…in the McCain-Feingold legislation struck down in both Citizens United and McCutcheon v. FEC and in the re-authorization of the Voting Rights Act in Shelby County); and of state courts and legislatures (reflected in American Tradition Partnership v. Bullock and Arizona Free Enterprise v. Bennett). Indeed, within the democracy arena, the Court has deferred to legislative fact-finding basically only when the fact-finding body was itself hostile to p…
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…ing such precedent. He hammers home the point, which Roberts reiterated in McCutcheon, that ingratiation and access are not a form of corruption. Clement’s petition will be noticed at the Court, and not only because he argued the other side of these issues in the McConnell case, defending McCain-Feingold. A new study finds that repeat players have much greater success at the Supreme Court than novices, and Clement is one of the most talented lawye…
Continue reading…rticipation of some in order to enhance the relative influence of others.” McCutcheon v. FEC, 572 U.S. 185, 191 (2014). Given this insuperable principle, counsel for the State agreed last Term that if “the Maryland legislature passed a statute and said, in the next round of reapportionment, we’re going to create seven Democratic districts and one Republican district,” it would be unconstitutional “viewpoint discrimination.” Tr. 45:9- 47:22, Benise…
Continue reading…rticipation of some in order to enhance the relative influence of others.” McCutcheon, 572 U.S. at 191. It therefore prohibits State action that distorts “[t]he free functioning of the electoral process” or “tips the electoral process in favor of the incumbent party.” Elrod v. Burns, 427 U.S. 347, 356 (1976)…. The District Court correctly found that [the plan] caused the North Carolina Democratic Party and the voter-plaintiffs to suffer well-recog…
Continue reading…by Citizens United brainchild Jim Bopp, builds upon Chief Justice Roberts’ McCutcheon decision to argue for a standard that would lead courts to strike down virtually all contribution limits. The court is also considering petition from opponents of city-level campaign contribution limits in Austin, Texas. Although a 5th Circuit panel upheld Austin’s limits in Zimmerman v. City of Austin, newly confirmed Judge Jim Ho wrote a strong dissent from the…
Continue reading…se who govern should be the last people to help decide who should govern.” McCutcheon v. Fed Election Comm’n., 572 U.S. 185, 134 S. Ct. 1434, 1441–42 (2014) (plurality op. of Roberts, C.J.). Indeed, “the core principle of [our] republican government [is] that the voters should choose their representatives, not the other way around.” Ariz. State Leg., 135 S. Ct. at 2677 (internal quotation marks omitted). Accordingly, and as further explained below…
Continue reading…ts with a little bit of evidence. No doubt these cases are in tension with McCutcheon, but McCutcheon did not overrrule these cases. And so judges like today divide on what to do. The Supreme Court could well grant cert. in this case to resolve the ambiguity. The result, under the current Court, would almost certainly be to call into question all campaign contribution limits (as indicated in the Judge Fisher/Judge Murguia response). For that reaso…
Continue reading…nt of the base limits themselves—the first layer of prophylaxis. Unlike in McCutcheon, then, there is no warrant for attempting to ascertain whether the per-election timeframe of the $2,600 base limit itself combats corruption. Rather, it is enough if that base limit as a whole (of which its time period is an integral element) prevents the appearance or actuality of corruption in a manner satisfying the closely drawn standard. I think it is very u…
Continue reading…ality, it was the chief justice in assuming they wouldn’t take advantage of this,” Stephen Spaulding, chief of strategy and external affairs for Common Cause, a non-partisan government watchdog group, told International Business Times. The case in question is McCutcheon v. FEC, a suit brought by Shaun McCutcheon, a Republican activist from Alabama. The Supreme Court ruled in his favor, striking down a federal limit on the total amount individuals…
Continue reading…dissent believes that the Supreme Court’s decisions in Citizens United and McCutcheon change everything, and that virtually all contribution limits now fail strict scrutiny (this, despite the fact that Citizens United expressly said it had nothing to say about contribution limits). From Judge Bea: In footnote 5, the majority opinion notes that “[u]nder the dissent’s logic…Montana’s evidence is inadequate to justify any contribution limit whatsoeve…
Continue reading…d by the Roberts Court: Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission. The research indicates that these elements of the support structures for litigation on both sides of these cases, like the justices to whom they direct their advocacy, fall into well-defined opposing and partisan camps. It also suggests that strategic case selection on the challengers’ side, the diversity of organizations supportin…
Continue reading…ansfer unlimited cash to their national affiliates. The joint fundraising vehicles aren’t new, but the Supreme Court’s 2014 decision to eliminate some obscure but important campaign contribution limits in McCutcheon v. Federal Election Commission had the effect of supercharging them. The 2016 election provided a first, full glimpse at what the new legal landscape would mean in reality….
