Subjecting Plutocrats United to the “Page 99 Test”

…page tells the story of one of our new Plutocrats, created by the United States Supreme Court. He’s Shaun McCutcheon, a businessman who sued for a right to give $1,776 to every single of the hundreds of Republican candidates running for Congress. The Supreme Court eventually agreed with him, in a case known asMcCutcheon v. FEC, holding that the government violates the First Amendment by limiting the overall amount contributions a person can…

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“Review: How to Stop the Super-Rich from Dominating Presidential Politics”

…mited to prevent money from distorting political outcomes.  In the Court’s most recent campaign finance ruling, McCutcheon v. FEC, the four dissenting justices upheld this view, and took it a step further.  They argued that reasonable campaign finance regulations can be justified to ensure that elected officials are responsive to the concerns of the general public (not just a privileged few) and to protect the integrity of elections. Regardless o…

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“Campaign Finance and the Ecology of Democratic Speech”

…d to produce a situation where very wealthy interests have come to dominate American politics. In another case, McCutcheon v. FEC, the Supreme Court struck down the aggregate limitations that Congress had placed on individual campaign contributions. Previously, a wealthy individual could donate no more than $123,200 during each two-year election cycle to all federal candidates, campaigns, parties, or political committees combined. Now he can give…

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Breaking: Supreme Court Unanimously Decides 3-Judge Redistricting Case, Helping Those Seeking #SCOTUS Fast Track

…has struck down or narrowed severely every campaign-finance limit it has ever considered. Further, in the 2014 McCutcheon case, Roberts suggested a soft money ban is unconstitutional. But the court has also proven itself willing to not hear every campaign-finance case to come its way. Twice, for example, it turned down certiorari petitions testing whether the ban on direct campaign contributions by corporations violates the First Amendment. In 2…

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#SCOTUS Rejects Another Challenge to Campaign Finance Disclosure and Disclaimer Rules

…he federal contractor ban remains pending. The 9th Circuit held the ban satisfied exacting scrutiny, even after McCutcheon, and even though it is a ban, rather than a limit on contributions, citing the danger of pay to play. The bulk of the opinion also upheld a variety of reporting, disclaimer, and disclosure requirements required by Hawaii law. And the court included dicta affirming the special importance of disclosure in the Citizens United er…

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BIG Campaign Finance News: La. GOP Soft Money Lawsuit Gets 3-Judge Court, Likely Ticket to SCOTUS

…reme Court has twice upheld BCRA’s soft-money ban, and recently affirmed that it is still intact, its ruling in McCutcheon created widespread uncertainty over the central question presented here: whether truly independent campaign expenditures by political parties—if there can be such a thing—pose the type of corruption risk that the Supreme Court has held is necessary to justify limiting federal election spending. Given this uncertainty, Plainti…

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Bauer on Hasen on the Roberts Court at 10 on Campaign Finance

…y responsibility for the state of reform.  Hasen writes that, as a result of decisions like Citizens United and McCutcheon, the Roberts Court majority has “caused the existing campaign finance system to slowly implode,” launching reform into a” death spiral” and erecting “structural impediments” that prevent further reform. To be sure, the Court’s rulings have contributed to the collapse of the ‘70s reforms, and there is no doubt that its jurispr…

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“Super PAC Contributions Can Be Considered Bribes: Judge”

…n. The basis for dismissal offered by Menendez’s lawyers were the Supreme Court’s 2010 Citizens United and 2013 McCutcheon decisions. Those two cases redefined corruption as only explicit bribery, excluding influence and access. The senator’s lawyers argued that this redefinition of corruption and Citizens United’s declaration that independent expenditures “do not give rise to corruption or the appearance of corruption” provided freedom of speech…

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“The Warnings About The Supreme Court’s Dangerous Campaign Finance Ruling Are Now Coming True”

Paul Blumenthal for HuffPo: During courtroom debate over the McCutcheon decision, Solicitor General Donald Verrilli expressed concern that political parties could create joint fundraising committees to allow a single candidate to solicit a $1 million-plus contribution, which could be distributed to a collection of federal and state party committees. State parties could then transfer this money to other, more important state parties (for example,…

