[EL] ELB News and Commentary 1/19/12

[Steve Hoersting]

Anyone reading Brad’s post will recognize that the gap between
*Buckley*(1976) and
*SpeechNow.org* (2010) is 34 years.  The gap between *Cal Med* (1981) and *
SpeechNow.org* is 29 years.  The gap between *Austin* (1990) and *Citizens
United* is 20 years.



They will also know that the urge to speak in campaigns is unrelenting.  So
the question is: What took so long to free-up independent speech?  The
answer has a history.



For years, political speakers could work-around *Austin* by avoiding what
the law calls “expenditures,” which were limited, constitutionally, to
communications that contain “express advocacy.”  Hard-hitting ads were run
with corporate and union treasury funds, often independently of candidates,
by avoiding express advocacy.



McCain-Feingold brought an end to *Austin**,* because the law’s
“electioneering communication” provisions extended the scope of
communications that could not be run with corporate or union treasury funds.




Enter *Wisconsin** Right to Life *(2007).  Enter *Citizens United *(2010)*.*



But individuals were still permitted to run any ad they chose by themselves.
And, more to the point, *groups* were allowed to run issue advocacy with
any funds, and to run electioneering communications with funds from
individuals.  Electioneering communications are mutually exclusive of
“expenditures” under the law.



So what brought about the Super PAC?



In BCRA (2002), the party committees were wrongly stripped of their ability
to run issue ads with soft money.  Outside groups were swamping the
political party committees, and the party committees were (rightly)
perturbed by it.



In 2004, the FEC somehow found four votes to pass a “political committee”
rulemaking that made it virtually impossible for outside groups to run
issue advocacy or electioneering communications -- even independently and
even using funds from individuals.  To understand this, you must understand
this background.  A group that makes “expenditures” and has a “major
purpose” of campaign activity is a “political committee.”  All political
committees were once subject to limits.  But the law also provides that a
group *receiving* “contributions” and has a “major purpose” of campaign
activity is also a political committee, and that status triggers limits.



The backdrop, however, was that this construct applied only to those groups
that posed some threat of corruption.  Independent groups, however, pose no
threat of corruption.



That didn’t seem to matter.  Under the FEC’s 2004 rulemaking, groups that
avoided express advocacy – most notably the 527s of the 2004 campaign cycle
– began to find themselves hauled before the FEC to determine whether the
wording of their solicitations constituted “contributions” and just what,
precisely, was their “major purpose” – even as their independent
communications avoided express advocacy, were not “expenditures,” and posed
no threat of corruption.



The FEC’s rulemaking on political committees had to be challenged.



Enter *EMILY’s List*.  Enter *SpeechNow.org.*

* *

All this is to say that, post-FEC rulemaking of 2004, *NCRL v. Leake* was
the first of a trend.



By the way, Rick: Yes, *Citizens United* did make the decision in *
SpeechNow.org* somewhat easier for the D.C. Circuit.  But we’d have won
anyway.  Indeed, *EMILY’s List* (2009 D.C. Cir.) precedes *Citizens
United*and had already spoken to the contribution limits issue
as-applied to
groups making independent expenditures.