Continue reading…or U.S. Supreme Court review should it choose to review it: In sum, I concur in the Court’s judgment because I agree with the Court’s application of a case we unfortunately must follow. That said, Beaumont is incorrect and cannot be reconciled with Citizens United, McCutcheon, or, most importantly, the First Amendment. Nor can Texas’s blanket ban on corporate contributions. The U.S. Supreme Court has turned down multiple chances to overturn Beaumo…
Continue reading…finance cases, such as Citizens United v. Federal Election Commission and McCutcheon v. FEC, and other cases. In these rulings, the court majority provided broad First Amendment protection to campaign speech, the brief said. Other observers also have suggested that arguments emphasizing First Amendment protections for campaign speech could play a significant role in the travel ban case. Richard Hasen, an election law expert and University of Cali…
Continue reading…First Amendment that the Supreme Court put forward in Citizens United and McCutcheon? And why did it take only one Court conference to reach this conclusion, when the Court has been taking so long with many other cases (in part as J. Gorsuch got up to speed on the Court’s cases)? This suggests to me that the Court has really no appetite to get back into this area right now—perhaps they want to save their capital in ruling on other high profile ca…
Continue reading…oting from the 2014 Supreme Court opinion by Chief Justice John Roberts in McCutcheon v. FEC that struck down some federal campaign contribution limits, Kozinski said the reliance on campaign statements will “chill campaign speech, despite the fact that our most basic free speech principles have their ‘fullest and most urgent application precisely to the conduct of campaigns for political office.’ ” He imagined “eager research assistants” mining t…
Continue reading…n on their own campaigns. 1724 wealthy donors contributed $274 million in “McCutcheon Money” in 2016—money that went beyond what would have been permitted by the previous “aggregate” contribution limit. Buckley v. Valeo resulted in more 2016 campaign spending than Citizens United v. FEC. This report demonstrates the profound impact of Supreme Court decisions on the role of big money in American politics. Given the upcoming Senate Judiciary Committ…
Continue reading…igns that has paused in recent years, following the court’s 2014 ruling in McCutcheon v. Federal Election Commission, the last major case in this area. Among the cases that could come before the justices in the year ahead is one launched by the Republican Party of Louisiana and local GOP committees in the New Orleans area. The case challenges contribution limits on political parties in place since Congress passed the 2002 Bipartisan Campaign Refor…
Continue reading…al party have made a difference, erasing deficits in federal contributions against the respective Republican state parties. The money followed a legal but circuitous route turbocharged by the 2014 ruling in McCutcheon v. Federal Election Commission, which struck down Watergate-era limits on the combined amount one person could donate to all federal candidates and parties in an election cycle….
Continue reading…orruption purpose and violate the Constitution. Many observers interpreted McCutcheon to foreclose all aggregate limits, and some states stopped enforcing their aggregate limits as a result, but that reaction is unjustified. McCutcheon does not reach beyond federal law, and aggregate limits remain viable at sub-national levels of government. They offer an under-theorized but important mechanism for reducing corruption. Entrenchment, Incrementalism…
Continue reading…aper challenges the Supreme Court’s most recent campaign finance decision, McCutcheon v. FEC. True to recent form, the Court in that case invalidated another restriction on money in politics, the federal limit on aggregate contributions. The Court based its decision on two arguments: if one complies with base contribution limits, giving no more than $5,200 to any candidate, there is no “cognizable risk of corruption”; and aggregate limits do not p…
Continue readingNick Confessore on the McCutcheon effect: August was Mrs. Clinton’s most successful fund-raising month so far, as she crisscrossed the country on a money hunt that took her to dozens of events in the summer locales of the wealthy and the well-to-do. Her efforts brought in $143 million for her campaign and for Democratic organizations, according to her campaign. That is far more than the $90 million haul Mrs. Clinton and the Democrats reported in…
Continue reading…Bill Allison for Bloomberg. Is it right to call it a “loophole” when the Supreme Court required these entities in McCutcheon?…
Continue reading…Shaun McCutcheon complaining that Democrats may have sold access to big donors. He had to realize his litigation would only make that easier….
