[EL] McComish (and let's stop calling it that) Decided

Mon Jun 27 11:49:17 PDT 2011

Rick sees the following silver linings in the  Bennett decision.

    (1) Buckley's standards for reviewing  contribution limits was not 
overturned.
Well, they were not at issue.

    (2) Kagan is on the anti-First Amendment  side.  Well, I never had any 
doubt about that. She was on New York City's  campaign finance regulatory 
board and I was told  she was enthusiastic  about her job.

    (3) Extra-matching funds provisions, like NYC's,  were not struck down. 
 Well, they were not challenged.

    So the silver lining - things not challenged or at  issue were not 
decided adversely to Rick's position, while the provisions at  issue were 
decided against him  May all his "victories" be just like  this.  Jim Bopp

In a message dated 6/27/2011 1:18:23 P.M. Eastern Daylight Time,  
rhasen at law.uci.edu writes:

_“The Arizona Campaign  Finance Law: The Surprising Good News in the 
Supreme Court’s New Decision”_ (http://electionlawblog.org/?p=19725)   
Posted  on _June 27, 2011_ (http://electionlawblog.org/?p=19725)  by _Rick 
Hasen_ (http://electionlawblog.org/?author=3)  

I have written _this  commentary_ 
(http://www.tnr.com/article/politics/90834/arizona-campaign-finance-supreme-court)  for The New Republic.  It begins: 
Campaign finance laws have now gone 0 for 5 in the Roberts Court.  Monday’s 
Supreme Court _decision_ 
(http://www.supremecourt.gov/opinions/10pdf/10-238.pdf)   striking down the matching funds portion of Arizona’s voluntary 
public  financing law—which provided extra public financing for candidates 
facing  free-spending opponents or major outside spending—was no surprise. 
Indeed, I  _predicted_ (http://electionlawblog.org/archives/011095.html)  laws  
like Arizona’s were doomed back in 2008, on the day the Court _struck  down_ 
(http://scholar.google.com/scholar_case?case=5092223370493741422&q=davis+v.+fe
deral+election+commission&hl=en&as_sdt=2,5&as_vis=1)  a portion of the 
McCain-Feingold law which raised contribution  limits for candidates facing 
millionaire opponents. The Roberts Court saw  both laws as impermissibly trying 
to level the electoral playing field.  Since 2005, the Court has also 
_struck  down_ 
(http://scholar.google.com/scholar_case?case=13551506278581494953&hl=en&as_sdt=2&as_vis=1&oi=scholarr)  Vermont’s campaign contribution limits 
as too low, narrowly _interpreted_ 
(http://scholar.google.com/scholar_case?case=12228748998297097461&q=wisconsin+right+to+life+v+fec&hl=en&as_sdt=2,5&as_
vis=1)   the McCain-Feingold rules governing corporate campaign spending, 
and then  dealt a death blow to those limits in its most controversial 
decision to  date, _Citizens  United_ 
(http://scholar.google.com/scholar_case?case=6233137937069871624&q=citizens+united+v.+fec&hl=en&as_sdt=2,5&as_vis=1) . 
Yet today’s decision brings three pieces of unexpected good news to those  
of us who believe that reasonable campaign finance regulation is not only  
constitutional, but essential to prevent corruption and ensure fairness in  
our democracy.

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19725&title=“
The%20Arizona%20Campaign%20Finance%20Law:%20The%20Surprising%20Good%20News%20in%20the%20Supreme%20Court’s%20New%20Decision”&description=) 

Posted in _campaign finance_ (http://electionlawblog.org/?cat=10)   | 
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_More Statements on  McComish_ (http://electionlawblog.org/?p=19722)  
Posted  on _June 27, 2011_ (http://electionlawblog.org/?p=19722)  by _Rick 
Hasen_ (http://electionlawblog.org/?author=3)  

_Campaign  Finance Institute_ 
(http://www.cfinst.org/Press/PReleases/11-06-27/CFI_Statement_on_McComish_Decision.aspx) ; _Demos_ 
(http://www.demos.org/press.cfm?currentarticleID=D1F2E593-3FF4-6C82-551601FCFF7BAE2A) . 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19722&title=More%20Statements%20on%20McComish&description=) 

Posted in _campaign finance_ (http://electionlawblog.org/?cat=10)   | 
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On  6/27/2011 9:56 AM, Rick Hasen wrote:  
_IJ Wins, with Links Galore on Arizona Case_ 
(http://electionlawblog.org/?p=19719)  
Posted  on _June 27, 2011_ (http://electionlawblog.org/?p=19719)  by _Rick  
Hasen_ (http://electionlawblog.org/?author=3)  