Steve Hoersting


On Thu, Jan 19, 2012 at 10:51 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  This is a partial, and revisionist, history.  There was a deep dispute
> about the relevance of the CMA case, particularly given McConnell v. FEC
> and its important footnote 48.  It was far from clear that the Leake case
> was going to be followed on the federal level.  There were lawsuits, FEC
> proceedings, and considerable uncertainty.  All of this was chronicled in
> important work by Richard Briffault, Dan Ortiz, and Ned Foley (particularly
> on the "major purpose" test for PACs) as excerpted in earlier editions of
> the casebook.
>
> That is not to say that courts would not have eventually reached this
> conclusion even without Citizens United.  But the issue was uncertain and
> the legal environment around 527s uncertain as well.
>
> Citizens United made the issue easy, at least for the DC Circuit.
>
>
>
> On 1/19/2012 6:54 AM, Smith, Brad wrote:
>
> To follow up on Jim's post:
>
>  Indeed, further back, in *California Medical Association v. FEC* (1981),
> 5 justices agreed that limits on the size of contributions to what we now
> call "Super PACs" would be unconstitutional. A 5-4 decision upheld the law
> prohibiting an unincorporated association from contributing more than $5000
> to its own PAC.
>
>  The decisive 5th vote to uphold the statute came from Justice Blackmun,
> who wrote, concurring in part and concurring in the judgment:
>
>   "I conclude that contributions to multicandidate political committees
> may be limited to $5,000 per year as a means of preventing evasion of the
> limitations on contributions to a candidate or his authorized campaign
> committee upheld in *Buckley.* The statute challenged here is thus
> analogous to the $25,000 limitation on total contributions in a given year
> that *Buckley* held to be constitutional.
>
> "I stress, however, that this analysis suggests that a different result
> would follow if § 441a(a)(1)(C) were applied to contributions to a
> political committee established for the purpose of making independent
> expenditures, rather than contributions to candidates. By definition, a
> multicandidate political committee like CALPAC makes contributions to five
> or more candidates for federal office. § 441a(a)(4). Multicandidate
> political committees are therefore essentially conduits for contributions
> to candidates, and, as such, they pose a perceived threat of actual or
> potential corruption. In contrast, contributions to a committee that makes
> only independent expenditures pose no such threat."
>
> Indeed, given that, it was a Federal Election Commission that inhibited
> the creation of Super PACs for nearly 30 years by its refusal to "follow
> the law," that is, to apply the law in the constitutional fashion that a
> majority of the Supreme Court understood to be correct based on *California Medical Association
> *. And it was *California Medical Association* that was the key authority
> on which the plaintiffs in SpeechNow relied. (Note that *SpeechNow.org*was not incorporated and did not accept corporate contributions). Of
> course, there was also the intervening 1991 decision in *Austin v.
> Michigan Chamber of Commerce. *Beyond the fact that *Austin* was always
> the uncomfortable outlier in the jurisprudence, I wonder if it would not
> have reached a different result had the FEC enforced the law in accordance
> with the majority view in *Cal Med*. Indeed, *Austin'*s majority never
> cites *Cal Med*, though oddly, neither does the dissent. Everyone seems
> to have missed the importance of Blackmun's concurrence. But as Kennedy
> pointed out in *Citizens United,* the expenditure ban struck down in *
> Buckley* extended to corporations and unions, and corporations were
> included amongst the plaintiffs in *Buckley*. Thus an irony - as certain
> members of the reform community routinely excoriate the Federal Election
> Commission for what they believe to be 35 years of "failure to enforce the
> law," in fact an FEC more faithful to the law would likely have made clear
> back in 1976 that Super PACs were permissible.
>
> In any case, Jim is correct, that Super PACs would almost certainly have
> arrived in 2010 with or without *Citizens United. *Given the positive
> effects that Super PACs have had on competition, that's a good thing.
>
>
>
>  *Bradley A. Smith*
>
> *Josiah H. Blackmore II/Shirley M. Nault*
>
> *   Professor of Law*
>
> *Capital University Law School*
>
> *303 E. Broad St.*
>
> *Columbus, OH 43215*
>
> *614.236.6317*
>
> *http://law.capital.edu/faculty/bios/bsmith.aspx*
>   ------------------------------
> *From:* law-election-bounces at department-lists.uci.edu [
> law-election-bounces at department-lists.uci.edu] on behalf of
> JBoppjr at aol.com [JBoppjr at aol.com]
