Judge Posner on Free Expression and the First Amendment

At Concurring Opinions, the sixth installment of “Posner on Posner,” much of it on campaign finance. Snippets: Question: Is speech overprotected by our courts and in our culture? Posner: I think so. The most notorious example is expenditures on political advertising — Citizens United and its sequels. …. Question: The Roberts Court has rendered 36 First Amendment free expression rulings. How would you characterize the First Amen…

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“Meet the New Super Donors”

…e Court, however, obliterated the aggregate cap last April on First Amendment grounds with its McCutcheon v. FEC ruling. And with that, K Street’s familiar refrain to candidates’ pleas for campaign cash—“I’ve maxed out”—was no longer operative. Campaigns, meanwhile, interpreted McCutcheon as a hall pass for harassing K Street donors. In this free-fire fundraising environment, O’Brien is now liberated to give more and bother his relatives less. “I…

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“Governing and Deciding Who Governs”

Josh Chafetz has posted this draft on SSRN (forthcoming, University of Chicago Legal Forum). Here is the abstract: In McCutcheon v. Federal Election Commission, Chief Justice Roberts wrote that, “Campaign finance restrictions that pursue other objectives [than eradicating quid pro quo corruption or its appearance], we have explained, impermissibly inject the Government ‘into the debate over who should govern.’ And those who gov…

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“McCutcheon Calls for a National Referendum on Campaign Finance (Literally)”

Andrew Tutt has posted this draft on SSRN (Columbia Law Review Sidebar). Here is the abstract: In McCutcheon v. FEC, the Supreme Court tightened First Amendment limits on Congress’s authority to regulate campaign financing. McCutcheon ostensibly left in place the old regime that allows campaign-finance regulation so long as it strikes at quid pro quo corruption or its appearance. But two recurring themes in the McCutcheon opinion indicate that t…

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Jim Bopp On the Hunt

Two press releases from Jim today.  One describes a request for a trial court to change its mind on a 2009 decision approving New York City’s laws prohibiting contributions from certain business entities (LLCs, LLPs, and partnerships), and placing special campaign finance restrictions on lobbyists and those doing business with the city.  The filing cites McCutcheon as a reason to change course. The other describes Jim’s attempt to return to…

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10/9 FEC Meeting: Citizens United, McCutcheon & More

…r PACs with separate independent-expenditure accounts. Another implements the Supreme Court’s decision in McCutcheon , removing the aggregate limits on contributing to candidates, party committees, and PACs.  Still another announces an upcoming rulemaking to consider further refinement in light of McCutcheon , including potential adjustments to existing earmarking, affiliation, and disclosure rules to help prevent circumvention of the existi…

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Top Recent Downloads in Election Law on SSRN

(my bimonthly listing) Here: RECENT TOP PAPERS for all papers first announced in the last 60 days   4 Aug 2014 through 3 Oct 2014 Rank Downloads Paper Title 1 117 The Price of Corruption Usha Rodrigues University of Georgia Law School Date posted to database: 26 Aug 2014 Last Revised: 26 Aug 2014 2 113 The Problem of Voter Fraud Michael D. Gilbert University of Virginia School of Law Date posted to database: 30 Aug 2014 Last…

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Breaking: Supreme Court to Hear Arizona Redistricting Case and Florida Case on Judicial Campaign Speech: Analysis

The number of election laws the Supreme Court has heard with a full argument has dropped off in recent years, I believe in part because voting rights advocates have tried to stay out of the Supreme Court. (See my ELJ analysis: The Supreme Court’s Shrinking Election Law Docket, 2001-2010: A Legacy of Bush v. Gore or Fear of the Roberts Court?.)  If you think of the major election cases the Supreme Court has heard in recent years, they have been c…

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“Campaign Finance, Federalism, and the Case of the Long-Armed Donor”

…RN (forthcoming, University of Chicago Law Review Dialogue).  Here is the abstract: In its ruling last Term in McCutcheon v. FEC, the Court struck down federal campaign-finance laws that limited the aggregate amount of money that Shaun McCutcheon and other would-be campaign donors could give to a variety of political committees and to individuals running for Congress in states and districts other than their own. Chief Justice Roberts began his op…

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“The CEO and the Hydraulics of Campaign Finance Deregulation”

Sarah Haan has posted this draft on SSRN (forthcoming, Northwestern University Law Review). Here is the abstract. This Essay assesses what the Supreme Court’s evolving campaign finance jurisprudence could mean for business executives, who continue to be among the most active campaign contributors, and for politically-motivated consumers. It argues that voters increasingly view their consumer activities, not their campaign contributions,…

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Election Law Panels at William & Mary Supreme Court Preview, September 20, 2014

