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Blog
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Welcome to the Holtzman Vogel Law Blog. We aim to keep you
up to date on important legal developments and other items of interest. On this
blog, we'll track developments in the news and changes to the rules and regulations
affecting political committees, corporate PACs, trade associations, non-profit groups
and advocacy organizations. We'll also keep you updated on the lobbying and ethics
arena. The Law Blog is designed to supplement our regular newsletter.
On behalf of the Holtzman Vogel team, I hope you find this site helpful and interesting.
And we hope you'll become a regular visitor. (If you'd like to receive our newsletter,
please click here to sign up.)
Jill Holtzman Vogel
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Sunday, August 22, 2010
AP: Obama challenges GOP on campaign finance ruling
AP reports "President Barack Obama says Republicans should join him in opposing a Supreme Court ruling that vastly increased how much corporations and unions can spend on campaign ads."
The comments come from the President's weekly radio address, and follow reports that Senate Democrats plan to bring the DISCLOSE Act up for another vote.
Click here to read the entire post.
Tuesday, June 29, 2010
Supreme Court Issues Summary Affirmance in RNC v. FEC; National Party Soft Money Ban Survives
The Supreme Court issued a summary affirmance of the D.C. Circuit's decision in RNC v. FEC, upholding BCRA's soft money ban as it applies to national party committees. (In other words, the Court did not have 4 votes to hear the case, and simply affirmed the result reached by the lower court.)
Justices Scalia, Kennedy, and Thomas would have taken the case.
Click here to read the entire post.
Tuesday, June 29, 2010
Wash. Post Writer Recognizes Mixed Message of Doe v. Reed
The Washington Post's Robert Barnes wrote yesterday that "The court's ruling was deceptively lopsided: It held 8 to 1 that, in general, people who sign referendum petitions should not expect the First Amendment to protect disclosure of their names. The majority reasoned that there are legitimate reasons that states allowing referendums and initiatives would want to require the disclosure of names on a petition forcing the government to do something. But the decision could be more of a beginning than an end. That's because the other way to look at the decision is that a majority of the court decided that signing one's name to a petition also is a form of political expression that, in some cases, warrants First Amendment protection. The decision could carve out a much more active role for the judiciary in determining in certain instances whether disclosing names brings a reasonable probability of 'threats, harassment or reprisals' from government officials or from other members of the public."
Friday, June 25, 2010
Supreme Court Limits Reach of "Honest Services Fraud" Law
Washington Post: "All nine justices said prosecutors have stretched too far a federal statute that makes it a crime to deprive the public or a company of the 'intangible right of honest services.' Three justices thought the statute was so vague as to be unconstitutional. But six said it could be saved by limiting its use to those involving bribes or kickbacks, not the self-dealing or conflict-of-interest schemes previously prosecuted....Since it was passed in 1988, the honest-services fraud law has been used in the lobbying scandals involving Jack Abramoff, the charges against former Louisiana congressman William J. Jefferson (D-La.) and prosecution of state officials such as former Illinois governor Rod Blagojevich (D)....Justice Ruth Bader Ginsburg, writing for the court majority, said that upholding the law meant excluding the 'amorphous category of cases' involving conflict of interest and self-dealing. The legislation, she said, 'criminalizes only schemes to defraud that involve bribes or kickbacks.'"
Click here to read the entire post.
Thursday, June 24, 2010
Supreme Court Holds That Disclosure of Referendum Petition Signers' Names Does Not Generally Violate First Amendment Rights
The Supreme Court issued its opinion in Doe v. Reed today, regarding the constitutionality of publicly disclosing the names and addresses of those who sign ballot referendum petitions. (A group of petition signers argued that the public disclosure of their names and addresses would subject them to harassment by political opponents.) Writing for the Court, Chief Justice Roberts summarized, "The issue at this stage of the case is not whether disclosure of this particular petition would violate the First Amendment, but whether disclosure of referendum petitions in general would do so. We conclude that such disclosure does not as a general matter violate the First Amendment, and we therefore affirm the judgment of the Court of Appeals. We leave it to the lower courts to consider in the first instance the signers’ more focused claim concerning disclosure of the information on this particular petition, which is pending before the District Court" (emphasis added). (Thus, it is still possible that lower courts, or even the Supreme Court down the road, may rule for the petition signers.)
The Court found that the state's interest in "preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability" was sufficiently strong an interest to justify any First Amendment burdens on petition signers.
The Court did not rule on the plaintiff's more particularlized argument, namely that the defendants do not want access to the petition signers' names and addresses so that they can combat fraud or detect invalid signatures, but rather so that they can identify them on the Internet and encourage others to seek them out. It will be up to the lower courts to decide whether the plaintiffs can show "a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties." If the plaintiffs can make such a showing, the courts could block the public disclosure of their personal information.
- Justice Alito notes in his concurring opinion that "the plaintiffs in this case have a strong argument that [Washington's disclosure law] violates the First Amendment as applied to the Referendum 71 petition."
- Justice Scalia, who does not find disclosure to be especially burdensome or violative of First Amendment rights, appeals to the National Anthem in his concurring opinion: "There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave."
The speech-regulators at the "reform" group Campaign Legal Center quickly issued a statement, tying the Court's decision in Doe v. Reed to the DISCLOSE Act. Their statement evidences a remarkable disregard for the First Amendment, even for them. The group's Executive Director, J. Gerald Hebert, states, "Opponents of campaign finance laws, including disclosure provisions, repeatedly claim that Congress can make 'no law' that regulates political speech and have used that argument to claim that campaign finance laws, including disclosure provisions, are unconstitutional. Today’s ruling flatly rejects this overbroad claim."
As some know, the First Amendment reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" (emphasis added).
So, the argument that "Congress shall make no law ... abridging the freedom of speech" is not exactly novel or the product of creative lawyering. Hebert is correct, though, that Congress can, and does, make laws that regulate political speech - Congress is doing so right now, as a matter of fact. Perhaps our real quarrel is with the Congress that enacts these laws, and the Supreme Court that upholds them, rather than with a small, but noisy, interest group.
- Incidentally, the Institute For Justice has a new free speech blog at www.MakeNoLaw.org.
Click here to read the entire post.
Monday, June 21, 2010
USA Today Notes Campaign Finance Developments Overshadowed by DISCLOSE Act
USA Today notes that the DISCLOSE Act has "faltered," and draws attention to three overshadowed campaign finance developments of recent weeks:
"Attempts to place more restrictions on campaign spending have been unsuccessful in recent weeks.
The Supreme Court, for instance, barred the state of Arizona this month from distributing public funds to candidates running against wealthy, self-funded opponents. The move blocks a key component of the state's 12-year-old 'Clean Elections' law while the high court decides whether to hear a challenge from the law's opponents.
Last week, acting U.S. Solicitor General Neal Katyal, who argues the government's cases before the Supreme Court, decided not to appeal a lower court ruling that allows independent groups to raise as much as they want to support or oppose candidates.
In addition, the Federal Election Commission recently sided with Citizens United, a conservative advocacy group, and ruled that it would not have to publicly disclose its spending on movie projects. It was the second major victory for Citizens United this year. The legal battle over the group's critical film about Hillary Rodham Clinton in the 2008 presidential campaign led to the Supreme Court's sweeping decision in January to allow unlimited corporate and union funding on political ads."
More on the Supreme Court's decision is here. The Court's order in McComish v. Bennett is here.
The second item above concerns the government's decision not to appeal the D.C. Circuit's decision in SpeechNow.org v. FEC. More information on that decision is here.
Finally, we noted the FEC's decision in Advisory Opinion 2010-08, granting a limited media exemption to Citizens United, here.
Friday, May 21, 2010
Mr. Citizens United, David Bossie, Opposes Kagan's SCOTUS Nomination
The President of Citizens United, David Bossie, has this op-ed in the Washington Post. He writes, "I oppose Kagan's nomination because I believe that every American has a fundamental right, guaranteed by the First Amendment, to speak out for or against their elected representatives. Anyone who does not feel that way should not be put in a position of authority where she can restrict that right."
Friday, May 21, 2010
Bloomberg: Republicans Push Lawsuits to Unshackle Corporate Campaign Cash
From Bloomberg News: "The Republican Party and conservative advocacy groups, seeking to capitalize on the Supreme Court’s January decision throwing out a ban on corporate political spending, are urging judges across the U.S. to strike down other campaign-finance restrictions."
Click here to read the entire post.
Tuesday, May 18, 2010
Kagan Tells Sen. Specter She Disagrees With Supreme Court's Citizens United Ruling
AP reports that Elena Kagan had a "closed-door exchange last week with Sen. Arlen Specter, D-Pa., who voted against Kagan's confirmation as the government's top lawyer [Solicitor General] last year on the grounds she wouldn't talk about her legal views. Kagan made clear that she disagreed with a recent Supreme Court ruling [ Citizens United] that has provoked intense partisan debate, according to Specter. 'She said she thought the court was not sufficiently deferential to Congress,' Specter said."