> *Sent:* Thursday, January 19, 2012 8:53 AM
> *To:* rhasen at law.uci.edu; law-election at uci.edu
> *Subject:* Re: [EL] ELB News and Commentary 1/19/12
>
>  Actually, Rick is only partially correct on this:
>
> "After and following *Citizens United*, the courts (most importantly in *
> Speechnow*) and the FEC provided a blessing for independent only
> expenditure committees (Super PACs) to collect unlimited sums from
> individuals, labor unions, and corporations."
>
> The first federal court of appeals to legalize Super FACs was the Fourth
> Circuit in 2008, years before *Citizens United*. The case, *North
> Carolina Right to Life v. Leake*, was a challenge to North Carolina's
> $4,000 individual contribution limit to IE-only PACs. The limit was struck
> down by the 4th Circuit under *Buckley* and *MCFL. Citizens United*reaffirmed the central rationale of
> *Buckley*, *MCFL* and *Leake* that IEs do not corrupt and* *did add to
> the mix unlimited corporate and labor union contributions to Super PACs.
> Even without *CU*, Super PACs would have emerged, but with only unlimited
> individual contributions.  Jim Bopp
>
>  In a message dated 1/19/2012 12:13:53 A.M. Eastern Standard Time,
> rhasen at law.uci.edu writes:
>
>  Super PACS May Be the Story of the Day….<http://electionlawblog.org/?p=28243>
> Posted on January 18, 2012 8:57 pm <http://electionlawblog.org/?p=28243>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> but absolutely don’t miss this interactive explainer<http://motherjones.com/politics/2012/01/interactive-explainer-republican-governors-association-money-machine>from Mother Jones about how the Republican Governors Association has
> effectively moved around money in state races, shielding many (often
> corporate) contributors from effective disclosure.
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28243&title=Super
> PACS May Be the Story of the Day….&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28243&title=Super%20PACS%20May%20Be%20the%20Story%20of%20the%20Day%E2%80%A6.&description=>
>  Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>  “The Influence Industry: Activist groups want to undo ruling that led to
> ‘super PAC’ frenzy” <http://electionlawblog.org/?p=28240>
> Posted on January 18, 2012 7:47 pm <http://electionlawblog.org/?p=28240>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Dan Eggen reports<http://www.washingtonpost.com/politics/the-influence-industry-activist-groups-want-to-undo-ruling-that-led-to-super-pac-frenzy/2012/01/18/gIQADUCR9P_story.html>for
> *WaPo*.
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28240&title=“The
> Influence Industry: Activist groups want to undo ruling that led to
> ‘super PAC’ frenzy†&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28240&title=%E2%80%9CThe%20Influence%20Industry%3A%20Activist%20groups%20want%20to%20undo%20ruling%20that%20led%20to%20%E2%80%98super%20PAC%E2%80%99%20frenzy%E2%80%9D&description=>
>  Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>  New CRS Report <http://electionlawblog.org/?p=28238>
> Posted on January 18, 2012 7:46 pm <http://electionlawblog.org/?p=28238>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Contemporary developments in presidential elections (Jan. 9)<http://www.fas.org/sgp/crs/misc/R42139.pdf>
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28238&title=New
> CRS Report&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28238&title=New%20CRS%20Report&description=>
>  Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments
> Off
>  “‘Super PACs’ dominate the political landscape”<http://electionlawblog.org/?p=28235>
> Posted on January 18, 2012 7:44 pm <http://electionlawblog.org/?p=28235>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> *LAT *reports<http://www.latimes.com/news/nationworld/nation/la-na-super-pacs-20120119,0,1538469.story>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28235&title=“‘Super
> PACs’ dominate the political landscape†&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28235&title=%E2%80%9C%E2%80%98Super%20PACs%E2%80%99%20dominate%20the%20political%20landscape%E2%80%9D&description=>
>  Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>  “The Sudden Emergence of Super PACs”<http://electionlawblog.org/?p=28232>
> Posted on January 18, 2012 4:47 pm <http://electionlawblog.org/?p=28232>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> To the Point’s Reporter’s Notebook talks to<http://www.kcrw.com/news/programs/tp/tp120117the_south_carolina_r/>Chris Frates, David Keating and Paul Ryan.
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28232&title=“The
> Sudden Emergence of Super PACs†&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28232&title=%E2%80%9CThe%20Sudden%20Emergence%20of%20Super%20PACs%E2%80%9D&description=>
