Search Results for: mccutcheon

See this press release about this amicus brief filed in McCutcheon.

Some great report by Paul Blumenthal for HuffPo who finds lots of people potentially breaking the federal aggregate contribution limits (some of which are up for challenge at the Supreme Court next term in the McCutcheon case).

Bob Bauer, who for a number of years posted at his blog, but then stopped after becoming White House Counsel, has revived the blog—and all in the campaign finance/election law world are all the better for it.  Here are three initial posts:

The Right to “Do Politics” and Not Just to Speak: Thinking about the Constitutional Protections for Political Action

Campaign Contributions in the Criminal Law

The McCutcheon Case and the Contribution/Expenditure Limit Problem

So reports Bloomberg BNA according to an interview with Jim Bopp.

James v. FEC is SCOTUBlog’s Petition of the Day, and Justin Levitt thinks it might be a stronger case for plaintiffs than the McCutcheon case already taken.

Justin Levitt on McCutcheon, aggregate contribution limits, and what’s to come at SCOTUS.

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.

Fred Wertheimer oped.

WaPo reports.

Editorial: “Let the indignation begin. We refer to the Supreme Court’s welcome decision this week to hear the case of McCutcheon v. FEC, which is another chance to liberate political speech from the clutches of a narrow political class. Expect much liberal mau-mauing of Chief Justice John Roberts, especially after he folded on ObamaCare last year.”

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.

The McCutcheon grant of review got front page coverage in the New York Times, as well as this NYT editorial. More coverage from:

NPR

Reuters

USA Today

WaPo

The Hill

National Law Journal

ACS

Constitutional Law Prof Blog

Inside Political Law

Huffington Post

Politico

SCOTUSBlog

Fred Wertheimer

Center for Competitive Politics

Campaign Legal Center

MORE to come…

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.

At 9:30 am Eastern Tuesday (when I’ll be driving to work), the Supreme Court is set to issue its latest set of orders. As I explained in this post, there’s a fair chance the Court will agree to hear a case (McCutcheon) raising the question of the constitutionality of aggregate contribution limits (limiting how much an individual can give to federal candidate and party committees in a two year period).

A ruling in this case could have important implications not only on the issue itself, but on the broader question whether the Court will change the standard for judging the constitutionality of limits on contributions, an issue the Court expressly declined to address in Citizens United. It could also lead the Court for the first time to overrule a portion of the key 1976 case, Buckley v. Valeo.

Stay tuned.

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 is set to consider on Friday, Feb. 15, whether to grant review of a constitutional challenge to the aggregate limit on federal campaign contributions (McCutcheon v. Federal Election Commission, U.S., No. 12-536, jurisdictional statement filed 10/26/12).”

The Court has denied cert. in Real Truth About Abortion v. FEC.  Here are my thoughts on the significance of this case.

AP reports on the cert denial. Recently, the Court has shown little interest in hearing campaign finance cases on disclosure, the rules related to political committee status, and the line between express advocacy and issue advocacy.

It’s a better bet that the Court will agree to hear the McCutcheon case involving the constitutionality of aggregate contribution limits.

Bloomberg BNA: “The Supreme Court was urged to uphold the aggregate limit on federal campaign contributions in a Jan. 2 government filing. The filing came in response to a challenge pending before the high court brought by the Republican National Committee and GOP contributor Shaun McCutcheon (McCutcheon v. Federal Election Commission, U.S., No. 12-536, motion to dismiss or affirm filed 1/2/13).”

Bloomberg BNA:

The government is set to respond in early January to twin constitutional challenges now pending before the Supreme Court that seek to invalidate aggregate limits on federal campaign contributions.

In a recent order, the high court set a Jan. 2 deadline for a response to a challenge brought by the Republican National Committee and GOP contributor Shaun McCutcheon, who want to overturn the overall cap on contributions to federal candidates, political parties, and traditional PACs (McCutcheon v. Federal Election Commission, U.S., No. 12-536, jurisdictional statement 10/26/12). The aggregate limit was set at $117,000 for the 2012 election cycle but is due to be adjusted for inflation next year.

The Supreme Court has set a Jan. 3 deadline for a government response in another case, a challenge launched by Virginia James, a major Republican campaign contributor from New Jersey, who objected to the limit on total contributions to federal candidates (James v. FEC, U.S., No. 12-683, jurisdictional statement 11/30/12).

 

Gannett: “An Alabama businessman and major Republican donor is asking the Supreme Court to throw out certain limits on donations to federal candidates.Shaun McCutcheon of Hoover is challenging the $46,200 limit on total contributions to candidates over a two-year election cycle as a violation of the First Amendment. His case is one of several moving through the courts designed to chip away at caps on political contributions.”

You can read the jurisdictional statement in McCutcheon v. FEC at this link.

Venable’s Political Law Briefing: “A case headed to the Supreme Court could upend longstanding rules limiting federal political contributions. The Republican National Committee and an individual plaintiff filed the appeal after a three-judge panel of the U.S. District Court for the District of Columbia rejected their challenge to limits on the total amount an individual may contribute over a two-year period in connection with federal elections.”

In a very convincing opinion by Judge Janice Rogers Brown, who basically says that this is a result dictated by precedent, and that the RNC can ask the Supreme Court, but not lower courts, to change that precedent.

And I expect the RNC will do just that.

(See also this release from the Campaign Legal Center.)

Bloomberg BNA: “A Republican Party court challenge to federal limits on campaign contributions is set to be heard Sept. 6 by a three-judge court in Washington, D.C., and a ruling could come soon after that (McCutcheon v. FEC, D.D.C., No. 12-1034, filed 6/22/12). This summer, the Republican National Committee joined a lawsuit against the Federal Election Commission to strike down the aggregate limit of $117,000 that an individual may contribute to federal candidates and political parties during the current two-year election cycle.”

Press release: “Today, the Campaign Legal Center, together with Democracy 21, filed an amici brief in the U.S. District Court for the District of Columbia to defend the aggregate contribution limits against a challenge brought by the Republican National Committee (RNC) and Shaun McCutcheon.  Despite clear Supreme Court precedent upholding aggregate contribution limits, plaintiffs in McCutcheon v. FEC challenge both the $70,800 aggregate limit on contributions to non-candidate committees and the $46,200 aggregate limit on contributions to candidate committees in a two-year election cycle.”

A big new case filed Friday in D.C. federal district court: Plaintiffs in McCutcheon v. FEC, represented by Jim Bopp and Steve Hoersting, seek a preliminary injunction against:

a. the limits on contributions to non-candidate committees at 2 U.S.C. § 441a(a)(3)(B), as applied to contributions to national party committees and facially, and

b. the limit on contributions to candidate committees at 2 U.S.C. § 441a(a)(3)(A).

The moving papers may be found here.  Plaintiffs have requested a three-judge court per BCRA.

Update:  BNA has this report.