Continue reading…d this draft on SSRN. Here is the abstract: In their dissenting opinion in McCutcheon v. FEC in 2014, four justices of the U.S. Supreme Court described the government’s interest in passing campaign finance laws in terms of “electoral integrity.” But while they referenced the concept and made clear its importance, the dissenters did not fully flesh out what it might mean for this area of law. With the makeup of the Court poised to change, the answe…
Continue reading…ctober 2015 term. It includes excerpts of the Supreme Court’s decisions in McCutcheon v. FEC and other post-Citizens United campaign finance cases, as well as Shelby County v. Holder, which struck down a key provision of the Voting Rights Act. This year’s supplement covers recent redistricting cases from Alabama, Arizona, Texas, and Virginia, including Evenwel v. Abbott, the latest word on the meaning of one person, one vote. The supplement also c…
Continue reading…ed (cited 13 times in the DC Circuit opinion in Speech Now), and the later McCutcheon case. That is, if SpeechNow came before the Supreme Court while Justice Scalia was still on it, the government surely would have faced defeat, and the risk is that the Supreme Court could have made things even worse (such as by applying strict scrutiny to the review of campaign contribution limits). That’s why the government never tried to take SpeechNow to the S…
Continue reading…I’ve just shipped to the publisher the second edition of Election Law in a Nutshell, which will be published in the fall, available as a course supplement and for this year’s general election. It includes many new cases decided since the first edition such as McCutcheon, Williams-Yulee, Evewel, and and McDonnell….
Continue reading…($) has this story on yesterday’s hearing before a three-judge district court, including U.S. Circuit Judge Sri Srinivasan who was reportedly skeptical of the argument pressed by plaintiffs’ attorney Jim Bopp: While the logic of the high court’s recent majority opinions [like Citizens United and McCutcheon] might indicate soft-money ban is on shaky ground, Srinivasan said, a lower court must be reluctant to overturn a provision specifically left…
Continue reading…ctober 2015 term. It includes excerpts of the Supreme Court’s decisions in McCutcheon v. FEC and other post-Citizens United campaign finance cases, as well as Shelby County v. Holder, which struck down a key provision of the Voting Rights Act. This year’s supplement covers recent redistricting cases from Alabama, Arizona, Texas, and Virginia, including Evenwel v. Abbott, the latest word on the meaning of one person, one vote. The supplement also c…
Continue reading…that the district court will be reversed. Then again, as I’ve argued, the McCutcheon case (which gets very little attention in Judge Lovell’s opinion) contains some language making it much easier to challenge contribution limit laws as violating the First Amendment. Either way, the matter could come before the Supreme Court, which is currently divided 4-4 on these issues, leaving the matter in the hands of the Ninth Circuit. As I’ve said, the abs…
Continue reading…ear the end of the Rehnquist Court, where decisions like Austin and McConnell averred a broad threat of corporate influence in elections to uphold restrictions on the political speech of corporations. However, the Roberts Court overturned parts of Austin and McConnell in Citizens United and McCutcheon, downplaying the threat of potential corruption caused by corporate monies in elections. If litigated today, California’s ban on lobbyist campaign c…
Continue reading…nding are, at bottom, two methods of participating in the electoral process. Conceiving of them as two aspects of a broader right to participate —-a right the Supreme Court recently articulated, but did not develop, in McCutcheon v. FEC — offers a principled basis to harmonize voting and spending law and reorient election law discourse. I saw Rob present this paper at the recent Wisconsin conference. Important and provocative!…
Continue reading…hanks to the Supreme Court blowing out the aggregate federal limits in the McCutcheon case). A small bit goes to the candidate’s committee under the federal limits (currently $2,700 for the primary and $2,700 for the general). The next bit goes to the DNC, and the rest so state parties in $10,000 chunks. Sanders is accusing the joint committee of raising really big donations, and then having the JFC using some of those really big donations to enga…
Continue reading…and his wife Elizabeth gave Ryan a total of $488,400 in March alone. Koch Industries PAC chipped in $71,000. Paul Ryan (the other one, from the CLC) tweets: “SCOTUS McCutcheon decision+CROMNIBUS=$488,400 contributions the other Paul Ryan’s joint fundraising committee.”…
