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Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
The Voting Wars Website
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Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Newspapers and Magazine Commentaries
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Search Results for: thalheimer
In Significant Action, Supreme Court Refuses to Hear Case to Allow Corporate Contributions Directly to Candidates
Via SCOTUSBlog comes the news that the Supreme Court, without comment, has denied cert. in Danielczyk v. U.S.,The decision not to hear the case is significant, because it means the Supreme Court majority, which has shown hostility to campaign finance limits, has decided not to move as aggressively as it could in further deregulating the campaign finance system.
The case raised the question (in the context of a criminal prosecution) whether corporations have a constitutional right to contribute money directly to candidates. The 2010 Citizens United case held that corporations have a constitutional right to spend money independent of candidates, but the opinion did not address corporate contributions to candidates (or contribution limits more generally). A number of campaign finance opponents argued that the logic of Citizens United compelled the conclusion that the corporate contribution limit should fall also. One problem with this argument in the lower courts is that the Supreme Court had held, in a case predating the Roberts Court’s skeptical approach to regulation, that the corporate contribution ban was valid [typo corrected]. Among other things the Court said that a corporate contribution ban prevented circumvention of individual contribution limits (after all, an individual could set up a large number of corporations to make contributions directly to candidates).
I successfully defended San Diego’s corporate contribution ban in the Thalheimer case before the 9th Circuit Court of Appeals. All of the other circuit courts reached the same conclusion: that the corporate contribution limit stands under earlier Supreme Court authority. Danielczyk case the only case to reach a contrary conclusion in the district court, but was reversed by the 4th Circuit to bring it in line with the other circuits.
Although there was no circuit split on this question (a common reason for the Supreme Court to agree to hear the case), the lower courts clearly expressed the opinion that the issue was foreclosed by earlier Supreme Court authority, and it would be up to the Supreme Court if it wanted to change the existing standard.
By not agreeing to hear Danielczyk, the Court leaves corporate contribution bans in place not only on the federal level, but under state and local law. It may be that after the Supreme Court decides the McCutcheon case, involving aggregate contribution limitations, that the standards for judging the constitutionality of contribution limit laws could change, making those laws harder to sustain. That could open up the corporate contribution limitation yet again. But in the meantime, the reform community dodged a bullet, because if the Court agreed to take Danielczyk, it almost surely would have been to reverse the Court’s earlier case on the question.
Yet another ray of light in an otherwise bleak campaign finance picture.
Missoulian: “The Montana Republican Party donated $500,000 to gubernatorial candidate Rick Hill and approximately $30,000 to attorney general candidate Tim Fox after a judge struck down the state’s campaign contribution limits.” More here.
We saw a similar move in the Thalheimer case when San Diego’s limits were temporarily blocked.
Following up on this post, the Ninth Circuit motions panel, in an opinion by Judge Bybee, unanimously stayed the district court order which would have had the effect of removing most of the contribution limits in the state of Montana judge weeks before the election. As I had suggested, heavy on the 9th Circuit judges’ concerns were what it would mean to lift these limits just before the election and the fact that the judge threw out a large number of contribution limits after finding a problem only with one of them. But also especially relevant was earlier Ninth Circuit authority upholding Montana’s limits, which the district court had held was no longer binding on the court in light of the Supreme Court’s decision in Randall. The Ninth Circuit panel, made up of pretty conservative judges, gave an unusually detailed explanation for why it was staying the judge’s ruling.
