Two from Michael Gilbert

…ffect their frequency. The Supreme Court failed to appreciate that second point in McCutcheon v. FEC, concluding that aggregate limits serve no anti-corruption purpose and violate the Constitution. Many observers interpreted McCutcheon to foreclose all aggregate limits, and some states stopped enforcing their aggregate limits as a result, but that reaction is unjustified. McCutcheon does not reach beyond federal law, and aggregate limits remain…

Continue reading
Share

“Aggregate Corruption”

Michael Gilbert and Emily Reeder have posted this draft on SSRN (forthcoming, Kentucky Law Journal). Here is the abstract: This symposium paper challenges the Supreme Court’s most recent campaign finance decision, McCutcheon v. FEC. True to recent form, the Court in that case invalidated another restriction on money in politics, the federal limit on aggregate contributions. The Court based its decision on two arguments: if one complies with…

Continue reading
Share

“Hillary Clinton Raised $143 Million in August for Democrats and Her Campaign”

Nick Confessore on the McCutcheon effect: August was Mrs. Clinton’s most successful fund-raising month so far, as she crisscrossed the country on a money hunt that took her to dozens of events in the summer locales of the wealthy and the well-to-do. Her efforts brought in $143 million for her campaign and for Democratic organizations, according to her campaign. That is far more than the $90 million haul Mrs. Clinton and the Democrats reported…

Continue reading
Share

“Electoral Integrity in Campaign Finance Law”

Daniel Wiener and Benjamin Brickner have posted this draft on SSRN.  Here is the abstract: In their dissenting opinion in McCutcheon v. FEC in 2014, four justices of the U.S. Supreme Court described the government’s interest in passing campaign finance laws in terms of “electoral integrity.” But while they referenced the concept and made clear its importance, the dissenters did not fully flesh out what it might mean for this area of law. With…

Continue reading
Share

2016 Election Law Supplement Shipping Aug. 2; Instructors Can Get Electronic Copy Now

…ags: Election Law The 2016 Supplement to the fifth edition of Election Law: Cases and Materials is up to date through the end of the Supreme Court’s October 2015 term. It includes excerpts of the Supreme Court’s decisions in McCutcheon v. FEC and other post-Citizens United campaign finance cases, as well as Shelby County v. Holder, which struck down a key provision of the Voting Rights Act. This year’s supplement covers recent redistricting…

Continue reading
Share

Does the New Assault on Super PACs from Liberal “Dream Team” Have a Shot? Maybe, in this Post-Scalia World

…spending limits holding of Buckley).  It seemed pretty clear with the Roberts Supreme Court that SpeechNow followed from precedents like Citizens United (cited 13 times in the DC Circuit opinion in Speech Now), and the later McCutcheon case. That is, if SpeechNow came before the Supreme Court while Justice Scalia was still on it, the government surely would have faced defeat, and the risk is that the Supreme Court could have made things even…

Continue reading
Share

Hearing in Louisiana Republican Party’s Challenge to Soft Money Ban

…ding U.S. Circuit Judge Sri Srinivasan who was reportedly skeptical of the argument pressed by plaintiffs’ attorney Jim Bopp: While the logic of the high court’s recent majority opinions [like Citizens United and McCutcheon] might indicate soft-money ban is on shaky ground, Srinivasan said, a lower court must be reluctant to overturn a provision specifically left in place by the Supreme Court. Such a move “just sounds like something…

Continue reading
Share

2016 Supplement for Lowenstein, Hasen, and Tokaji Election Law Casebook Coming in time for Fall Classes

…ags: Election Law The 2016 Supplement to the fifth edition of Election Law: Cases and Materials is up to date through the end of the Supreme Court’s October 2015 term. It includes excerpts of the Supreme Court’s decisions in McCutcheon v. FEC and other post-Citizens United campaign finance cases, as well as Shelby County v. Holder, which struck down a key provision of the Voting Rights Act. This year’s supplement covers recent redistricting…