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“Political parties go after million-dollar donors in wake of looser rules”

…ramatic pricing surge has been driven by a combination of two significant legal changes: the 2014 Supreme Court McCutcheon v. Federal Election Commission decision that did away with a cap on how much a political donor could give in an election cycle, and an expansion of party fundraising tucked into an appropriations bill last December…. Both the RNC and DNC are taking advantage of a measure slipped into a December spending bill that vastly…

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“The Unwilling Donor”

…e political process against the government’s interest in avoiding corruption of that process. Most recently, in McCutcheon v. FEC, the Court struck down aggregate contribution limits, allowing donors to give — and candidates and parties to solicit — millions of dollars directly to candidates, parties, and political action committees. Yet what should have been a significant victory for big donors was greeted with dismay by many of the same. There…

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Top Recent Downloads in Election Law on SSRN

…ed in the last 60 days 14 Jun 2015 through 13 Aug 2015 Rank Downloads Paper Title 1 102 The Party’s Over: McCutcheon, Shadow Parties, and the Future of the Party System Joseph Fishkin and Heather Gerken University of Texas School of Law and Yale University – Law School Date posted to database: 13 Jun 2015 Last Revised: 29 Jul 2015 2 72 Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and…

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“Commemorating the 50th Anniversary of the US Voting Rights Act”

…en, James U. Blacksher, Michael L. Clemons, Jonathan I. Leib http://www.sciencedirect.com/science/article/pii/S0962629815000608 The legacies of the U.S. Civil Rights Act, fifty years on Caroline Nagel,Josh Inwood, Derek Alderman, Ujju Aggarwal, Claire Bolton, Steve Holloway, Richard Wright, Mark Ellis, Priscilla McCutcheon, Katherine Hankins, Andy Walter, Kate Derickson http://www.sciencedirect.com/science/article/pii/S0962629815000463  …

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Republicans File Major New Challenge to McCain-Feingold Soft Money Rules

…filed. It may be because the Wagner v. FEC case makes it easier to get three-judge courts in BCRA case. In the McCutcheon case of 2014, Chief Justice Roberts added language which seemed to invite a challenge to the soft money rules: “When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude….

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In the Election Law Mailbag

Albert W. Alschuler, Limiting Political Contributions after McCutcheon, Citizens United, and Speech Now (Florida Law Review) Eric Berger, The Rhetoric of Constitutional Absolutism (William and Mary Law Review) James A. Gardner, Partitioning and Rights: The Supreme Court’s Accidental Jurisprudence of Democratic Process (FSU Law Review) Eitan D. Hersh, Hacking the Electorate: How Campaigns Perceive Voters (Cambridge) David B. Magleby, ed., F…

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The Status of the Federal Contractor Ban as Applied to Super PACs

…ance restrictions to the prevention of quid pro quo corruption or its appearance.  Last Wednesday’s decision in McCutcheon v. FEC highlights the doctrinal fragility of the federal contractor ban in cases like this. Full disclosure:  Covington represented Chevron before the FEC in this matter. UPDATE: Craig Holman sent the following message to the election law listserv (reprinted with permission): Every indication at this point is that the federal…

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2015 Supplement to Election Law Casebook

…v. Alabama* Williams-Yulee v. Florida State Bar* 281 Care Committee* American Tradition Partnership v. Bullock* McCutcheon v. FEC* Kobach v. EAC Earlier description: The 2015 supplement is shipping in time for fall classes, and will now include edited versions of the Evenwel one person, one vote case in the district court and the Supreme Court’s recent opinion in Williams-Yulee. Here’s an earlier written description of the supplement: The 2015 Su…

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A war within the Republican party?

