In the News
Cato Supreme Court Review: McCutcheon v. FEC and the Supreme Court’s Return to Buckley
The Court began with the largely uncontroversial position that the spending of money—while not itself speech—is necessary for effective advocacy in the United States. As the Court has long recognized, “virtually every means of communicating ideas in today’s mass society requires the expenditure of money.”3 Money is not speech, nor is oxygen fire, but in both cases the connection is apparent. Just as a restriction on the use of printing presses or blogging software would be evaluated through a First Amendment freedom-of-speech lens, so too must money that facilitates political expression.4The Court went on to apply the now-familiar, two-part test regarding government infringements on fundamental rights: (1) has the state articulated an important-enough interest to justify infringing upon constitutional liberties, and (2) is its chosen policy appropriately tailored to that interest? This analysis ought to be straightforward and familiar after 40 years of regular Supreme Court rulings on the constitutionality of various campaign finance regulations. But Justice Antonin Scalia spoke for many when he stated at oral argument that “campaign finance law is so intricate that I can’t figure it out.”5Given this muddled state of affairs, McCutcheon made two important doctrinal contributions, one with respect to each of the two prongs of this First Amendment analysis.
CCP
Amicus Brief: Public Citizen v. FEC In Support of the Defendant
Plaintiffs argue that this Court should review the split vote of the Commission that failed to authorize an investigation and that it should accord no deference to the determination of the 3 Commissioners finding no reason to believe that a violation had occurred. Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Summary Judgment [Doc. 23] (Plaintiffs’ Mem.) at 14-18. They then proceed to dispute the legal analysis of those 3 Commissioners and raise various arguments as to why the decision was supposedly arbitrary and capricious. Plaintiffs’ Mem. at 24-40.Defendant FEC, in turn, correctly points to extensive precedent that the decision of the 3 Commissioners voting not to proceed is entitled to full Chevron deference because those Commissioners constitute the controlling group preventing an investigation from proceeding. FEC Mem. at 4-5, 18-26. The determination of the 3 Commissioners finding no violation thus is the action of the Commission in that a decision not to proceed only requires 3 votes under the Act.Amicus agrees with the Commission that, if analyzed under a traditional administrative law rubric, both reason and precedent support full deference to the views of the controlling group that no violation occurred and that the decision of the controlling group readily satisfies such review. That traditional administrative law rubric, however, ignores certain aspects of the Act that in fact support an even more deferential approach to Commission decisions (including evenly split decisions) to refrain from exercising its powers. This brief will make two brief points arguing that Plaintiffs’ suggested non-deferential review of the reasoning of the controlling group in this case is overly intrusive, goes beyond what is authorized by the statute, and makes little sense.
Tester’s “Dark Money” Bogeyman
By Scott BlackburnIn an event hosted by the Sunlight Foundation and ReThink Media on Tuesday, Tester declared that the “lack of transparency” in campaigns “is real and it is hurting democracy.” All of this “dark money,” he lamented is causing a “hyper-partisan system” where “big things just don’t happen.” In short, according to Tester, any problem you might have with Congress can be traced back to not knowing the individual donors to nonprofit groups that are funding a minority of campaign ads against incumbent Senators.That “darkmoney” has become the bogeyman of some on the Left is nothing new. But perhaps Senator Tester, who won re-election in 2012 with, according to him, “a pile of dark money against me” has better understanding of the impact that money has than most. After all, he was one of the most direct victims of its supposedly-ill effects.It turns out, however, that these undisclosed “moneyed interests” that were fighting Sen. Tester’s re-election bid were well-known, ineffective, and more poorly funded than Sen. Tester himself.During the 2012 Montana Senate election, Senator Tester spent over $13.3 million to support his candidacy, according to the Center for Responsive Politics. He also received at least an additional $12 million in support from independent groups (some of those the supposedly-evil “dark money” organizations). If over $25 million was needed to defend Tester from the horrors of “dark money,” one might imagine that those scary groups would be spending at least that much in opposition to Tester. In reality, less than $5 million was spent by independent organizations that don’t disclose their donors in opposition to Tester’s Senate run. Put another way, for every “secret” ad opposing the senator, there were more than five “properly disclosed” ads supporting him (or attacking his opponent).
IRS
Wall Street Journal: Koskinen Faces Fresh IRS Fire at House Hearing
By John D. McKinnonIn the day’s toughest exchanges, Mr. Jordan criticized Mr. Koskinen for a July interview in which the IRS commissioner suggested that lawmakers might be prolonging the investigation for political reasons. He said that “there are some people who don’t want a straight story” about the targeting scandal, because “they don’t want this to end.”Mr. Koskinen added in the interview that “I’m not sure if people really want a special prosecutor, because that would shut everything down…and so you wouldn’t be holding all these fun hearings every week or two.”“That’s the part that just frosts me, and more important the American people,” Mr. Jordan said. The interview appeared in Tax Notes, an industry newsletter.
Richmond Times-Dispatch: IRS — abuse and cover
Editorial
The IRS saga fits a disturbing pattern in which Democratic- and liberal-leaning authorities have abused ostensibly neutral laws and procedures to harass, intimidate and silence conservatives and Republicans. Other recent examples include the trumped-up charges against Texas Gov. Rick Perry and the gross misuse of campaign-finance laws to keep an independent conservative group in Wisconsin from exercising its First Amendment right to speak about politics.It’s not unusual to see Third World autocrats perverting the machinery of the administrative state to criminalize differences of political viewpoint, then trying lamely to cover their tracks. Over the past six or so years the American public has seen a lot of that nefarious behavior as well. It’s a dismaying trend — and one that has to stop.
