In the News
Washington Post: Separation of campaign and state
By PROF. BRADLEY A. SMITH
If this seems like a formula for some judicial schizophrenia, it is. It is difficult to reconcile “political expression [is] at the core of … the First Amendment,” Buckley,such that “protection of robust discussion is at its zenith,” Meyer v. Grant, with the notion that Congress has “broad authority” to regulate campaign speech, Nixon v. Shrink Missouri Government PAC (Breyer, concurring). We should note here that campaign finance is by no means the only issue in play. The Court has also had to deal with regulation of political party organization, allegedly false campaign speech (including the pending Susan B. Anthony List v. Driehaus), and more. But campaign finance cases have been the most consistent and controversial part of the Court’s campaign regulatory diet.
Given the conflicting dictates of maximum protection and broad authority to regulate, it is not surprising that the Court’s campaign finance jurisprudence has waxed and waned. After more than 50 years of dodging the issue, the Court’s 1976 Buckleydecision adopted a tone highly skeptical of government regulation, but nevertheless allowed extensive government regulation of core political speech, even as it attempted to cabin that regulation. Early post-Buckley decisions, most notably the forerunner toCitizens United, First National Bank of Boston v. Bellotti, retained that skeptical tone, but by the mid-1990s the Court was increasingly deferential to regulatory schemes. This “new deference” culminated in the lackadaisical 2003 decision in McConnell v. Federal Election Commission, which checked off on unprecedented campaign regulation and suggested it wouldn’t apply much scrutiny if Congress wanted to regulate still further.
Washington Post (Volokh): Introducing guest blogger Professor Bradley Smith
By EUGENE VOLOKH
Smith is also the founder and chairman of the Center for Competitive Politics in Alexandria. Smith is the author of “Unfree Speech: The Folly of Campaign Finance Reform” (Princeton 2001) and co-author of the casebook “Voting Rights and Election Law” with Michael Dimino and Michael Solimine. The New York Times has called him “the “intellectual powerhouse [of the] campaign … to roll back Watergate-era campaign finance restrictions,” and his work has been cited repeatedly in Supreme Court opinions, as well as in lower court opinions.
In his new article, Smith argues that recent decisions by the Roberts Court striking down campaign finance restrictions and elements of government-funded campaign systems are welcome developments but, at least in the latter case, based on unsound legal theory. Smith argues that the court should move further, adopting a robust doctrine of “separation of campaign and state” akin to the separation of church and state or the separation of military and civilian authority that are not expressly in the Constitution, but have been adopted by the court through case by case adjudication of the Constitution’s express provisions.
Politico: THE FIGHT FOR THE FEC’S CROSSROADS GPS REDACTIONS
THE FIGHT FOR THE FEC’S CROSSROADS GPS REDACTIONS: National Journal’s Shane Goldmacher: “The Center for Competitive Politics, a group that pushes to roll back campaign finance restrictions, said Friday that it had filed a records request to the Federal Election Commission for a controversial redacted document in a case about whether Crossroads GPS was a legitimate nonprofit. The group suggested it might take legal action if the document isn’t released.” http://bit.ly/1fWB0CL
IRS
Wall Street Journal: The IRS Reconsiders
Editorial
Mr. Koskinen said none of this is likely to happen before the end of the year, meaning the Congressional elections are beyond the reach of the draconian restrictions. That will be a relief to the NAACP, which wrote in its public comment that much of its work fighting racial discrimination “would be illegal under the proposed regulations.” Much of the group’s grass-roots organizing would be “counted as ‘candidate-related political activity,’ with the result that most branches and conferences would lose their tax-exempt status.”
The political shame is that the IRS was going full-speed ahead on the rule as long as conservative groups objected. Only after the Administration’s political allies figured out the danger did the agency and White House begin to have second thoughts. The rethink is progress, but House Republicans should still promise to slash the IRS budget next year if the taxman doesn’t drop the rule once and for all.
Independent Groups
CSPAN Washington Journal: Future of Campaign Finance
Donald McGahn and Brenda Wright talked about the future of campaign finance. On April 2, 2014 the Supreme Court delivered its opinion in McCutcheon v. FEC, which focused on campaign finance rules and caps on campaign funding. Among the issues addressed in the case were political influence exerted by wealthy donors, appropriate limits to aggregate campaign spending, and various means of campaign spending.
SCOTUS/Judiciary
Washington Post: In politics, money is speech
By Robert J. Samuelson
Campaign finance “reform” aims to fix a problem that doesn’t really exist. It not only has failed but has actually made the situation worse. In Buckley v. Valeo, the court had to embrace some rationale for its acknowledged limits on First Amendment rights. The chosen reason was preventing “corruption or the appearance of corruption.” So advocates and the courts must constantly repeat that the present system is “corrupt.” Meanwhile, the law’s various limits force people who want to spend above the limits into increasingly complex evasions that look sleazy and defy the spirit of the law. But the fault lies with the law, not the people. The sooner it goes, the better.