…some ads. They are taking over major functions once reserved for the official parties. Our article begins with McCutcheon v Federal Election Commission, which struck down the FECA’s caps on how much hard money in toto one donor could give to candidates and party committees in a given year. It quickly morphs into a rumination on the future of the party system. That’s because McCutcheon can only be understood against the deep shifts taking place i…

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“The Role of Three-Judge Courts in Conservative Attacks on Campaign Finance Reform and Voting Rights”

…ce and voting rights cases heard by three-judge district courts.  What is similar about Citizens United v. FEC, McCutcheon v. FEC, NAMUDNO v. Holder, and Evenwel v. Abbott?  In each one of these cases, the Justices agreed to hear a direct appeal from a three-judge district court.  Three-judge districts courts (composed of two district court judges and one court of appeals judge) are a rarity in federal law, but play a very significant role in cam…

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2015 Supplement to Election Law Casebook Coming Soon

…e Court’s October 2014 term. It includes an edited version of of the Supreme Court’s new campaign finance case, McCutcheon v. FEC, an edited version of Shelby County v. Holder, and coverage of the Supreme Court’s consideration of new redistricting cases from Alabama and Arizona, raising new questions about racial gerrymandering claims and the scope of state power to enact citizen redistricting commissions for congressional districts via vot…

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9th Circuit Panel Upholds Hawaii Ban on Campaign Contributions by Government Contractors

…he federal contractor ban remains pending. The 9th Circuit held the ban satisfied exacting scrutiny, even after McCutcheon, and even though it is a ban, rather than a limit on contributions, citing the danger of pay to play. The bulk of the opinion also upheld a variety of reporting, disclaimer, and disclosure requirements required by Hawaii law. And the court included dicta affirming the special importance of disclosure in the Citizens United er…

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James Sample on Williams-Yulee and The Future of Judicial Campaign Regulation

…nnedy takes an absolutist position that independent expenditures unequivocally cannot corrupt (Citizens United, McCutcheon etc…). In those decisions, not to mention in ATP v. Bullock, in which the Court refused the state of Montana even the opportunity to stand in the well of the Supreme Court and say, to the Court face-to-face, “Yes, independent expenditures can corrupt and we have a documented empirical record contradicting the Cour…

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Jamie Raskin on Hillary Clinton and a Constitutional Amendment to Overturn Citizens United

…wealth.  This is the wall that has been mostly demolished by the Roberts Court in both Citizens United and the McCutcheon decision…. Thankfully there is no talk of hypocrisy in Hasen’s critique, but still all Clinton gets from him is a lot of negative energy.  First, he faults her for not trying to fix “the nation’s disclosure laws,”  which is strange because she supported the Disclose Act, which U.S. Rep. Chris Van Hollen introduced and w…

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“Presupposing Corruption: Access, Influence, and the Future of the Pay-to-Play Legal Framework”

…tes “corruption” in the political sphere. In light of its decisions in 2010’s Citizens United v. FEC and 2014’s McCutcheon v. FEC—two seminal cases that dramatically altered campaign finance regulation—the Court now appears to recognize that access and influence do not constitute quid pro quo corruption or the appearance thereof. Consequently, this view has led to deregulation of the legal framework of campaign finance in recent years. Furthermor…

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#SCOTUS Didn’t Mean It When They Said It Dep’t

…n ingratiate. See 251 F. Supp. 2d, at 555-557 (opinion of Kollar-Kotelly, J.). Ingratiation and access, in any event, are not corruption. I explain how the Court significantly narrowed the definition of corruption in Citizens United in my Michigan Law Review article, Citizens United and the Illusion of Coherence. It is a trend that was extended from expenditures to contributions in last year’s McCutcheon case.  …

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99 Rise Says It Has Disrupted #SCOTUS Again, with Campaign Finance Messages

…althiest 1%. Protestors rose one by one to deliver their statements to the Court, demanding they “Reverse McCutcheon and overturn Citizens United,” before raising their index finger in the air, a gesture signifying “one person, one vote” political equality. They were detained and arrested by court security. “The Supreme Court is deeply complicit in the corruption of our democracy,” said Belinda Rodriguez, who p…

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“American Plutocracy”

