorari at 6-7, Susan B. Anthony List v. Driehaus, 134 S.Ct. 895 (2014) (No. 13-193). And the Court could agree, motivated as well to spare the petitioner another expensive, time-consuming tour through the courts to win the victory that it is virtually guaranteed.
Washington Post (Volokh): Why the Supreme Court’s “right to lie” case is not really about the “right to lie”
By JONATHAN H. ADLER
Over a dozen states have laws sanctioning “false” political speech. Yet as Michael Carvin and Yaakov Roth of Jones Day explain, the effect of such laws extends beyond demonstrably false statements and threatens to chill political debates on contentious questions.
Washington Post: Supreme Court suspicious of Ohio law that criminalizes false speech about candidates
By Robert Barnes
But the justices couldn’t resist giving a preview of their skepticism about what Michael A. Carvin, the Washington lawyer representing the group Susan B. Anthony List, called Ohio’s “ministry of truth” during oral arguments.
“Don’t you think there’s a serious First Amendment concern with a state law that requires you to come before a commission to justify what you are going to say and which gives the commission discovery power to find out who’s involved in your association, what research you’ve made, et cetera?” Justice Anthony M. Kennedy asked Ohio State Solicitor Eric E. Murphy.
Added Justice Samuel A. Alito Jr., “You have a system that goes on and on, year after year, where arguably there’s a great chilling of core First Amendment speech, and yet you’re saying that basically you can’t get into federal court” to challenge it.
Cato: Ilya Shapiro discusses Susan B. Anthony List v. Driehaus on NBC’s The Today Show
CPI: ‘Jumbo joints’: How big will the newest political animals get?
By Michael Beckel
It’s not yet clear how prevalent these new “jumbo-joint fundraising committees” will become — or if lawmakers or regulators will take any steps to curb their newly granted powers.
But the nation’s largest Republican groups have already formed a new collective fundraising venture to amass money from wealthy donors, as Politico first reported.
Candidates, Politicians, Campaigns, and Parties
Las Vegas Review-Journal: Reid on Kochs, politics and civility
By Steve Sebelius
In response to the Citizens United v. Federal Election Commission decision of 2010, Reid called for a renewed push to pass the DISCLOSE Act, a law that would have forced all political organizations to report their donors. When I said the act would simply require reporting of the contributions, but not stop the flood of political money, Reid disagreed, and said it would especially stop those whose donations are shielded by law now.
“The DISCLOSE Act would stop a lot of money,” he said. “Those people that go with the secret money, they do it because they don’t want anybody to know they’re giving the money.”
Ironically enough, that answer seems to admit one of the primary arguments against full disclosure laws, which is that they would have a chilling effect on free speech. The U.S. Supreme Court, in several decisions, has acknowledged that chilling effect, but said laws such as the DISCLOSE Act impose a lighter burden on the First Amendment than laws that limit political contributions or spending.