See _here_ 
(http://www.makenolaw.org/blog/8-government/205-free-speech-wins-ij-a-goldwater-score-major-supreme-court-victory) . 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19719&title=IJ%20Wins,%20with%20Links%20Galore%20on%20Arizona%20Case&description=
) 

Posted  in _campaign finance_ (http://electionlawblog.org/?cat=10)  | 
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On 6/27/2011 9:39 AM, Rick  Hasen wrote:  
 (http://electionlawblog.org/)  

_News and Reactions on AZ Case_ (http://electionlawblog.org/?p=19712)  
Posted on  _June 27, 2011_ (http://electionlawblog.org/?p=19712)   by _Rick 
 Hasen_ (http://electionlawblog.org/?author=3)  

_NY Times;_ (http://www.nytimes.com/2011/06/28/us/politics/28campaign.html) 
 _AP_ 
(http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_CAMPAIGN_FINANCE?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT) ; _SF Examiner_ 
(http://www.sfexaminer.com/blogs/beltw
ay-confidential/2011/06/supreme-court-overturns-arizona-campaign-finance-law) ; _CCP_ 
(http://www.campaignfreedom.org/newsroom/detail/supreme-court-strikes-down-matching-funds-provision) ; _Brennan Center_ 
(http://www.brennancenter.org/content/resource/supreme_court_strikes_down_tri
gger_funds_but_public_financing_laws_remain_i) ; _Justice at  Stake_ 
(http://www.gavelgrab.org/?p=22009) ; _Democracy21_ (http://bit.ly/meDJWQ) ; 
_Heather Gerken_ 
(http://balkin.blogspot.com/2011/06/campaign-finance-and-doctrinal-death.html)  
More to come. 
My New Republic piece is being edited and will be up shortly. 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19712&title=News%20and%20Reactions%20on%20AZ%20Case&description=) 

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On  6/27/2011 8:15 AM, Rick Hasen wrote:  

_Justice Kagan’s Response on the Website Point_ 
(http://electionlawblog.org/?p=19706)   
Posted on _June 27, 2011_ (http://electionlawblog.org/?p=19706)   by _Rick  
Hasen_ (http://electionlawblog.org/?author=3)  

“Finally, the Court remarks in a footnote that the Clean Elections  
Commission’s website once stated that the ‘‘Act was passed by the people  of 
Arizona . . . to level the playing field.’ Ante, at 24, n. 10. I can  understand 
why the majority does not place much emphasis on this  point.Some members of 
the majority have ridiculed the practice of  relying on subsequent 
statements by legislators to demonstrate an  earlier Congress’s intent in enacting a 
statute. See, e.g., Sullivan v.  Finkelstein, 496 U. S. 617, 631–632 (1990) 
(SCALIA, J., concurring in  part); United States v. Hayes, 555 U. S. 415, 
434–435 (2009)  (ROBERTS,
C. J., dissenting). Yet here the majority makes a much  stranger claim: 
that a statement appearing on a government website in  2011 (written by 
who-knows-whom?) reveals what hundreds of thousands of  Arizona’s voters sought to 
do in 1998 when they enacted the Clean  Elections Act by referendum. Just to 
state that proposition is to know  it is wrong.” 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19706&title=Justice%20Kagan’
s%20Response%20on%20the%20Website%20Point&description=) 

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_More Gold from J. Kagan_ (http://electionlawblog.org/?p=19702)  
Posted on _June 27, 2011_ (http://electionlawblog.org/?p=19702)   by _Rick  
Hasen_ (http://electionlawblog.org/?author=3)  

“Pretend you are financing your campaign through private donations.  Would 
you prefer that your opponent receive a guaranteed, upfront  payment of 
$150,000, or that he receive only $50,000, with the  possibility—a possibility 
that you mostly get to control—of  collecting another $100,000 somewhere down 
the road? Me too.” 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19702&title=More%20Gold%20from%20J.%20Kagan&description=) 

Posted  in _campaign finance_ (http://electionlawblog.org/?cat=10)  | 
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On 6/27/2011  8:05 AM, Rick Hasen wrote:  