>  Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments
> Off
>  “Will Jon Stewart go to jail for running Stephen Colbert’s super PAC?”<http://electionlawblog.org/?p=28229>
> Posted on January 18, 2012 4:42 pm <http://electionlawblog.org/?p=28229>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> The *Christian Science Monitor* reports<http://www.csmonitor.com/USA/Elections/Vox-News/2012/0118/Will-Jon-Stewart-go-to-jail-for-running-Stephen-Colbert-s-super-PAC>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28229&title=“Will
> Jon Stewart go to jail for running Stephen Colbert’s super PAC?â€
> &description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28229&title=%E2%80%9CWill%20Jon%20Stewart%20go%20to%20jail%20for%20running%20Stephen%20Colbert%E2%80%99s%20super%20PAC%3F%E2%80%9D&description=>
>  Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>  “California could be model for ‘super PAC’ disclosure”<http://electionlawblog.org/?p=28227>
> Posted on January 18, 2012 4:39 pm <http://electionlawblog.org/?p=28227>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> The *San Jose Mercury News* reports<http://www.mercurynews.com/breaking-news/ci_19768783>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28227&title=“California
> could be model for ‘super PAC’ disclosure†&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28227&title=%E2%80%9CCalifornia%20could%20be%20model%20for%20%E2%80%98super%20PAC%E2%80%99%20disclosure%E2%80%9D&description=>
>  Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>  “Rules of the Game: Some Say Nixing Contribution Limits Will Level
> Playing Field” <http://electionlawblog.org/?p=28225>
> Posted on January 18, 2012 4:38 pm <http://electionlawblog.org/?p=28225>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Eliza’s latest.<http://www.rollcall.com/issues/57_81/Some-Say-Nixing-Contribution-Limits-Will-Level-Playing-Field-211595-1.html?pos=olobh>
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28225&title=“Rules
> of the Game: Some Say Nixing Contribution Limits Will Level Playing Fieldâ€
> &description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28225&title=%E2%80%9CRules%20of%20the%20Game%3A%20Some%20Say%20Nixing%20Contribution%20Limits%20Will%20Level%20Playing%20Field%E2%80%9D&description=>
>  Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>  Arlington VA Sends Out Ballots <http://electionlawblog.org/?p=28222>
> Posted on January 18, 2012 2:37 pm <http://electionlawblog.org/?p=28222>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> See here<https://twitter.com/#%21/ArlingtonVotes/status/159752215525998592>.
> Has Perry announced he won’t go to SCOTUS on VA ballot access?
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28222&title=Arlington
> VA Sends Out Ballots&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28222&title=Arlington%20VA%20Sends%20Out%20Ballots&description=>
>  Posted in ballot access <http://electionlawblog.org/?cat=46> | Comments
> Off
>  “Citizens United vs FEC: The End of Democracy As We Know It?”<http://electionlawblog.org/?p=28219>
> Posted on January 18, 2012 2:22 pm <http://electionlawblog.org/?p=28219>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Weissman, Bopp debate<http://www.lsba.org/midyear2012/LSBAClassActionCitizensUnitedCLE.pdf>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28219&title=“Citizens
> United vs FEC: The End of Democracy As We Know It?†&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28219&title=%E2%80%9CCitizens%20United%20vs%20FEC%3A%20The%20End%20of%20Democracy%20As%20We%20Know%20It%3F%E2%80%9D&description=>
>  Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>  “New S.C. Poll: Colbert Hot, Court-Bashing Not”<http://electionlawblog.org/?p=28216>
> Posted on January 18, 2012 1:38 pm <http://electionlawblog.org/?p=28216>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Justice at Stake has issued this press release<http://www.justiceatstake.org/newsroom/press_releases.cfm/new_sc_poll_colbert_hot_courtbashing_not?show=news&newsID=12371>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28216&title=“New
> S.C. Poll: Colbert Hot, Court-Bashing Not†&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28216&title=%E2%80%9CNew%20S.C.%20Poll%3A%20Colbert%20Hot%2C%20Court-Bashing%20Not%E2%80%9D&description=>
>  Posted in judicial elections <http://electionlawblog.org/?cat=19> | Comments
> Off
>  Bonus Quote of the Day (Tort Law Edition)<http://electionlawblog.org/?p=28213>
> Posted on January 18, 2012 1:24 pm <http://electionlawblog.org/?p=28213>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> “[Y]ou always assume the risk of using the student refrigerator.”
>
> UCLAW SBA, responding to a theft of lunches from student fridges (via Above
