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Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
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Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Table of Contents
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Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Newspapers and Magazine Commentaries
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Search Results for: danielczyk
See this post at Inside Political Law.
Two Virginia businessmen, William Danielczyk and Eugene Biagi, pleaded guilty Feb. 26 to charges of violating campaign finance laws by funneling nearly $200,000 in corporate contributions to campaign committees of Hillary Clinton, the former senator from New York and secretary of state (U.S. v. Danielczyk, E.D. Va., Criminal No. 11-85, pleas entered 2/26/13).
Plea agreements signed in the case indicated that Danielczyk could face five years in prison as a result of the long-running criminal case, while Biagi faces probable probation and a fine. They are due to be sentenced May 17.
Danielczyk and Biagi agreed to plead guilty in an unexpected move on the day a trial was set to begin in their case in federal court in Alexandria, Va. The development came a day after the Supreme Court said it would not take up a challenge to the century-old federal ban on corporate campaign contributions, which stemmed from a pre-trial ruling in the case (U.S. v. Danielczyk, U.S. No. 12-579, cert. denied 2/25/13; 3456 Money & Politics Report, 2/26/13).
Bloomberg BNA reports on Danielczyk.
In Significant Action, Supreme Court Refuses to Hear Case to Allow Corporate Contributions Directly to Candidates
Via SCOTUSBlog comes the news that the Supreme Court, without comment, has denied cert. in Danielczyk v. U.S.,The decision not to hear the case is significant, because it means the Supreme Court majority, which has shown hostility to campaign finance limits, has decided not to move as aggressively as it could in further deregulating the campaign finance system.
The case raised the question (in the context of a criminal prosecution) whether corporations have a constitutional right to contribute money directly to candidates. The 2010 Citizens United case held that corporations have a constitutional right to spend money independent of candidates, but the opinion did not address corporate contributions to candidates (or contribution limits more generally). A number of campaign finance opponents argued that the logic of Citizens United compelled the conclusion that the corporate contribution limit should fall also. One problem with this argument in the lower courts is that the Supreme Court had held, in a case predating the Roberts Court’s skeptical approach to regulation, that the corporate contribution ban was valid [typo corrected]. Among other things the Court said that a corporate contribution ban prevented circumvention of individual contribution limits (after all, an individual could set up a large number of corporations to make contributions directly to candidates).
I successfully defended San Diego’s corporate contribution ban in the Thalheimer case before the 9th Circuit Court of Appeals. All of the other circuit courts reached the same conclusion: that the corporate contribution limit stands under earlier Supreme Court authority. Danielczyk case the only case to reach a contrary conclusion in the district court, but was reversed by the 4th Circuit to bring it in line with the other circuits.
Although there was no circuit split on this question (a common reason for the Supreme Court to agree to hear the case), the lower courts clearly expressed the opinion that the issue was foreclosed by earlier Supreme Court authority, and it would be up to the Supreme Court if it wanted to change the existing standard.
By not agreeing to hear Danielczyk, the Court leaves corporate contribution bans in place not only on the federal level, but under state and local law. It may be that after the Supreme Court decides the McCutcheon case, involving aggregate contribution limitations, that the standards for judging the constitutionality of contribution limit laws could change, making those laws harder to sustain. That could open up the corporate contribution limitation yet again. But in the meantime, the reform community dodged a bullet, because if the Court agreed to take Danielczyk, it almost surely would have been to reverse the Court’s earlier case on the question.
Yet another ray of light in an otherwise bleak campaign finance picture.
Bloomberg BNA on Danielczyk.
It turns out that Danielczyk has been relisted for Friday’s conference. (Thanks to a reader for calling this to my attention.) The Court could still put the case on hold for McCutcheon, or grant and hear the case net term as well, or deny cert. My betting at this point would be on the first or second, but not the third, option. We’ll see.
Today the Supreme Court agreed to hear the McCutcheon case challenging the limits on the total amount of aggregate contributions a person may make to candidates, party committees, and certain PACs. I thought this decision to hear the case was fairly likely, given that the case came up on appeal rather than on cert.—meaning a decision not to hear the case would mean that the Supreme Court agreed with the lower court ruling on the merits (something not true with a cert. petition—once again, the technical distinction between cert. petitions and appeals in election law cases moves the law forward more quickly).