Can it be a coincidence that that is exactly what Sen. Specter wanted to hear? He has argued in the past that Congress deserves substantial deference when it comes to campaign finance legislation. See here, for example, in a Supreme Court brief submitted by Sen. Specter and other Senators in the Randell v. Sorrell (2005) case (regarding Vermont's contribution and expenditure limits, among other things):
"As both elected representatives and seasoned participants in the electoral process, amici believe they are entitled to broad deference in the regulation of federal elections. The Court in Buckley v. Valeo, 424 U.S. 1 (1976), properly accorded legislatures such deference with regard to contribution limits. The Court should clarify that equivalent deference is warranted with respect to the expenditure limits at issue here and extend it to campaign finance reforms in general."
***
"[L]legislatures should be given substantial deference in the design and enactment of campaign finance laws."
Click here to read the entire post.
Monday, May 17, 2010
The Economist: Elena Kagan and free speech
Click here to read the entire post.
Wednesday, May 12, 2010
Where Does Elena Kagan Stand On Campaign Finance Issues?
Politico reports "neither Elena Kagan’s oral argument in the case [ Citizens United v. FEC], which the court rejected in its sweeping January decision, nor her limited scholarly writings on the subject, have given supporters of strict campaign finance rules much confidence that she shares their views — or Obama’s — on the subject....They have fixated on a largely overlooked passage in a 1996 article in the University of Chicago law review in which Kagan seems to diminish as anomalous the Supreme Court’s ruling in Austin v. Michigan Chamber of Commerce, the 1990 case [overruled in Citizens United], which allowed governments to bar corporations from paying for ads supporting or opposing candidates."
The Wall Street Journal examines Kagan's role in Citizens United.
Saturday, May 08, 2010
Brad Smith on Citizens United, the DISCLOSE Act, and Corporate Spending
Professor Smith's article appears in the American Spectator: "The fact that virtually all of these proposed 'fixes' have been sponsored by Democrats, with the aim of silencing what they perceive to be the pro-Republican voices of the business community, merely illustrates once again the basic problem with campaign finance reform that Citizens United sought to alleviate: the desire to manipulate the law for partisan purposes."
Thursday, April 29, 2010
Supreme Court Hears Oral Argument in Doe v. Reed; Petitioner Privacy Debated
The Washington Post reports "The Supreme Court seemed skeptical Wednesday that the Constitution offers protection to individuals who fear harassment over their signature on referendum petitions, with the toughest questioning coming from Justice Antonin Scalia....In a turnabout from the court's usual deliberations, Scalia teamed with liberal Justices Ruth Bader Ginsburg and Sonia Sotomayor as Bopp's sharpest inquisitors. Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. were more challenging of Washington Attorney General Robert M. McKenna, who said the state had a legitimate interest in making sure the petition process was open to the public."
The session's most-quotable moment came from Justice Scalia: "The fact is that running a democracy takes a certain amount of civic courage," Scalia said. "And the First Amendment does not protect you from criticism or even nasty phone calls."
A transcript of the oral argument is available here.
Monday, April 26, 2010
Seattle Times: Supreme Court takes up Wash. case involving disclosure of petition signatures
From the Seattle Times: "The U.S. Supreme Court this week will hear a Washington state case that could decide whether signing a petition for a ballot measure is a private, political act or whether the names of those signers can be made public. The case stems from the contentious battles over Referendum 71, in which traditional-marriage supporters last year unsuccessfully sought to overturn an expanded state domestic-partnership law that grants 'everything but marriage' benefits to gay and lesbian couples. Those who backed the repeal effort are trying to shield the petitioners' names from disclosure, saying they could be harassed if their identities are revealed. Some gay-rights supporters had requested the names and said they would post them on the Internet. Washington Secretary of State Sam Reed says such information is subject to disclosure upon request, as required by the state's Public Records Act."
Click here to read the entire post.
Tuesday, April 20, 2010
NYT editorial: The Court, Money and Politics
The latest from the New York Times editors, this time on RNC v. FEC.
Tuesday, April 13, 2010
CQ Politics: Vacancy Reignites Campaign Finance Battle
From CQ Politics: "Long the stuff of dry inside-the-Beltway machinations, campaign finance law may take center stage this summer during the confirmation of President Barack Obama’s Supreme Court nominee .... Obama signaled that he will be looking for a nominee who shares his disdain for the Citizens United case. Following Justice John Paul Stevens’ announcement that he will retire at the end of this term, Obama said that he would look for a candidate with 'an independent mind, a record of excellence and integrity, a fierce dedication to the rule of the law, and a keen understanding of how the law affects the daily lives of the American people' and who understands that 'powerful interests must not be allowed to drown out the voices of ordinary citizens.' ... Republicans, meanwhile, generally support the [ Citizens United] decision — and will do their best to keep anyone who would overturn it off the Supreme Court."
Click here to read the entire post.
Monday, April 05, 2010
RNC Seeks Supreme Court Review of "Soft Money" Decision
The Daily Caller reports that the Republican National Committee will file paperwork seeking Supreme Court review of the "soft money" case it recently lost at the district court level ( RNC v. FEC): "The Republican National Committee and Chairman Michael Steele are continuing their push to allow corporations and individuals to make unlimited donations known as 'soft money' to national committees. On Friday, Steele and the RNC appealed to the Supreme Court after a federal court denied the RNC permission to raise soft money for state elections and congressional redistricting, according to Federal Election Commission records."
The RNC's Notice of Appeal is here. More from USA Today here.
Thursday, March 25, 2010
Wash. Post: States try to adapt to Supreme Court's campaign finance ruling
From the Washington Post: "Many states are scrambling to react to the Supreme Court's landmark ruling this year that loosened restrictions on corporate and union spending in elections. But rather than simply accepting the ruling, some states are looking for ways to increase public oversight of political ads run by corporations -- or are defying the high court altogether....Some of those states are simply working to remove language in their statutes that might run afoul of the Supreme Court's decision. Nearly a dozen, however, are also debating whether to require companies to disclose their spending on political ads or, in some cases, to seek approval from corporate boards or even shareholders....States considering new disclosure laws include Alaska, Arizona, Connecticut, Maryland, Minnesota, New Hampshire, Ohio, South Dakota, Tennessee and West Virginia, according to the National Conference of State Legislatures. The Iowa legislature has approved a bill requiring company directors to approve of political spending."
Click here to read the entire post.
Thursday, March 25, 2010
What Does the Post-Citizens United World Look Like?
Rick Hasen recently posted what is believed to be the first corporate advertisement run under the rules established by Citizens United. The ad is available here, and the Sunlight Foundation has a blog posting about the ad here. Contrary to some predictions, the world did not end when the ad appeared, but it is still too early to know how many politicians were corrupted.
Sunday, March 21, 2010
Boston Globe: High court ruling leaves states scrambling to close gaps on spending limits
The Boston Globe has this AP piece on state responses to Citizens United: "The Supreme Court’s rejection of decades-old campaign spending limits gives states scant time to face an election-year dilemma: brace for a flood of new money in politics, or find new ways to rein it in. Within days of the ruling, state legislatures started reacting. At least eight states are pushing for greater disclosure of political spending by corporations and unions. At least three states, led by West Virginia, would go further by requiring corporations or unions to get permission from their shareholders or members before they can spend money on elections....The most common state response is to require disclosure of donors behind the advocacy groups that often pop up in election years. Among states pursuing that approach are West Virginia, Alaska, Minnesota, Kentucky, Arizona, Tennessee, Wisconsin, and Maryland."
Click here to read the entire post.
Friday, March 19, 2010
Todd Henderson: Citizens United: A defense
Todd Henderson, a law professor at the University of Chicago, has this piece on Citizens United.
Sunday, March 14, 2010
BusinessWeek Publishes Citizens United Op-Ed; Author, Editors Still Don't Know What Case Was About
And then there's this:
"Most institutional money managers today are owned by giant U.S. and global financial conglomerates with their own shareholders. Of America's 40 largest, 23 are owned by conglomerates, 8 are publicly held, and only 9 remain privately owned. Money managers who share my fears about unlimited corporate contributions to politicians must enter the arena with clean hands. Before they stand up against political contributions by the companies whose shares are held in their portfolios, they must publicly pledge a no-political-contribution policy of their own. This may sound like a tall order, but it's the only avenue that presents itself for, in effect, overriding the Supreme Court's unwise decision" (emphasis added).
After several months, you would think that sophisticated op-ed writers would have grasped that the case had nothing to do with contributions. And you would think that the editors of major news weeklies would catch this sort of misinformation.
Click here to read the entire post.
Saturday, March 13, 2010
Politics Magazine on Citizens United
Politics magazine has several Citizens United articles in the latest issue:
Click here to read the entire post.
Friday, March 12, 2010
Peter J. McDonough: New Jersey proves corporate campaign contributions don't poison politics
Peter J. McDonough has this op-ed, in which he argues "If the New Jersey experience is any measure, the gnashing of teeth and public uproar over the U.S. Supreme Court’s decision in Citizens United vs. Federal Election Commission is certainly over-wrought and probably underserved.... Self-identified "good government" advocates have likened the decision to an electoral apocalypse. The Garden State experience, where corporations are allowed to contribute as freely as labor unions or individuals to campaigns, and where any entity can spend unlimited amounts on "independent expenditures" during campaigns, suggests just the opposite. In fact, a recent analysis by The Star-Ledger found that the most significant spenders in New Jersey’s elections are not profit-obsessed corporate giants. By overwhelming margins, the organizations most dedicated to spending massive amounts of money on electioneering are labor unions."