> the Law<http://abovethelaw.com/2012/01/there-is-a-law-school-lunch-thief-running-wild-in-our-midst/#more-127654>
> ).
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28213&title=Bonus
> Quote of the Day (Tort Law Edition)&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28213&title=Bonus%20Quote%20of%20the%20Day%20%28Tort%20Law%20Edition%29&description=>
>  Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments
> Off
>  “Ellis: Texas unable to prove ID law won’t discriminate”<http://electionlawblog.org/?p=28210>
> Posted on January 18, 2012 12:12 pm <http://electionlawblog.org/?p=28210>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> See here<http://blog.chron.com/texaspolitics/2012/01/ellis-texas-unable-to-prove-id-law-wont-discriminate/>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28210&title=“Ellis:
> Texas unable to prove ID law won’t discriminate†&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28210&title=%E2%80%9CEllis%3A%20Texas%20unable%20to%20prove%20ID%20law%20won%E2%80%99t%20discriminate%E2%80%9D&description=>
>  Posted in Department of Justice <http://electionlawblog.org/?cat=26>, voter
> id <http://electionlawblog.org/?cat=9>, Voting Rights Act<http://electionlawblog.org/?cat=15>
> | Comments Off
>  Did Citizens United Lead to Super PACs? Setting the Record Straight<http://electionlawblog.org/?p=28207>
> Posted on January 18, 2012 11:42 am <http://electionlawblog.org/?p=28207>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> *Salon* is out with an interview today<http://www.salon.com/2012/01/18/is_citizens_united_just_misunderstood/singleton/>with Floyd Abrams (noted First Amendment lawyer and campaign finance law
> opponent).  Abrams took the *NY Times *to task<http://www.nytimes.com/2012/01/17/opinion/citizens-united-decision.html?_r=1>for blaming the $5 million Adelson contribution to Super PACs on
> *Citizens United*.  Abrams says it is *Buckley v. Valeo*, recognizing an
> individual’s right to spend money on elections, not *Citizens United*,
> which is responsible for the emergence of Super PACs.
>
> That’s not the whole story, and misses the relevance of *Citizens United*.
>
> Here are the main points.
>
> 1. Before *Citizens United*, individuals could indeed spend unlimited
> sums on independent advertising directly supporting or opposing
> candidates.  But that money had to be spent by the individual directly.  It
> could not be given to a political action committee, which had an individual
> contribution cap of $5,000 and could not take corporate or union funding.
> In many cases, wealthy individuals did not want to spend their own money on
> advertising, which would say “Paid for by Sheldon Adelson” or “Paid for by
> George Soros”, so fewer of these ads happened.  And corporations or unions
> could not play in this way.
>
> 2. Before *Citizens United*, an individual who wanted to spend money to
> influence a federal election but who did not want his or her name plastered
> across every ad sometimes gave to groups which came to be known as “527s”
> (for a particular provision of the tax code).  527s claimed they could take
> unlimited money from individuals (and sometimes claimed a right to
> corporate and labor union money) on grounds that they were not PACS under
> the FEC definition of PACs.  These 527s were somewhat successful (George
> Soros gave $23 million to try to help pro-Kerry 527s in 2004 get Kerry
> elected), but a legal cloud always hung over them.  I remember well when
> Bob Bauer, then candidate Obama’s lawyer, barged in on a pro-Hillary
> Clinton conference call <http://electionlawblog.org/archives/010292.html>to say that people giving to 527s to support Clinton could face criminal
> liability.
>
> 3. After and following *Citizens United*, the courts (most importantly in
> *Speechnow*) and the FEC provided a blessing for independent only
> expenditure committees (Super PACs) to collect unlimited sums from
> individuals, labor unions, and corporations.  The theory was that, per *Citizens
> United*, if independent spending cannot corrupt, then contributions to
> fund independent spending cannot corrupt either. (I am quite<http://www.slate.com/articles/news_and_politics/jurisprudence/2011/10/citizens_united_how_justice_kennedy_has_paved_the_way_for_the_re.single.html>critical<http://www.cnn.com/2012/01/09/opinion/hasen-super-pacs/index.html?eref=rss_topstories&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A%20rss%2Fcnn_topstories%20%28RSS%3A%20Top%20Stories%29>of this theory about corruption, but that’s besides the point here.)  So
> what was once of questionable legality or illegality before *Citizens
> United* is of fully blessed legality after *Citizens United*.  So *Citizens
> United* allowed for independent spending to flourish, in ways that it