CPI: More than a dozen states could throw out donation caps after McCutcheon ruling Repeal laws ‘or be sued’ conservative lawyer Jim Bopp says
By Michael Beckel
At least eight states — and possibly as many as 20 — could see similar laws overturned, depending on how regulators, government officials and judges interpret the McCutcheon ruling.
Huffington Post: The Only Form Of Corruption The Supreme Court Cares About Is Almost Impossible To Prosecute
By Paul Blumenthal and Ryan J. Reilly
Even when someone alleges quid pro quo corruption — basically outright bribery — against them, federally elected politicians are very unlikely to be prosecuted thanks to another provision of the Constitution: the speech or debate clause.
That clause states that any “speech or debate” in the House or Senate by a member of Congress “shall not be questioned in any other place.” It is part of the same section that bars arresting members of Congress at or on their way to and from the Capitol, which is intended to stop the executive from interfering with the legislative process. In 1971, Sen. Mike Gravel (D-Alaska) relied on the speech or debate clause for protection when he entered the Pentagon Papers into the Congressional Record.
But the same clause also makes it nearly impossible for law enforcement investigators to obtain access to congressional materials that could implicate a corrupt congressman or senator. And it essentially prevents prosecutors from introducing into evidence anything that a member of Congress did as part of his or her official duties. That means laws, bills and floor speeches cannot prove corruption.
Disclosure
Wall Street Journal: Brow(ser) Beaten
By ALLYSIA FINLEY
Mozilla ex-CEO Brendan Eich has been publicly crucified because he donated $1,000 to a 2008 California ballot measure (Proposition 8) that banned same-sex marriage (and has since been struck down). The software entrepreneur was forced to step down on Thursday after same-sex marriage proponents, including the co-founders of Rarebit and OkCupid, urged a boycott of the Mozilla Firefox web browser. Mr. Eich’s ouster seems to vindicate Supreme Court Justice Clarence Thomas, who warned in his 2010 Citizens United partial dissent about the chilling effects on free speech of campaign-finance disclosure laws.
California’s campaign-finance rules, which are among the most stringent in the nation, explicitly prohibit “anonymous contributions” in excess of $100. Prop. 8 donors who received death threats and other reprisals challenged this disclosure rule after their opponents targeted their homes and businesses. The directors of the non-profit California Musical Theater and Los Angeles Film Festival, who gave a combined $2,500 in support of the initiative, were ousted after opponents mobilized boycotts.
Real Clear Politics: Maher: “There Is A Gay Mafia — If You Cross Them, You Do Get Whacked”
FMR. REP. TOM DAVIS (R-VA): Because he gave $1,000 eight years ago and it’s come back to haunt him.
CARRIE SHEFFIELD, FORBES: Well, and he gave it when President Obama was still against gay marriage. So, I don’t think it’s very fair.
More Soft Money Hard Law: A Novel Proposal from Heather Gerken: Plus One More, Also from Yale
By Bob Bauer
What she and her co-authors now suggest is that 501(c)(4)s and other organizations not publicly reporting their finances be required to disclose that they do not disclose. Public opinion would do the rest: politics would be harnessed to fix politics. Suspicious that the advertisers won’t say who is paying for their messages, the audience would be mistrustful, the ads would have less value, and donors would have reason to doubt that their money is well spent. Money might then flow to messages financed by disclosing organizations. This mode of attack, Gerken et. al believe, might also help with the “whack-a-mole” problem: that regulators and lawmakers must chase ever-changing organizational forms, from “527” to 501(c) organizations. This new regulatory program would target the ads, irrespective of the type of sponsor. It is an original suggestion but not one likely to move the debate beyond the critical question of the role government should play in regulating political activity. Those most troubled by how far we might allow elected officials to go will not be pleased with the Gerken et. al proposal.
Tax Financing
BBC: Italy scraps state funding for political parties
The new system would avoid “the scandals of recent years”, Prime Minister Enrico Letta said.
FEC
Sacramento Bee: Dan Morain: Having the temerity to challenge Washington gridlock
By Dan Morain
You might assume that with a 3-3 deadlock, neither side would win. Not so at the FEC. Even though the commission’s lawyers believe the Republicans are mistaken, the GOP commissioners prevailed when a Democratic appointee evidently agreed to authorize the FEC to defend the lawsuit.
“The issue that troubles me is that the three Republicans are a minority. It is not the position of the commission. This was a non-decision,” Ravel said.
State and Local
California –– Reason: California Senate: Inside the Corrupt Reality of Government: Legislators in the Golden State make Breaking Bad seem mild by comparison.
By Steven Greenhut
SACRAMENTO — The only mild complaint against the critically acclaimed TV series Breaking Bad is that the premise is a stretch. It’s hard to imagine a straight-laced high-school chemistry teacher, after being diagnosed with lung cancer and struggling with money problems, becoming a kingpin in the crystal-meth underworld.
The 137-page affidavit in the federal corruption case just unveiled against a California senator makes clear that the show doesn’t stack up against reality. TV’s Walter White quickly became believable in his drug-dealing role, but who could ever imagine Sen. Leland Yee, the mild-mannered San Francisco Democrat, as an international arms dealer with links to mobsters?