Via email: On Saturday, September 20 the Institute of Bill of Rights Law at William & Mary Law School will hold its 27th annual Supreme Court Preview. The event features a lunchtime breakout panel “The Court and Election Law” with Paul Smith (Jenner, argued Vieth, LULAC, and Florida redistricting cases), Pam Karlan (DOJ, Stanford), and Erin Murphy (Bancroft, argued McCutcheon). The session will cover race and redistricting, Section 2 v…

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Judge Randa Issues Order Immediately Barring Wisconsin from Enforcing Limits on PAC Contributions to State Candidates

AP reports.  Judge Randa is the same judge who issued the controversial orders in the John Doe Wisconsin campaign finance case, involving campaign financing surrounding the Wisconsin recalls.  Parts of his order were promptly put on hold by the 7th Circuit, and I expect that could well happen again. UPDATE: I have now read the Court’s opinion (read it here) and it seems like a reasonable, if potentially challengeable application of the Sup…

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New Letter from Former ACLU Leaders Supports Campaign Spending Limits

From the letter: We believe that the Supreme Court’s campaign finance decisions from Buckley to Citizens United to McCutcheon are based on three fallacies. First, the Court wrongly equates spending unlimited sums of money with pure speech. We agree that campaign spending is a mix of speech and conduct. At reasonable spending levels, the speech element predominates, rendering unreasonably low campaign spending levels (like the absurdly low spendi…

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“Without Limits, Will Campaign Contributions Dominate Politics?”

…tions—and there’s more money than ever for Senate and House campaigns. In April, Alabama businessman Shaun McCutcheon gave his name to a US Supreme Court decision to eliminate legal restrictions on how much an individual can give in total to candidates and committees. McCutcheon says it’s great to have more money in politics—putting it this way: “we’re just spreading speech.” What’s the likely impact of more money in politics—this year and in yea…

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“Wealthy political donors seize on new latitude to give to unlimited candidates”

WaPo: “Sabin and other wealthy political contributors have more access than ever to candidates since the ruling in McCutcheon v. Federal Election Commission. More than 300 donors have seized the opportunity, writing checks at such a furious pace that they have exceeded the old limit of $123,200 for this election cycle, according to campaign finance data provided by the Center for Responsive Politics, a nonpartisan research organization.&#8…

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“Sunshine’s Shadow: Overbroad Open Meetings Laws as Content-Based, Distinct from Campaign Finance Disclosure Laws, and Constitutionally Suspect”

Steven Mulroy has posted this draft on SSRN.  Here is the abstract: In this Article, Professor Mulroy discusses “strict” open meetings laws applicable in many states to local legislators — laws which restrict substantive discussion of government business even among two or three legislators (far short of a quorum) outside a properly noticed public meeting, and/or which contain no exceptions for sensitive, privacy-invasive topics which might legi…

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“The Uncertain Future of the Corporate Contribution Ban”

Richard Briffault has posted this draft on SSRN (forthcoming Valparaiso University Law Review). Here is the abstract: Concern about the role of corporate money has been a longstanding theme in American politics. The first permanent federal campaign finance law – the Tillman Act of 1907 – prohibited federally-chartered corporations from making contributions in any election and prohibited all corporations from making contributions in federal elec…

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“Navigating Election and Political Law: Leading Lawyers on Understanding Campaign Finance, Speech, Voting Rights, and the Laws that Govern (Inside the Minds)”

Looks like an interesting new book for election law practitioners with some top notch contributors: Navigating Election and Political Law provides an authoritative, insider’s perspective on the dynamics of the federal and state laws governing political contributions and spending, and how these laws are impacting practitioners and their clients. Written by partners from some of the nation’s leading law firms, this book guides the read…

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Collins & Skover, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment

…d David Skover, two law professors with expertise on the First Amendment, have written When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment. They wrote the book while the McCutcheon Supreme Court case was pending, and finished the final chapters within a few days after the decision in the case. The book describes the course of the McCutcheon litigation, and along the way weaves in a discussion of the First Am…

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“Independent Spending in State Elections: Vertically Networked Political Parties Were the Real Story, Not Business”

Campaign Finance Institute: There has been a marked increase of debate in the months since the Supreme Court’s April 2014 decision in McCutcheon v. Federal Election Commission over the relationship between interest group spending and the power of political parties. A just-published article in THE FORUM: A JOURNAL OF APPLIED RESEARCH IN CONTEMPORARY POLITICS speaks directly to some of the assumptions underlying that debate. The article – entitled…

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“The Democracy We Left Behind in Greece and McCutcheon”

Ciara Torres-Spelliscy has posted this draft on SSRN.  Here is the abstract: The U.S. Supreme Court used to regularly police the line between political and economic spheres and the line between Church and State. The Court in 2014 abandoned both posts. As evidenced by McCutcheon v. FEC, the Supreme Court is not protecting democracy from creeping oligarchy served up one campaign contribution at a time. As evidenced by Town of Greece v. Galloway, t…

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“GOP Launches Big Money Effort”