Yesterday, we noted similar arguments and findings here.
Click here to read the entire post.
Friday, March 12, 2010
Corporate Counsel: So Far, They're Just Not Buyin' It: Companies Hold Off on Political Ads
From Corporate Counsel via law.com: "After the Supreme Court ruled that companies can spend freely on political advertising campaigns, the immediate reaction from some quarters was dire. Good-government advocates, liberal commentators, even the president warned that a flood of corporate money would overwhelm elections and subvert democracy. But the real impact of the decision is likely to be much less extreme, according to in-house attorneys and election law experts. Few companies are looking for new ways to spend money in these tight times. Plus, many businesses — especially large corporations — are aware of the dangers of appearing excessively partisan.... Kraft Foods Inc., for example, has no plans to ramp up its political spending, said James Portnoy, chief counsel for the law department's corporate and government affairs group....Microsoft Corporation isn't just guarded; its leaders have long found political advertising distasteful."
Click here to read the entire post.
Thursday, March 11, 2010
Steven Law: Organized Labor and Citizens United; Unions were the big winners in the 'corporate' free speech case.
Steven Law of the U.S. Chamber of Commerce has this op-ed in the Wall Street Journal, explaining how organized labor may be the "big winner" in the Citizens United case. According to Law, "unlike corporations, unions are far better positioned to take advantage of the ruling because they have virtually no other restraints on their capacity to engage in political action. Public companies have to deal with earnings targets, investment analysts, ratings agencies and dividend-hungry shareholders. That's why most corporations spend little or nothing on politics and can be expected to do the same going forward....There is a great deal of hyperventilating on Capitol Hill these days about the power of corporations. There is conspicuous silence about organized labor. Coincidentally, unions give nine out of 10 election dollars to the party that currently runs Washington. If Congress attempts to inhibit corporate political speech while treating unions with kid gloves, that's not reform. It's just another special-interest payback."
In related news, this report notes that the biggest political spender in California is the California Teachers Association, which "has spent more than $200 million on campaign contribution and lobbying efforts in the last decade." The second biggest California spender? The California State Council of Service Employees. (Both are labor unions.) The San Francisco Chronicle details the SEIU's campaign muscle in California here.
Wednesday, March 10, 2010
Huffington Post: Harry Reid Slams Supreme Court Justices John Roberts, Anthony Kennedy For Campaign Finance Decision
The Wall Street Journal has more.
Monday, March 08, 2010
Holtzman Vogel Lawyers Publish Citizens United Article in ABA's Government Affairs Practice Committee Newsletter
A copy of the article is available here.
Sunday, February 28, 2010
Brad Smith in WSJ: The Case for Corporate Political Spending
Brad Smith has this op-ed in the Wall Street Journal. Smith notes that "even before the decision in Citizens United, 28 states, with 60% of the nation's population, already allowed corporations to make political expenditures in state elections, including Virginia, Oregon and Washington....The 28 states that already allow corporate campaign expenditures for state races (including governor, state legislature and attorney general) are not awash in corporate political spending....In fact, in California, which allows unlimited corporate expenditures, the 10 largest reported funders of independent expenditure committees between 2001 and 2006 did not include a single corporation. Rather, the list consists of unions, Indian tribes and two individuals, the long-time business partner of one of the candidates, and the partner's daughter....Corporations are affected by political regulation and ought to have the right to try to persuade the electorate that their interests matter."
Saturday, February 27, 2010
NYT: Decision Could Allow Anonymous Political Contributions by Businesses
The New York Times continues its critical coverage of the Citizens United decision with this piece: "Experts say the ruling, along with a pair of earlier Supreme Court cases, makes it possible for corporations and unions to donate anonymously to nonprofit civic leagues and trade associations. The groups can then use the money to finance the types of political advertisements that were at the heart of last month’s ruling, in Citizens United v. Federal Election Commission....That means that those nonprofit groups, which are not required to disclose their donors, can now use corporate contributions to buy political commercials, and the corporations can potentially operate behind the anonymity of their donations."
Friday, February 26, 2010
Linda Greenhouse (NYT) on Citizens United
The veteran court reporter (who contributed to President Obama's 2008 presidential election campaign) compares Citizens United to the 2005 Kelo eminent domain decision.
Thursday, February 25, 2010
Sen. Dodd Proposes Rewriting First Amendment
Sen. Dodd, who is not seeking reelection, has nevertheless proposed rewriting the First Amendment. The Hill reports "Sen. Chris Dodd (D-Conn.) introduced a constitutional amendment today to overrule a recent Supreme Court decision on campaign spending....Dodd's amendment, co-sponsored by Sen. Tom Udall (D-N.M.) would explicitly grant Congress the authority to regulate campaign fundraising and expenditures for federal elections. The amendment would also let states regular such activity in their own elections....To pass, Dodd's amendment must pass both Houses with a two-thirds majority and be ratified by three-quarters of the states."
Wednesday, February 24, 2010
Boston Globe: Campaign financing shift may aid critics; Cash could go to interest groups
The Boston Globe writes, "The Supreme Court’s watershed decision on campaign finance, lamented by critics who say it gives undue influence to corporations, could strengthen the very advocacy groups that oppose the ruling. Under the ruling, the spenders can’t give directly to a candidate, but they can give to an advocacy group that in turn produces such advertisements - providing a potential source of money for groups that have traditionally survived on individual donations. But one question lingers: Will those organizations, particularly liberal ones openly critical of the court ruling, seek money from corporate sources? Or will they sit on the sidelines and risk losing influence?"
Click here to read the entire post.
Friday, February 19, 2010
A Disturbing Thought From Jeffrey Rosen...
Click here to read the entire post.
Thursday, February 18, 2010
Stateline.org: Court complicates campaign finance rules
From Stateline.org: "The court’s 5-4 decision last month in Citizens United v. Federal Elections Commission made one clear-cut change—it declared any ban on corporate- or union-sponsored political advocacy to be unconstitutional, on the grounds that such advocacy was constitutionally protected political speech. But in practice the decision may do more. It may alter state and local elections across the country in ways the court didn’t discuss. . . . Many of the states seem unlikely to take any action, however, And it remains to be seen how much can be done, either at the state or federal level, without violating at least one of the constitutional principles laid out by the Supreme Court .... So far, Montana is the only state to publicly say it will maintain its laws until a court rules them unconstitutional" (emphasis added).
Click here to read the entire post.
Tuesday, February 16, 2010
Sen. Kerry op-ed on Citizens United
Senator John Kerry has this op-ed on Citizens United in Politico. Unfortunately, what jumps out from this piece is the Senator's assertion that conservatives' views of the judiciary are rooted in racism. Of the Supreme Court's recent decision, he writes: "But in a stunning act of judicial activism — the kind of reaching-beyond-the-law action political conservatives have been complaining about since, well, Brown v. Board of Education — the majority issued a decision inflating the speech rights of large faceless corporations to the level of those of hardworking Americans."
Click here to read the entire post.
Tuesday, February 16, 2010
Wash. Post editorial: Two Democrats' remedy for the high court's campaign finance ruling
Click here to read the entire post.
Thursday, February 11, 2010
Supplemental Briefing in RNC v. FEC
The Republican National Committee filed a supplemental brief in its challenge to aspects of BCRA's national party soft money prohibition, arguing that the Supreme Court's decision in Citizens United v. FEC effectively overturned the soft money ban:
As previously asserted by the Plaintiffs, to the extent McConnell found that contributions to national political parties were “suspect,” irrespective of their end use, it premised this conclusion on the historical practice of national parties to provide large donors of non-federal funds with preferential access to federal candidates and officeholders. [***] Now that the Supreme Court has stated that preventing access and gratitude is not a proper government interest, Citizens United, slip op. at 43-44, the [national party soft money] Restriction is unconstitutional. Not only is the Restriction unconstitutional as applied to Plaintiffs’ activities, it is facially unconstitutional since McConnell’s foundation of corruption cannot stand.
The Federal Election Commission and the Democratic National Committee have filed briefs disagreeing. Among other things, they argue that only the Supreme Court may overrule McConnell, and that it has not yet done so. The FEC's supplemental brief is here.
Sunday, February 07, 2010
WSJ op-ed: The Bigger Meaning: High Court Lets Companies Lobby Employees, Suppliers
Peter Brown has this column in the Wall Street Journal. According to Brown, "What’s more important is that the court has decided that your employer may spend as much as its top executives want to explain to you and your co-workers why voting for or against a candidate might endanger your job, make it more secure, or increase your retirement nest egg. . . . The decision’s greatest impact might be on local politics in which relatively few voters participate because there is not that much information distributed about those elections. And it is at the local level where a company might have greater influence on its work force."
Click here to read the entire post.
Sunday, February 07, 2010
Yet Another Alito Head Shake Article
The AP has what will hopefully be the last piece on Justice Alito's head shake at the State of the Union address.