…tructed and justified a new form of government called plutocracy. Campaign finance cases from Buckley (1976) to McCutcheon (2014) contain a series of constitutional principles that serve to increase political inequality and economic inequality. Those constitutional principles also serve as the “apparatus of justification” sought by Piketty, the justifications for inequality that might allow today’s state of affairs to endure. Th…

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Floyd Abrams Speech on First Amendment Discusses McCutcheon, Citizens United

…ve become so vast. Let me offer one example of a post-Citizens United case in which those differences were spelled out with particular brio by members of the Supreme Court. It is the recentMcCutcheon case, which struck down a cap on the total amount of contributions an individual may make to candidates (while leaving in effect the limits Congress had set on a candidate by candidate basis).  …

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“The New Normal in Election and Political Law”

…dergone radical changes in the past five years. The Supreme Court’s recent decisions in Citizens United v. FEC, McCutcheon v. FEC, and Shelby County v. Holder have systematically reshaped our campaign finance and voting rights regimes. We can expect these changes in the law to have significant, long-term effects on electoral politics. Yet most analyses have focused on these decisions’ individual impacts rather than their collective consequences o…

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“Unlimited and Undisclosed: The Religious Right’s Crusade to Deregulate Political Spending”

…tions as a vehicle to derail campaign finance laws, including in high profile cases such as Citizens United and McCutcheon, which have contributed to the flood of money in our elections. The political spending of religious right groups to support Republican candidates over the last two decades, and how it has increased since the Citizens United. The work of religious right groups against disclosure laws that would require big political spenders s…

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“The FEC Hearing and Its Detractors”

…The agency was acted entirely reasonably in inviting views on what it might do, if anything, in response to the McCutcheon case.  So what followed was predictable: the usual strong divisions were expressed and anyone hoping for a clear picture of the problems of campaign finance and how to address them was bound to be disappointed.  The FEC is not the culprit here: it only hosted the discussion and is not responsible for its content. It was a hea…

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Ravel and Weintraub: Come on Over to the FEC

…concern to all. When the Commission reached out for public comment on the state of our elections in the wake of McCutcheon v. FEC and other Supreme Court decisions, over 32,000 Americans commented. These comments came from Americans of all walks of life. They overwhelmingly urge the Commission to increase disclosure of political spending and limit the influence of money in our elections. Now, the Commission will open its doors for a public hearin…

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“Of Constituents and Contributors”

…coming, University of Chicago Legal Forum).  Here is the abstract: In the stirring conclusion to his opinion in McCutcheon v. FEC, Chief Justice Roberts pointed to the close connection between campaign contributions and what he called the “political responsiveness at the heart of the democratic process.” Invoking Edmund Burke, the Chief Justice eloquently declaimed that “[c]onstituents have the right to support candidates who share their views an…

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“The Law of Democracy at a Crossroads: Reflecting on Fifty Years of Voting Rights and the Judicial Regulation of the Political Thicket”

…ope of congressional authority over elections. Last term, the Court decided an important campaign finance case, McCutcheon v. FEC, which struck down aggregate contribution limits and opened the door for more campaign finance deregulation. This symposium will allow leading legal scholars and political scientists to gather at a critical juncture in election law to debate and shape the future of the field. You can see the schedule of events here. &n…

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Judge Posner on Free Expression and the First Amendment

…How would you characterize the First Amendment jurisprudence of the current Court? Posner: Very nice for fat cats and enemies of abortion. Question: …..[H]ow bad in your view have things become in light of rulings such as McCutcheon v. FEC (2014)? Posner: Very bad. Question: Do you favor some kind of constitutional amendment to remedy the problems you have identified Posner: [The idea of a constitutional amendment is] a waste of time….

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“Meet the New Super Donors”

…cycle. The Supreme 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 r…

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“Governing and Deciding Who Governs”

…hafetz 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 govern sho…

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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

…ng 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 the Supreme Court on the issue in Doe v. Reed : disclosure in the face of threats, harassment, or other reprisals.  In Doe v. Reed , the Court rejected a facial challenge to a law requiring disclosure of signatories to referendum petitions (the refer…

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

…regular 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 exist…

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