Category Archives: campaign finance

Ninth Circuit finds that some Alaska campaign finance rules violate First Amendment

Thanks, Ned, for your terrific insight over the last couple of weeks. And thanks once again, Rick, for this opportunity to join ELB as a contributor, including picking up daily blogging duty for the next couple of weeks.

Late last week, the Ninth Circuit issued its decision in Thompson v. Hebdon, a challenge to Alaska’s campaign finance laws. The case was filed back in 2015, and the Supreme Court remanded it in 2019, “ducking major confrontation,” as Rick blogged earlier. The opinion finds that some of the Alaska laws at issue run afoul of the First Amendment: a law that prohibits candidates from accepting more than $3,000 in contributions from people living outside Alaska, and a law that prohibits individuals from giving more than $500 to a candidate or a political group. (It also concluded a couple of other challenged laws were permissible.)

The first time around, the Ninth Circuit found that the $500 limit was permissible. But the Supreme Court’s per curiam opinion in 2019 strongly hinted that the $500 limit was problematic in light of its 2006 decision in Randall v. Sorrell. Justice Ruth Bader Ginsburg wrote separately to highlight potential ways that the limit might be sustained, even though she agreed with sending the case back.

The Ninth Circuit panel split 2-1 on these issues. Judge Consuelo Callahan wrote the majority opinion, joined by Judge Carlos Bea. Chief Judge Sidney Thomas dissented.

Professor Ciara Torres-Spelliscy presaged this result over at the Harvard Law Review Blog back in 2019. The case attracted a few amici at the cert stage back in 2019. Will the case go en banc or back to the Supreme Court? Or will Alaska fashion new rules to meet the deficiencies the Ninth Circuit identified here?

From the Anchorage Daily News, “Federal court ruling likely allows unlimited cash in Alaska political campaigns.”

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“5 takeaways from the new House and Senate fundraising reports”

From WaPo. From the first takeaway on the hauls of pro-Trump and anti-Trump Republicans facing off in primaries:

Rep. Liz Cheney (R-Wyo.), who has emerged as perhaps the most passionate Trump critic …. raised a whopping $1.9 million. That’s one of the biggest hauls of any House member. It’s also notably more than her replacement in that No. 3 leader slot, Rep. Elise Stefanik (R-N.Y.), who raised more than $1.2 million for her House campaign….

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“American Airlines, other companies resume donations to Republicans who objected to election results”

WaPo:

According to a June report from the nonprofit Citizens for Responsibility and Ethics in Washington, more than $5 million in corporate or industry money has already gone to lawmakers who contested the election results or to aligned party committees.

Reports filed with the FEC this week make clear those donors include multiple corporations that pledged to reform or pause their giving after the insurrection.

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“Activist Shareholders Score Wins on Election Spending After Riot”

Bloomberg:

Like Duke Energy, shareholders at Netflix Inc., United Airlines Holdings Inc., and Royal Caribbean Cruises Ltd., and others have endorsed political spending disclosures in the sixth months since the riot, according to Bloomberg’s Proxy Tracker. The Netflix proposal received more than 80% shareholder support and the United proposal secured nearly 68% support.

The Capitol riot “exacerbated a risk that was already there” to corporate bottom lines, said Bruce Freed, president of the Center for Political Accountability, a non-profit group that advocates for and partners with activist shareholders on transparency proposals.

That’s seen in this proxy season’s numbers, he said. Political spending proposals that manage to get votes at annual shareholder meetings are increasingly likely to get approved. Nearly 40% of the proposals were approved in 2021, compared to just 20% in 2020.

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“Few companies stick with pledge to shut off funding for GOP objectors”

The Hill:

Among the 10 biggest corporate PAC donors that pledged to pause their contributions to election objectors, Amazon, Google, Microsoft and Verizon have followed through on their promises, according to the most recent Federal Election Commission filings.

Other top PACs that vowed to withhold contributions, such as AT&T, Comcast, General Electric, Home Depot, Pfizer and Walmart, have been bankrolling party committees or leadership PACs that can easily funnel campaign cash to election objectors. Those company PACs have not made direct donations to the lawmakers’ campaigns.

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“Four States Start Inquiries Into Recurring Donation Tactics of Both Parties”

NYT:

Four state attorneys general have begun looking into the online fund-raising practices of both political parties, specifically seeking information about the use of prechecked boxes to enroll contributors in recurring donation programs that spurred a wave of fraud complaints and demands for refunds last year.

The attorneys general for New York, Minnesota, Maryland and Connecticut have sent letters to WinRed, which processes online donations for Republicans, and ActBlue, its Democratic counterpart, asking for documents related to the practices, according to court documents and people familiar with the matter.

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“The Revenge of John Roberts”

Rolling Stone: “Combined, the AFPF and Brnovich decisions continue the Roberts court’s decade-plus track record of undermining the hard-fought voting laws enacted during the Civil Rights Movement and the anti-corruption reforms passed in the aftermath of the Watergate scandal. And with a six-vote conservative majority on the Supreme Court in place for years — if not decades — to come, that trend shows no sign of ending soon. “

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“Toyota stops donations to election objectors after PAC takes ads out against company”

Detroit News:

Toyota Motor Corp. will no longer donate to members of Congress who voted against certifying the 2020 election in January, the company said Thursday, after facing blowback over corporate contributions….

Like many other companies, Toyota announced it would temporarily withhold and review PAC donations after Trump supporters mobbed the U.S. Capitol building and after 147 Republicans in Congress objected to the Electoral College results from select states later that evening….

The company went on to donate a total of $56,000 to [Rep. Alex] Mooney and 37 other Republicans who opposed certifying the results, according to an analysis by Citizens for Responsibility and Ethics in Washington, a nonprofit ethics watchdog group. 

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Lloyd Mayer on AFP v. Bonta

In Law360:

My read of the opinion is that it contains two significant holdings that will both encourage future constitutional challenges to these requirements and give those challenges a better chance of succeeding than they had under prior rulings….

The first holding is the court’s subtle change in the constitutional standard of review for donor disclosure requirements. The second holding is the court’s apparent assumption that donor disclosure, even if only to a government agency and not to the public, places a substantial burden on First Amendment associational rights and therefore requires application of this standard without any need for plaintiffs to prove such a burden.

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