Allison R. Hayward Two years ago, Lois Lerner of the IRS revealed that it unfairly targeted and delayed Tea Party applications for tax exemption. While the IRS has apologized and promised reform, the agency has not fixed the vague rules that allowed this scandal to happen. As we enter the 2016 election cycle, political activists […]
Edwards’s close call on Bunny money By Allison Hayward We should be grateful that the John Edwards jury has reached its verdict – and found Edwards not guilty on one count of taking an illegal campaign contribution. A guilty verdict could have meant much trouble for all campaign finance regulation. If Edwards had been found […]
The stupid idea de jour is brought to us today in the form of the People’s Rights Amendment, courtesy of Congressman Jim McGovern. Catering to the wacky paranoia of the Occupy movement and (less likely) his Massachusetts constituents, McGovern seeks to deny constitutional rights to any corporation, for profit, nonprofit, tribal, foreign, sole proprietorship – you […]
Unclean elections By Allison Hayward Last week’s arrest of city Comptroller John Liu’s treasurer, Jenny Hou, is just the latest in a string of fund-raising scandals that point to a core lesson. Using tax dollars to pay for political campaigns does little if anything to prevent corruption in government, and may even be a cause […]
By Allison Hayward Last week’s arrest of city Comptroller John Liu’s treasurer, Jenny Hou, is just the latest in a string of fund-raising scandals that point to a core lesson. Using tax dollars to pay for political campaigns does little if anything to prevent corruption in government, and may even be a cause of it. […]
Most of the time we think of voting rights as protecting voters in a jurisdiction when they vote for their representatives. But what about the voting rights of representatives once in office?
The scope of state power to require the recusal of an elected representative is the key issue in a case now before the Supreme Court, NV Commission on Ethics v. Carrigan. CCP and the James Madison Center for Free Speech just filed an amicus brief supporting respondent. In our brief we contend that the Nevada recusal requirement, as interpreted by the state, reaches far beyond the usual ground for recusal. The Nevada interpretation reaches protected political speech and association, without a sufficient state interest to justify that burden.
Yesterday CCP, with the capable help of our friends at Patton Boggs, filed an amicus curiae brief with the Colorado Supreme Court, in Colorado Ethics Watch v. Senate Majority Fund. In this case, the CEW is urging the state to follow one of several legal innovations in their continuing effort to end run recent campaign finance decisions.
The particular technique CEW advocates is the conflation of “express advocacy” and “the functional equivalent of express advocacy”—then taking this new vague standard and making it the test for political committee status. Thus a 527 group engaged in electioneering (and reporting the same), but not express advocacy, will under CEW’s approach become a political committee, if the electioneering is deemed the “functional equivalent” of express advocacy.
What’s that, you ask? Well… If CEW had its way, the analysis would include subjective intent and contextual factors. Isn’t that contrary to Buckley v. Valeo? Yes. Did the Court revise that express advocacy analysis when it wrote McConnell v. FEC or Wisconsin Right to Life? The Colorado Court of Appeals didn’t think so. Neither has the Fourth Circuit, a federal district judge in Utah, or a state judge in Arizona. Neither do we.
Of course, this wouldn’t be a fun argument without some nay-sayers. CEW can find some company in the weird staff analysis generated on this point by the staff at the California FPPC. One hopes the Colorado Supreme Court will see this implausible minority position for what it is, and uphold the ruling of the court of appeals.
You will recall that I’ve posted in the past about “junk disclosure” – that is, legal requirements to disclose information (either in reports or in the form of disclaimers on communications) that do not give the public useful information. A recent article in the University of Pennsylvania Law Review provocatively suggests that disclosure mandates overall fail to provide the targeted beneficiaries with useful information, and whatever benefits do accrue are swamped by costs in money and time, as well as bad unintended consequences.
In this article, titled “The Failure of Mandated Disclosure” professors Omri Ben-Shahar and Carl E. Schneider look at a wide variety of disclosure mandates. Disclosure requirements are pervasive – they appear in areas of finance, insurance, telecommunications, sales of goods and services, leases, contracts, criminal procedure, education, transportation – and campaign finance of course. Yet, “[t]he great paradox of the Disclosure Empire is that even as it grows, so also grows the evidence that mandated disclosure repeatedly fails to accomplish its ends.” Take nutrition labeling – an area where the informal view is pretty positive. This article discusses the empirical evidence that consumers , if they read the labels at all, can’t understand them, have other sources of information that are more useful, and in any case do not improve their eating habits.
Today we feature another state that requires stupid and useless campaign finance disclosure. In the last two posts, lengthy and burdensome disclaimer notices were responsible for the junk disclosure. Today, we take on Florida’s “first dollar” reporting requirements.
Yes, if you contribute a dollar to any Florida candidate, party or PAC, that transaction is reported and filed away with the Florida Department of State Division of Elections. Where they can be searched via internet. Back to 1996.