Here’s part of the introduction to the 44-page opinion:
The State of Montana has sought a stay of the district court’s order pending appeal. For the reasons we explain below, we believe that the state is likely to succeed on appeal. We conclude that the State of Montana has made a strong showing that a merits panel of this Court will likely conclude that, absent en banc proceedings or an intervening decision of the Supreme Court, we remain bound by our decision in Eddleman. See Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003) (en banc). We also conclude that a merits panel is likely to hold that the analytical framework of the Supreme Court’s decision in Randall does not alter the analysis of Buckley or Shrink Missouri in a way that affects our decision in Eddleman, for three reasons. First, there is no opinion of the Court in Randall. Thalheimer v. City of San Diego, 645 F.3d 1109, 1127 n.5 (9th Cir. 2011) (“[T]he plurality opinion [in Randall] [i]s persuasive authority, though not a binding precedent.” (internal quotation marks omitted)). Second, even if we thought that Justice Breyer’s plurality opinion represented the narrowest view of a majority of the Court, it did not depart from the principles of Buckley and Shrink Missouri that we applied in Eddleman. Randall, 548 U.S. at 242 (opinion of Breyer, J.) (“[T]his Court has repeatedly adhered to Buckley’s constraints . . . .”). Third, even if we applied Randall to § 13-37-216, we cannot find, on the basis of the district court’s findings, reason to disagree with, much less overturn, Eddleman. In light of Montana’s interest in regulating campaign contributions, the lack of evidence that other parties will be substantially injured, and the public’s substantial interest in the stability of its electoral system in the final weeks leading to an election, we will stay the order pending the state’s appeal. See Nken v. Holder, 556 U.S. 418, 434 (2009).
8th Circuit Unanimously Rejects Challenge to MN Corporate Contribution Ban; Divides on Disclosure Requirements
The Eighth Circuit has issued its en banc opinion in the Swanson case. The Eighth Circuit now joins the Second, Fourth (after the rejection of the district court decision in Danielczyk) and Ninth Circuits (in the Thalheimer case in which I was involved) in holding that any challenge to corporate contribution bans in the lower courts is barred by the Supreme Court’s decision in FEC v. Beaumont. The 8th Circuit does drop a footnote however suggesting that if and when this issue reaches the Supreme Court again, the Court could well overrule Beaumont. (Without a circuit split, however, the Court is less likely to take such a case.)
The 8th Circuit split, however, on a particular aspect of Minnesota’s disclosure law which it said would put an onerous burden on small associations which want to engage in certain election-related speech. The Court stressed however that political committees would still be required to disclose under Minnesota law, and that the part of the law imposing continuing reporting requirements might be severable from the rest of the law.
Another interesting campaign finance case filed by the Right to Life Committees, and another interesting campaign finance case out of Vermont. The decision on summary judgment denied the plaintiffs’ challenges to the application of Vermont’s law. Along the way, the court offers an intriguing discussion on “major purpose” as a limit on regulating PACs, at odds with the Fourth and Tenth Circuits. And an intriguing decision on refusing to find segregated bank accounts alone (without distinct accounting) sufficient to render an independent-expenditure entity distinct from a related entity making contributions, distinguishing the DC Circuit’s opinion in Emily’s List (and, perhaps, the Thalheimer litigation that Rick is working on in San Diego).
The case is Vermont Right to Life Committee v. Sorrell (II), No. 2:09-cv-188 (D. Vt.).
The time to appeal has passed in the litigation over challenges to a number of City of San Diego campaign finance laws. [Disclosure: I am one of the lawyers for the City of San Diego.] The case went to the Ninth Circuit at the preliminary injunction stage but there was no appeal after the district court decided the cross-motions for summary judgment.
Among other things, the Ninth Circuit held at the preliminary injunction stage that a ban on non-human (e.g, corporate or union) direct contributions to candidates does not violate the First Amendment. The court also held that a temporal limitation on campaign contributions—no contributions more than a year before an election–is constitutional, a decision the Ninth Circuit recently affirmed in Family PAC v. McKenna.
“Down the Rabbit Hole with Citizens United: Are Bans on Corporate Direct Campaign Contributions Still Constitutional?”
Since the early twentieth century, the Tillman Act has barred corporations from contributing directly to candidates for federal office. In Citizens United v. FEC, the U.S. Supreme Court overturned a related ban that prevented corporations from making independent expenditures in candidate elections. The legal foundation of the independent expenditure ban was similar to that which still supports the corporate direct contributions ban, thus calling into question the continuing validity of the direct contributions ban. This Note argues that if the Court follows the logical path that it laid down in Citizens United, it should overturn the corporate direct contributions ban.
Jason was an excellent research assistant of mine. I did not advise him on this note, however, as the very issue of this note was pending in the Thalheimer litigation from San Diego at the time he worked on it. (I am one of the attorneys for the City of San Diego in that litigation.) I very much look forward to reading it, and congratulate him on the publication.
