[EL] Real Truth About Obama & Jim Bopp

Tue Jun 12 18:23:30 PDT 2012

I think Randall has not been used more because of the dynamics of litigation. If a state passes a new, low limit - like in Randall itself, or in NYC per Joe's case, it is not that hard for a donor to argue that the limit is too low. The result of striking down such a limit is a return to the old limit, so it becomes pretty clear what the plaintiff wants. But suppose the plaintiff wants to argue that a state's long existing limit is too low. Unless the plaintiff seeks to challenge Buckley on contribution limits generally - which of course is a Buckley challenge, not a Randall case - the plaintiff has to essentially ask the Court to strike all limits in the state, or ask the court to set a limit. Since the former makes the case - again - a Buckley challenge, at least in appearance, courts will be reluctant to take that step. But nor do courts want to themselves determine an appropriate limit. They are not cut out institutionally for it. So Randall challenges don't look appealing.

Further, with Emily's List, SpeechNow.org, and Carey making it so much easier to do independent spending, donors who want to do more have less reason to challenge a low contribution limit. At this point, contribution limits are much less a problem for free speech than many other rules.

That said, Randall is barely six years old. It lays out a very important marker.  I suspect it's day will come.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
  Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
http://www.law.capital.edu/faculty/bios/bsmith.asp

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Joe La Rue
Sent: Tuesday, June 12, 2012 6:15 PM
To: Rick Hasen
Cc: law-election at uci.edu
Subject: Re: [EL] Real Truth About Obama & Jim Bopp

Rick,

You are right: there have been no decisions since Randall striking limits as "too low," though a couple have struck contribution bans (the Second Circuit Green Party decision and the Colorado Supreme Court Dallman decision come to mind, and there may be others). However, Jim and I have put to the Supreme Court the question whether NYC's special, low contribution limits for those with "business-dealings" with the City are unconstitutional where (1) they are below the level at issue in Randall; (2) the City has manifested its judgment that contributions up to much higher, Regular Limits are not corrupting; and (3) there has not been any record evidence of quid-pro-quo corruption in NYC since the Regular Limits were instituted in 1988. The case is set for conference on June 21 and I'm hopeful the Court will take it.

But, as of right now, to my knowledge you're right: Randall is in a class by itself.

Joe
___________________
Joseph E. La Rue
cell: 480.272.2715
email: joseph.e.larue at gmail.com<mailto:joseph.e.larue at gmail.com>

CONFIDENTIALITY NOTICE:  This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information or otherwise be protected by law. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.

On Tue, Jun 12, 2012 at 3:03 PM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
I meant no disrespect to Jim at all.  As I wrote last week on the listserv, he's an excellent lawyer, and the reason he is losing all these cases is because of the strength of the arguments on the other side.

Randall itself is kind of interesting----as you know, when you and I litigated on both sides of the San Diego Thalheimer litigation, it does not appear that there is a single case since Randall in which a court has struck down a campaign contribution limit as too low.  Or at least I could not find or recall one.  Are there any? Many?

But there is no question Jim has had a profound impact on campaign finance law in this country.

On 6/12/12 2:59 PM, Joe La Rue wrote:
Rick,

You wrote, "The courts, especially since Citizens United blew away campaign finance limits, seem much more apt to uphold broad disclosure rules." You're right that courts are upholding "broad disclosure rules," including some instances where unconstitutional PAC-style registration and reporting burdens have simply been re-branded "disclosure" by Government and then upheld by the courts. But Citizens did not "blow away campaign finance limits." Individuals were always free to spend as much as they wanted independently of candidates. All Citizens did was recognize that prior precedent required that right be extended to all who want to speak independently of candidates, including labor unions (and you thought I was going to say "corporations").

As for Jim Bopp, I've worked with him and know him as an attorney pretty well. He's got the tenacity of a bulldog and the patience of Job. Remember, as various progressives warned us, he's got a TEN!!! YEAR!!! PLAN!!! (Horror of Horrors!), and we're barely two years into it. http://www.commoncause.org/atf/cf/%7BFB3C17E2-CDD1-4DF6-92BE-BD4429893665%7D/Boppreport.pdf ; http://www.brennancenter.org/blog/archives/doe_v._reed_bopp_v._scalia . Once upon a time, everyone thought no contribution limit could be too low, and then came Randall v. Sorrell. And of course, once upon a time everyone thought Government could ban every communication that mentioned a candidate during the electioneering communication blackout period, and then came Wisconsin Right to Life. I won't be at all surprised when the Court grants cert to one of Jim's cases and clarifies it meant what it said about the Major Purpose Test.

Joe
___________________
Joseph E. La Rue
cell: 480.272.2715<tel:480.272.2715>
email: joseph.e.larue at gmail.com<mailto:joseph.e.larue at gmail.com>

CONFIDENTIALITY NOTICE:  This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information or otherwise be protected by law. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.

--
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<tel:949.824.3072> - office
949.824.0495<tel: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://electionlawblog.org
Pre-order The Voting Wars: http://amzn.to/y22ZTv

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120613/823e32a5/attachment.html>