Continue reading
Share

Breaking: Federal Court Strikes Down Key Montana Contribution Limits, Setting Up Quick 9th Circuit Battle and Potential SCOTUS Deadlock

…ruption to justify campaign contribution limits given Supreme Court precedent) will be reconsidered. There’s a good chance if this happens that the district court will be reversed. Then again, as I’ve argued, the McCutcheon case (which gets very little attention in Judge Lovell’s opinion) contains some language making it much easier to challenge contribution limit laws as violating the First Amendment. Either way, the matter…

Continue reading
Share

“Lobbyists are People Too, and They Should Be Free to Contribute to California Legislative Races”

…McConnell averred a broad threat of corporate influence in elections to uphold restrictions on the political speech of corporations. However, the Roberts Court overturned parts of Austin and McConnell in Citizens United and McCutcheon, downplaying the threat of potential corruption caused by corporate monies in elections. If litigated today, California’s ban on lobbyist campaign contributions would likely be held unconstitutional as an…

Continue reading
Share

“Voting, Spending, and the Right to Participate”

…ing in isolation. This Article challenges the prevailing, bifurcated approach to voting and spending law. Its central thesis is that the law’s disparate treatment of voting and spending is unjustified. Voting and spending are, at bottom, two methods of participating in the electoral process. Conceiving of them as two aspects of a broader right to participate —-a right the Supreme Court recently articulated, but did not develop, in…

Continue reading
Share

Bernie Sanders Campaign Oddly Accuses Clinton and DNC of Troubling, Perhaps Illegal, Fundraising Practices

…set up a joint fundraising committee with her political party. The JFC allows you to raise a huge chunk of change (more now than in past campaigns, thanks to the Supreme Court blowing out the aggregate federal limits in the McCutcheon case). A small bit goes to the candidate’s committee under the federal limits (currently $2,700 for the primary and $2,700 for the general). The next bit goes to the DNC, and the rest so state parties in…

Continue reading
Share

“Bulk of Ryan’s fundraising haul in $50k-plus chunks”

…ors and PACs who cut checks larger than $50,000, according to a POLITICO analysis of the Team Ryan Federal Election Commission filing. For example, billionaire industrialist Charles Koch, chairman and CEO of Koch Industries, and his wife Elizabeth gave Ryan a total of $488,400 in March alone. Koch Industries PAC chipped in $71,000. Paul Ryan (the other one, from the CLC) tweets: “SCOTUS McCutcheon decision+CROMNIBUS=$488,400 contributions…

Continue reading
Share

Judge Merrick Garland: A Moderate Liberal on Election Law Issues, With Questions About Boldness

…7;s role in crafting reasonable campaign finance regulations aimed at protecting government interests. Judge Garland could have written the opinion in a reluctant way, noting that Supreme Court cases like Citizens United and McCutcheon may have undermined the constitutionality of total bans on contributions by any class of contributors. But Judge Garland did not write such a decision (as we recently saw another DC panel do in a disclosure case)….

Continue reading
Share

“Political Money Fan Relishes Role as Trump Supporter”

…can National Convention, and he’s pledged his support to the billionaire real estate mogul. Alabama was one of seven states Trump won during Super Tuesday, the biggest night so far in the 2016 presidential primaries. … McCutcheon hasn’t contributed to any members of Congress or their challengers so far in the 2016 campaign, FEC records show, even though his lawsuit made it legal for individuals to give to as many candidates as they’d like….