That’s Allen Dickerson’s claim. Oh please. The Montana Supreme Court took Justice Kennedy at his word and looked at the state’s evidence of corruption to justify its law. That might be wrong—but it is not defying the rule of law.
Want to talk about defying the rule of law? Look at the district court decision in the Danielczyk case (now on appeal to the 4th Circuit), defying Supreme Court precedent on the constitutionality of limits on corporate contributions to candidates. (Here‘s the 2d Circuit on that opinion: The Court is aware of United States v. Danielczyk, No. 1:11cr85 (JCC), 2011 WL 2161794 (E.D. Va. May 26, 2011), which struck down a ban on corporate contributions, based on what it called an ‘inescapable’ expansion of Citizen United’s logic. Id. at *18; Danielczyk, 2011 WL 2268063 (E.D. Va. June 7, 2011) (denying reconsideration). The role of an appellate court is to apply to law as it exists. Since the Supreme Court reaffirmed the validity of the 100-year old corporate ban just 8 years ago, Beaumont, 539 U.S. at 154-55, and declined to overrule this holding in Citizens United, this Court will not do so here. Indeed, Citizens United confirms that the anti-corruption interest is a legitimate justification for campaign contribution restrictions. Citizens United also does not disturb the validity of the anti-circumvention interest. See Thalheimer v. City of San Diego, Nos. 10-55322, 10-55324, 10-55434, 2011 WL 2400779, at *13 (9th Cir. Jun. 9, 2011) (concluding that ‘nothing in the explicit holdings or broad reasoning’ of Citizens United invalidates the anti-circumvention interest in the context of contribution limits)”)
In the end, it will be up to the Supreme Court to weigh in in both the Montana case and the question in Danielczyk.
[Disclosure: I am an attorney for the City of San Diego in the Thalheimer case, where the corporate contribution issue is presented.]
Breaking News: Federal District Court in San Diego Upholds Corporate/Non-Individual Contribution Ban, Strikes Down $1,000 Political Party Contribution Limit
Agreeing with the Second Circuit and Eighth Circuit (now up on en banc appeal) and disagreeing with the district court in the Danielczyk case (now on appeal to the 4th Circuit), a federal district court in San Diego today had upheld the City of San Diego’s laws banning corporations, labor unions, and other non-individual entities (aside from political parties) from contributing money directly to candidates for City office.
The opinion in Thalheimer v. City of San Diego is here.[Disclosure: I am one of the attorneys for the City of San Diego.]
In addition to upholding the ban on corporate/non-human contributions directly to candidates, the Court also rejected a challenge to San Diego’s $500 individual contribution limit to City candidates, as well as a ban on contributions to City candidate more than 12 months before the election.
However, the Court struck down the ban on political party contributions to candidates, as well as a backup $1,000 contribution limit from political parties to candidates which the City had put in place after an earlier preliminary injunction. “At this time, the Court cannot say whether a $5,000 or $20,000 limit on contributions by political parties would be sufficient to pass the constitutional muster under Randall.” I believe this is the first case in which a court has held that political parties have a constitutional right to contribute money directly to candidates, and that the amount of the contribution limit must pass muster under the Randall analysis.
Viveca Novak has written this must-read profile of Jim Bopp for the American Prospect. Viveca, a former Time correspondent who I got to know during Florida 2000, has recently taken up the position as Editorial and Communications Director for the Center for Responsive Politics.
I’ll be going up against Citizen Bopp in federal district court in San Diego Friday in the Thalheimer challenge to the City of San Diego’s campaign finance laws.
Barring breaking legal developments (and we’ve seen an inordinate share of those in the last two weeks), posting will resume after New Year’s Day (and will be light the first week of January as I speak at AALS on Internet voting and at a panel on law blogging and argue for the City of San Diego on cross-motions for summary judgment in the Thalheimer campaign finance case).
The year ahead will be a busy one for election law, and especially for me beginning in the summer with the publication of The Voting Wars by Yale University Press. I hope to do a mini-book tour in the fall talking about these issues before Election Day. Also, save the date of September 14, 2012 for an exciting conference, Foxes, Henhouses, and Commissions: Assessing the Nonpartisan Model in Election Administration, Redistricting, and Campaign Finance, at UC Irvine Law.
