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.”
This Washington Post story, on Trump’s PAC not spending for the pseudo-audits of the 2020 election, suggests instead that he’s saving the funds for a 2024 run, or perhaps to dole out in the midterms. The most interesting nugget, to my mind, was this: “He continues to tell advisers that he is likely to run for president again, though some in his orbit suspect he will not.”
AP reports on new filing with the IRS. [corrected link]
… on the implications of the Supreme Court’s new Americans for Prosperity Foundation for IRS rules on donor disclosure applicable to 501(c)(3) groups. Her Tax Notes letter to the editor is also available on SSRN.
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….
Popular Information on CPA’s report Conflicted Consequences: “Over the last decade, public corporations have given Republicans at the state level a financial advantage that exceeds $200 million, according to new research provided exclusively to Popular Information by the Center for Political Accountability. ”
Ciara Torres-Spelliscy: “This is not a campaign finance case, but opponents of political transparency will likely try to use it to foreclose efforts to counter the dark money problem in campaign finance. Whether they will succeed is another question.”
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. “
The jurisdictional statement in FEC v. Cruz, involving the limit on post-election contributions to repay candidates’ loans to their own campaigns, is here.