Legally Political: Supreme Court of the United States

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High Court’s Recent Decision on Public Matching Funds Renders New York City’s Campaign Finance System Ripe for Constitutional Attack

New York isn't the only place whose campaign finance programs are now ripe for constitutional challenge.

Albany Government Law Review Fireplace:

"Consequently, it would appear that New York City’s campaign finance program is ripe for constitutional challenge since it incorporates trigger provisions similar to those at issue in Arizona. The current New York City program, which is highly regarded and vigorously enforced by the Campaign Finance Board (“CFB”), provides participating candidates for public office with an opportunity to qualify for matching funds.[11] The system provides six dollars of public money for every one dollar of private funds raised from city donors, up to $175 per contributor once certain threshold requirements are met.[12] In return, participating candidates must adhere to, among other restrictions, a strict spending cap and a limit on self-funding.[13] While no such spending cap or self-funding limitation is imposed on non-participating candidates, they must adhere to the many other financial regulations of the program.[14]"

FEC Urged to Deny Stephen Colbert’s FEC Request by CLC and Democracy 21

Stephen Colbert
CLC President and Colbert personal lawyer Trevor Potter rescued himself from this issue, of course.

campaignlegalcenter.org:

"The Campaign Legal Center[1], together with Democracy 21, today urged the Federal Election Commission (FEC) to deny a request by comedian Stephen Colbert to significantly expand the so-called “press-exemption” to a number of federal election laws. The two organizations filed comments with the FEC in response to an advisory opinion request by Mr. Colbert seeking the FEC’s opinion as to whether the Viacom corporation, which owns, produces and distributes his television show, The Colbert Report, may pay for a variety of expenses of his Colbert Super PAC without disclosing any of the expenses as in-kind contributions to the PAC under the “press exemption.”"

And here is a Wall Street Journal editorial on the possible *serious* unintended consequences of Colbert's gag:

Campaign-finance laws are so complicated that few can navigate them successfully and speak during elections—which is what the First Amendment is supposed to protect. As the Supreme Court noted in Citizens United, federal laws have created "71 distinct entities" that "are subject to different rules for 33 different types of political speech." The FEC has adopted 568 pages of regulations and thousands of pages of explanations and opinions on what the laws mean. "Legalese" doesn't begin to describe this mess.
How's that for a punch line? Rich and successful television personality needs powerful corporate lawyers to convince the FEC to allow him to continue making fun of the Supreme Court. Hilarious.
Of course, there's nothing new about the argument Mr. Colbert's lawyers are making to the FEC. Media companies' exemption from campaign-finance laws has existed for decades. That was part of the Supreme Court's point in Citizens United: Media corporations are allowed to spend lots of money on campaign speech, so why not other corporations?
Whether Mr. Colbert understands that he has made the Supreme Court's point is anyone's guess. But there's nothing funny about what he has had to go through to set up a PAC, because real people who want to speak out during elections face these confounding laws all the time. And as his attempt at humor ironically demonstrates, the laws remain byzantine and often impossible to navigate, even after Citizens United.

More on McComish v. Bennett Oral Argument

LA Times:

Critics say the system burdens those who opt for private financing. The free speech of privately financed candidates is "chilled," they argue, because they refrain from spending as much as they might like in order not to trigger the flow of public funds to an opposing, publicly financed candidate.

But is that kind of chilling effect real? Do candidates really spend less in order not to trigger the flow of public funds? The petitioners' claim in the case is backed primarily by anecdotal evidence from candidates and independent groups.

The Hill:

"The case could have a broad impact on federal and state efforts to create alternative methods for funding election campaigns," wrote the Campaign Legal Center's Gerry Hebert and Tara Malloy. "Depending on its scope, an adverse ruling from the high court could undermine public financing systems across the country and increase still further the grossly disproportionate voice given to corporations and unions in our elections."

USA Today:

During oral arguments, Justice Anthony Kennedy suggested he believed the law deterred the free political speech of privately financed candidates and their supporters. When a lawyer representing Arizona insisted it did not deter independent spending for privately financed candidates, Kennedy said, "I frankly am tempted to believe the opposite view."
Chief Justice John Roberts, along with Justices Antonin Scalia and Samuel Alito, also expressed reservations about the 1998 law that state officials say was passed to counter the negative effect of private big-money interests in elections. Justice Clarence Thomas, the fifth member of the conservative wing and a strong opponent of campaign restrictions, said nothing, as is his practice.

