[EL] LaRoque, McKee, more news

[Robbin Stewart]

Re Supreme Court denies cert in NOM v McKee, I think it worth noting that
the cert petition, in its questions presented, see below, did not address
what I find to be the interesting part of the case.

Maine was and is requiring disclaimers on campaign literature. The first
circuit agreed with district judge Brock Hornsby that Citizens United has
implicitly overruled McIntyre and Talley and the other prior precedents
that said discalimer regulations are unconstitutional. These courts said
the issue was so obviously resolved that it wasn't worthy of discussion.
(Contrast this with Hornsby's earlier opinion in Yes to Life, where he had
found disclaimer regulation unconstitutional.)

I think they got it wrong. I think Citizens United was a decision about
corporate speech, and that if the court had intended to overrule McIntyre
and Talley, it would have said so. There was a broad consensus in CU that
disclosures are good, and it is entirely possible that in some future case
they will overrule Talley. The plaintiffs in CU had not relied on the
Talley-McIntyre line of cases,and had only made the express advocacy
argument that had also failed in McConnell v FEC. I haven't reviewed the
brifeing in CU after the change in plaintiff's counsel, but if the
disclaimer argument hadn't been abandoned by then, it at least wasn't the
focus of either round of oral argument.

I think CU's approval of disclaimer rules is limited to the corporate
speech context. Meanwhile, cases such as McIntyre and Talley are still good
law that the courts below were obligated to follow. But if I'm wrong about
that, the matter is still worthy of discussion. Judge Hornsby and the First
Circuit should have explained clearly and in detail why they were taking it
upon themselves to overturn Supreme Court precedent in a way that CU had
not. That discussion will have to wait for some later case. The purpose of
this message is just to point out that when the Supreme Court denied cert
in McKee, it was not signaling anything about the disclaimer issue, because
that had not been raised in the cert petition.

 Supreme Court Denies Cert in National Organization for Marriage Campaign
> Finance Disclosure Case <http://electionlawblog.org/?p=30596>
> Posted on February 27, 2012 9:52 am <http://electionlawblog.org/?p=30596>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> SCOTUSBlog<http://www.scotusblog.com/2012/02/free-speech-issue-bypassed/#more-139832>
> :
>
> [T]he Supreme Court on Monday refused to hear a constitutional challenge
> to a Maine law that requires those seeking to raise and spend money in
> state election campaigns to organize as a political action committee for
> that activity, and make significant disclosures about their financial
> operations.   That was challenged in a petition, *National Organization
> for Marriage v. McKee* (11-599), after the state law was upheld by the
> First Circuit Court.  The NOM is an organizations set up to promote the
> traditional view of marriage as being reserved solely for opposite-sex
> couples.  It argued in challenging the PAC requirement that states do not
> have the constitutional authority to impose such obligations unless an
> organization has election campaign activity as its “major purpose.”
>
> My earlier coverage is here <http://electionlawblog.org/?s=mckee>.
>
 Questions Presented
Citizens United v. FEC employed strict scrutiny to
hold unconstitutional the ban on corporate political
speech and the “onerous” political-committee (“PAC”)
option. 130 S.Ct. 876, 897-98 (2010) (“Citizens”). It employed
exacting scrutiny to uphold one-time, eventdriven
reporting of electioneering communications. Id.
at 914-16. The decision below upheld similar PAC-style
requirements under exacting scrutiny and rejected the
major-purpose test of Buckley v. Valeo, 424 U.S. 1, 79
(1976), for PAC status. And it held that the terms “promoting,”
“support,” “opposition,” and “influencing” in
campaign-finance laws are not unconstitutionally
vague or overbroad. This raises these issues:
1. Whether a state may impose PAC-style burdens
on groups lacking the major purpose of nominating or
electing candidates and whether such imposition must
pass strict scrutiny.
2. Whether the terms “promoting,” “support,” and
“opposition” are unconstitutionally vague and overbroad
in Maine’s campaign-finance laws.
3. Whether the First Circuit erred in upholding
Maine’s use of “influencing” to define regulated political
speech, given that
(a) the legislature amended the relevant statutes to
define “influence” as “to promote, support, oppose or
defeat” before the First Circuit decision, making the
challenge to the original “influence” language moot,
and
(b) “influencing” is unconstitutionally vague and
overbroad.
4. Whether the district court abused its discretion
in unsealing portions of the record that the parties and
(i)
the district court agreed to seal and which reveal strategic-
planning information protected under free-speech
and -association rights.
(
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