Byron Tau for Politico: Republicans are launching a fundraising effort that will let donors cut six-figure checks to support GOP Senate candidates this fall — a move that capitalizes on the Supreme Court’s landmark McCutcheon v. FEC decision. Senate Republicans have filed paperwork to form the Targeted State Victory Committee — a joint fundraising effort between the National Republican Senatorial Committee and Republican state parties in 13 Sena…

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Now Available: 2014 Supplement to Lowenstein, Hasen, & Tokaji: Election Law Cases and Materials

[UPDATE: The 2014 Supplement is now available for purchase at Amazon. Professors who adopt the Lowenstein/Hasen/Tokaji casebook for their course can receive a complimentary copy of the  supplement for themselves and their students by emailing their request to crutan (at) cap-press (dot) com.] The 2014 Supplement to the 5th edition of Election Law–Cases and Materials  is up-to-date through the end of the Supreme Court’s October 2013 t…

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“The CEO and the Hydraulics of Campaign Finance Deregulation”

Sarah Haan has written this essay for the Northwestern University Law Review Online. Here is the abstract: In The CEO and the Hydraulics of Campaign Finance Deregulation, Professor Sarah Haan assesses what the Supreme Court’s evolving campaign finance jurisprudence could mean both for business executives–who continue to be among the most active campaign contributors–and for politically-motivated consumers. Professor Haan argue…

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“It Could Have Been Worse” is Not Saying Much About McCutcheon

David Cole’s piece on the ending Supreme Court term says it could have been worse in McCutcheon (and in many other cases on the Court’s docket this term).  For example, Cole notes, the Court could have adopted strict scrutiny to apply to contribution limits.  Nonetheless, as I showed at Slate, Reuters, and the Daily Journal right after the opinion came out, McCutcheon was pretty darn bad. I rate it also as one of the most significant…

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Seven Key Points on the Supreme Court Term

(via Twitter) 1. Supreme Court mostly unanimous on issues people care less about or where they want to punt. 2. On highly ideological issues, Court still divided 5-4, with Kennedy usually as swing Justice. 3. Just because this term did not feature many blockbuster decisions doesn’t mean Court less divided. 4. Biggest civil case:McCutcheon campaign finance case-down slope to more $ in politics http://www.slate.com/articles/news_and_politics…

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#SCOTUS Underlines that Level of Scrutiny is Up for Grabs in Campaign Contribution Cases

…me, without deciding, that a law is subject to a less stringent level of scrutiny, aswe did earlier this Term in McCutcheon v. Federal Election Commission, 572 U. S. ___, ___ (2014) (plurality opinion) (slip op., at 10). But the distinction between that case and this one seems clear: Applying any standard of review other than intermediate scrutiny in McCutcheon—the standard that was assumed to apply—would have required overruling a precedent. The…

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Whoa: Judge Posner Attacks Chief Justice Roberts Truthfulness in Campaign Finance Case

While I agree with the sentiment (as anyone who has read my writings on the Chief Justice’s views in the campaign finance and voting rights areas, and in fact I’ve made this exact same attack on the Chief Justice at SCOTUSBlog), I am a bit concerned about a sitting federal appellate judge attacking the Chief Justice like this. It diminishes the judiciary to have judges sniping at each other in public. Does Chief Justice John Roberts…

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About that #SCOTUS Unanimity…A Skeptical Note

Today’s unanimous opinion in the cell phone cases is the latest in an unusual term of unanimity on the Supreme Court. I don’t want to downplay things, but I think the unanimity is likely an aberration. To begin with, the Court is still divided on big issues like campaign finance. Witness the bitter divisions in McCutcheon this term.  Or Shelby County on voting rights last term. And it is still quite divided on abortion and same sex m…

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A New Era for Pay-to-Play

The following is a guest blog post by Jason Abel: Last Friday, the Securities and Exchange Commission (SEC) announced a settlement involving Rule 206(4)-5, otherwise known as the “pay-to-play” rule for investment advisers.  This settlement is the first of its kind, for the moment.  However, it may mark the start of increased enforcement of pay-to-play rules. As 2014 is upon us and we move toward 2016, the weakening of traditional cam…

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“Commentaries: The Impact of McCutcheon v. FEC”

Over at the Harvard Law Review Forum: Commentaries: The Impact of McCutcheon v. FEC Three leading election-law practitioners discuss the practical import of the Court’s latest campaign-finance decision After McCutcheon The decision will likely help the political parties regain some power By Jonathan S. Berkon & Marc E. Elias Read More The Practical Consequences of McCutcheon The decision leaves our campaign finance system largely…

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Robert Post’s “Citizens Divided” Book

There are a spate of campaign finance books coming out over the next few months—including books by Robert Post, Bob Mutch, Ken Vogel, Zephyr Teachout, and Timothy Kuhner.  I will try to write short reflections on each of these books as I read them.  These will be very short, as I’m in the midst of my own manuscript on campaign finance, which will allow deeper exploration of these books as necessary for my argument. Today a few words…

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