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

Tue Jun 28 07:23:01 PDT 2011

Indeed we would. We’re agnostic on the underlying issue of same-sex marriage, as we’re agnostic on all public policy issues outside of the First Amendment, campaign finance, election law, and related issues. But we’re quite happy to see that people in New York State (and outside the state, on both sides) were able to spend and contribute to a cause they believe in (again, on both sides).

Sean Parnell

President

Center for Competitive Politics

http://www.campaignfreedom.org

http://www.twitter.com/seanparnellccp

124 S. West Street, #201

Alexandria, VA  22314

(703) 894-6800 phone

(703) 894-6813 direct

(703) 894-6811 fax

From: Joseph Birkenstock [mailto:jbirkenstock at capdale.com] 
Sent: Tuesday, June 28, 2011 9:06 AM
To: Sean Parnell; JBoppjr at aol.com; jgoldfeder at stroock.com; law-election at uci.edu
Subject: RE: [EL] McComish (and let's stop calling it that) Decided

But CCP would oppose those denoucements, right?  Publicly?

  _____  

From: Sean Parnell [mailto:sparnell at campaignfreedom.org]
Sent: Tue 6/28/2011 8:56 AM
To: Joseph Birkenstock; JBoppjr at aol.com; jgoldfeder at stroock.com; law-election at uci.edu
Subject: RE: [EL] McComish (and let's stop calling it that) Decided

I for one am now waiting for Campaign Legal Center, Democracy 21, Public Citizen, Common Cause, and the rest of the ‘reform’ community to begin denouncing the New York vote and demanding corruption probes of lawmakers who voted for the bill. 

Sean Parnell

President

Center for Competitive Politics

http://www.campaignfreedom.org

http://www.twitter.com/seanparnellccp

124 S. West Street, #201

Alexandria, VA  22314

(703) 894-6800 phone

(703) 894-6813 direct

(703) 894-6811 fax

From: Joseph Birkenstock [mailto:jbirkenstock at capdale.com] 
Sent: Tuesday, June 28, 2011 8:48 AM
To: JBoppjr at aol.com; jgoldfeder at stroock.com; sparnell at campaignfreedom.org; law-election at uci.edu
Subject: RE: [EL] McComish (and let's stop calling it that) Decided

Matching snark for snark, Jim, may all your "victories" be just like this one, too:

Money Was The Key Ingredient In New York's Gay Marriage Bill

http://www.huffingtonpost.com/2011/06/27/money-gay-marriage-bill-new-york_n_885546.html

________________________________
Joseph M. Birkenstock, Esq.
Caplin & Drysdale, Chtd.
One Thomas Circle, NW
Washington, DC 20005
(202) 862-7836
www.capdale.com/jbirkenstock
*also admitted to practice in CA

  _____  

From: law-election-bounces at department-lists.uci.edu on behalf of JBoppjr at aol.com
Sent: Mon 6/27/2011 3:46 PM
To: jgoldfeder at stroock.com; sparnell at campaignfreedom.org; law-election at uci.edu
Subject: Re: [EL] McComish (and let's stop calling it that) Decided

Thanks for the correction, Sean. I got confused in my exuberance.  Jim

In a message dated 6/27/2011 2:59:14 P.M. Eastern Daylight Time, jgoldfeder at stroock.com writes:

Yes it was she.

Jerry H. Goldfeder

Stroock & Stroock & Lavan LLP

180 Maiden Lane

New York, NY 10038

212-806-5857   (office)

917-680-3132   (cell)

212-806-7857   (fax)

jgoldfeder at stroock.com

www.stroock.com/goldfeder

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Sean Parnell
Sent: Monday, June 27, 2011 2:52 PM
To: law-election at uci.edu
Subject: Re: [EL] McComish (and let's stop calling it that) Decided

Pretty sure it was Sotomayor that was on the NYC campaign finance board.

