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…

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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,…

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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…

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“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….

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#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.  …

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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…

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“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”…

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Floyd Abrams Speech on First Amendment Discusses McCutcheon, Citizens United

…oms were at risk. So for me, at least that part – that foundational part of the Citizens United case – should have been easy. But it isn’t. Nothing is, in the First Amendment area, these days because differences about what the First Amendment is about have 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…

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“The New Normal in Election and Political Law”

…legal practice, with an eye to generating new ideas for research and advocacy. Election and political law have undergone 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….

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

…nd federal level. How James Bopp, a prominent conservative attorney, uses Republican and religious right organizations 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…

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“The FEC Hearing and Its Detractors”

Bauer: It seem unfair that just holding a hearing subjects the FEC to criticism and ridicule. 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…

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Ravel and Weintraub: Come on Over to the FEC

…r Hearing Room. The Commission’s work in ensuring transparency is fundamental to our democracy, and should be of 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…

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“Of Constituents and Contributors”

…be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the concept of self-governance.” The Chief Justice’s emphasis on the representative-constituent relationship jarring, however, as McCutcheon addressed the effort of an individual to contribute to candidates in multiple states and congressional districts in which he was not a constituent. Shaun McCutcheon had made substantial contributions to…

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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”

…much of the racial discrimination in our political system.Arizona v. Inter Tribal Council reaffirmed the broad scope 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…

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Judge Posner on Free Expression and the First Amendment

…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 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…

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“Meet the New Super Donors”

…ien was referring to the limit on a donor’s overall campaign contributions, which stood at $123,200 per election 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…

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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…

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

…ues that these two themes actually chart a way forward for those who wish to see greater regulation of campaign financing. If Congress were to hold a national referendum to reenact the limits the Supreme Court struck down in McCutcheon, those limits would be constitutional even though the same limits passed by Congress were not. The reason is that limits backed by a popular vote would satisfy McCutcheon’s concerns with congressional self-dealing…

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Jim Bopp On the Hunt

…rk 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 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…

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

…labor organizations to contribute to others engaging in independent political activity, including SuperPACs and 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…

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Top Recent Downloads in Election Law on SSRN

…014 3 83 Color by Numbers: The New Misreading of the Voting Rights Act Justin Levitt Loyola Law School Los Angeles Date posted to database: 27 Aug 2014 Last Revised: 1 Sep 2014 4 74 The Democracy We Left Behind in Greece and McCutcheon Ciara Torres-Spelliscy Stetson University – College of Law Date posted to database: 4 Aug 2014 Last Revised: 30 Sep 2014 5 66 Protecting Political Participation Through the Voter Qualifications Clause of…

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

…think of the major election cases the Supreme Court has heard in recent years, they have been cases brought by the more conservative side aimed at shrinking voting rights or loosening campaign finance rules (Citizens United, McCutcheon, Shelby County).  Today’s emergency petition from voting rights advocates in Wisconsin is somewhat of an exception, but the petition raises issues not about voting rights more broadly, but about changing…

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

…ampioned while on the Court and is far more compatible with a conception of federalism that he explicitly rejected. Second, even looking at matters through the federalism lens that Stevens now endorses, such that one regards McCutcheon as trying to influence the selection of other people’s representatives, I argue that any effort to restrict McCutcheon’s and other long-armed donors’ campaign spending on those grounds would face…

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“The CEO and the Hydraulics of Campaign Finance Deregulation”

…disclosure and, more broadly, on democratic participation. With some on the Court eager to expand campaign finance disclosure exemptions for “economic reprisal,” this Essay concludes that the Court should treat money as speech not only when wealthy individuals donate to political candidates, but also when consumers spend money at the cash register. The politicization of retail markets means that business leaders are unlikely to respond to…

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

…. 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 voter ID and early voting cases, and campaign finance. In addition, a morning panel on civil rights cases before the Court will include a discussion…

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

…UPDATE: I have now read the Court’s opinion (read it here) and it seems like a reasonable, if potentially challengeable application of the Supreme Court’s opinion in McCutcheon.  It is not exactly the same issue: McCutcheon involved (among other things) a limit on the total amount that one individual could give to all federal candidates in an election. The disputed provision here limits the total amount of money from ALL political…

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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…

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“Without Limits, Will Campaign Contributions Dominate Politics?”

To the Point: There’s just nine weeks left before the mid-term elections—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.”…

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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…

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

…rt’s Citizens United case and its progeny, because the government interests justifying such disclosure laws do not apply with equal force to strict sunshine rules. In so doing, it discusses the 2014 Supreme Court decision in McCutcheon v. Federal Election Commission. Second, it argues that such laws are properly analyzed as “content-based” speech restrictions triggering “strict scrutiny” constitutional review. In so doing, the Article discusses…

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“The Uncertain Future of the Corporate Contribution Ban”

…rporations to engage in independent spending. If corporations could also make contributions, they could easily become a means to avoid the donation limits on the people who are closely associated with a corporation. Although McCutcheon tightened the “fit” required between the important public interest a campaign finance law is intended to sustain and the restrictions imposed by that law, the corporate contribution ban is narrowly tailored, and…

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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)”

…committee and party side of the ledger, as well as the corporate, non-profit, and association perspective. These political law experts review and discuss game-changing U.S. Supreme Court decisions, including Citizens United, McCutcheon v. Federal Election Commission, andShelby County v. Holder and their impact on candidates, campaigns, PACs and Super-PACs, and the agencies charged with enforcement of the laws that govern. In this rapidly…

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

…s Ron Collins and 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…

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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 –…

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“The Democracy We Left Behind in Greece and McCutcheon”

…t 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, the Supreme Court is not protecting…

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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…

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