Independent Groups
Washington Post: Inside the bizarro super PAC that hates super PACs
By Philip BumpWhich is also an interesting framework through which to look at the PAC’s fundraising. The Daily Kos article mentioned above points to conversations in the group’s public chat room, which appeared to suggest that Mayday had come up short in a promised $5 million in funds that were meant to match the group’sfrenetic July fundraising drive. “The Daily Kos piece was incredibly misleading because it suggested we’d represented something that had turned out not to be true,” Lessig said. The implication was that the group had fallen short. Which, Lessig says, they never said they wouldn’t. The plan was: Raise a million dollars and match it from big donors. Then, raise another five — that July push — and Lessig would try to match that, too.“I have from the very beginning said this was my objective,” Lessig said, “and I never once said we’d achieved the objective.” The original match was meant to inspire confidence in the system. The second Lessig is still working on, but wouldn’t provide details on how much had been raised or from whom, saying only, “I think I’m confident that we’re about halfway to getting the five together.” An important addition to that: “Right now we’re building a plan based on the assumption that we’re not going to get it.” If they don’t get it, they simply have different sticks with which to poke.
Breitbart: The Left has no problem with “dark money” when it benefits them
By John HaywardTo hear the incessant liberal bleating about the Koch Brothers – Senator Harry Reid commandeers the floor of the World’s Greatest Deliberative Body at least once a week to rail against them, secure in the knowledge his targets can’t sue him for slander as long as he’s stealing America’s time for his little tirades – you’d think they were biggest source of corrupting political money in America. In fact, they come in about sixty-eight slots down the list of big givers. The top ten are all Democrat donors, quite a few of them labor unions.
Disclosure
The Daily Signal: The Left’s Political Network, Exposed in One Chart
By Gabriella MorrongielloA new chart reveals the expansive network of progressive organizations funded by wealthy liberal donors, calling attention to the same “dark money” practices for which Senate Majority Leader Harry Reid, D-Nev., has publicly criticized conservatives.The graphic, which was circulated by Senate Republicans, illustrates a vast web of nonprofits, think tanks and grassroots organizations encircling Democracy Alliance, which recommends various liberal organizations to influential political contributors.
Breitbart: Who is Fred Eychaner, the Left’s Most Reclusive Mega-Donor
By Katie McHughEychaner has been involved in progressive causes for much of the last twenty years. In addition to the Reid SuperPAC money, Eychaner also gave the leftist House Majority PAC $1 million in early May. He has visited the Obama White House at least seven times, and he gave at least $500,000 to a SuperPAC supporting Obama’s reelection. Obama keynoted a $35,800-per-couple dinner at Eychaner’s Lakeview home.In 2000 Bill Clinton thanked Eychaner and his live-in partner Ken Lee “for opening their beautiful home”; Eychaner gave $25 million to the Clinton Foundation and $100,000 to Clinton buddy Terry McAuliffe in his bid for Virginia governorship.The largest donor to the AIDS Foundation of Chicago, Eychaner, who founded Newsweb Corp. in the 1970s, got his start publishing alternative media, like theChicago Reader newspaper that launched President Barack Obama’s political career with a 4,400 word feature in 1995.
Candidates, Politicians, Campaigns, and Parties
Wall Street Journal: The Press vs. Pat Roberts
BY Allysia FinleyHis strategy is to run a populist campaign while dodging the issues. Consider his plan to “reform” campaign-finance laws that would prohibit Congressional leadership political-action committees and PAC contributions while Congress is in session. His boasting about refusing PAC contributions is rich since he made a small fortune in private equity and has the capacity to self-fund.He also favors more stringent disclosure requirements and a constitutional amendment championed by New York Sen. Chuck Schumer to overturn Citizens United, which allows unions and corporations to make unlimited independent expenditures. As an aside, Mr. Orman’s campaign last week asked me to mention that “the overwhelming majority of his political contributions” have gone to issue advocacy groups like Americans Elect and the Common Sense Coalition. These happen to be exempt from disclosing their donors.
Lobbying and Ethics
Roll Call: To Improve Decision-Making, Lighten Up on Lobbyists
By Jason GrumetBut there is one more change that would help get Washington moving again: Lighten up on lobbyists.On his first day in office, Obama had signed an executive order designed to rein in lobbyists who, in his words, “promote their own interests over the interests of the American people.” The order sharply limited lobbyists’ access to the White House, precluded lobbyists from serving in his administration and barred them from serving on the more than 1,000 expert boards that advise the administration.The administration’s widely advertised anti-lobbyist posture has been politically strategic building on dark views of the lobbying profession stoked by the Abramoff scandal and presumption of rampant self-dealing in and around our government. Although Jack Abramoff was a con man who happened to be a lobbyist, Congress responded to his criminal behavior by layering an array of new requirements on existing rules, largely to ensure that lobbyists register and report on their activities. The administration’s follow-up efforts have not only excluded talented people, but ironically discouraged reporting and encouraged those seeking to serve in government to skirt the rules. Hundreds of former lobbyists have “deregistered” while doing largely the same work as “consultants” or “strategic advisers.” It turns out that people are less inclined to scrupulously report their activities if they are penalized for doing so.
State and Local
Colorado –– Denver Post: Ted Olson argues Citizens United case in Denver court
By John Frank“This case is not about the disclosure requirements,” Olson argued.“It’s not?” the judge asked.“It’s about whether or not the burdens of disclosure, the responsibilities of disclosure, the intrusiveness of disclosure will be applied evenhandedly to different types of speakers. …“What’s the burden of disclosure?” the judge interjected.“The burden is that (Citizens United) is required to file reports and list disclosures and list contributors — that’s a burden,” Olson replied. “We are here because they do not want to have obligations imposed upon them that are not imposed on other speakers.”
