In the News
Adler & Colvin: Top 25 Comments on IRS Proposed Political Activity Rules: #13 — Center for Competitive Politics
By Martha Lackritz
The Center for Competitive Politics submitted thorough comments that address multiple constitutional concerns, and include their very own proposed rules for consideration by the IRS. CCP’s rules outline clear-cut expenditure limits for 501(c)(4)s, providing that non-social welfare activities (including candidate, social club, or business activities) must not “equal or exceed 50% of total program service expenses.”
CCP’s guiding standard in these comments is Buckley v. Valeo, the 1976 Supreme Court case that interpreted the validity of campaign expenditure limits under the Federal Election Campaign Act, among other things. The Court in Buckley narrowly defined political expenditures as funds spent to disseminate a viewpoint by “expressly calling for a candidate’s election or defeat” using specific word combinations — what is now commonly referred to as “express advocacy.” CCP’s proposed rules similarly define political activity as expenditures for communications using express advocacy.
Reason Foundation: Minority Television Project, Inc. v. Federal Communication Commission and United States of America
Nowhere is this conflict more dangerous than when the content-based restriction prohibits public discourse including, but not limited to, speech regarding political candidates and matters of public interest, because “public discussion is a political duty.” Despite Red Lion, under recent precedent, the greater deference afforded to broadcast content-based regulations does not apply when political or public issue speech is at issue.
These conflicting precedents leave lower courts and litigants struggling to ascertain the level of scrutiny applicable to content-based restrictions that prohibit or limit political or public issue speech on the broadcasting medium – strict scrutiny as required under a content-based or political speech approach, or intermediate scrutiny as applied under a medium of expression approach? By granting certiorari, this Court has an opportunity to reconsider Red Lion and its progeny and ensure that all mediums of expression are afforded the same level of First Amendment protection with respect to content-based restrictions, especially those that limit political or public issue speech. The nature of the speech at issue in this case – political and public issue speech – makes this Court’s review all the more urgent.
CCP
Disclosure, hypocrisy, and hyperbole in campaign finance
By Brad Smith
Let us start with the obvious – it is certainly true that in recent years that a great many in the pro-speech community – including me, and I think we can safely say, Bopp and Samples – have become increasingly critical of unchecked compulsory disclosure. But contrary to what Schultz says, speech advocates were never all-in for anything that David Schultz or other reformers might think people should be forced to disclose under penalty of law. I never recall broad disagreement – or indeed any disagreement at all – among speech advocates with the proposition that NAACP v. Alabama, NAACP v. Button, Bates v. Little Rock, Talley v. California, or Buckley v. Valeo were rightly decided in limiting the state’s right to compel disclosure of memberships and financial support for organizations that were not campaign committees or did not have the principle purpose of supporting candidates for office. I know of no piece by any thinker on the pro-speech side of these debates critical of Thomas v. Collins, or even a case such as Brown v. Socialist Workers ’74 Campaign Committee. Compulsory disclosure has always been a difficult issue.
Amicus Brief: Justice v. Hosemann (Fifth Circuit)
Amicus Brief: Minority Television Project, Inc. v. Federal Communication Commission and United States of America
Brief Amicus Curiae of Reason Foundation, Citizens United, Atlantic Legal Foundation, Center for Constitutional Jurisprudence, Individual Rights Foundation, Northwest Legal Foundation, Mackinac Center for Public Policy, Goldwater Institute, Center for Competitive Politics, Cause of Action, and Southeastern Legal Foundation
SCOTUS/Judiciary
Wyoming Liberty: WyLiberty Attorneys File Brief Highlighting Government Secrecy
CHEYENNE – Wyoming Liberty Group attorneys filed a supplemental brief with the United States Supreme Court today in the case Free Speech v. Federal Election Commission (FEC), discussing recent events at the FEC and how they should impact the Court’s review of Free Speech’s case.
“Since this case began nearly two years ago, the FEC has insisted that our clients are complaining about simple campaign disclosure and that the laws governing disclosure are coherent, but that’s simply not true,” said Benjamin Barr, lead counsel to Free Speech. “In fact, the FEC often makes its rules up as it goes along, only to change interpretations months later. If the nation’s expert in election law can’t figure this out, how can our clients possibly do so?”
Candidates, Politicians, Campaigns, and Parties
Huffington Post: There Is One Campaign Finance Regulation That Rand Paul Supports
By Paul Blumenthal and Sam Stein
“I think there is campaign finance reform — this is campaign finance reform that I support that would be held constitutional — what I would do is I would take all government contracts and I would put a clause in them that says: ‘If you want to do work with the government, if you’re going to get this 10 billion dollar contract if you’re a defense contractor, or if you’re a big union and you’re going to get a big contract, you sign the contract, but part of the clause of the contract says your contract is only valid if you don’t participate in the donation to candidates.'”
National Journal: Are Democrats Repeating Their Post-Citizens United Mistake?
By Shane Goldmacher
“We are moving forward on a joint fundraising agreement with the NRSC and NRCC so we can maximize our donations to help candidates win in November,” said Kirsten Kukowski, a spokeswoman for the RNC.
Democrats have created no such vehicle to coordinate between the party’s three key committees yet, and there are no imminent plans to do so.
FEC
FEC: FEC Deploys Upgraded, Expanded Website Search Engine
“The enhanced system will deliver more comprehensive and faster results to website users searching for campaign finance data and Commission information,” said Chairman Lee E. Goodman. “The deployment of this upgraded search engine is part of a broader effort at the Commission to continually improve the transparency of agency activity, provide disclosure of campaign finance data and broaden access to other information in an effort to educate the public.”
The new search engine, called FEC Search, can access different agency databases on the FEC website simultaneously including campaign finance reports, closed enforcement matters, advisory opinions and open meeting information. In contrast to the previous system, which did not encompass separate databases such as the Campaign Finance Disclosure Portal and the Rulemaking Search System, FEC Search can access information from most sections of the FEC website.
CPI: FEC sends senators erroneous warnings
By Dave Levinthal
The Federal Election Commission has issued 21 U.S. Senate candidates — both Democratic and Republican — threatening letters that question why they didn’t file their latest round of campaign reports.
“Failure to timely file this report may result in civil money penalties, an audit or other legal enforcement action,” read the letters, dated April 22.
State and Local
Colorado –– Denver Post:Citizens United plans political film on Colorado, Gov. Hickenlooper
By Lynn Bartels
Michael Boos, legal counsel and vice president for Citizens United, has asked the secretary of state to issue a declaratory order confirming that the upcoming film is excluded from the definitions of “electioneering communication” and “expenditure” under Colorado campaign finance laws. If Citizens United were included, then it would have to reveal its donors.
It has asked Secretary of State Scott Gessler to consider it a media outlet and therefore not subject to campaign finance laws.
