[EL] Check out Study shows who breaks campaign laws

[Roy Schotland]

Thanx to Brian for noting the Citizens United bit about what may bring us a new “burdensomeness” test.  (Hasn’t Briffault written about that, suggesting it may have huge potential for freewheeling review?)  

            Mightn’t that get more attention, and less on defining “intend”?  

Separately: How come CU’s strong language on disclosure has led to so little effort to update state-law disclosure requirements?  E.g. Maryland passed a fine updating bill a few months ago but soon after passage, an amendment passed restoring the “express advocacy” requirement to trigger disclosure.  Which States do require –without magic words-- disclosure of funding sources for independent ads?  I’ve been sent lists of States which turn out to all require “express advocacy”.  When my party had the USHouse, it botched a bill to require disclosure.  But aren’t many States friendly ground for getting the disclosure that eight Justices applauded?   What efforts are happening now, anywhere?  How come there isn’t more effort than there is?

Roy A. Schotland

Professor Emeritus

Georgetown Law Center

600 New Jersey Ave. N.W.

Washington, D.C. 20001

202/662-9098

        fax: -9680

 

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Svoboda, Brian (Perkins Coie)
Sent: Wednesday, August 10, 2011 3:04 PM
To: JBoppjr at aol.com; rhasen at law.uci.edu; law-election at uci.edu
Subject: Re: [EL] Check out Study shows who breaks campaign laws - The Pueblo Chieftain: Local

 

I'm less interested in the normative aspect of Jim's post -- should we have complex campaign finance laws?  I remain interested in the legal aspect, which is whether the law's complexity, by itself, imperils its constitutionality.  As I've posted here before, I was intrigued when Judge Wilkinson raised this possibility in North Carolina Right to Life v. Leake, when the Fourth Circuit presaged SpeechNow and struck down state limits on contributions to independent expenditure PACs:

 

For the regulator’s hand, once loosed, is not easily leashed. The Code of Federal Regulations, or its state equivalent, is no small thing. It is no unfounded fear that one day the regulation of elections may resemble the Internal Revenue Code, and that impossible complexity may take root in the very area where freedom from intrusive governmental oversight should matter most. For while appropriate regulation may serve good and useful purposes in many areas, the Constitution makes clear that excessive regulation of political speech is suspect. 

 

Justice Kennedy echoed this same point in Citizens United: 

 

The First Amendment does not permit laws that force speakers to retain a campaignfinance attorney, conduct demographic marketing re-search, or seek declaratory rulings before discussing themost salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech:People “of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.” Con-nally v. General Constr. Co., 269 U. S. 385, 391 (1926).

 

But of course, the Court struck down the only simple part of BCRA Title II, which was its ban on corporate and union electioneering communications.  The statute's coordination, disclaimer, and disclosure requirements all remain undisturbed.  And the Fourth Circuit in Leake did not really rely on a theory of "impossible complexity" to reach its result.  Rather, like the Court in Citizens United, it relied on the lack of an adequate corruption theory in the context of independent spending.

 

If ever there was a statute that seemed open to challenge on a complexity theory, it would have been the Millionaire's Amendment -- rest its soul.  In Davis v. FEC, Kathleen Sullivan filed a compelling amicus brief on behalf of a group of non-millionaires who appear to have blundered into personally paying extraordinarily large civil penalties, because they failed to meet the law's hair-trigger disclosure requirements.  Yet even while noting that the district court itself didn't seem to understand how the law worked, her brief focused tightly on the burden that the Millionaire's Amendment placed on the candidates because of their self-financing.  Even a simple Millionaire's Amendment, were such a thing possible, would have flunked her test.  So, too, with the Court and Justice Alito in Davis.

 

All of this makes me think that the courts really don't see complexity as an independent basis for constitutional challenge, and instead use it for rhetorical effect while striking down laws for other reasons.  But I remain avidly interested in whether any cases support a different view.

 

=B.  Brian G. Svoboda  |  Perkins Coie LLP
700 Thirteenth Street N.W.
Washington, DC  20005-3960
PHONE: 202.434.1654
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