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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Top Recent Downloads in Election Law on SSRN

…s 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 Article I Franita Tolson Florida State University – College of Law Date posted to database: 26 Aug 2014 Last Re…

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

…e 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 rules mid-election, an issue on which I think voting rights advocates could win. But today’s Supreme Court gran…

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

…SRN (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 o…

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“The CEO and the Hydraulics of Campaign Finance Deregulation”

…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 McCutcheon v. FEC by embracing transparency with their campaign donations, and also suggests that campaign finance deregulation is causing hydraulic effects that the Court has failed to anticipate.    …

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

…d 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 of Alabama Legislative Black Caucus v. Alabama. The Preview congregates judges, former solicitors general, Supreme Cour…

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

…nd 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 committees which a state candidate can take. Judge Randa said this ki…

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New Letter from Former ACLU Leaders Supports Campaign Spending Limits

…m 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 spending l…

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“Without Limits, Will Campaign Contributions Dominate Politics?”

…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.” What’s the likely impact of more money in politics—this year and i…

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

…“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.”…

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

…t 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 the 2014 Supreme Court decision in McCullen v. Oakley. It synthesizes the surprisingly muddled Supreme Court guida…

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“The Uncertain Future of the Corporate Contribution Ban”

…First Amendment rights of corporations surely casts a shadow on the contribution bans. This year’s decision in McCutcheon v. FEC – which ratcheted up the Court’s review of contribution restrictions – darkens that shadow still. This paper argues that, assuming the Court continues to recognize the constitutional validity of contribution limits and to apply a less strict standard of review of contribution restrictions – admittedly a big “if,” a cor…

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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)”

…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 changing compliance environment, these industry leaders reflect on the challenges practitioners face, ranging from the de…

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

…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 discussion of the First…

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

…tute: 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 Independent Spending i…

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“The Democracy We Left Behind in Greece and McCutcheon”

…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 democracy from creeping theocracy served up one public prayer at a time. In both areas of First Amendment law (Free Speech…

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“GOP Launches Big Money Effort”

…ure 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 Senate battleground states. Now we are up to $162,000 in a single check. We will see if we reach the multi-m…

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

…7;s October 2013 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 an edited version of the lower court decision in the Alabama redistricting cases which the Supreme Court will hear in the October 2014 term. The supplement also considers developments in Voting Rights Act litigation after the Supreme Court’s Shelby County case as…

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“The CEO and the Hydraulics of Campaign Finance Deregulation”

…ould 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 McCutcheon v. FEC by embracing transparency with their campaign donations, and also suggests that campaign finance deregulation is causing hydraulic effects that the Court has failed to anticipate….

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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

…is 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/jurisprudence/2014/04/the_subtle_awfulness_of_the_mccutcheon_v_fec_campaign_finance_decision_the.html … 5. Biggest criminal case is cell phone case which updates 4th Amendment for 21st century. 6. Cases like # Harris queue u…

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

…e, 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. Ther…

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

…tain casualness about the truth? Richard A. Posner…. Which brings me to Chief Justice Roberts’ opinion in McCutcheon v. Federal Election Commission, the decision in April that, in the name of free speech, further diminished Congress’ power to limit spending on political campaigns. The opinion states that Congress may target only a specific type of corruption—quid pro quo corruption—that is, an agreement between donor and candidate that in e…

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About that #SCOTUS Unanimity…A Skeptical Note

…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 marriage, two issues not really on the agenda right now for the Court. And when this Court wants to duck tough issues it can: think of the last two affirmative action cases, Fisher and Schuette. Even though neither…

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A New Era for Pay-to-Play

…sion regarding TL Ventures can and should be viewed in the larger context of campaign finance law.  In light of McCutcheon v. FEC, there has been an intense discussion over the definition of “corruption” and what level of corruption is needed to justify campaign finance regulations.  Interestingly, on page two of the Order, the SEC stated that “Rule 206(4)-5 does not require a showing of quid pro quo or actual intent to influence an elected offic…

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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 undis…

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