As the new year approaches, I want to thank my readers for their support. Many people wonder how I am able to keep up with and report upon election law developments around the U.S. The answer is that I have many generous readers, who supply me with tips, links, and perceptive analysis which aids me greatly in the job I do here. I could not do it without them!
I also want to thank my regular and occasional guest bloggers (especially Dan Tokaji and Justin Levitt, who regularly fill in for me when I am away) for their hard work and insightful analysis.
I also wish to thank the IT staffs first at Loyola, and now UCI, for keeping everything running smoothly. There is a lot of behind-the-scenes work which readers do not see. Thank you!
A happy, healthy, peaceful, prosperous 2012 election law year for all!
2d Circuit Issues Important Campaign Finance Decision Affirming Constitutionality of NY “Pay to Play” Rules, Ban on Entity Contributions
(1) confirms that lower level scrutiny applies to laws regulating contributions even after Citizens United (“Since the Supreme Court preserved the distinction between expenditures and contributions, there is no basis for Appellants’ attempt to broaden Citizens United. Appellants’ selective and misleading quotes carefully skip over the Court’s clear distinction between limits on expenditures and limits on contributions”);
(2) affirms that the anti-circumvention interest remains valid after Citizens United and FEC v. Beaumont remains good law (“The Court is aware of United States v. Danielczyk, No. 1:11cr85 (JCC), 2011 WL 2161794 (E.D. Va. May 26, 2011), which struck down a ban on corporate contributions, based on what it called an ‘inescapable’ expansion of Citizen United’s logic. Id. at *18; Danielczyk, 2011 WL 2268063 (E.D. Va. June 7, 2011) (denying reconsideration). The role of an appellate court is to apply to law as it exists. Since the Supreme Court reaffirmed the validity of the 100-year old corporate ban just 8 years ago, Beaumont, 539 U.S. at 154-55, and declined to overrule this holding in Citizens United, this Court will not do so here. Indeed, Citizens United confirms that the anti-corruption interest is a legitimate justification for campaign contribution restrictions. Citizens United also does not disturb the validity of the anti-circumvention interest. See Thalheimer v. City of San Diego, Nos. 10-55322, 10-55324, 10-55434, 2011 WL 2400779, at *13 (9th Cir. Jun. 9, 2011) (concluding that ‘nothing in the explicit holdings or broad reasoning’ of Citizens United invalidates the anti-circumvention interest in the context of contribution limits)”);
(3) states that broader forms of influence may count as corruption for purposes of sustaining contribution limits (“Although Citizens United stated that mere influence or access to elected officials is insufficient to justify a ban on independent corporate expenditures, improper or undue influence presumably still qualifies as a form of corruption”)(Judge Livingston disagreed on this point); and
(4) evidence of actual recent corruption is not necessary to sustain a contribution limit (“Appellants essentially propose giving every corruptor at least one chance to corrupt before anything can be done, but this dog is not entitled to a bite.”), though there was enough evidence of recent corruption in any case to justify the City’s law.
Judge Calabresi issued a short concurring opinion taking on a broader issue, the legitimacy of an equality interest for campaign finance regulation:
I agree completely with the Supreme Court that the First Amendment protects each person’s right to express political beliefs through money. Where I disagree with the Court is in its repeated insistence that any recognition of the “level playing field” interest (elsewhere referred to as the “antidistortion interest,” Citizens United v. FEC, 130 S. Ct. 876, 903 (2010)) is inconsistent with this right. To the contrary, the antidistortion interest promotes this right in two important ways. First, it prevents some speakers from drowning out the speech of others. And second, it safeguards something of fundamental First Amendment importance—the ability to have one’s protected expression indicate the intensity of one’s political beliefs. These values, moreover, have not gone unrecognized in underlying First Amendment jurisprudence.
[Disclosure: I am litigating similar issues in the Thalheimer case (quoted by the 2d Circuit above) against the same lawyers representing the challengers in this litigation. The Thalheimer case is back before the federal district court on cross-motions for summary judgment.]