How significant is this case? In some ways, in the era of Super PACs and c4s, the issues here are less burning than in years past. After all, while it is true that a person could not give, say, $2,600 to a candidate for each congressional office in a two-year period without running afoul of the aggregate contribution limits, that same person could give unlimited sums to Super PACs or c4s which could spend MUCH more than $2,600 per race from that person to support that candidate for office.
But the case has broader significance—this case will mark the first opportunity for the Supreme Court to say something about how it will review the constitutionality of contribution limits after the Citizens United case. CU involved independent expenditures by corporations, and the Court in CU expressly refused in that case to reconsider any of the law related to contributions. It is possible in this case, for example, that the conservative five Justices in CU set out a general standard for reviewing contribution limits which makes them harder to sustain against constitutional challenge. In the past, contribution limits were subject to a very complaisant standard of review, very easy to sustain against challenge. (The possibility that the Court could do this may explain why the Court has not ruled on the pending cert. petition in the Danielczyk case, challenging the constitutionality of the ban on direct corporate contributions to candidates. It could well hold this case for the outcome of McCutheon.)
More broadly, a decision to strike down aggregate contribution limits could lead the Court to overrule that portion of Buckley v. Valeo upholding aggregate contribution limits. This would be of enormous symbolic significance. Buckley has been the law since 1976, an uneasy compromise making independent spending limits very tough to uphold (upheld later against corporations in Austin, later reversed in CU), but contribution limits very easy to uphold. Striking part of the Buckley edifice could mean that more will fall, and that the Court’s general skepticism toward the constitutionality of limits already in play in the independent spending area could spread to contribution limits.
This would be the next logical progression of the Roberts court on these issues, ever since Justice Alito replaced Justice O’Connor. As I wrote in 2006 in No Exit? The Roberts Court and the Future of Election Law:
- Making predictions is always dangerous, and the conclusions I reach should be taken in the tentative spirit in which they are made. My best guess is that a decade from now, we may well face a set of election law rules that differ a great deal from today’s rules. It may be that in 2016, individuals, corporations, and unions will be free to give as much money as they want to any candidate or group, subject to the filing of disclosure reports. The federal government’s ability to protect the voting rights of minority groups that historically have been the victims of state discrimination may be curtailed by the inability of Congress to require any jurisdictions to submit their voting changes for preclearance and by an emasculated reading of Section 2 of the Voting Rights Act. The ability of states to manipulate election rules for partisan gain may present the greatest danger as the Court exits from that corner of the political thicket. For those who look to courts for the promotion of political equality, the signs are not encouraging.
the order won’t come before Tuesday at 9:30 am.
If I had to make a prediction, I’d predict that the Court takes the McCutcheon case involving the aggregate contribution limit but not the Danielczyk case, about the constitutionality of the ban on direct corporate contributions to candidates. McCutcheon is coming up on appeal and not cert, and a decision to not hear the case counts as a ruling on the merits. Also, there’s no circuit split on the corporate contribution case, and there’s a strong anti-circumvention argument against allowing corporate contributions: an individual could easily evade the individual contribution limits through setting up an unlimited number of corporations to make additional contributions.
How confident am I in this prediction about what the Court will do? Not very.
[This post has been updated.]
The NLJ reports (article currently behind paywall; UPDATE: now freely available). In the article I make predictions about whether the Court will take Danielczyk and McCutcheon.
Bloomberg BNA: “The Supreme Court is set to consider next month whether to grant review of a constitutional challenge to the century-old ban on corporate campaign contributions (Danielczyk v. U.S., U.S., No. 12-579, cert. petition filed 11/8/12). The case challenging the corporate contribution ban was distributed Jan. 23 for consideration at the justices’ private conference on Feb. 15. The court also received Jan. 23 a reply brief from lawyers representing businessmen William Danielczyk and Eugene Biagi.”
Also at the same conference: a petition (McCutcheon) challenging the aggregate contribution limitation.
A cert grant in both would not surprise me.
Bloomberg BNA: “The Supreme Court should leave intact the ban on corporate campaign contributions to federal candidates first enacted in 1907, the government argued in a brief filed Jan. 9 (Danielczyk v. U.S., U.S., No. 12-579,response filed 1/9/13).”
Bloomberg BNA: “The legal standard to prove a ‘willful’ violation of campaign finance laws is being debated by federal prosecutors and defense lawyers in a major criminal case, with the Justice Department being accused of backing away from a standard used previous cases and enshrined in DOJ guidelines. The legal battle was revealed in recent court filings in the long-running case, which involves Virginia businessmen William Danielczyk and Eugene Biagi. The two are charged with funneling illegal corporate contributions to the 2008 presidential campaign of Hillary Clinton, now President Obama’s secretary of state.”
