Monthly Archives: April 2015

Off to Yale

As I’ve noted, I’m delighted to be on a plenary panel about campaign finance and the First Amendment with Tabatha Abu El-Haj and moderated by Jack Balkin at Yale’s 3rd Freedom of Expression Scholars conference on May 2 and 3.  The conference is co-sponsored by the Floyd Abrams Institute at Yale–and I’ll be presenting the two chapters of my upcoming Plutocrats United book which deal with First Amendment critics of reform, including Floyd.  Should be fun.

And thanks to Ron Collins for the shoutout about the book and conference.

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James Sample on Williams-Yulee and The Future of Judicial Campaign Regulation

The following is a guest post from James Sample of Hofstra, who has been doing very important work in the area of judicial elections, filling a key void left by Roy Schotland’s passing. Here are James’s thoughts:

As Rick’s initial post indicated, Williams-Yulee is a huge victory for those concerned with cash in the courtroom. It is, moreover, a surprise victory for the broader judicial-elections-are-different premise. I tend to believe that the solicitation bans themselves are of little moment, and are perhaps even occasionally counterproductive vis-a-vis their intended aims insofar as they allow states and judicial candidates, having adopted the patina of a solicitation ban, to pretend that the candidates are unaware of who is contributing and/or spending. Whether, at some point, that was accurate, it is rarely accurate in the internet age, at least not where there is, as there certainly should be, robust disclosure. As readers of Rick’s blog know well, contributors, especially major contributors and major independent expenditure supporters, know how to make their support known to those whom they want to know. Is upholding the solicitation ban helpful for the egregiously coercive in-person shakedown scenarios? Yes. The greater value, though, of Williams-Yulee is Chief Justice Roberts’ emphatic rejection of White’s elections-are-elections canard.

What I find most peculiar about the opinion, as Rick’s post noted of course, is Chief Justice Roberts citing Caperton in which he dissented so vigorously, while in Justice Kennedy’s dissent there is nary a mention of Caperton, which he authored, but there is instead a focus on White.

For Justice Kennedy, and despite Justice O’Connor’s years of work and expressions of regret vis-a-vis White, any speculation as to an eroding of the rigidity of his position in White was not only premature, but inaccurate. The ex ante prohibition of speech, regardless of the nature of the office being sought, is clearly, for him, a constitutional non-starter even though, at least in the extreme case, he supports Due Process as a basis of mandatory disqualification based on expenditure support. On both the ex ante and ex post aspects of that, Chief Justice Roberts is now in the opposite camp in at least one narrow circumstance.

Combining the pertinent campaign finance decisions and the two major “canons” decisions, I am left with one overriding impression in terms of prospective judicial campaigns: Why would any judicial candidate even bother soliciting contributions through their campaign 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, “Yes, independent expenditures can corrupt and we have a documented empirical record contradicting the Court’s conclusory assertions to the contrary.” Justice Kennedy and Chief Justice Roberts are in lockstep on that. I.e., Chief Roberts is copacetic with banning a signed letter seeking a modest contribution, while Justice Kennedy is not. But neither is particularly troubled by independent expenditure support totaling six and sometimes seven figures per spender. It took facts as extreme as those in Caperton to get Kennedy’s support for the modest remedy of ex post recusal. Add in increasingly impotent coordination realities, and no serious, sophisticated judicial candidate should ever come close to needing to engage in the kind of direct solicitation addressed in Williams-Yulee.

In sum, Williams-Yulee is indeed a victory for those who care about the integrity of the courts. Our dear, late friend Roy Schotland would love the judge’s-are-different emphasis. Roy would celebrate the decision and rightly so. He would do so, however, in very much the sober – and sobering – manner that Rick’s excellent LA Times piece does in noting, in particular, that the “campaign finance situation overall remains dire.”

Even in judicial elections, Williams-Yulee won’t change that. Finally, there is one wonderful postscript that seemed almost unthinkable until yesterday: there are now six justices on the current Court who have, in at least one case, endorsed the premise that judicial elections are different. Does that mean the Court might uphold expenditure limits on judicial races? Almost certainly not, but the possibility seems less distant today than yesterday. And it certainly seems less distant than it did six years ago.