Dick Semerdjian and I (representing the City of San Diego in the Thalheimer litigation) have written this letter to the editor of the San Diego Union-Tribune.
The case is currently subject to cross-motions for summary judgment in federal district court.
Unanimous 4th Circuit Upholds Ban on Lobbyist Campaign Contributions; Big Implications for Pending Corporate Contributions Case
Good news in Preston v. Leake from the 4th Circuit, in a case which puts it at odds with the Second Circuit’s Green Party case. (I discuss the Green Party case and the district court’s decision in Preston in my forthcoming lobbying paper in the Stanford Law Review.)
Assuming this decision stands (that is, is not taken en banc or heard by the Supreme Court now given the Circuit split), it would provide a strong basis for upholding the corporate contribution ban in the Danielczyk case. (Disclosure: I am one of the lawyers representing the City of San Diego in the Thalheimer case, cited in Preston, considering the constitutionality of the City’s ban on corporate and other non-human entity contributions to candidates.)
Read the complaint here. (Some aspects are similar to the suit filed in the Thalheimer case, in which Bopp is on one side and I am one of the lawyers representing the City of San Diego on the other.)
More in this story.
The following press release arrived from the James Madison Center via email.
Coalition Files Lawsuit Challenging Montana’s Campaign Finance LawMontana residents Doug Lair and Steve Dogiakos, and American Tradition Partnership PAC want to give a couple hundred dollars in contributions to candidates that they like for the Montana State House. Montana, however, limits their contributions to just $160, which is among the lowest limits in the country. The Lake County Republicans and the Beaverhead County Republicans, meanwhile, just want to make an $800 contribution to Republican candidates running for state office. However, if one of them makes that contribution, the other is not allowed to—even though they are two distinct groups, with separate membership and leadership. Three Montana business corporations—Jake Oil, LLC, JL Oil, LLC, and Champion Painting, Inc.—want to make contributions to candidates, and also to committees that spend money independently of candidates. But Montana law does not allow them to do so, because they are corporations. And John Milanovich, candidate for the Montana House in 2012, would gladly accept contributions from individuals and PACs greater than $160, and also from corporations. But he cannot do so under the law.Meanwhile, Montana Right to Life PAC, Sweet Grass Council for Community Integrity, and American Tradition Partnership want to communicate important information to the voters about candidates and their positions on the issues. But under Montana law, they can be subjected to penalties if the State decides that what they say is “false.” Further, if they mention how a candidate voted on a certain issue, the State says that they must also include a disclaimer telling about the candidate’s other votes “on the same issue” if “closely related in time.” But the law doesn’t explain what those terms mean. For instance, if one of these groups discusses a candidate’s vote to raise taxes on corporations, what is the “same issue”? Is it only votes regarding tax increases on corporations? Or is it taxes in general? Or might the “same issue” be the regulation of corporations, whether or not the proposed regulation includes a corporate tax? Nobody knows. And that uncertainty, coupled with the fear that the State might judge their speech “false” and punish them for saying it, makes groups hesitant to speak out about politicians.
Yesterday these Montana citizens said, “Enough is enough,” as they filed a lawsuit challenging the constitutionality of these laws. James Bopp, Jr., the lead attorney for the plaintiffs, said that each of the challenged laws is impermissible under the First Amendment. “The Supreme Court has ruled that corporate political speech is protected by the First Amendment, and you cannot ban political speech just because the speaker is a corporation. Yet, Montana does that,” Mr. Bopp explained. He commented further, “The Founders did not trust government to be the speech police and tell us what we can say, or what we must say. Yet Montana’s false statement law and disclaimer requirement do just that. The First Amendment does not permit this.”Mr. Bopp also explained that limits on contributions are only constitutional when they are designed to curb the type of quid pro quo corruption that can take place with large contributions. When limits are not needed to curb corruption they violate the First Amendment. “It’s simply not plausible that a donation of, say, $200 is going to corrupt a candidate. Yet Montana bans it anyway. Nor is it plausible that donations from political parties will corrupt candidates. Yet, Montana says that once one political party has contributed $800 to a candidate, no other political party may make any contribution. These laws do not pass constitutional muster.”The plaintiffs will also ask the court to preliminarily enjoin enforcement of these laws. Their documents are available on the James Madison Center website by clicking here: http://www.jamesmadisoncenter.org/cases/09-07-2011/688/.