> could not before.
>
> 4. On top of this–and here is where Abrams is right–through no fault of
> the Supreme Court in *Citizens United*, it has become quite easy to evade
> or avoid adequate disclosure.  Part of this came about because three
> Republican Commissioners on the FEC have embraced an anti-disclosure
> reading<http://www.slate.com/articles/news_and_politics/jurisprudence/2011/01/the_fec_is_as_good_as_dead.html>of the statutes and regulations.  Part of it requires a legislative or
> regulatory response, so that individuals cannot give to a 501(c)(4) (such
> as Crossroads GPS or Colbert’s Super PAC SHHH) to shield their identity as
> money is transferred to the Super PAC (such as American Crossroads or the
> Colbert Super PAC.)  Part requires tightening up the time frame for
> disclosure of Super PAC contributions.  (Most Super PACs now won’t be
> disclosing their funding until the presidential nomination on the
> Republican side is all but locked up.)   But there is no political will
> among Republican Commissioners at the FEC or among Republicans in Congress
> <http://www.slate.com/articles/news_and_politics/politics/2010/10/show_me_the_donors.html>to
> fix the disclosure problem.  Disclosure, which used to be supported by a
> bipartisan consensus, has gotten entangled in this morass.
>
> Bottom line: *Citizens United* has led, indirectly but surely, to the
> emergence of Super PACs. But it is up to Congress, not the Supreme Court,
> to fix the disclosure problems with Super PACs.
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28207&title=Did
> Citizens United Lead to Super PACs? Setting the Record
> Straight&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28207&title=Did%20Citizens%20United%20Lead%20to%20Super%20PACs%3F%20Setting%20the%20Record%20Straight&description=>
>  Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>  “Scott hires Ken Detzner as new secretary of state”<http://electionlawblog.org/?p=28204>
> Posted on January 18, 2012 10:43 am <http://electionlawblog.org/?p=28204>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> News<http://www.postonpolitics.com/2012/01/scott-hires-ken-detzner-as-new-secretary-of-state/>from Florida.
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28204&title=“Scott
> hires Ken Detzner as new secretary of state†&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28204&title=%E2%80%9CScott%20hires%20Ken%20Detzner%20as%20new%20secretary%20of%20state%E2%80%9D&description=>
>  Posted in election administration <http://electionlawblog.org/?cat=18> | Comments
> Off
>  Did Santorum Beat Gingrich in New Hampshire?<http://electionlawblog.org/?p=28201>
> Posted on January 18, 2012 9:29 am <http://electionlawblog.org/?p=28201>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Michael McDonald
> <http://www.huffingtonpost.com/michael-p-mcdonald/second-place-in-nh-democr_b_1213219.html>includes
> the write-ins and votes in the Dem. primary and finds some interesting
> results.
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28201&title=Did
> Santorum Beat Gingrich in New Hampshire?&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28201&title=Did%20Santorum%20Beat%20Gingrich%20in%20New%20Hampshire%3F&description=>
>  Posted in campaigns <http://electionlawblog.org/?cat=59> | Comments Off
>  “Ex-DOJ Voting Section Chief Now Representing South Carolina in Voter ID
> Fight” <http://electionlawblog.org/?p=28198>
> Posted on January 18, 2012 9:13 am <http://electionlawblog.org/?p=28198>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Main Justice<http://www.mainjustice.com/2012/01/11/ex-doj-voting-section-chief-now-representing-south-carolina-in-voter-id-fight/>:
> Christopher Coates teams up with Paul Clement<http://electionlawblog.org/?p=27761>in a case that could well
> bring down<http://www.slate.com/articles/news_and_politics/jurisprudence/2011/12/the_obama_administration_s_risky_voter_id_move_threatens_the_voting_rights_act.html>section 5 of the Voting Rights Act.  One of Coates’ former co-workers
> writes of sadness at this development.
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28198&title=“Ex-DOJ
> Voting Section Chief Now Representing South Carolina in Voter ID Fightâ€
> &description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28198&title=%E2%80%9CEx-DOJ%20Voting%20Section%20Chief%20Now%20Representing%20South%20Carolina%20in%20Voter%20ID%20Fight%E2%80%9D&description=>
>  Posted in Supreme Court <http://electionlawblog.org/?cat=29>, The Voting
> Wars <http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>,
> Voting Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
>  “Secretaries Of State At Center Of Election Battles”<http://electionlawblog.org/?p=28195>