Cert Petition Filed in Danielczyk Case, Challenging Corporate Contribution Ban to Federal Candidates
Bloomberg BNA: “The Supreme Court is being asked in a newly filed petition to overturn the century-old ban on corporate campaign contributions to federal candidates. The request for Supreme Court review came Nov. 8 in a long-running case involving Virginia businessman William Danielczyk, who faces criminal charges of violating campaign finance laws by funneling corporate contributions to the 2008 presidential campaign of Hillary Clinton (Danielczyk v. U.S., U.S. 12-579, cert. petition filed 11/8/12). In a 35-page petition for certiorari, lawyers for Danielczyk and his business partner, Eugene Biagi, asked the court to re-examine the fundamental distinction between campaign contributions and independent campaign expenditures, which has been a hallmark of campaign finance law since the Supreme Court’s 1976 decision in Buckley v. Valeo.”
8th Circuit Unanimously Rejects Challenge to MN Corporate Contribution Ban; Divides on Disclosure Requirements
The Eighth Circuit has issued its en banc opinion in the Swanson case. The Eighth Circuit now joins the Second, Fourth (after the rejection of the district court decision in Danielczyk) and Ninth Circuits (in the Thalheimer case in which I was involved) in holding that any challenge to corporate contribution bans in the lower courts is barred by the Supreme Court’s decision in FEC v. Beaumont. The 8th Circuit does drop a footnote however suggesting that if and when this issue reaches the Supreme Court again, the Court could well overrule Beaumont. (Without a circuit split, however, the Court is less likely to take such a case.)
The 8th Circuit split, however, on a particular aspect of Minnesota’s disclosure law which it said would put an onerous burden on small associations which want to engage in certain election-related speech. The Court stressed however that political committees would still be required to disclose under Minnesota law, and that the part of the law imposing continuing reporting requirements might be severable from the rest of the law.
It’s been an active day in the courts even beyond the health care rulings. In the Danielczyk case, the Fourth Circuit has reversed the Virginia district court opinion striking down the federal ban on corporate contributions to candidates in the wake of Citizens United.
Rick had urged a prompt appeal of the district court’s outlier opinion, and the Fourth Circuit appears to have responded. The court not only found Danielczyk squarely governed by Beaumont v. FEC (the Supreme Court case upholding the federal ban on corporate contributions in 2003), but emphasized the distinction between the direct contributions at issue here and the independent expenditures at issue in Citizens United.
So now it looks like uniformity in the circuits: the government may ban corporate contributions, but not independent corporate expenditures. Which returns to placing even more emphasis on the next front in the campaign finance wars: the conditions for coordination that mark the difference between one and the other.
Bloomberg BNA: “Attorneys for Virginia businessmen challenging the constitutionality of the century-old ban on corporate contributions in federal election campaigns faced skepticism from a federal appeals court panel May 18 (U.S. v. Danielczyk, 4th Cir., No. 11-4667, oral argument 5/18/12)….During the May 18 argument, questioning by Traxler and the two other judges on the appellate panel hinted that they were considering overturning the district court ruling because of concerns that the corporate contribution ban was upheld by the Supreme Court in a 2003 case, known as Beaumont v. Federal Election Commission. Discussion about the Beaumont case dominated the oral argument.”
See this AP report.
Bloomberg BNA: “A federal appeals court is set to hear arguments May 18 in the Justice Department’s challenge to a lower court decision that held as unconstitutional the federal ban on corporate campaign contributions (U.S. v. Danielczyk, 4th Cir., No. 11-4667, amicus filed 1/10/12).”
Also: “The U.S. Court of Appeals for the Eighth Circuit is considering a challenge to Minnesota’s campaign finance law regulating corporate money, which includes a corporate contribution ban in state campaigns (Minnesota Citizens Concerned for Life Inc. (MCFL) v. Swanson, 8th Cir., No. 10-3126, rehearing en banc order 7/12/2011). The en banc appeals court heard arguments in the case, known as MCFL v. Swanson, last September, but has yet to issue a ruling nearly eight months later.”
That’s Allen Dickerson’s claim. Oh please. The Montana Supreme Court took Justice Kennedy at his word and looked at the state’s evidence of corruption to justify its law. That might be wrong—but it is not defying the rule of law.