It would seem to m that the attack on a ban on contributions to corporations would be tough given the Ninth Circuit’s recent ruling in the Thalheimer case. [Disclosure: I am one of the lawyers for San Diego in that case.]
In Thalheimer v. City of San Diego, the Ninth Circuit upheld the trial court’s denial of a preliminary injunction of the City’s law barring non-human contributions to candidates (the same issue as in the Danielczyk case in the 4th Circuit and the Swanson case in the 8th circuit). The court also denied a preliminary injunction as to time limitations for candidates raising campaign contributions. The Ninth Circuit also denied rehearing en banc.
Today plaintiffs filed this letter with the district court, indicating that they will not be seeking Supreme Court review of the denial of the preliminary injunction on these two issues. (The preliminary injunction was granted as to two other provisions of the law.)
Any further action in this case will take place next in the district court.
[Disclosure: I am one of the attorneys representing the City of San Diego in this case.]
Big news from the Ninth Circuit. The full court has denied rehearing en banc in this campaign finance case. According to the order, no active judge on the court requested a vote in the case. Among other things, the panel opinion held that a ban on non-human (e.g, corporate or union) direct contributions to candidates does not violate the First Amendment. The court also held that a temporal limitation on campaign contributions (no contributions more than a year before an election) is likely constitutional. [Disclosure: I am one of the attorneys for the City of San Diego.]
The district court in the Danielczyk case held that the federal corporate contribution ban was unconstitutional, a case now on appeal to the Fourth Circuit. The Eighth Circuit in the Swanson case held that a similar Minnesota ban was constitutional, but this case in now up for en banc consideration.
We will wait to see if Jim Bopp files a petition for cert. in this case.
You can read it here. You can find my earlier coverage of this case here. [Disclosure: I am one of the attorneys for the City of San Diego.] Under the rules, no response to the petition may be filed unless the court asks for a response.
Breaking News: Judge in Va. Contributions Case Reaffirms Opinion Striking Down Federal Campaign Contribution Limits Law (Danielczyk)
Via Ken Vogel comes word of this order from Judge Cacheris. This is not what I was expecting. The Court has held unconstitutional a 100-year-old ban on direct corporate campaign contributions to candidates. He has done so in direct contradiction to the Supreme Court’s holding in FEC v. Beaumont, and in contradiction to rulings in the Second Circuit, the Eighth Circuit, and a federal district court in San Diego [that case is on appeal, and I am defending San Diego's similar law in the Ninth Circuit.]
Judge Cacheris makes two arguments as to why he is not bound by FEC v. Beaumont, in which the Supreme Court upheld the very same law.
1. He accepted the argument put forward in an amicus brief by the James Madison Center that the holding in Beaumont applied only to non-profit advocacy corporations, and not to for-profit companies. This argument is very weak. In Beaumont, a nonprofit ideological corporation argued that even if the statute could constitutionally be applied to for-profit corporations, it could not constitutionally be applied to non-profit corporations. The Court had already held in the case of Mass. Citizens for Life v. FEC that such corporations could not be barred from making independent expenditures. In Beaumont, the Court held that even such ideological MCFL corporations could constitutionally be barred from making direct contributions to candidates. Among other reasons, the law prevented such corporations from being used as conduits to evade individual contribution limits. If such non-profit corporations could constitutionally be barred from making contributions to candidates, a fortiori for-profit corporations should be barred as well.
2. The judge accepted the second argument that Citizens United silently overruled Beaumont. This too is a weak argument. I think that argument is dead wrong, for reasons explained in great detail in Part I of this brief filed in the San Diego case.
What should happen next? I’m not an expert on the ability of the government to take an interlocutory appeal at this point in the criminal case, but I would urge them if they could to take this directly to the 4th Circuit. Otherwise, there will be great uncertainty going into the 2012 election season about an important constitutional question.
UPDATE: Here’s more analysis.