> Posted on January 18, 2012 9:06 am <http://electionlawblog.org/?p=28195>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> NPR reports<http://www.npr.org/2012/01/18/145351397/secretaries-of-state-at-center-of-election-battles>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28195&title=“Secretaries
> Of State At Center Of Election Battles†&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28195&title=%E2%80%9CSecretaries%20Of%20State%20At%20Center%20Of%20Election%20Battles%E2%80%9D&description=>
>  Posted in election administration <http://electionlawblog.org/?cat=18>, The
> Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
>  “How Big Money Super PACs are Reshaping the GOP Race”<http://electionlawblog.org/?p=28192>
> Posted on January 18, 2012 8:44 am <http://electionlawblog.org/?p=28192>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> PBS News Hour reports<http://www.pbs.org/newshour/bb/politics/jan-june12/superpacs_01-17.html>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28192&title=“How
> Big Money Super PACs are Reshaping the GOP Race†&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28192&title=%E2%80%9CHow%20Big%20Money%20Super%20PACs%20are%20Reshaping%20the%20GOP%20Race%E2%80%9D&description=>
>  Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>  “Law Blog Fireside: Jenner’s Paul Smith, Redistricting Pro”<http://electionlawblog.org/?p=28189>
> Posted on January 18, 2012 8:40 am <http://electionlawblog.org/?p=28189>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> Here<http://blogs.wsj.com/law/2012/01/18/law-blog-fireside-jenners-paul-smith-redistricting-pro/>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28189&title=“Law
> Blog Fireside: Jenner’s Paul Smith, Redistricting Pro†&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28189&title=%E2%80%9CLaw%20Blog%20Fireside%3A%20Jenner%E2%80%99s%20Paul%20Smith%2C%20Redistricting%20Pro%E2%80%9D&description=>
>  Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments
> Off
>  “Mitt Romney’s flawed plan to ‘fix’ campaign financing”<http://electionlawblog.org/?p=28186>
> Posted on January 18, 2012 8:03 am <http://electionlawblog.org/?p=28186>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> *WaPo* editorializes<http://www.washingtonpost.com/opinions/mitt-romneys-flawed-plan-to-fix-campaign-financing/2012/01/17/gIQAsfXY6P_story.html>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28186&title=“Mitt
> Romney’s flawed plan to ‘fix’ campaign financing†&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28186&title=%E2%80%9CMitt%20Romney%E2%80%99s%20flawed%20plan%20to%20%E2%80%98fix%E2%80%99%20campaign%20financing%E2%80%9D&description=>
>  Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>  Quote of the Day <http://electionlawblog.org/?p=28183>
> Posted on January 18, 2012 7:43 am <http://electionlawblog.org/?p=28183>
> by Rick Hasen <http://electionlawblog.org/?author=3>
>
> By giving corporations free rein to meddle in politics without any
> accountability required, just like in the robber baron days, and by
> defining money as speech, the court dealt a body blow to American
> democracy. Candidates no longer can focus simply on raising money for their
> campaigns against other candidates. Because corporations have almost
> unlimited sums they can put in with no notice, candidates have to raise
> protection money in advance just in case such a campaign is waged against
> them.
>
> And in many cases, as I have written before, they will pay for protection
> by quietly giving companies or other interests what they want legislatively
> to avoid a multimillion-dollar slime campaign against them. Supreme Court
> Justice Anthony Kennedy, who wrote the majority opinion in Citizens United,
> said there could be no corruption in independent spending. What planet does
> he live on?
>
> Norm Ornstein<http://www.rollcall.com/issues/57_80/effect_citizens_united_felt_two_years_later-211556-1.html>,
> in *Roll Call*, on the second anniversary of *Citizens United*.  I
> sounded similar themes here<http://www.cnn.com/2012/01/09/opinion/hasen-super-pacs/index.html?eref=rss_topstories&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A%20rss%2Fcnn_topstories%20%28RSS%3A%20Top%20Stories%29>
> .
>  [image:
> http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=28183&title=Quote
> of the Day&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D28183&title=Quote%20of%20the%20Day&description=>
>  --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> 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
> http://electionlawblog.org
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> 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
> http://electionlawblog.org
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>



-- 
Stephen M. Hoersting
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