Continue reading
Share

Subjecting Plutocrats United to the “Page 99 Test”

…lity of caps on campaign spending. I also want to give every voter $100 in campaign finance vouchers to contribute in elections. Here is the excerpt from page 99: “Though rich,” Collins and Skover tell us, “McCutcheon cannot be counted among the super-rich.” They quote McCutcheon as saying, “I do not come from a rich family.” Not “super-rich”? Anyone who can spend $384,000 in campaign…

Continue reading
Share

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

…ajorities of the Court embraced a far broader definition of corruption, which allowed political spending to be limited 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…

Continue reading
Share

“Campaign Finance and the Ecology of Democratic Speech”

…nd unlimited amounts of their resources on advertisements in the media to influence elections, and this has helped 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…

Continue reading
Share

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

…concluded in my August oped: The Roberts Court has proved itself quite deregulatory in campaign-finance cases. It 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…

Continue reading
Share

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

…ortant unanimous decision by Judge Fisher (joined by Kozinski and Watford) in the 9th Circuit as a challenge to the 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…

Continue reading
Share

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

…s yes to both. As in Rufer and RNC II, Plaintiffs have presented substantial constitutional claims. While the Supreme 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…

Continue reading
Share

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

…search Paper No. 2015-70. Available at SSRN: http://ssrn.com/abstract=2639902. But he also assigns the Court heavy 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…

Continue reading
Share

“Super PAC Contributions Can Be Considered Bribes: Judge”

…former aides to Sen. Harry Reid (D-Nev.) that made independent expenditures to support Menendez’s 2012 reelection. 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…

Continue reading
Share

“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…

Continue reading
Share

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

…tions and special dinners organized by contribution rank at this month’s RNC finance committee gala…. The dramatic 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…

Continue reading
Share

“The Unwilling Donor”

…ted campaign finance restrictions by weighing the First Amendment burden they place on a donor eager to engage the 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….

Continue reading
Share

Top Recent Downloads in Election Law on SSRN

Here: RECENT TOP PAPERS for all papers first announced 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…

Continue reading
Share

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

…e American Civil Rights Movement Gerald R. Webster, Peyton McCrary, Toby Moore, Leah C. Aden, 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,…

Continue reading
Share

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

…e parties, without explanation, dismissed the suit. So it is unclear why that suit got dismissed and this one got 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…

Continue reading
Share

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.,…

Continue reading
Share

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

…contractor ban to contributions to a Super PAC is inconsistent with the Supreme Court’s limiting of campaign finance 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…

Continue reading
Share

2015 Supplement to Election Law Casebook

…Arizona Legislature v. Arizona Redistricting Commission * Shelby County v. Holder* Alabama Democratic Conference 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…

Continue reading
Share

A war within the Republican party?

…party writ large” – the large network of donors, activists, and organizations that constitute the party. The explosive growth of outside groups explains why many campaign-finance supporters saw a silver lining to Shaun McCutcheon’s suit. The crude version of the “silver lining” argument suggests that McCutcheon will shore up the parties against outside spenders. The more nuanced argument—and the emerging conventional wisdom in the field—is…

Continue reading
Share

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

…e taken advantage of federal laws that provide for a direct appeal to the Supreme Court in certain campaign finance 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…

Continue reading
Share

2015 Supplement to Election Law Casebook Coming Soon

…lement to the fifth edition of Election Law: Cases and Materials will be up to date through the end of the Supreme 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…

Continue reading
Share

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

…ortant unanimous decision by Judge Fisher (joined by Kozinski and Watford) in the 9th Circuit as a challenge to the 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…

Continue reading
Share

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

…mpaign apparatus? Expenditures not contributions are, and will be more than ever, the whole ball game. Justice Kennedy 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,…

Continue reading
Share

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

…endment to rebuild the statutory wall protecting democratic elections from the flood of plutocratic and corporate 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…

Continue reading
Share

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

…so. Over the past half-century, however, the Supreme Court has struggled to define what sort of activity constitutes “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….

Continue reading
Share

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

…n 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.  …

Continue reading
Share

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

…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 participated in protest. “Their McCutcheon and Citizens United rulings have allowed corporations and billionaires to essentially buy our elections with unlimited sums of campaign cash, silencing the vast majority of voters. We’re here to send a…

Continue reading
Share

“American Plutocracy”

…tween Thomas Piketty, Gilens & Page, and campaign finance law. It argues that the U.S. Supreme Court has constructed 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”…

Continue reading
Share