Here. I disagree with Lyle, here, as I think he fails to see that under Beaumont, corporate contribution limits are necessary to prevent evisceration of individual contribution limits through the creation of sham corporations. That’s the point I made in my briefs in the San Diego case (where the City’s law applies to all artificial entities, and not just corporations), and it’s the point the Eighth Circuit accepted in Swanson). I also made the point in yesterday’s NY Times.
Breaking News: Eighth Circuit Upholds Minnesota Ban on Direct Corporate Contributions to Candidates, Minnesota Corporate IE Disclosure Rules
In Minnesota Citizens Converned for Life, Inc. v. Swanson, the Eighth Circuit unanimously upheld a district court’s decision not to preliminarily enjoin Minnesota’s ban on direct corporate contributions. (One of the three judges wrote separately to question whether the Supreme Court ultimately might overrule its Beaumont case upholding the corporate contribution ban). The court split 2-1 on Minnesota’s rules governing corporate independent expenditures, and whether the rules run afoul of Citizens United.
I was very happy to see this opinion, as I have the same issue pending in the Ninth Circuit in the Thalheimer case, where I am one of the attorneys defending the City of San Diego’s campaign contribution laws. The Thalheimer case was argued in the Ninth Circuit at the beginning of October.
That’s the lead press release at the moment at the James Madison Center. Note that this is a suit against the county of San Diego. Jim Bopp and I are on opposite sides of a lawsuit raising similar issues involving the city of San Diego. That case, the Thalheimer case, is currently pending before the Ninth Circuit.
I earlier posted about the Supreme Court’s denial of a stay in the Family PAC case. Now the Ninth Circuit has issued this 74-page opinion upholding provisions of Washington State’s disclosure law against First Amendment challenge. The case was not posted at the usual time of day for 9th Circuit postings, and it is is in typescript form. That’s usually done for opinions issued on an expedited basis. I don’t know if there was a request to expedite this case, but it was argued in May.
(Judge Wardlaw is the author of the opinion. She’s also the author of the Long Beach case striking down Long Beach’s law limiting contributions to independent expenditure committees, and she’s one of the judges on the Ninth Circuit panel deciding the Thalheimer challenge to the San Diego campaign finance law—Jim and I argued on opposite sides of that case last week. Coincidentally, Judge Fletcher, who is also on the Thalheimer panel, was one of the judges on the Ninth Circuit granting Washington’s stay request in the Family PAC case.)
You can find the audio of yesterday’s argument in Thalheimer v. City of San Diego here.
Federal District Court in Minnesota Denies Preliminary Injunction Which Would Have Allowed Direct Corporate Contributions to Candidates
The opinion in MCCL v. Swanson is here. Plaintiffs, represented by Jim Bopp, have already appealed. I will be arguing against Jim on a similar issue before the Ninth Circuit in the Thalheimer case on October 4.
Michigan has apparently entered into a consent decree permitting corporate contributions to independent expenditure committees, converting this preliminary injunction into a permanent one. This comes on the heels of Thalheimer v. City of San Diego and the FEC’s Commonsense 10 Advisory Opinion, confronting the same issue at the city and federal level, respectively.
The San Diego campaign finance case, Thalheimer v. City of San Diego, will be heard by the Ninth Circuit in Pasadena on October 4. I plan to argue on behalf of the City of San Diego.
One of the questions posed in the case is the constitutionality of San Diego law barring corporations, unions, and other non-human entities from contributing directly to candidates for City office. Also at issue is whether political parties have a constitutional right to contribute directly to candidates in nonpartisan elections.
You can find my earlier coverage, along with links to the appellate briefs, here. [Disclosure: I am co-counsel for the City of San Diego in this case.]
BNA offers this important report ($). At issue is not only disclosure, but the question whether corporations and unions may contribute directly (and in unlimited sums) to IE committtees. (I have a related constitutional issue pending in the San Diego case.)
Following up on this post, I have posted at this link the Plaintiffs’ first brief in the San Diego Thalheimer case. (Jim Bopp is the lead lawyer for the plaintiffs). Among other arguments, the plaintiffs argue that corporations and other non-individual entities have a constitutional right to make campaign contributions directly to candidates. [Disclosure: I am co-counsel for the City of San Diego in this matter.]
