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

Tue Jun 28 09:48:13 PDT 2011

My position on the First Amendment is based on my support for freedom,  
democracy and competition, not based on a prediction of who will win the  
political fights under a regime of freedom.  

Said another way, I am not seeking partisan political advantage by  
attempting to enforce the protections of the First Amendment. I just  believe in 
them.

And, Joe, what in the world is a "snark?"  Jim

In a message dated 6/28/2011 8:52:43 A.M. Eastern Daylight Time,  
jbirkenstock at capdale.com writes:

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_ 
(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_ (http://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  _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.+f
ederal+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)   |  
Comments Off |

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

_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/beltway-confidential/2011/06/supreme-court-overturns-arizon
a-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_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. 

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

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

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

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=) 

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

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,) 

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=) 

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