According to the AP, "It seems clear from Alito's questioning when the court heard argument in the case that he was taking issue with the president's assertion that the court reversed 100 years of law, rather than with Obama's reference to foreign influence, which also has generated some legal debate. At the September argument, Alito suggested to attorney Seth Waxman that 20 years was the appropriate time frame, encompassing two high court decisions that upheld limits on corporate spending in campaigns."
The AP did not interview Justice Alito, or even an unnamed source "close to Alito," so this is pure speculation on the AP's part.
Click here to read the entire post.
Friday, February 05, 2010
FEC Statement on the Supreme Court’s Decision in Citizens United v. FEC
The FEC issued this statement today. According to the Commissioners, "Corporations and labor organizations that intend to finance independent expenditures or electioneering communications should:
* Include disclaimers on their communications, consistent with FEC regulations at 11 CFR 110.11;
* Disclose independent expenditures on FEC Form 5, consistent with FEC regulations at 11 CFR 109.10; and
* Disclose electioneering communications on FEC Form 9, consistent with FEC regulations at 11 CFR 104.20." The Commissioners intend to undertake a broad rulemaking to address the Court's decision, and various provisions of part 114 of the FEC's regulations will be reviewed.
Click here to read the entire post.
Friday, February 05, 2010
NewsMax: High Court's Campaign Ruling Gives Unions New Clout
From NewsMax: "The Supreme Court’s recent blockbuster decision on support for political candidates could increase union clout in campaigns, even though most of the arguments about the controversial ruling focuses on the leverage it gives corporations."
Click here to read the entire post.
Friday, February 05, 2010
Compilation of U.S. Senator Statements on Citizens United
Rick Hasen provides a very useful link to this website, which is tracking U.S. Senator statements on Citizens United. (The compilation is a Defenders of Wildlife project.)
Click here to read the entire post.
Thursday, February 04, 2010
Indian Country Today: Campaign finance ruling impacts tribes
From Indian Country Today: "Tribal observers largely said the outcome could negatively impact tribes, as few have the kinds of influence with lawmakers as corporations and unions have. By lessening restrictions on those groups, many said the court has made it all the more difficult for tribes to be heard in the American political system."
Click here to read the entire post.
Thursday, February 04, 2010
Center For American Progress Details Possible Legislative Responses to Citizens United
Alex DeMots of the Center For American Progress explains several possible legislative reponses to the Citizens United decision. (DeMots previously served on Commissioner Lenhard's staff at the FEC.)
Click here to read the entire post.
Thursday, February 04, 2010
ABC: White House Prepares for Possibility of 2 Supreme Court Vacancies; SCOTUS Watchers Believe Justices Stevens and Ginsburg Could Decide to Step Aside
ABC News reports "Lawyers for President Obama have been working behind the scenes to prepare for the possibility of one, and maybe two Supreme Court vacancies this spring. Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health."
Click here to read the entire post.
Wednesday, February 03, 2010
Justice Thomas Speaks About Citizens United
The New York Times reports "In expansive remarks at a law school in Florida, Justice Clarence Thomas on Tuesday vigorously defended the Supreme Court’s recent campaign finance decision. . . . 'I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company,' Justice Thomas said. 'These are corporations.'"
Click here to read the entire post.
Wednesday, February 03, 2010
Norm Eisen Defends President's SOTU Remarks Regarding Citizens United Decision
White House ethics counsel Norm Eisen has this posting defending the President's criticism of the Citizens United decision in his State of the Union address.
Click here to read the entire post.
Wednesday, February 03, 2010
Sen. Hatch: Obama 'wrong' on campaign finance
Senator Hatch has this op-ed in Politico.
Click here to read the entire post.
Wednesday, February 03, 2010
AP: Senate mulls campaign-finance rules; Legislation aims to address fallout from court decision
AP reports on yesterday's Senate Rules Committee hearing on the Citizens United hearing. (For some reason or another, the Senate Rules Committee has long had jurisdiction over campaign finance matters.) AP reports "Lawmakers said Tuesday they might counter the recent Supreme Court ruling on campaign money, along with the blizzard of special-interest spending that could result, by making corporations and unions come clean about which campaign ads they are sponsoring and how much they are shelling out. Senators also considered proposals to give investors and shareholders greater power over corporate political spending, or even to amend the Constitution, as they mulled how to respond to the ruling, which effectively lifted restrictions on big business and union election spending." Other reports inside.
Click here to read the entire post.
Wednesday, February 03, 2010
Brad Smith: Citizens United, Shareholder Rights, and Free Speech: Restoring the Primacy of Politics to the First Amendment
On SCOTUSblog, part I and part II.
Click here to read the entire post.
Tuesday, February 02, 2010
David Bossie: Hypocrisy in Citizens United chatter
David Bossie, the President of Citizens United, has this op-ed in Politico, on the response to Citizens United.
Click here to read the entire post.
Tuesday, February 02, 2010
National Law Journal: High Court Campaign Finance Opinion Roils Dozens of Cases
This piece examines the impact of Citizens United on other cases pending before courts around the country.
Click here to read the entire post.
Monday, February 01, 2010
Eliza Carney: Citizens United Fallout Already Being Felt; An Ongoing Case Points Up Just How Dramatically The Court's Ruling Has Changed Judicial Thinking
Eliza Carney has this wide-ranging column on the potential impact of Citizens United. Two observations inside.
Click here to read the entire post.
Monday, February 01, 2010
LAT: Question of foreign funding of U.S. elections unsettled; President Obama and other officials have disagreed about the implications of the Supreme Court's ruling allowing corporations to spend money on campaigns. Experts say the jury's out.
The Los Angeles Times has this report on the foreign corporation controversy.
Click here to read the entire post.
Saturday, January 30, 2010
AP: Critics raise specter of foreign campaign spending
From the AP: "The Supreme Court's decision on campaign finance has jumbled a seemingly simple rule of American politics - foreigners should play no role in U.S. elections. . . . The more complicated question is how to treat U.S. subsidiaries of foreign companies or American corporations that are controlled by foreign investors."
The AP's heavily slanted report does not mention any of the numerous legal commentators who believe that the Supreme Court's decision has no effect on the foreign national ban.
Click here to read the entire post.
Saturday, January 30, 2010
WSJ Interview with Floyd Abrams: The Media and Corporate Free Speech
The Wall Street Journal has this interview with Floyd Abrams, on the Citizens United decision.
Click here to read the entire post.
Thursday, January 28, 2010
CQ Politics: Obama’s Swipe at High Court Sparks Debate
From CQ Politics: "Republicans and Democrats generated a crossfire of criticism Thursday over President Obama’s comments in his State of the Union speech about a landmark Supreme Court ruling on campaign finance regulation and one justice’s negative reaction to them."
Click here to read the entire post.
Thursday, January 28, 2010
President on Citizens United in SOTU
President Obama mentioned the Citizens United decision in his State of the Union address last night. He said, "Last week, the Supreme Court reversed a century of law to open the floodgates for special interests - including foreign corporations - to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that's why I'm urging Democrats and Republicans to pass a bill that helps to right this wrong."
Six members of the Supreme Court were sitting front row, center as the President gave his address. The Chief Justice, and Justices Kennedy, Breyer, Ginsberg, and Sotomayor did not show any reaction to the President's words. Justice Alito, however, shook his head repeatedly and said "Not true."
Click here to read the entire post.
Thursday, January 28, 2010
Two Citizens United Op-eds From The LA Times
The Los Angeles Times has two op-eds on the Citizens United Decision.
Click here to read the entire post.
Thursday, January 28, 2010
George Will: Campaign finance: a 'reform' wisely struck down
George Will's latest column focuses on the Citizens United decision: "Last week's Supreme Court decision that substantially deregulates political speech has provoked an edifying torrent of hyperbole. Critics' dismay reveals their conviction: Speech about the elections that determine the government's composition is not a constitutional right but a mere privilege that exists at the sufferance of government."
Click here to read the entire post.
Wednesday, January 27, 2010
WSJ: States Weigh Judicial Recusals; Some Judges, Businesses Oppose Restrictions on Cases Involving Campaign Contributors
The Wall Street Journal reports "More states are responding to a longstanding concern that elected judges risk the appearance of bias when they hear cases involving their campaign contributors. But recent examples from Wisconsin and Nevada show that some states are reluctant to force judges to disqualify themselves from cases solely because they have received large contributions. . . . About 10 states, including California and Texas, have proposed new judicial-disqualification rules in the wake of last year's Supreme Court ruling [Caperton v. Massey]. But overhaul efforts have met resistance from judges and businesses who oppose restraints on judges' ability to raise campaign funds and on voters' rights to financially support favored candidates."
Click here to read the entire post.
Tuesday, January 26, 2010
Today's Citizens United Items
From Marc Ambinder, Rep. DeLauro, Jan Baran, BNA Money & Politics, and more.
Click here to read the entire post.
Monday, January 25, 2010
CBS: McCain: Campaign Finance Reform Is Dead
On Sunday's Face the Nation, "Senator John McCain, who helped rewrite the nation's campaign finance laws, said Sunday that this week's Supreme Court ruling removing limits from corporate spending on political advertising means that campaign finance reform is dead. . . . He predicted a backlash would occur when people see the amounts of unfettered money, from corporations and unions, that will go into political campaigns."
Click here to read the entire post.