Sean Parnell

President

Center for Competitive Politics

http://www.campaignfreedom.org

http://www.twitter.com/seanparnellccp

124 S. West Street, #201

Alexandria, VA  22310

(703) 894-6800 phone

(703) 894-6813 direct

(703) 894-6811 fax

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of JBoppjr at aol.com
Sent: Monday, June 27, 2011 2:49 PM
To: rhasen at law.uci.edu; law-election at uci.edu
Subject: Re: [EL] McComish (and let's stop calling it that) Decided

    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  <http://electionlawblog.org/?p=19725> June 27, 2011 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.+federal+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%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19725&title=%E2%80%9CThe%20Arizona%20Campaign%20Finance%20Law%3A%20The%20Surprising%20Good%20News%20in%20the%20Supreme%20Court%E2%80%99s%20New%20Decision%E2%80%9D&description=> Image removed by sender. http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19725&title=Ã¢Â€ÂœThe Arizona Campaign Finance Law: The Surprising Good News in the Supreme CourtÃ¢Â€Â™s New DecisionÃ¢Â€Â&description=

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More Statements on McComish <http://electionlawblog.org/?p=19722>  

Posted on  <http://electionlawblog.org/?p=19722> June 27, 2011 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%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19722&title=More%20Statements%20on%20McComish&description=> Image removed by sender. http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19722&title=More Statements on McComish&description=

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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  <http://electionlawblog.org/?p=19719> June 27, 2011 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%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19719&title=IJ%20Wins%2C%20with%20Links%20Galore%20on%20Arizona%20Case&description=> Image removed by sender. http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19719&title=IJ Wins, with Links Galore on Arizona Case&description=

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On 6/27/2011 9:39 AM, Rick Hasen wrote: 

News and Reactions on AZ Case <http://electionlawblog.org/?p=19712>  

Posted on  <http://electionlawblog.org/?p=19712> June 27, 2011 by Rick Hasen <http://electionlawblog.org/?author=3>  

 <http://www.nytimes.com/2011/06/28/us/politics/28campaign.html> NY Times; AP <http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_CAMPAIGN_FINANCE?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT> ;  <http://www.sfexaminer.com/blogs/beltway-confidential/2011/06/supreme-court-overturns-arizona-campaign-finance-law> SF Examiner; 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_trigger_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.

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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  <http://electionlawblog.org/?p=19706> June 27, 2011 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%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19706&title=Justice%20Kagan%E2%80%99s%20Response%20on%20the%20Website%20Point&description=> Image removed by sender. http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19706&title=Justice KaganÃ¢Â€Â™s Response on the Website Point&description=

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More Gold from J. Kagan <http://electionlawblog.org/?p=19702>  

Posted on  <http://electionlawblog.org/?p=19702> June 27, 2011 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%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19702&title=More%20Gold%20from%20J.%20Kagan&description=> Image removed by sender. http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19702&title=More Gold from J. Kagan&description=

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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  <http://electionlawblog.org/?p=19699> June 27, 2011 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%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19699&title=And%20this%20from%20J.%20Kagan&description=> Image removed by sender. http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19699&title=And this from J. Kagan&description=

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The Dissent’s Ouch! <http://electionlawblog.org/?p=19696>  

Posted on  <http://electionlawblog.org/?p=19696> June 27, 2011 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%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19696&title=The%20Dissent%E2%80%99s%20Ouch%21&description=> Image removed by sender. http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19696&title=The DissentÃ¢Â€Â™s Ouch!&description=

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On 6/27/2011 7:52 AM, Rick Hasen wrote: 

Ouch! <http://electionlawblog.org/?p=19693>  

Posted on  <http://electionlawblog.org/?p=19693> June 27, 2011 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); 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%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19693&title=Ouch%21&description=Posted%20on%20June%2027%2C%202011%20by%20Rick%20Hasen%0D%0A%0D%0AA%20fn.%20in%20CJ%20Roberts%E2%80%99%20opinion%3A%20%E2%80%9CPrior%20to%20oral%20argument%20in%20this%20case%2C%> Image removed by sender. http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=19693&title=Ouch!&description=Posted on June 27, 2011 by Rick HasenA fn. in CJ RobertsÃ¢Â€Â™ opinion: Ã¢Â€ÂœPrior to oral argument in this case,

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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  <http://electionlawblog.org/?p=19690> June 27, 2011 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.

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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