Want to talk about defying the rule of law? Look at the district court decision in the Danielczyk case (now on appeal to the 4th Circuit), defying Supreme Court precedent on the constitutionality of limits on corporate contributions to candidates. (Here‘s the 2d Circuit on that opinion: The Court is aware of United States v. Danielczyk, No. 1:11cr85 (JCC), 2011 WL 2161794 (E.D. Va. May 26, 2011), which struck down a ban on corporate contributions, based on what it called an ‘inescapable’ expansion of Citizen United’s logic. Id. at *18; Danielczyk, 2011 WL 2268063 (E.D. Va. June 7, 2011) (denying reconsideration). The role of an appellate court is to apply to law as it exists. Since the Supreme Court reaffirmed the validity of the 100-year old corporate ban just 8 years ago, Beaumont, 539 U.S. at 154-55, and declined to overrule this holding in Citizens United, this Court will not do so here. Indeed, Citizens United confirms that the anti-corruption interest is a legitimate justification for campaign contribution restrictions. Citizens United also does not disturb the validity of the anti-circumvention interest. See Thalheimer v. City of San Diego, Nos. 10-55322, 10-55324, 10-55434, 2011 WL 2400779, at *13 (9th Cir. Jun. 9, 2011) (concluding that ‘nothing in the explicit holdings or broad reasoning’ of Citizens United invalidates the anti-circumvention interest in the context of contribution limits)”)
In the end, it will be up to the Supreme Court to weigh in in both the Montana case and the question in Danielczyk.
[Disclosure: I am an attorney for the City of San Diego in the Thalheimer case, where the corporate contribution issue is presented.]
Breaking News: Federal District Court in San Diego Upholds Corporate/Non-Individual Contribution Ban, Strikes Down $1,000 Political Party Contribution Limit
Agreeing with the Second Circuit and Eighth Circuit (now up on en banc appeal) and disagreeing with the district court in the Danielczyk case (now on appeal to the 4th Circuit), a federal district court in San Diego today had upheld the City of San Diego’s laws banning corporations, labor unions, and other non-individual entities (aside from political parties) from contributing money directly to candidates for City office.
The opinion in Thalheimer v. City of San Diego is here.[Disclosure: I am one of the attorneys for the City of San Diego.]
In addition to upholding the ban on corporate/non-human contributions directly to candidates, the Court also rejected a challenge to San Diego’s $500 individual contribution limit to City candidates, as well as a ban on contributions to City candidate more than 12 months before the election.
However, the Court struck down the ban on political party contributions to candidates, as well as a backup $1,000 contribution limit from political parties to candidates which the City had put in place after an earlier preliminary injunction. “At this time, the Court cannot say whether a $5,000 or $20,000 limit on contributions by political parties would be sufficient to pass the constitutional muster under Randall.” I believe this is the first case in which a court has held that political parties have a constitutional right to contribute money directly to candidates, and that the amount of the contribution limit must pass muster under the Randall analysis.
Think Progress Justice:Survey: Illegal Corporate Campaign Contributions Up 400%.
(H/t Woody Allen)
” Republican Party Challenges Constitutionality of Anti-Corruption Corporate Contribution Ban; Seeks Ability to Receive Corporate Contributions Totally $1,184,800 Per Corporation Per Election Cycle to Use in Federal Elections”
Republican National Committee files brief in 4th Circuit Danielczyk case today arguing that for-profit corporations have the constitutional right to make campaign contributions directly to candidates. (h/t Ken Vogel) (More from Ken here)
Especially if Romney is the nominee, expect this to be rolled into Romney’s “corporations are people, my friend” line, the Bain Capital stuff, and the recent “I like to fire people gaffe,” with Occupy undertones, for Democrats (or their super PAC surrogates) to make an anti-corporate, Populist message for Obama’s reelection.