Monday, January 25, 2010
ABC: Foreign Money in American Politics? Some Say Supreme Court's Decision in Citizens United Case Has Opened New Path
ABC News reports "Some election lawyers believe that last week's landmark U.S. Supreme Court opinion may have opened a new avenue for foreign money to enter the American political system, and that the justices are inviting a repeat of the 1996 Chinese money scandal that bloodied the Clinton administration."
Click here to read the entire post.
Monday, January 25, 2010
CQ Politics: Campaign Finance Ruling: What’s Next?
CQ Politics looks at the effect of Citizens United on the political parties.
Click here to read the entire post.
Sunday, January 24, 2010
Oklahoma Acts Quickly After Citizens United
The Oklahoman reports "Members of the state Ethics Commission were poised Friday to change rules to comply with a U.S. Supreme Court decision that gives corporations and unions a bigger role in political campaigns but backed off after hearing appeals to slow down. The commission will meet in special session Jan. 29 – just days before a Feb. 2 deadline to submit rule changes to the Legislature – to adopt a rule changing state campaign finance laws. Legislators can defeat rules suggested by the Ethics Commission or allow them to take effect by taking no action. . . . Oklahoma is one of 24 states that have laws banning corporations and labor unions from spending from their treasury funds, said Marilyn Hughes, the Ethics Commission’s executive director."
Click here to read the entire post.
Sunday, January 24, 2010
NYT: Does Corporate Money Lead to Political Corruption?
In a refreshing piece that is completely at odds with their editorial page, the New York Times asks, "after more than three decades, has the [post-Watergate campaign finance] system made a difference? . . . Legal scholars and social scientists say the evidence is meager, at best, that the post-Watergate campaign finance system has accomplished the broad goals its supporters asserted. . . . It is not merely an academic question. The Supreme Court has consistently said that only fighting corruption or the appearance of corruption justifies laws that restrict political spending. Other rationales — like leveling the playing field between the haves and have-nots — are not enough. . . . In the United States, studies comparing states like Virginia with scant regulation against those like Wisconsin with strict rules have not found much difference in levels of corruption or public trust, several scholars said. . . . The most insistent advocates of the campaign finance laws argue that the benefits are real even if academics can’t measure them."
Click here to read the entire post.
Sunday, January 24, 2010
NYT: Obama Turns Up Heat Over Ruling on Campaign Spending
From the New York Times: "President Obama took aim at the Supreme Court on Saturday, saying the justices had 'handed a huge victory to the special interests and their lobbyists' with last week’s 5-to-4 decision to lift restrictions on campaign spending by corporations and unions. . . . 'This ruling strikes at our democracy itself,' Mr. Obama said, adding: 'I can’t think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections.' How much the administration can do about the ruling remains unclear, although Mr. Obama said he had instructed his advisers to work with Congress on a 'forceful, bipartisan response.'"
Click here to read the entire post.
Saturday, January 23, 2010
The Impact of Citizens United on State Laws
Writing for Examiner.com, Evan Johnston takes a look at New York campaign finance law after Citizens United. The Washington City Paper takes a look at D.C. election law.
Click here to read the entire post.
Saturday, January 23, 2010
Wash. Post: Campaign finance ruling leaves Democrats with few options
The Washington Post reports "Frustrated Democrats began laying plans Friday to chip away at a landmark Supreme Court decision unleashing corporate expenditures in political campaigns, but the ruling's broad sweep will make it difficult to stem a tidal wave of new spending in this year's pivotal midterm elections. Major corporations and advocacy groups immediately began devising ways to take advantage of the 5 to 4 decision, which concluded that corporations have the same First Amendment rights as individuals and, therefore, can spend as much company money as they wish to oppose or support individual political candidates. . . . Sen. Charles E. Schumer (N.Y.), the former Democratic Senatorial Campaign Committee head, and Rep. Chris Van Hollen (Md.), the Democratic Congressional Campaign Committee chairman, are working with the White House to craft a new campaign finance bill. They are almost certain to call for strengthened disclosure requirements for companies that directly sponsor ad campaigns, and they may push for requiring shareholders to approve political expenditures by publicly traded companies. They are also studying ways to prohibit campaign spending by corporations such as American International Group or General Motors that received federal bailout money, as well as companies that have federal contracts or registered lobbyists."
Click here to read the entire post.
Saturday, January 23, 2010
State Reactions to Citizens United
The First Amendment Center has this round-up of state-level reactions to the Citizens United decision.
Click here to read the entire post.
Saturday, January 23, 2010
The "Move To Amend" Project
The "Campaign to Legalize Democracy" is pushing a constitutional amendment in response to the Citizens United decision at www.movetoamend.org.
Click here to read the entire post.
Saturday, January 23, 2010
Brad Smith in WSJ: Newsflash: First Amendment Upheld
Brad Smith has this op-ed in the Wall Street Journal. The former FEC Chairman writes, "Much of the opposition to Citizens United is simply the opposition of the political left to what they perceive corporations will say. Consider campaign finance "reform" organizations that have long been supported by corporations. New York University's Brennan Center for Justice has received support, for example, from a rogue's gallery of corporate America, including Enron and Bear Stearns. Never has the public heard a peep from this organization about whether all shareholders in these corporations actually support the center's agenda. . . . Similarly, much of the criticism focuses on the perception that Republicans will be the winners if corporations and unions are unshackled. President Barack Obama, Democratic Congressional Campaign Committee Chairman Chris Van Hollen and Democratic Senatorial Campaign Committee Chairman Bob Menendez all announced that they would be looking for ways to limit corporate expenditures."
Click here to read the entire post.
Saturday, January 23, 2010
NYT: 24 States’ Laws Open to Attack After Campaign Finance Ruling
The New York Times notes that "A day after the United States Supreme Court ruled that the federal government may not ban political spending by corporations or unions in candidate elections, officials across the country were rushing to cope with the fallout, as laws in 24 states were directly or indirectly called into question by the ruling. . . . For now, the decision does not overturn all the state laws in question, but it is only a matter of time, experts said, before the laws will be challenged in the courts or repealed by state legislatures. Since the state laws are vulnerable, it is unlikely that officials will continue enforcing them, experts said."
Click here to read the entire post.
Friday, January 22, 2010
Public Citizen Calls For Constitutional Amendment to Overturn Citizens United Decision
Less than a full day after the Supreme Court issued its landmark decision in Citizens United v. FEC, the liberal interest group Public Citizen has called for a constitutional amendment to undo the decision.
Click here to read the entire post.
Thursday, January 21, 2010
FEC Statement on Citizens United
The Federal Elections Commission (FEC) issued this statement on the Supreme Court's ruling: "The Commission is considering the impact of the opinion on its existing regulations, as well as its ongoing enforcement processes, and will be providing guidance to the public as soon as possible regarding what steps will be taken to comply fully with the opinion."
Click here to read the entire post.
Thursday, January 21, 2010
Citizens United: Media and Commentary
A collection of news reports and commentary.
Click here to read the entire post.
Thursday, January 21, 2010
Holtzman Vogel Memo on Today's Supreme Court Decision
Holtzman Vogel issued this memorandum on today's Supreme Court decision in Citizens United v. Federal Election Commission.
Click here to read the entire post.
Thursday, January 21, 2010
Supreme Court Decides Citizens United v. FEC
The opinion is here.
Click here to read the entire post.
Tuesday, January 19, 2010
Legal Times Blog: Supreme Court Takes Up Case on Petition-Signer Privacy
From the Legal Times Blog: "The Court on Friday afternoon announced it was granting review in five new cases, including Doe#1 v. Reed, a case from Washington state asking whether that state's public records disclosure law violates the privacy rights of voters who signed petitions to launch a referendum aimed at overturning a law allowing same-sex domestic partnerships. Sponsors of the ballot initiative went to court to keep the names from being posted on the Internet, claiming that would violate their right to anonymous speech and would subject signers to threats and harassment."
Click here to read the entire post.
Thursday, January 14, 2010
Democrats Preparing "Legislative Response" to Anticipated Citizens United Ruling
ABC News reported yesterday "that Rep. Chris Van Hollen, a Maryland Democrat, and Sen. Chuck Schumer, D.-N.Y., have been talking with the White House and top Democratic election lawyer Marc Elias to plot out possible remedies that they can try to move through Congress in advance of the 2010 midterm elections. 'The risk here is that the decision will open the political floodgates to unrestricted special interest and corporate money,' Van Hollen said. 'If that's the case there will be a swift legislative response.'"
Click here to read the entire post.
Thursday, January 14, 2010
Wash. Post: Campaign finance activists on pins and needles awaiting Supreme Court ruling
The Washington Post on the Citizens United wait: "News conferences were scheduled and telephone briefings were penciled in, but Washington advocacy groups were disappointed yet again Wednesday: The Supreme Court did not issue its long-awaited decision on campaign finance laws. . . . The case is particularly important given the shifting mood of the electorate and the midterm elections that are just 10 months away. Those in favor of campaign finance restrictions fear that the court is poised to upend decades of precedent by allowing corporations, and perhaps unions, to spend as much as they want for and against candidates. The sense of impending doom is evident in the tide of news releases on the topic in recent months."
Click here to read the entire post.
