[EL] Farris v. Seabrook (9th Cir. decision upholding preliminary injunction against enforcement of $800 contribution limit to recall committee)

[Scarberry, Mark]

It may not be good form for me to reply to my own message, but I should have mentioned the millionaire's amendment case, Davis v. FEC. Of course it strikes down a scheme under which (in service of the goal of leveling the playing field) different contribution limits would apply to different candidates based on their own spending. Here, though, we don't have two candidates, and spending by the target plays no role in the statutory scheme. I don't think that should make a difference - uneven limits should be impermissible here as well - but I don't think Davis v. FEC leads very directly to that result.

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Scarberry, Mark
Sent: Thursday, January 19, 2012 4:27 PM
To: law-election at uci.edu
Subject: [EL] Farris v. Seabrook (9th Cir. decision upholding preliminary injunction against enforcement of $800 contribution limit to recall committee)

The opinion in Farris v. Seabrook doesn't seem to say whether the $800 contribution limit is enforceable against the target of the recall campaign (or the target's committee). The opinion focuses on the lack of a link between the recall committee and any candidate that might replace the targeted official, should the recall committee's efforts succeed. Due to that lack of a link, contributions to the recall committee do not have the potential to create corruption (or the appearance of corruption). But that focus would suggest that large contributions to the recall target or to a committee set up by the recall target to oppose the recall might be enforceable. After all, the recall target is an identified person whose holding of the office depends on the outcome of the recall (and could in a sense be considered a "candidate"). Large contributions to the target or the target's committee could be corrupting (or create the appearance of corruption).

Is it possible that only one side in the recall campaign would be subject to the limit? That result would be similar to viewpoint discrimination and thus impermissible, it seems to me, but others with more knowledge in this area may know how courts have treated such one-sided limits. Perhaps it has not been addressed; perhaps a recall is the only context in which only one side has a connection to a specific officeholder or candidate.

If the Constitution permits limits on contributions to the recall target (or to the recall target's committee) to prevent corruption, then isn't there also a very strong governmental interest in not setting up - by govt action - a tilted playing field? Would that interest then justify limiting contributions to the recall committee? I realize that the Court has rejected any interest in leveling the playing field as a justification, but here the interest would be in the govt not itself creating an uneven playing field when it acts, as it may, to prevent corruption. That could mean that the 9th Circuit's analysis is wrong (or incomplete), because it did not take this interest into account.

Or instead does my argument show that the govt interest in limiting contributions to the recall target (or recall target's committee) is weak, because the interest in preventing corruption is undermined by the pernicious effect of creating, by govt action, an uneven playing field? Such a weakened interest might not be strong enough to justify limits on contributions to the recall target (or recall target's committee).

Maybe I'm making this too complicated, but I suppose this analysis could on the one hand justify subjecting both sides to the limit or, on the other hand, preclude the govt from subjecting either side to the limit.

Mark

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Thursday, January 19, 2012 9:52 AM
To: law-election at uci.edu
Subject: [EL] Two important 9th circuit cases decided/more news

Breaking News: Ninth Circuit Upholds Preliminary Injunction Against Washington State Recall Contribution Law<http://electionlawblog.org/?p=28269>
Posted on January 19, 2012 9:47 am<http://electionlawblog.org/?p=28269> by Rick Hasen<http://electionlawblog.org/?author=3>

The opinion in Farris v. Seabrook is here<http://electionlawblog.org/wp-content/uploads/9th-Farris.pdf>:

Like independent expenditure committees, recall committees in Washington have at most a tenuous relationship with candidates. The contribution limit here is thus materially indistinguishable from the limit we invalidated in Long Beach. Under Washington's recall system, political committees seeking to recall officials do not coordinate their spending with candidates for office. In the event a recall is successful, the successor to office is appointed by a governmental entity designated by state law - in this case, the Pierce County Council. See Wash. Rev. Code § 36.16.110; Pierce County, Wash., Charter art. 4, § 4.70. Thus, as Washington law is structured, expenditures by recall committees are similar to independent expenditures. See Citizens United, 130 S. Ct. at 910 (defining independent expenditures as "political speech presented to the electorate that is not coordinated with a candidate"). Given that recall committees "do not coordinate or prearrange their independent expenditures with candidates, and they do not take direction from candidates on how their dollars will be spent," they do not have the sort of close relationship with candidates that supports a threat of actual or apparent corruption. Long Beach, 603 F.3d at 696. Neither the State nor amici, moreover, has presented any evidence showing that contributions to recall committees in Washington raise the specter of corruption, and certainly not in this case. The Wisconsin Democracy Campaign and Washington Public Campaigns, as amici curiae, attempt to bolster the State's anticorruption rationale with several newspaper articles that describe alleged corruption in connection with recall efforts in states other than Washington. Most of the outof- state recall efforts involve systems different from Washington's, in which a recall campaign is accompanied by an election to select the successor - a structure that does not exist in Washington. None of the articles describes a circumstance where, in a recall system like Washington's, in which successors are appointed, a recall committee or its members had a relationship with the state entity charged with appointing  a successor that would raise the specter of corruption. The only evidence of an interaction between the Recall Committee and the Pierce County Council, the appointing body, is the State's allegation that one Council member posted on the Recall Committee's Facebook page a description of the procedures that would take place if the recall campaign were successful. There is no evidence that the Recall Committee would have any influence on the Council's appointment decision upon a successful recall. For this reason, "[o]n this record, . . . an exchange of political favors for uncoordinated expenditures remains a hypothetical possibility and nothing more." FEC v. Nat'l Conservative Political Action Comm., 470 U.S. 480, 498 (1985).

But the opinion includes a key footnote:

8 Plaintiffs' likelihood of success might be different if recall elections in Washington were accompanied by an election for the successor, as is the case in many states, and a recall committee coordinated its expenditures with one of the candidates for office. That circumstance would be similar to cases in which contribution limits have been upheld. See, e.g., McConnell v. FEC, 540 U.S. 93 (2003); Cal. Med. Ass'n v. FEC, 453 U.S. 182 (1981). Furthermore, as our analysis implies, the outcome might be different if there were evidence that contributions were being made with a "wink and a nod" from Council members indicating that a particular candidate would be appointed. Long Beach, 603 F.3d at 697 n.7.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, recall elections<http://electionlawblog.org/?cat=11> | Comments Off
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