2d Circuit Issues Important Campaign Finance Decision Affirming Constitutionality of NY “Pay to Play” Rules, Ban on Entity Contributions
(1) confirms that lower level scrutiny applies to laws regulating contributions even after Citizens United (“Since the Supreme Court preserved the distinction between expenditures and contributions, there is no basis for Appellants’ attempt to broaden Citizens United. Appellants’ selective and misleading quotes carefully skip over the Court’s clear distinction between limits on expenditures and limits on contributions”);
(2) affirms that the anti-circumvention interest remains valid after Citizens United and FEC v. Beaumont remains good law (“The Court is aware of United States v. Danielczyk, No. 1:11cr85 (JCC), 2011 WL 2161794 (E.D. Va. May 26, 2011), which struck down a ban on corporate contributions, based on what it called an ‘inescapable’ expansion of Citizen United’s logic. Id. at *18; Danielczyk, 2011 WL 2268063 (E.D. Va. June 7, 2011) (denying reconsideration). The role of an appellate court is to apply to law as it exists. Since the Supreme Court reaffirmed the validity of the 100-year old corporate ban just 8 years ago, Beaumont, 539 U.S. at 154-55, and declined to overrule this holding in Citizens United, this Court will not do so here. Indeed, Citizens United confirms that the anti-corruption interest is a legitimate justification for campaign contribution restrictions. Citizens United also does not disturb the validity of the anti-circumvention interest. See Thalheimer v. City of San Diego, Nos. 10-55322, 10-55324, 10-55434, 2011 WL 2400779, at *13 (9th Cir. Jun. 9, 2011) (concluding that ‘nothing in the explicit holdings or broad reasoning’ of Citizens United invalidates the anti-circumvention interest in the context of contribution limits)”);
(3) states that broader forms of influence may count as corruption for purposes of sustaining contribution limits (“Although Citizens United stated that mere influence or access to elected officials is insufficient to justify a ban on independent corporate expenditures, improper or undue influence presumably still qualifies as a form of corruption”)(Judge Livingston disagreed on this point); and
(4) evidence of actual recent corruption is not necessary to sustain a contribution limit (“Appellants essentially propose giving every corruptor at least one chance to corrupt before anything can be done, but this dog is not entitled to a bite.”), though there was enough evidence of recent corruption in any case to justify the City’s law.
Judge Calabresi issued a short concurring opinion taking on a broader issue, the legitimacy of an equality interest for campaign finance regulation:
I agree completely with the Supreme Court that the First Amendment protects each person’s right to express political beliefs through money. Where I disagree with the Court is in its repeated insistence that any recognition of the “level playing field” interest (elsewhere referred to as the “antidistortion interest,” Citizens United v. FEC, 130 S. Ct. 876, 903 (2010)) is inconsistent with this right. To the contrary, the antidistortion interest promotes this right in two important ways. First, it prevents some speakers from drowning out the speech of others. And second, it safeguards something of fundamental First Amendment importance—the ability to have one’s protected expression indicate the intensity of one’s political beliefs. These values, moreover, have not gone unrecognized in underlying First Amendment jurisprudence.
[Disclosure: I am litigating similar issues in the Thalheimer case (quoted by the 2d Circuit above) against the same lawyers representing the challengers in this litigation. The Thalheimer case is back before the federal district court on cross-motions for summary judgment.]
Unanimous 4th Circuit Upholds Ban on Lobbyist Campaign Contributions; Big Implications for Pending Corporate Contributions Case
Good news in Preston v. Leake from the 4th Circuit, in a case which puts it at odds with the Second Circuit’s Green Party case. (I discuss the Green Party case and the district court’s decision in Preston in my forthcoming lobbying paper in the Stanford Law Review.)
Assuming this decision stands (that is, is not taken en banc or heard by the Supreme Court now given the Circuit split), it would provide a strong basis for upholding the corporate contribution ban in the Danielczyk case. (Disclosure: I am one of the lawyers representing the City of San Diego in the Thalheimer case, cited in Preston, considering the constitutionality of the City’s ban on corporate and other non-human entity contributions to candidates.)
“Campaign Legal Center & Democracy 21 File Brief in Appeal of Decision Overturning Century-Old Law Banning Corporate Contributions to Candidates & Parties”
The latest Times editorial on Danielczyk.
Bloomberg reports. If anyone has a link to the brief, or copy of the brief, please send it along.
In Thalheimer v. City of San Diego, the Ninth Circuit upheld the trial court’s denial of a preliminary injunction of the City’s law barring non-human contributions to candidates (the same issue as in the Danielczyk case in the 4th Circuit and the Swanson case in the 8th circuit). The court also denied a preliminary injunction as to time limitations for candidates raising campaign contributions. The Ninth Circuit also denied rehearing en banc.
Today plaintiffs filed this letter with the district court, indicating that they will not be seeking Supreme Court review of the denial of the preliminary injunction on these two issues. (The preliminary injunction was granted as to two other provisions of the law.)
Any further action in this case will take place next in the district court.