Wednesday, January 13, 2010
ABC News: Citizens United v. the FEC: The Return of Corporate Influence Peddling? As Supreme Court Weighs Landmark Case, Wealthy GOP Donors Bankroll Attack on Campaign Finance Law
According to ABC News, "The hotly anticipated Supreme Court case that could open the door to a flood of corporate money in political campaigns represents the latest thrust in a patient, carefully orchestrated bid to use legal challenges to undo the restrictions passed by Congress. . . . The case is just the latest of dozens of legal challenges brought over the past eight years that have been financed by major Republican donors and interest groups."
Click here to read the entire post.
Tuesday, January 12, 2010
FoxNews: Supreme Court Poised to Shake Up Campaign Finance Restrictions
FoxNews reports "The Supreme Court, in an imminent ruling, may clear away long-standing campaign finance restrictions in a way that could allow union and corporate money to flood congressional races before the 2010 mid-term elections. . . . Bob Edgar, president of the group Common Cause, said he's expecting the court to make a ground-shaking ruling, reversing not only elements of the 2002 McCain-Feingold campaign finance law but other restrictions dating back 20 years. And he said such a decision would only encourage more suits challenging campaign finance law."
Click here to read the entire post.
Tuesday, January 12, 2010
CCP: Desperate Times for Reformers Call for Desperate Lies
The Center For Competitive Politics has this blog posting on a letter circulated by Representative Chellie Pingree regarding the pending Citizens United deicsion and the Fair Elections Now Act proposal. CCP points out that Rep. Pingree's letter distorts the issues in Citizens United, claiming the case could "allow corporations to contribute endless amounts of money to candidates."
As has been noted countless times, Citizens United has nothing to do with contributions - it is about independent expenditures. And Representative Pingree certainly knows this, or at least she should. She is the former President of Common Cause, which is constantly involved in campaign finance matters.
Click here to read the entire post.
Sunday, January 10, 2010
AP: Super Bowl-style corporate ads for candidates?
A Citizens United preview from the AP: "Possibly coming soon to your TV screen: election-season Super Bowl-style ads promoting congressional and presidential candidates, paid for by some of the nation's largest corporations. It may happen. For decades, business and union money has been largely shut out of state, congressional and presidential campaigns. The Supreme Court may change that in a big way."
Click here to read the entire post.
Sunday, January 10, 2010
Monica Youn, Brennan Center: Giving corporations an outsized voice in elections
Monica Youn of the Brennan Center has this op-ed in the Los Angeles Times: "Giving corporations an outsized voice in elections." In anticipation of the Supreme Court's ruling in Citizens United v. FEC, Ms. Youn writes, "Corporations are pitching a bizarre product -- a radical vision of the 1st Amendment. It would give corporations rather than voters a central role in our electoral process by treating corporate political spending as protected speech. If this vision becomes reality, businesses and other big-money players will spend billions either hyping their preferred candidates or running attack ads against elected officials who don't support their preferred agenda. Voters will be forced into a couch-potato role, mere viewers of the electoral spectacle bought and paid for by wealthy companies."
Click here to read the entire post.
Saturday, January 09, 2010
Wash. Post: Justices may rule soon on campaign-finance case
The Washington Post reports that the Supreme Court is back at work, but "it is an old case that is puzzling court observers and consuming the political world: a pending decision on whether restrictions on corporate and labor union spending on political campaigns violate the First Amendment. . . . One possibility is that a broad decision declaring the restrictions unconstitutional has drawn lengthy dissents from those in the minority, who have no incentive for rushing the ruling. But equally possible is a failure to find a majority for such clear guidance and a multitude of competing opinions in which a narrow majority agrees only on the outcome in this specific case. The ruling could come by Tuesday."
Click here to read the entire post.
Saturday, January 09, 2010
NYT: Courts Roll Back Limits on Spending in Election Law
The New York Times reports "Even before a landmark Supreme Court ruling on campaign finance law expected within days, a series of other court decisions is reshaping the political battlefield by freeing corporations, unions and other interest groups from many of the restrictions on their advertising about issues and candidates. Legal experts and political operatives say the cases roll back campaign spending rules to the years before Watergate. The end of decades-old restrictions could unleash a torrent of negative advertisements, help cash-poor Republicans in a pivotal year and push President Obama to bring in more money for his party." The "series of other court decisions" is not identified by name.
Click here to read the entire post.
Monday, January 04, 2010
Politics Magazine: The Passion of McCain-Feingold; Under attack from all angles, campaign finance legislation is dying a painful death
From Politics magazine comes this piece about "about the killing of McCain-Feingold. While McCain and Feingold—and their many supporters—are still fighting, they have seen the dream dying. Any campaign finance expert will tell you that in the past three years there has been an unmistakable trend in the courts away from defending their legislation to taking it apart piece-by-piece, provision-by-provision."
Click here to read the entire post.
Friday, January 01, 2010
NPR: First Up For High Court In 2010: Campaign Finance
NPR has this report on the decision pending in the Citizens United case: "When the Supreme Court reconvenes in January, the first big case it is expected to decide could redefine the role of corporations in financing federal campaigns. The decision is expected to reflect the will of the conservative justices, who remain in the driver's seat on the high court." But NPR joins a long list of media outlets that have failed to accurately report the case. According to NPR: "The case's outcome will determine corporations' ability to make political contributions to specific candidates in an election. It hinges on the assertion that corporations have First Amendment rights." The case has nothing to do with political contributions to specific candidates. The case is about corporate independent expenditures. Contributions are not at issue. Nor is the issue of whether corporations have First Amendment rights. While a Justice could certainly raise the issue (perhaps in a separate opinion), the Supreme Court ruled long ago that corporations do in fact have First Amendment rights.
Click here to read the entire post.
Wednesday, December 30, 2009
USA Today: 'Why the delay' on Supreme Court's campaign-finance case?
USA Today has this piece on the Citizens United case: "It is impossible to know what is holding up the case that pits free speech values against the potentially corruptive effect of big money in elections. The justices draft their opinions in private. Only after they release a decision can clues be gleaned from the opinions about negotiations. Among factors that can hold up a case: an escalation in dueling opinions by justices or a key justice changing a vote or reconsidering the breadth of a draft decision."
Click here to read the entire post.
Thursday, December 17, 2009
Department of Justice Will Not Seek Supreme Court Review of EMILY's List Decision
The Obama Administration will not seek Supreme Court review of the D.C. Circuit's decision in EMILY's List v. FEC. The Attorney General explained that decision in this letter to Speaker Pelosi. As he explains, the full D.C. Circuit, sitting en banc, will hear the same constitutional issues on January 27, 2010, when it hears SpeechNow.org. v. FEC, and the decision in that case is likely to provide a more definitive view of the EMILY's List decision. (The full court could even reject the EMILY's List decision.)
Click here to read the entire post.
Wednesday, December 16, 2009
CCP: A ten point plan for reformers on Citizens United messaging
The Center For Competitive Politics has this blog piece on campaign finance "reformers" and their Citizens United media strategy.
Click here to read the entire post.
Monday, December 14, 2009
No Citizens United Decision Until 2010
Late last week, the Supreme Court announced that it would not issue any more opinions this year - meaning a decision in the Citizens United case must wait until 2010. As Politico reports, "The U.S. Supreme Court has put off until next year a ruling that could remake the political landscape for the 2010 midterm elections, and that’s making things tricky for those eagerly awaiting the decision, including political professionals, regulators, advocacy groups and even the White House. The case in question, which was brought by the conservative non-profit group Citizens United against the Federal Election Commission, challenges decades of law limiting corporate and union spending on elections. It could fundamentally reshape how money gets raised and spent, and spur a renewed effort to limit the flow of money into politics, which advocates for tougher restrictions predict will have President Barack Obama’s backing."
Click here to read the entire post.
Friday, December 11, 2009
Wash. Post Editorial Urges Supreme Court to Strike Down "Honest Services Fraud" Law
According to the Post's editors, "A 28-word passage in federal law makes it a crime to "deprive another of the intangible right of honest services." This is true even if the perpetrator has not directly pocketed taxpayer dollars or financially defrauded his company. The law is so vague that most people would have no idea what behavior is prohibited. . . . Criminal statutes should be clear, putting everyone on notice about which behaviors will run afoul of the law. The honest-services law fails this simple but important test and should be struck down."
Click here to read the entire post.
Wednesday, December 09, 2009
LA Times: Supreme Court critical of 'honest services fraud' law
The Los Angeles Times has this report on yesterday's arguments at the Supreme Court: "The Supreme Court gave a highly skeptical hearing Tuesday to government lawyers defending the key anti-corruption law that makes it a crime for officials to deprive the public of their 'honest services.' In recent years, prosecutors have used the law to convict politicians, lobbyists and corporate executives of fraud, even when there is no proof that they pocketed money or took a bribe. But the law appeared to be in danger of being struck down entirely -- or scaled back to cover only kickbacks and bribes. Throughout the two-hour arguments, the justices took turns suggesting that the law was too vague and open-ended and that it failed to spell out what was a crime." More from the Washington Post.
Click here to read the entire post.