Continue reading…a reluctant way, noting that Supreme Court cases like Citizens United and McCutcheon may have undermined the constitutionality of total bans on contributions by any class of contributors. But Judge Garland did not write such a decision (as we recently saw another DC panel do in a disclosure case). He wrote an opinion which was thoughtful, meticulous, and a full-throated endorsement of the ban on contractor contributions. This reads to me as an op…
Continue reading…er Tuesday, the biggest night so far in the 2016 presidential primaries. … McCutcheon hasn’t contributed to any members of Congress or their challengers so far in the 2016 campaign, FEC records show, even though his lawsuit made it legal for individuals to give to as many candidates as they’d like. “Well, you can give to them all if you’re Trump,” McCutcheon said. “Business hasn’t been that great, so I don’t have a ton of money to put out there th…
Continue reading…e is the excerpt from page 99: “Though rich,” Collins and Skover tell us, “McCutcheon cannot be counted among the super-rich.” They quote McCutcheon as saying, “I do not come from a rich family.” Not “super-rich”? Anyone who can spend $384,000 in campaign contributions and have enough left over to finance a lawsuit is plenty rich, even if not at Sheldon Adelson’s or George Soros’s levels. In 2011 the amount McCutcheon spent on federal elections…
Continue reading…ng political outcomes. In the Court’s most recent campaign finance ruling, McCutcheon v. FEC, the four dissenting justices upheld this view, and took it a step further. They argued that reasonable campaign finance regulations can be justified to ensure that elected officials are responsive to the concerns of the general public (not just a privileged few) and to protect the integrity of elections. Regardless of what theory a future Court might embr…
Continue reading…ealthy interests have come to dominate American politics. In another case, McCutcheon v. FEC, the Supreme Court struck down the aggregate limitations that Congress had placed on individual campaign contributions. Previously, a wealthy individual could donate no more than $123,200 during each two-year election cycle to all federal candidates, campaigns, parties, or political committees combined. Now he can give as much as $3.6 million. In a third c…
Continue reading…every campaign-finance limit it has ever considered. Further, in the 2014 McCutcheon case, Roberts suggested a soft money ban is unconstitutional. But the court has also proven itself willing to not hear every campaign-finance case to come its way. Twice, for example, it turned down certiorari petitions testing whether the ban on direct campaign contributions by corporations violates the First Amendment. In 2010, over the dissents of justices Ant…
Continue reading…ding. The 9th Circuit held the ban satisfied exacting scrutiny, even after McCutcheon, and even though it is a ban, rather than a limit on contributions, citing the danger of pay to play. The bulk of the opinion also upheld a variety of reporting, disclaimer, and disclosure requirements required by Hawaii law. And the court included dicta affirming the special importance of disclosure in the Citizens United era: Although not directly relevant to A…
Continue reading…ft-money ban, and recently affirmed that it is still intact, its ruling in McCutcheon created widespread uncertainty over the central question presented here: whether truly independent campaign expenditures by political parties—if there can be such a thing—pose the type of corruption risk that the Supreme Court has held is necessary to justify limiting federal election spending. Given this uncertainty, Plaintiffs’ claims cannot be fairly character…
Continue reading…form. Hasen writes that, as a result of decisions like Citizens United and McCutcheon, the Roberts Court majority has “caused the existing campaign finance system to slowly implode,” launching reform into a” death spiral” and erecting “structural impediments” that prevent further reform. To be sure, the Court’s rulings have contributed to the collapse of the ‘70s reforms, and there is no doubt that its jurisprudence complicates the pursuit of refo…
Continue reading…Menendez’s lawyers were the Supreme Court’s 2010 Citizens United and 2013 McCutcheon decisions. Those two cases redefined corruption as only explicit bribery, excluding influence and access. The senator’s lawyers argued that this redefinition of corruption and Citizens United’s declaration that independent expenditures “do not give rise to corruption or the appearance of corruption” provided freedom of speech protections for all “efforts to influ…
Continue readingPaul Blumenthal for HuffPo: During courtroom debate over the McCutcheon decision, Solicitor General Donald Verrilli expressed concern that political parties could create joint fundraising committees to allow a single candidate to solicit a $1 million-plus contribution, which could be distributed to a collection of federal and state party committees. State parties could then transfer this money to other, more important state parties (for example,…
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