[EL] Danielczyk

Wed Jun 8 10:04:26 PDT 2011

In his first post, Rick writes:

"Why couldn't I set up 50 ideological corporations now in Virginia along the following lines? Contribute to these 50 ideological corporations supporting progressive (or tea party) candidates. If you've maxed out on your contributions to your favorite candidates, give the money to us, and we'll contribute it to the candidates directly on our list.  This is our corporation's mission."

Now he writes:

"those groups which should be entitled to the most First Amendment protections (even under Austin and before Citizens United, such groups could spend their treasury funds independently on candidate campaigns) get the least protection."

The first post provides a reason why the second post is not necessarily true. For profit corporations are highly unlikely to be used to end run individual contribution limits - but non-profit corporations would be better vehicles for such a manuever.

Of course, all of this could be regulated, as are PACs now, through affiliation rules. Or, we could recognize that American democracy did pretty well right up through 1974, and simply do away with individual limits on contributions, which would do away with Rick's feared scenario. But assuming individual contribution limits stay in place, Rick himself, in his first post, explained why it could make sense to limit Beaumont to non-profit corporations.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp

________________________________

From: law-election-bounces at department-lists.uci.edu on behalf of Rick Hasen
Sent: Wed 6/8/2011 10:44 AM
To: law-election at uci.edu
Subject: Re: [EL] Danielczyk

The Perverse Holding of Danielczyk <http://electionlawblog.org/?p=18888> 

Posted on June 8, 2011 <http://electionlawblog.org/?p=18888>  by Rick Hasen <http://electionlawblog.org/?author=3>  

In response to my query in this post <http://electionlawblog.org/?p=18851> , a few readers have said that the opinion means it is unconstitutional to limit the direct contributions of for-profit corporations to candidates, but it remains constitutional under the controlling authority of Beaumont to limit the direct contributions of ideological, non-profit corporations.

Of course, as my readers point out, if this is what it means, it is a perverse holding: those groups which should be entitled to the most First Amendment protections (even under Austin and before Citizens United, such groups could spend their treasury funds independently on candidate campaigns) get the least protection.

That's another reason why the district court's ruling should be appealed immediately <http://electionlawblog.org/?p=18859> .

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On 6/7/2011 1:03 PM, Rick Hasen wrote: 

	Breaking News: Judge in Va. Contributions Case Reaffirms Opinion Striking Down Federal Campaign Contribution Limits Law (Danielczyk) <http://electionlawblog.org/?p=18848> 

	Posted on June 7, 2011 <http://electionlawblog.org/?p=18848>  by Rick Hasen <http://electionlawblog.org/?author=3>  

	Via Ken Vogel <https://twitter.com/#%21/kenvogel/status/78182731254743040> comes word of this order <http://www.politico.com/static/PPM170_cacherisupholds.html> from Judge Cacheris.  This is not what I was expecting <http://electionlawblog.org/?p=18521> . The Court has held unconstitutional a 100-year-old ban on direct corporate campaign contributions to candidates. He has done so in direct contradiction to the Supreme Court's holding in FEC v. Beaumont, and in contradiction to rulings in the Second Circuit <http://lawprofessors.typepad.com/files/green-party-2.pdf> , the Eighth Circuit, <http://www.ca8.uscourts.gov/opndir/11/05/103126P.pdf>  and a federal district court <http://electionlawblog.org/archives/thalheimer-pi.pdfhttp://electionlawblog.org/archives/thalheimer-pi.pdf>  in San Diego [that case is on appeal, and I am defending San Diego's similar law in the Ninth Circuit.]

	Judge Cacheris makes two arguments as to why he is not bound by FEC v. Beaumont, in which the Supreme Court upheld the very same law.

	1. He accepted the argument put forward in an amicus brief by the James Madison Center that the holding in Beaumont applied only to non-profit advocacy corporations, and not to for-profit companies.  This argument is very weak. In Beaumont, a nonprofit ideological corporation argued that even if the statute could constitutionally be applied to for-profit corporations, it could not constitutionally be applied to non-profit corporations.  The Court had already held in the case of Mass. Citizens for Life v. FEC that such corporations could not be barred from making independent expenditures.  In Beaumont, the Court held that even such ideological MCFL corporations could constitutionally be barred from making direct contributions to candidates.  Among other reasons, the law prevented such corporations from being used as conduits to evade individual contribution limits.  If such non-profit corporations could constitutionally be barred from making contributions to candidates, a fortiori for-profit corporations should be barred as well.

	2. The judge accepted the second argument that Citizens United silently overruled Beaumont. This too is a weak argument.  I think that argument is dead wrong, for reasons explained in great detail in Part I of this brief <http://electionlawblog.org/archives/city-9th-reply.pdf>  filed in the San Diego case.

	What should happen next?  I'm not an expert on the ability of the government to take an interlocutory appeal at this point in the criminal case,  but I would urge them if they could to take this directly to the 4th Circuit.  Otherwise, there will be great uncertainty going into the 2012 election season about an important constitutional question.

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	-- 
	Rick Hasen
	Visiting Professor
	UC Irvine School of Law
	401 E. Peltason Dr., Suite 1000
	Irvine, CA 92697-8000
	949.824.3072 - office
	949.824.0495 - fax
	rhasen at law.uci.edu
	http://law.uci.edu/faculty/page1_r_hasen.html

	William H. Hannon Distinguished Professor of Law
	Loyola Law School
	http://electionlawblog.org <http://electionlawblog.org/> 

-- 
Rick Hasen
Visiting Professor
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html

William H. Hannon Distinguished Professor of Law
Loyola Law School
http://electionlawblog.org <http://electionlawblog.org/> 

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