The Campaign Legal Center has posted this item about this amicus brief by CLC, the Center for Governmental Studies, and Common Cause.
[Disclsoure: I am one of the attorneys for the City of San Diego and the amicus brief supports this brief of the City.]
Today co-counsel and I filed this brief in the 9th Circuit, arguing against a district court order (1) preliminarily enjoining the City’s law barring individual (>$500) and non-individual (i.e., corporate, union, etc.) contributions to independent expenditure committees and (2) preliminarily enjoining, as to political parties, a ban on organizational direct contributions to candidates. Plaintiffs have cross-appealed, so there will be additional issues briefed in the case later on. (The Ninth Circuit denied a stay on the first of these two orders; as to the second, the district court had imposed its own stay.)
The brief includes an extended discussion of Citizens United and Speechnow. One difference with the Speechnow case is that the issue there involved only individual contributions to candidates; the San Diego case involves contributions by non-individual entities as well.
Jim Bopp has been the attorney in the RNC v. FEC litigation. But NBC now reports that “if the RNC loses [before the three judge court], it will ask Olson to represent them in a Supreme Court challenge.”
Jim is not a friend of mine; indeed we are on the opposite sides of the San Diego/Thalheimer case right now. But here what I wrote when Bopp was replaced by Olson in the Citizens United case: “The Citizens United case was Bopp’s brain child, one of the suits he devised to push the Supreme Court’s jurisprudence in a further deregulatory direction. This is a curious choice for Citizens United. In any case, I wonder if the RNC will consider a similar move when that case moves up the food chain…Bopp and I are usually on opposite sides of cases. But before the Roberts Court I don’t see how deregulationists can do better than to be represented by Bopp.”
I’ve been reporting on the preliminary injunction decision (and clarification of decision) in the Thalheimer v. City of San Diego campaign finance case. (I am co-counsel for the City in this case.)
As I noted, the Court issued a split decision on Plaintiffs’ challenges. The City has now appealed to the United States Court of Appeals for the Ninth Circuit from parts of the adverse portions of these orders. In particular, the City is appealing from the orders preliminarily enjoining enforcement of contribution limitations to independent expenditure committees and enjoining political party contribution limits to candidates.
Just now the City requested a stay of the district court’s order related to the question of contributions to independent expenditure committees (the political party order was already stayed in the court’s original order on the preliminary injunction). At these links, you can read the stay motion and Memorandum of Points and Authorities.
Breaking News: Federal District Court Issues Important Split Decision in San Diego Campaign Finance Case
As I’ve noted on the blog, I was brought in recently as co-counsel to represent the City of San Diego in a challenge brought to five city campaign contribution limit laws. Plaintiffs sought a preliminary injunction, and the federal district court has now issued its opinion and order on the preliminary injunction motion.
In a careful and thoughtful opinion, the court upheld the core of the challenged laws: left standing are the $500 limits on individual contributions to candidates, a ban on contributions by non-human entitles (aside from political parties), including corporations and labor union contributions to candidates, and a 12-month temporal limitation on contributions to candidates. On the contributions by entities, the Court held that Citizens United did not prevent the city from enacting the contribution ban applicable to these entities.
The court, however, struck down limits on contributions to independent expenditure committees, relying heavily on dicta in Citizens United (I think the first court to do so). It also held, in what I believe to be a holding of first impression, that political parties have a constitutional right to make contributions to candidates (even in non-partisan elections). The court relied upon dicta from the controlling opinion in Randall v. Sorrell to reach this result. The court stayed this part of its order to give the city a chance to enact reasonable contribution limits applicable to political parties. Finally, the court held that an ethics commission interpretation of the 12-month temporal limitation, which read that limitation to bar a candidate’s use of her own funds to support her campaign, was unconstitutional as to the candidate’s own expenditures.
There is no word yet on whether there will be any appeal on either side of the case. The question of contribution limits to independent expenditure committees has been pending for some time in the Ninth Circuit in a case out of Long Beach. That decision could come at any time.
This is just a ruling on the preliminary injunction. The court could also change its mind on these issues in any final judgment.