Tuesday, December 08, 2009
WSJ: Campaign-Finance Ruling Looms
The Wall Street Journal has this report on the Citizens United case - expected to be announced very soon. From the Journal: "Montana voters, fed up with the grip of out-of-state mining interests on local politicians, passed an initiative in 1912 banning corporate spending on candidates for state office. As soon as Tuesday, that law -- and similar ones in nearly half the states -- could be struck down by the U.S. Supreme Court for infringing corporations' free-speech rights."
Click here to read the entire post.
Monday, December 07, 2009
NY Times: Justices to Weigh Honest-Services Law
From the New York Times: "An unusual coalition of groups has come together to criticize the federal government’s increasing reliance on a statute that is commonly used but little understood: honest-services fraud. The honest-services law, on the federal books since 1988, broadly requires that public and corporate officials act in the best interests of their constituents or employers. It has become an important tool for federal prosecutors, who used it successfully against the lobbyist Jack Abramoff and many of his associates. It is an element of the cases against former Gov. Rod Blagojevich of Illinois; the former New York State Senate majority leader, Joseph L. Bruno; and former Gov. Donald E. Siegelman of Alabama. . . . But critics say it is used too broadly, is applied inconsistently, and too often criminalizes behavior that fails to merit the full weight of federal prosecution. The Supreme Court will hear three cases concerning the honest-services law in this term, with two coming up for oral argument on Tuesday."
Click here to read the entire post.
Sunday, November 29, 2009
LA Times: Supreme Court to take up anti-corruption law; Some say a ruling against the ban on 'honest services fraud' would take away one of the best weapons against public officials who use their positions to gain money, gifts or favors.
The Los Angeles Times' David Savage has this report on the December 8 oral arguments in two cases challenging the federal "honest services fraud" statute. Savage writes, "The nation's most potent law against public corruption is in danger of being scaled back or struck down by the U.S. Supreme Court.
At issue is a ban on "honest services fraud," often used to prosecute public officials who accept money, free tickets, or jobs for relatives when bribery cannot be proved.
Patrick M. Collins, formerly a top anti-corruption prosecutor for U.S. Atty. Patrick J. Fitzgerald in Chicago, said that in his region, 'every major public corruption case in the last 10 years relied heavily on an 'honest services' charge.' . . . . [T]he justices agreed to hear two appeals that call for paring back the law.
In the first, Conrad Black, the jailed newspaper executive, argues that he cannot be held guilty of honest-services fraud unless it can be shown that he intended economic harm to Hollinger International Inc., the company he once headed.
In Weyhrauch vs. the United States, a former Alaska legislator says that he cannot be found guilty of fraud for failing to disclose that he had sought work with an oil services firm before he left the Legislature. Republican Bruce Weyhrauch did not get a job with the firm, but he did cast a vote in favor of the firm's position on a tax bill."
Click here to read the entire post.
Tuesday, November 17, 2009
USA Today: Supreme Court ruling could play in 2010 governor's races
USA Today makes an observation that has been generally overlooked by the the media. If the Supreme Court overturns the Austin decision when it decides Citizens United v. FEC, it is not only federal campaign finance law that would be impacted. State laws restricting independent corporate spending in state elections would also be thrown out. Explains USA Today: "If the Supreme Court opens the door to more corporate money in political campaigns, it could affect laws in nearly two dozen states and a host of governor's races next year, including high-profile contests in Texas and Connecticut, experts say. Twenty-two states ban corporate spending in state candidate races, and gubernatorial contests are underway in 17 of them. Fourteen are rated as competitive by election handicappers, such as The Cook Political Report."
Click here to read the entire post.
Sunday, November 15, 2009
San Fran. Chronicle Editorial: A serious challenge to campaign laws
The San Francisco Chronicle has this editorial on the pending Citizens United case. "Advocates of meaningful campaign finance laws are waiting with great trepidation for the U.S. Supreme Court to rule in a case that challenges a 60-year-old ban on corporate contributions to candidates for federal office. . . . Common Cause and Public Campaign are bracing for the worst from the Supreme Court in the Citizens United case - while hoping that a ruling against corporate limits might add momentum to their push for a system of public financing for all federal elections. They are backing the Fair Elections Now Act, sponsored by Sen. Dick Durbin, D-Ill., and Rep. John Larson, D-Conn., which would set up a system for public financing of campaigns."
Click here to read the entire post.
Monday, November 09, 2009
Common Cause Lobbies The Media In Advance of Supreme Court Ruling in Citizens United v. FEC
Common Cause has stepped up its efforts to shape media coverage of the Supreme Court's pending decision in Citizens United v. FEC, in which restrictions on corporate political spending are at stake. Common Cause released this "report" on October 29 titled "Corporate Democracy: Potential fallout from a Supreme Court decision on Citizens United." If the Supreme Court strikes down the corporate spending restirctions, Common Cause worries that "Such a dramatic decision would further reduce trust in government policymaking and take our country in the wrong direction. It is hard to imagine how America can achieve real progress and
tackle critical challenges – like health care, climate change and the economy – when our elected representatives are locked in an all-out fundraising arms race that makes them both more
dependent on and vulnerable to the powerful special interests opposed to change."
Click here to read the entire post.
Monday, November 09, 2009
Seattle Post Intelligencer: U.S. Supreme Court could be next stop for R-71
From the Seattle Post Intelligencer: "Washington voters upheld a new law last week that greatly expands gay rights, but the legal questions that arose from Referendum 71 may not be resolved for months. A conservative group is asking the U.S. Supreme Court to block the public release of the names of the 138,000 people who signed petitions in hopes of overturning the "everything but marriage" same-sex domestic partner law. Gay rights groups have said they'll post the names online, and some petition signers fear harassment or threats if their identities are revealed. . . . The Supreme Court justices, who ruled 8-1 to reinstate a court order blocking the release of names, must now decide whether to hear the case. That decision might not come until the summer."
Click here to read the entire post.
Wednesday, November 04, 2009
Public Campaign & Common Cause Memo on Citizens United
Reuters posts this "editorial memo" from representatives of Public Campaign and Common Cause, on the possible outcomes of the Citizens United case. The interest groups also discuss the policy response options, and conclude that public funding of campaigns is the best response.
Click here to read the entire post.
Tuesday, November 03, 2009
EMILY's List Update From SCOTUSBlog
SCOTUSBlog notes, "The D.C. Circuit Court’s deeply controversial ruling in September, removing federal restrictions on high-volume spending in federal elections by non-profit advocacy groups, is not going to be challenged further in the Circuit Court. Monday was the deadline for parties to seek en banc review by the full Court of the panel ruling in the EMILY’s List case, but U.S. Solicitor General Elena Kagan will not seek it, concluding that she has no authority to do so. She still has the option, in coming weeks, of asking the Supreme Court to hear it, however."
Click here to read the entire post.
Wednesday, October 28, 2009
Politico: FEC puts Obama in a bind
Now that the FEC has announced that it won't seek further review of the EMILY's List decision, does the Obama Administration, through the Solicitor General, ask the Supreme Court to take the case?
Politico explains the political issues behind this question: "The Federal Election Commission has presented the Obama administration with the choice between standing behind President Barack Obama’s campaign rhetoric or possibly threatening one of his pet causes – and maybe his reelection chances, not to mention highlighting his differences with his own lawyer, rumored to be under consideration for a top White House post."
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Monday, October 26, 2009
Eliza Carney, National Journal: A World Without Rules; Opponents Of Campaign Finance Rules Are Moving On Multiple Fronts
Eliza Carney writes on the state of campaign finance law in the courts: "The Supreme Court appears poised to reverse a century-old ban on direct campaign expenditures by corporations large and small. A federal appeals court has rejected Federal Election Commission rules that restrict spending by non-party political groups, such as so-called 527 organizations -- a move that the FEC is prepared to let stand. And two other cases challenging the existing limits on soft (unregulated) money and on independent campaign expenditures are wending their way up to the Supreme Court." (Carney wrote a very similar piece in May.)
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Monday, October 26, 2009
Los Angeles Times: Gay marriage fight fuels debate over petitioners' rights; Gay rights advocates have sought to use petition signatures to expose their opponents, which raises the question: Is signing a petition a public or private act?
The Los Angeles Times has this report on the ongoing battle over petition signature privacy - "The fierce fight over same-sex marriage in California and elsewhere is creating pressure to recognize a new free-speech right that could keep petition signatures secret.
The Supreme Court voted last week to block release of the names of more than 138,000 people in Washington state who signed petitions seeking to repeal a same-sex domestic partner law in a ballot scheduled for Nov. 3.
The Supreme Court's intervention set off a broad debate among election-law experts and 1st Amendment scholars over what is private and what is public when it comes to politics."
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Friday, October 23, 2009
The Left Looks Beyond Citizens United
The Brennan Center's Ciara Torres-Spelliscy has written this op-ed in Business Week, which provides us with a preview of what to expect if the Supreme Court's pending ruling in Citizens United v. FEC frees corporations to engage in more political spending. Ms. Torres-Spelliscy argues for an end-run around such a ruling - "U.S. securities laws should be rewritten to protect shareholder interests. . . . What might a shareholder protection law look like? It could be modeled on the British approach. A law passed in 2000 requires British companies to get shareholders' permission to make political expenditures and must report the spending in their annual reports. Here's how it works: Corporations annually disclose every political expenditure of at least $3,000, naming the recipients. They must obtain prior shareholder approval, usually at the annual meeting, to spend more than $8,000 on political campaigns in the following year or so (no recipient names required). If the resolution fails, no dice. Any directors who make unapproved corporate donations are personally liable for the amount spent." In other words, these "reformers" would set up various roadblocks to corporate political spending, with the hope that many just won't bother.