[Disclosure: I am one of the attorneys representing the City of San Diego in this case.]
BNA (subscription required) has the details.
Spoiler alert: Rep. Grayson’s name was on a fundraising invite for a state candidate, asking for contributions from an “individual, corporation, PAC, or trust.” Grayson contends that a staffer approved his participation without his consent. No sign of a Danielczyk defense.
Big news from the Ninth Circuit. The full court has denied rehearing en banc in this campaign finance case. According to the order, no active judge on the court requested a vote in the case. Among other things, the panel opinion held that a ban on non-human (e.g, corporate or union) direct contributions to candidates does not violate the First Amendment. The court also held that a temporal limitation on campaign contributions (no contributions more than a year before an election) is likely constitutional. [Disclosure: I am one of the attorneys for the City of San Diego.]
The district court in the Danielczyk case held that the federal corporate contribution ban was unconstitutional, a case now on appeal to the Fourth Circuit. The Eighth Circuit in the Swanson case held that a similar Minnesota ban was constitutional, but this case in now up for en banc consideration.
We will wait to see if Jim Bopp files a petition for cert. in this case.
Garrett Epps blogs on Danielczyk.
“The educated politico’s guide to U.S. v. Danielczyk: Or rather how to pay attention to a Constitutional campaign finance lawsuit”
Here, at the Northern Virginia Lawyer.
Paul Prados blogs on Danielczyk.
Lyle reports. No opinion today in McComish.
I’ll be out all day. More posts late tonight.
BNA Money and Politics Report offers this report. UPDATE: The end of the article states: “The Justice Department is believed to be considering filing an appeal of Cacheris’ ruling, which threw out one count of an indictment of Danielczyk.”
I have written this guest post for the ACS Blog. It concludes: “The opinion in Danielczyk throws the entire federal corporate contribution ban into question, just as we enter the 2012 campaign season. The government can and should appeal it, and have this outlier precedent overturned. Otherwise at next year’s state of the union address, Justice Alito won’t have the chance to say ‘not true.’ And our democracy will be threatened by the circumvention of valid contribution limits.”
Breaking News: Ninth Circuit Affirms in San Diego Campaign Finance Case, Upholding Constitutionality of Ban on Entity Contributions and One-Year Time Limitation on Candidates Accepting Campaign Contributions; Court Holds Political Parties Have Constitutional Right to Contribute Directly to Candidates
You can read the opinion here. [Disclosure: I am one of the attorneys for the City in this case.]
The opinion reaches a contrary conclusion to Danielczyk on the question of the constitutionality of a ban on non-human entities contributing directly to candidates. (The federal ban at issue in Danielczyk covers corporations, not all non-human entities.) Like the Second and Eighth Circuits, but unlike Judge Cacheris’s opinion in Danieczyk, the Court holds itself bound by the Supreme Court’s decision in FEC v. Beaumont, and it says that “there is nothing in the explicit holdings or broad reasoning of Citizens United that invalidates the anti-circumvention interest in the context of limitations on direct candidate contributions.” (page 32)
The opinion is also major in (1) deciding a matter of first impression in the circuit, upholding a San Diego law that prevents candidates from accepting contributions from others more than one year before the election and (2) holding that parties have a constitutional right to contribute directly to candidates [corrected]. (It is not a right to contribute unlimited amounts, however. After the district court’s opinion, the City passed a $1,000 contribution limit from parties to City candidates. Plaintiffs challenged that new rule in the lower court and lost, and that issue was not in this appeal.)
The court also followed its earlier Long Beach case holding that the City cannot bar contributions to independent expenditure committees.
One caveat: all of these holdings are couched in the fact that the Ninth Circuit was affirming the trial court’s decision on a preliminary injunction, which includes consideration of the “likelihood of success on the merits.” It is possible that the district court could reconsider some of these rulings on remand. It is also possible for this Ninth Circuit ruling to go further in the appellate process.
In response to my query in this post, a few readers have said that the opinion means it is unconstitutional to limit the direct contributions of for-profit corporations to candidates, but it remains constitutional under the controlling authority of Beaumont to limit the direct contributions of ideological, non-profit corporations.
Of course, as my readers point out, if this is what it means, it is a perverse holding: those groups which should be entitled to the most First Amendment protections (even under Austin and before Citizens United, such groups could spend their treasury funds independently on candidate campaigns) get the least protection.
That’s another reason why the district court’s ruling should be appealed immediately.