Supreme Court Takes Another Stab At Campaign Finance

West face of the United States Supreme Court b...

Image via WikipediaNPR: "The campaign finance wars return to the U.S. Supreme Court on Monday. Last year, the high court, by a 5-4 vote, overturned a century-old legal understanding that barred corporations from spending money on candidate elections.

Now comes an attack from a different direction — a challenge to a public financing system that has existed in Arizona for more than a decade. Once again, reform advocates face an uphill battle."

Antonin Scalia charms Tea Party caucus

Official portrait of Supreme Court Justice Ant...

Image via Wikipedia

POLITICO.com: "Scalia, the intellectual leader of the Supreme Court’s conservative wing, charmed the crowd with his wit during his hour-long presentation, which included the history of the relationship between Congress, the Supreme Court and the presidency. He urged members to read the Federalist Papers to understand the founding fathers’ intentions. He also took questions from the crowd.
“He has a very dry wit, and it was on display today,” Rep. Bob Goodlatte (R-Va.) said."

One of my very favorite memories of law school was when Scalia came to speak to my Constitutional Law class. It was full of annoying liberal gunners (I went to Georgetown) who kept asking him ridiculous politically charged questions (he's a SUPREME COURT JUSTICE, you're a second year law student, perhaps he knows a bit more than you) -- his responses were brilliant and ridiculously witty, and made my outraged classmates sound like fools. It was very nice to not be the only conservative in the classroom for once.

Happy 1st Birthday Citizens United!

To celebrate, politicos and journalists around the country have written op-eds and articles in your honor:

Washington Post:

To the court's majority, it was "stranger than fiction for our Government to make . . . political speech a crime."Stranger still were the unwarranted attacks against the Supreme Court that followed. Most visibly, the president used his State of the Union address to accuse the court of having "reversed a century of law" and "open[ed] the floodgates for special interests - including foreign corporations - to spend without limit in our elections." That statement was astonishing because none of it was true: The oldest decision reversed by Citizens United was 20 years old, not 100, and foreign corporations are prohibited from participating in elections, just as they were before. As for "special interests," many had been spending at an equally furious rate, apparently unnoticed by the president, well before this ruling.

NPR:

"We're here today on what should be a happy day for those of us who sought clarity in the law, less regulation," Republican Commissioner Don McGahn said.He and the other two Republicans wanted new rules that didn't mandate disclosure of big, undisclosed contributions — the kind that financed thousands of attack ads last year. The three Democrats wanted the mandatory disclosure. So the commission deadlocked."Promoting transparency in American elections is central to the commission's mission, and this transparency in turn is essential to the success of this, the world's oldest democracy," said Democratic Commissioner Ellen Weintraub. "We don't believe in doing things in secret."

Rick Hasen I:

Sometimes covering election law issues is like watching paint dry. It is, I think, a challenge to make these issues interesting and accessible for a general reader. In this election there was just so much money and so much secrecy, so the stories were probably of broader interest. I cannot recall a case since Bush v. Gore in 2000 when the public has shown such interest in a Supreme Court case. That helps to make the case for covering the impact ofCitizens United.

Rick Hasen II:

Whether Justice Kennedy believed that existing campaign finance disclosure law would provide for this free and instantaneous exchange of information about campaign money or whether he was instead advocating that Congress adopt such a system is unclear. What is clear, however, is that Citizens United has not only unleashed new money into the election process; actions by lower courts and the FEC, combined with an inadequate disclosure regime, have led to a system of largely undisclosed corporate, union, and individual campaign contributions flooding into elections.

Columbus Dispatch:

On today's one-year anniversary of the controversial U.S. Supreme Court ruling giving corporations and labor unions greater rein to spend money on behalf of campaigns, state Rep. Jay Goyal, D-Mansfield, plans to introduce legislation to ban businesses that get state contracts from making campaign contributions with corporate cash.In addition, groups are planning a protest rally in Columbus to argue for a federal constitutional amendment in response to the ruling.

Wall Street Journal:

The government's other argument was that our political campaigns have become too expensive, too strident, too vacuous, too uninformative, and need to be reined in. Here the court's answer was even more insistent about who has the first and last word on how much political speech Americans get to have: "In the free society ordained by our Constitution, it is not the government but the people—individually as citizens and candidates and collectively as associations and political committees—who must retain control over the quantity and range of debate on public issues in a political campaign."
As the court has recognized across the decades, despite the byzantine complexity of our restrictive and burdensome campaign-finance laws, the clash between them and the First Amendment presents a rather simple and stark choice. Either the politicians and the government get to decide how much political speech there will be and what form it will take, or the people and the groups they organize get to make that call.