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Thursday, October 22, 2009
Senators McCain and Feingold Spoke From Senate Floor Yesterday on Campaign Finance Law and the Citizens United Case
According to Roll Call, "sponsors of the Bipartisan Campaign Reform Act of 2002 rejoined on the Senate floor Wednesday afternoon to warn the judicial branch not to strip away corporate restrictions on political activity."
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Wednesday, October 21, 2009
New York Times: Justices Uphold Ban on Releasing Names on a Petition
The New York Times reports "The Supreme Court on Tuesday upheld an order preventing Washington State from releasing the names of more than 120,000 people who signed petitions seeking a voter referendum on whether to give same-sex couples most of the same rights as married couples.
The 8-to-1 decision, with Justice John Paul Stevens dissenting, upheld a recent ruling in Federal District Court in Washington that was overturned last week by the United States Court of Appeals for the Ninth Circuit.
The order by the Supreme Court said the injunction against releasing the names would remain in place at least until parties involved filed new motions. That process could take months and essentially assures that the names will remain anonymous through the Nov. 3 referendum."
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Tuesday, October 13, 2009
Politico: Campaign finance laws face a reset
Politico has this op-ed/report on the current lack of clarity in campaign finance law. Politico explains, "A series of court decisions expected this fall could put the nation on track to return to turn-of-the-century campaign finance laws." Also included is this telling preview of what we can expect from the media if opponents of campaign finance regulations are victorious in the coming months: "The loosening of the rules will inevitably lead to more campaign finance scandals, which have always made for good journalism."
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Tuesday, October 13, 2009
Adam Liptak (NYT) on the Federal "Honest Services" Law
Adam Liptak has this column in the New York Times on two pending Supreme Court cases regarding the federal "honest services" law, which makes it illegal for public officials "to deprive another of the intangible right of honest services.”
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Tuesday, October 06, 2009
Allison Hayward: Ban on small-business political bucks is unconstitutional
Allison Hayward has this op-ed in the Washington Examiner: "In the reargument of Citizens United v. Federal Election Commission, several Supreme Court justices made note of the contested history of the corporate and labor expenditure ban. In part they drew from my work in this area, which shows that the cited history on which modern campaign finance restrictions generally rest is misleading in important ways."
Click here to read the entire post.
Tuesday, September 22, 2009
Brad Smith: Citizens United: The Reform Community Reverses Itself on the Importance of Precedent
Over at the Center for Competitive Politics, Brad Smith has this posting on the "reform" community's on-again, off-again relationship with judicial precedent and restraint. According to Smith, "until very recently many of these same reform advocates were big fans of an active judiciary that would ignore precedent in the realm of campaign finance law."
Click here to read the entire post.
Tuesday, September 22, 2009
New York Times Editors Try New Argument in Citizens United Case
With their preferred campaign finance law arguments not expected to carry the day in the Citizens United case, the New York Times editors have gone back to the drawing board with this editorial on the basic rights of corporations.
The Times editors write, "The question at the heart of one of the biggest Supreme Court cases this year is simple: What constitutional rights should corporations have? To us, as well as many legal scholars, former justices and, indeed, drafters of the Constitution, the answer is that their rights should be quite limited — far less than those of people."
Click here to read the entire post.
Thursday, September 17, 2009
Ben Barr: Will S.G. correct the government's book banning mistake?
Ben Barr, at the Center for Competitive Politics, wonders when the Solicitor General will correct the record by informing the Supreme Court that she mispoke when she said the FEC had "never" pursued an enforcement case against a book. (We noted this misstake earlier.)
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Tuesday, September 15, 2009
Rick Hasen's Advice For Liberals Litigating Election Law Cases
Rick Hasen, the oft-quoted law professor and keeper of the Election Law blog, advises his fellow liberals on how best to keep losing in court.
Click here to read the entire post.
Monday, September 14, 2009
Los Angeles Times editorial: Changing political money; There's a middle ground open to the Supreme Court in a key case on corporate/union campaign speech.
The Los Angeles Times has this editorial on the Citizens United case, and notes that "alarms about what the court might do are overstated." The Times also notes, refreshingly, that even if the Supreme Court overturns its Austin decision, "unions and corporations would be forbidden, as they have been for generations, from contributing directly to election campaigns."
Click here to read the entire post.
Monday, September 14, 2009
L. Gordon Crovitz: Free Speech, Now that Speech Is Free; Political campaign regulations are silly in the age of YouTube.
L. Gordon Crovitz has this op-ed in the Wall Street Journal. Writes Crovitz, "McCain-Feingold, passed in 2002, limited spending on political advocacy by corporations and unions. In the era of YouTube and Facebook, the notion that anyone or any institution can dominate political debate is quaint at best. . . . The Constitution was drafted at a time when there were few media outlets, and few people could be heard. Since then, technology has made it possible for everyone to express their views. The cost of expressing opinions continues to fall. Now that speech is no longer expensive, it's time to return to the Founders' intention that speech be free and that Congress not abridge anyone's right to speak."
Click here to read the entire post.
Sunday, September 13, 2009
Jeffrey Rosen on John Roberts and the Citizens United Case
The New York Times has this op-ed by Jeffrey Rosen ("The Trial of John Roberts"). Rosen argues that the Citizens United case may forever define Chief Justice Roberts' legacy.
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Friday, September 11, 2009
George Will: It's time to rethink McCain-Feingold; Regulations controlling political speech inevitably multiply and become increasingly indecipherable and unpredictable.
George Will's most recent column.
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Friday, September 11, 2009
What Happened to Public Citizen's "Don't Get Rolled" Protests?
In August, we noted that Public Citizen was trying to organize a "Don't Get Rolled" campaign to protest the Citizens United case the day the Supreme Court heard arguments. We Googled today, and found only one report of protests. There is photographic evidence of 3 protesters in Boise and 6 protesters in Hamilton, NY. And we have written evidence of 9 protestors in Austin. What happened? Was it all just a publicity stunt?
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Friday, September 11, 2009
New York Times Editorial: The Court and Campaign Finance
This New York Times editorial begins: "In the Supreme Court this week, Elena Kagan, the new solicitor general, eloquently defended the longstanding ban on corporate spending in political campaigns. But the conservative justices who spoke showed a disdain for both Congress’s laws and for the court’s own prior rulings. If the ban is struck down, as we fear, elections could be swamped by special-interest money." Nothing new here. But the editorial closes with this: "The underlying dispute is a narrow First Amendment challenge brought by Citizens United, a nonprofit group that wanted to show an anti-Hillary Clinton movie on a video-on-demand service during the primary season. The court could uphold its right to show the movie without opening the door to a new era of political corruption." Interesting - no such concession appears in prior Times editorials.
Click here to read the entire post.
Wednesday, September 09, 2009
A Few Thoughts On The Citizens United Hearing, and the Media Reports
The oral argument is sure to be heavily analyzed by others. Here are a few early thoughts however, along with the initial media reports.
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Wednesday, September 09, 2009
Supreme Court To Hear Citizens United Case, 10:00 a.m.
The Supreme Court will hear oral arguments in the Citizens United case this morning, beginning at 10:00 am. Arguments are scheduled for 80 minutes. Shortly after the hearing ends, the audio of the arguments will be released.
Click here to read the entire post.
Wednesday, September 09, 2009
Reuters: U.S. court considers corporate spending on elections
From Reuters: "The Supreme Court returns on Wednesday to consider ending long-standing limits on corporate and union spending in political campaigns -- a move critics say could give big money more influence over U.S. elections." And via ABC News, new, can't miss Wertheimer hyperbole.
Click here to read the entire post.
Tuesday, September 08, 2009
Citizens United Articles & Op-eds, Tuesday (9/9)
Articles and op-eds from around the web on the Citizens United case, which the Supreme Court will (re)hear tomorrow, Wednesday, September 9.
Click here to read the entire post.
Monday, September 07, 2009
CBS News, The Latest Media Outlet To Misunderstand The Citizens United Case
CBS News has this article ("Sonia's Featured Role in 'Hillary: The Movie'") on Citizens United. According to the article, "The case is a big one, but the question at its core is simple: Does the First Amendment distinguish between campaign contributions from individuals and those of corporations?" Of course, it's not so simple. The case has nothing to do whatsoever with contributions. A part of the case concerns whether the government may prohibit corporations from making independent expenditures, which individuals currently may make in unlimited amounts.
Click here to read the entire post.
Sunday, September 06, 2009
More Citizens United Articles
From the Washington Times ("Justices take on challenge to campaign laws"), two from the AP ("What groups are telling court about 'Hillary' case" and "Hillary movie puts campaign finance limits at risk"), one from the National Law Journal ("Lots of buzz, but does FEC have a shot?") and one from CNN ("Analysis: Lines drawn as campaign finance case nears").
Click here to read the entire post.
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