_And this from J. Kagan_ (http://electionlawblog.org/?p=19699)  
Posted on  _June 27, 2011_ (http://electionlawblog.org/?p=19699)   by _Rick 
Hasen_ (http://electionlawblog.org/?author=3)  

“If an ordinary citizen, without the hindrance of a law degree,  thought 
this result an upending of First Amendment values, he would be  correct.” 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19699&title=And%20this%20from%20J.%20Kagan&description=) 

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_The Dissent’s Ouch!_ (http://electionlawblog.org/?p=19696)  
Posted on  _June 27, 2011_ (http://electionlawblog.org/?p=19696)   by _Rick 
Hasen_ (http://electionlawblog.org/?author=3)  

Justice Kagan: “So they are making a novel argument: that Arizona  violated 
their First Amendment rights by disbursing funds to  other speakers even 
though they could have received (but  chose to spurn) the same financial 
assistance. Some people might call  that chutzpah.” 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19696&title=The%20Dissent’s%20Ouch!&description=) 

Posted  in _campaign finance_ (http://electionlawblog.org/?cat=10)  | 
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On  6/27/2011 7:52 AM, Rick Hasen wrote:  
_Ouch!_ (http://electionlawblog.org/?p=19693)  
Posted  on _June 27,  2011_ (http://electionlawblog.org/?p=19693)  by _Rick 
Hasen_ (http://electionlawblog.org/?author=3)  

A fn. in CJ Roberts’ opinion: “Prior to oral argument in this  case, the 
Citizens Clean Elections Commission’s Web site stated that  “ ‘The Citizens 
Clean Elections Act was passed by the people of  Arizona in 1998 to level 
the playing field when it comes to running  for office.’ ” AFEC Brief 10, n. 
3 (quoting _http://www.azcleanelections.gov/about-us/get-involved.aspx_ 
(http://www.azcleanelections.gov/about-us/get-involved.aspx) );  Tr. of OralArg. 
48. The Web site now says that “The Citizens Clean  Elections Actwas passed 
by the people of Arizona in 1998 to restore  citizen participa-tion and 
confidence in our political system.” 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19693&title=Ouch!&description=Posted%20on%20June%2027,%202011%20by%20Rick%20Hasen

A%20fn.%20in%20CJ%20Roberts’%20opinion:%20“
Prior%20to%20oral%20argument%20in%20this%20case,%20the%20Citizens%20Clean%20Elections%20Commission’
s%20Web%20site%20stated%20that%20“%20‘
The%20Citizens%20Clean%20Elections%20Act%20was%20passed%20by%20the%20people%20of%20Arizona%20in%201998%20to%20level%20the%
20playing%20field%20when%20it%20comes%20to%20running%20for%20office.’%20”
%20AFEC%20Brief%2010,%20n.%203%20(quoting%20http://www.azcleanelections.gov/ab
out-us/get-involved.aspx);%20Tr.%20of%20OralArg.%2048.%20The%20Web%20site%20
now%20says%20that%20“
The%20Citizens%20Clean%20Elections%20Actwas%20passed%20by%20the%20people%20of%20Arizona%20in%201998%20to%20restore%20citizen%20part
icipa-tion%20and%20confidence  

20in%20our%20political%20system.”
Share
Posted%20in%20campaign%20finance    |%20Comments%20Of) 

Posted  in _campaign finance_ (http://electionlawblog.org/?cat=10)  | 
Comments Of

On  6/27/2011 7:37 AM, Rick Hasen wrote:  
_Arizona Free Enterprise Club’s Freedom PAC  v. Bennett (McComish) Decided_ 
(http://electionlawblog.org/?p=19690)  
Posted  on _June 27,  2011_ (http://electionlawblog.org/?p=19690)  by _Rick 
Hasen_ (http://electionlawblog.org/?author=3)  

The opinion is _here_ 
(http://www.supremecourt.gov/opinions/10pdf/10-238.pdf) . It is 5-4, as expected, striking  down the matching funds provision. 
More to come after I’ve read and analyzed the 68 pages. 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19690&title=Arizona%20Free%20Enterprise%20Club’
s%20Freedom%20PAC%20v.%20Bennett%20(McComish)%20Decided&description=) 

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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_ (mailto:rhasen at law.uci.edu) 
_http://law.uci.edu/faculty/page1_r_hasen.html_ 
(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_ (mailto:rhasen at law.uci.edu) 
_http://law.uci.edu/faculty/page1_r_hasen.html_ 
(http://law.uci.edu/faculty/page1_r_hasen.html) 