And, a lovely video, produced by Citizens United itself, featuring Ted Olson, Brad Smith and others.

I'll post more links as I find them.

Related articles

The Big Campaign Finance Story of 2011: An Effective End to Public Financing -- Rick Hasen

Loyola Law School | Faculty Blog: "This development is significant because the Court is likely to take away one of the only tools available to drafters of public financing measures to make such financing attractive to candidates. Public financing has a number of benefits, including reducing the threat of corruption and the appearance of corruption, providing a jump start for new candidates who are not professional politicians, and freeing up candidates and officeholders to have more time to interact with voters. But rational politicians who are serious candidates will not opt into the public financing plan unless they think they will be able to run a competitive campaign under the public financing system. The whole point of the extra matching funds in the Arizona plan is to give candidates assurance they won't be vastly outspent in their election. While an adverse ruling by the Supreme Court in McComish would not mean that all public financing systems would be unconstitutional, it would eliminate one of the best ways to create effective public financing systems."

But the Campaign Legal Center doesn't think this case will be that big of a deal.

Supreme Court to weigh constitutionality of Arizona public campaign finance law

The Supreme Court of the United States. Washin...

Image via WikipediaWashington Post: "The Supreme Court will again review government efforts to regulate campaign spending, agreeing to consider an Arizona law that distributes subsidies to publicly funded candidates who face big-spending opponents.

The decision was not a surprise, as justices in June had blocked a portion of the state's 12-year-old Clean Elections program, which authorizes public money for state candidates who bypass most private fundraising. The court stopped the state from providing 'matching funds' to those candidates, which become available when political opponents or outside groups spend in excess of state limits."

New Citizens United sequel?

SCOTUSblog: "A Washington State conservative advocacy group, seeking to play a role in ballot measure campaigns in its state, on Friday asked the Supreme Court to clear the way for it to raise unlimited funds to pay for its efforts. Its attack on a Washington state law that puts a $5,000 limit on contributions to ballot measure committees in the final three weeks before an election could become a significant sequel to the Court’s controversial ruling last January in Citizens United v. Federal Election Commission."

Citizens United and Its Critics

The Yale Law Journal Online: "I wasn’t surprised by what seems to have been the general disapproval of the ruling. Campaign finance “reform” is generally viewed as an unmitigated good and is normally uncritically praised in publications and in the public statements of politicians. So a decision of the Supreme Court holding unconstitutional major elements of legislation ostensibly drafted to help take money out of politics was never going to be popular."

Washington Post vs. Americans for Prosperity

Washington Post on Americans for Prosperity: Think it's a coincidence that the "issue advertising" is running, and naming names, in districts of vulnerable Democratic incumbents? Consider this attack on Washington Democrat Denny Heck -- who isn't even in office -- for "putting Nancy Pelosi's agenda ahead of our needs" and being "a 30-year political insider." The $180,000 ad campaign started running the day after Mr. Heck won the Democratic primary. In a district with an open House seat in Michigan, the group is estimated to have spent almost $350,000 attacking Democratic nominee Gary McDowell.

Americans for Prosperity Letter: All of AFP's citizen-education efforts -- including our television advertising -- have been bona fide issue advocacy designed to advance our mission of promoting limited government fiscal and economic policies, lower taxes, less spending and less onerous regulation. Because we engage in no electioneering, we have done nothing after the Supreme Court's Citizens United decision that we were not already doing before.

Should Congress regulate political ad money?

Christian Science Monitor:

YES (Craig Holman, government affairs lobbyist, Public Citizen) -- Just as important, transparency provides voters with the tools necessary to weigh the merits of political messages. Full disclosure of major donors funding a campaign ad is critical information for voters in assessing the interests behind, and accuracy of, the political message.

NO (David N. Bossie, president, Citizens United) -- In regulating political speech and money in political advertising, Congress has time and time again shown a willingness to sacrifice freedom of speech in favor of overbroad legislation and regulation. It is this tendency that led to the Bipartisan Campaign Reform Act of 2002 (“BCRA”) – a law that significantly burdened the exercise of First Amendment rights.

Since its enactment, the US Supreme Court has overturned many of BCRA’s restrictions on speech, but there are still far too many laws on the books regulating political speech.