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“Roles of Presidential Super PACs Expanding”


The 2016 election cycle is seeing an expansion not just of super PAC fundraising but of the PACs’ responsibilities. The main reason: Super PACs can accept donations of unlimited size, while donations to candidate campaigns, such as Carly for President, are capped at $2,700 per election. The new arrangement means fewer donors, writing larger checks, can bankroll the basics of electioneering, freeing candidates from having to raise large sums in small increments. But it also raises thorny questions, because super PACs and candidates are barred by the Federal Election Commission from coordinating their strategy and messages….

The rules barring coordination between campaigns and super PACs are rarely enforced. The FEC often deadlocks on whether to investigate complaints, resulting in no action. Criminal charges have been even rarer in the years since super PACs gained prominence after the Supreme Court’s Citizens United decision in 2010….


Because Mr. Bush hasn’t yet announced his candidacy, he legally can solicit donations of unlimited size for the super PAC, a freedom that formal candidates lose under FEC rules. Mr. Bush told donors this week in Miami Beach that he had set a new GOP fundraising record, though he didn’t disclose a total.

A longtime Bush adviser, Mike Murphy, is poised to run the super PAC once it splits from the official campaign apparatus. Mr. Bush’s super PAC will have its own team for gathering and analyzing voter data, as well as its own press operations. There is also a separate policy shop independent of the campaign. An aide to Mr. Bush said the campaign, once it begins, won’t cede any of its data or voter contact operations to the super PAC.

The $2,700 federal cap on an individual’s donation to a campaign was designed to bar any one donor from having outsize influence on a candidate. Critics say super PACs, which face no such limits, help candidates circumvent the rule. At the same time, the FEC rule that campaigns cannot coordinate their strategy with super PACs means that candidates carry some peril in outsourcing campaign responsibilities to a super PAC, campaign-finance experts warned.

See my earlier Slate piece, Jeb the Destroyer.



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“IRS May Be Trying to Stop Tax Exemption of Karl Rove’s Crossroads GPS”


The IRS may be trying to block the tax exemption of one of the largest politically active nonprofit groups, Crossroads Grassroots Policy Strategies, an organization founded by Republican strategist Karl Rove.

The oblique disclosure can be found between the lines of an inspector general’s report released on Thursday, which said that 149 of 160 stalled applications from nonprofits with potential ties to politics have been resolved. Of the other 11, six are in litigation with the IRS — which Crossroads isn’t — and five have received proposed denial letters or are appealing.

That suggests that the Internal Revenue Service has sent Crossroads a denial letter. Crossroads is one of the most politically involved nonprofit groups, and its bid for tax exemption is being closely watched by campaign-finance lawyers.

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“From Supreme Court, a mixed blessing on campaign finance limits”

I have written this LA Times oped. It begins:

The Supreme Court offered a pleasant surprise this week to those of us worried about the role of money in elections. In a 5-4 opinion written by Chief Justice John G. Roberts Jr., the court on Wednesday upheld a rule limiting certain fundraising activities for judicial candidates. But don’t expect Williams-Yulee vs. State Bar to lead to a more widespread return to campaign-finance sanity; the ruling applies only to judicial elections and Roberts isn’t about to concede that free-flowing donations are tainting the political system.

It concludes:

There was some pleasure in watching Roberts have to defend himself against his fellow conservatives. Usually he waxes poetic about unfettered campaign money as if it were a great and dignified example of the American commitment to free speech. In this instance, Roberts bristled at the suggestion that he was supporting “a latter-day version of the Alien and Sedition Acts.”

Reformers can justly celebrate what Williams-Yulee means for judicial elections. But let’s not pretend Roberts has seen the light. The next time a nonjudicial fundraising case reaches the Supreme Court, he is likely to be the one yelling about “censorship.” Despite this win on judicial elections, the campaign finance situation overall remains dire.

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“The Political One Percent of the One Percent: Megadonors fuel rising cost of elections in 2014”


In the 2014 elections, 31,976 donors — equal to roughly one percent of one percent of the total population of the United States — accounted for an astounding $1.18 billion in disclosed political contributions at the federal level. Those big givers — what we have termed the “Political One Percent of the One Percent” — have a massively outsized impact on federal campaigns.

They’re mostly male, tend to be city-dwellers and often work in finance. Slightly more of them skew Republican than Democratic. A small subset — barely five dozen — earned the (even more) rarefied distinction of giving more than $1 million each. And a minute cluster of three individuals contributed more than $10 million apiece.

1% of the 1% Table of Contents
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