[EL] Citizens United/Revising FEC Regulations

Thu Mar 8 11:55:59 PST 2012

Rick/Brad:

I hate to be the dunner, but the moderator of this list has asked us to
change the titles of emails from "more news"/"digest"/etc to something which
helps readers track based on subject matter.  I've made the fix here.

--Adam

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, March 08, 2012 2:53 PM
To: Smith, Brad
Cc: law-election at uci.edu
Subject: Re: [EL] more news 3/7/12

I was referring to evidence of "clearly stated" goals of Democratic FEC
Commissioners, not the goals of general critics--like me--of the Citizens
United decision.  So where are the very clear statements from Democratic
Commissioners "to hold up bringing Citizens United rules to the table unless
accompanied by new, restrictive regulations not necessitated by the Court
decision"
This may be what you infer from the Democratic Commissioners failure to
endorse the Republican Commissioners' rules.  But at least I have not seen
any clear statements from the commissioners to that effect.
My views on Citizens United are hardly secret. But my question had to do
with the Democratic Commissioners, who you seem to be accusing of acting in
bad faith.

On 3/8/2012 9:51 AM, Smith, Brad wrote: 

The first answers itself - the Democratic commissioners have opposed a rule
making that did not address proposing more regulation not required by
Citizens United or Speech Now, and they have very clearly stated that that
was why they originally and for some time opposed and voted against a rule
making getting out the door..  

The second is well known, as well. What would you draw from these quotes:

"I have  <http://www.slate.com/id/2242209/> many thoughts about what is
wrong with today's Supreme Court opinion: it is activist, it increases the
dangers of corruption in our political system and it ignores the strong
tradition of American political equality.The way the [Citizens United]
opinion is written will make it very hard for Congress or state legislatures
to put effective controls on money in campaigns... ."
http://roomfordebate.blogs.nytimes.com/2010/01/21/how-corporate-money-will-r
eshape-politics/#richard.

"As Democrats try to make Citizens United a campaign issue and look for
votes to pass the new DISCLOSE Act in response to the decision, the key
question is what, if anything, the Roberts Court will tolerate. If it will
not tolerate much, then it is likely that we will have to wait a decade or
more for the next swing of the pendulum, once again courtesy of a change in
Court personnel, before reasonable campaign finance regulations (aside from
disclosure laws) will once again pass muster."
http://www.the-american-interest.com/article.cfm?piece=853. 

"Many corporations won't want to alienate many of their customers by having
their corporate names associated with advertising against a candidate. But
they'll be more than happy to participate if they can obscure their
identity."
http://www.politico.com/arena/perm/Richard_Hasen_C3F12353-659B-44E1-8EDF-21B
2A50588CE.html. 

I could go on (these quotes took me about 2 minutes to find, much longer to
type up this post), but I've got to catch a flight. But these all sound like
quotes from someone who wants to see regulation used to restrict the amount
of speech otherwise allowed by Citizens United and SpeechNow. Or do I read
the various speakers incorrectly? Let me know.

Chuck Schumer has made the comment most directly: "the deterrent effect
cannot be underestimated." I think you have to be pretty disingenuous to
think that limiting speech is not the goal. It may be good to try to limit
that speech - but that is the goal, and I don't know why some seek to deny
it, if they really believe it is a good thing to do.

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: Rick Hasen [rhasen at law.uci.edu]
Sent: Thursday, March 08, 2012 12:12 PM
To: Smith, Brad
Cc: law-election at uci.edu
Subject: Re: [EL] more news 3/7/12

Can you point me to the "clearly stated goal" of the Democratic
commissioners and the "stated reasons"?  I'd like to see those.
Thanks.

On 3/8/2012 7:39 AM, Smith, Brad wrote: 

Yes, you are wrong. At least when phrased so tendentiously.  

The Republican Commissioners and the lawyers who testified yesterday have
urged the FEC to deal with bringing its rules into line with the Citizens
United and SpeechNow decisions. The Democratic Commissioners have sought a
much broader rule making that would go beyond anything required by Citizens
United. The clearly stated goal of the Democratic Commissioners (and the
regulatory community) is to hold up bringing Citizens United rules to the
table unless accompanied by new, restrictive regulations not necessitated by
the Court decision. And the stated reason for doing that is to deter speech
that may no longer be prohibited under Citizens United and SpeechNow. 

These more restrictive, non-Citizens United rules may be beneficial, and
they may arguably be desirable in light of Citizens United. But they are
only arguably desirable, and they may overstep the Commission's authority as
granted by Congress and the statute. What is not arguable is that the FEC
has many regulations on its books that are directly in opposition to the
Court's decision. To delay compliance with a Supreme Court decision because
one seeks highly controversial new rules that are not required by the Court
decisions would - were the Republican Commissioners taking such action -
leave them subject to considerable scorn and derision.

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 Rick Hasen
[rhasen at law.uci.edu]
Sent: Thursday, March 08, 2012 10:21 AM
To: JBoppjr at aol.com
Cc: law-election at uci.edu
Subject: Re: [EL] more news 3/7/12

Am I mistaken in thinking that the FEC has been deadlocked for some time in
considering how to implement changes in their rules to take Citizens United
into account, and that the Republican commissioners, and the lawyers who
testified yesterday, urged the FEC to implement the rules in as deregulatory
way as possible given CU?
Just curious,
Rick

On 3/8/2012 6:45 AM, JBoppjr at aol.com wrote: 

    This is a very curious headline by Rick:

Corporations, Unions Want FEC to LOOSEN Campaign Finance Regs. Further
<http://electionlawblog.org/?p=31180>  

    There are FEC regulations that are based exclusively on 441b that CU
struck down with respect to expenditures in connection with  a federal
election.  Since FEC regulations must have statutory authority, then any
regulations whose sole statutory authority is 441b is invalid and should be
repealed.  How is this "loosing campaign finance regs further?"  These
regulations are already invalid because of CU. Jim Bopp

In a message dated 3/7/2012 6:03:14 P.M. Eastern Standard Time,
rhasen at law.uci.edu writes:

Voter ID is Coming to Pennsylvania <http://electionlawblog.org/?p=31195>  

Posted on  <http://electionlawblog.org/?p=31195> March 7, 2012 2:27 pm by
Rick Hasen <http://electionlawblog.org/?author=3>  

State senate just passed the bill. Details to come.

UPDATE: Details here
<http://blogs.mcall.com/capitol_ideas/2012/03/senate-passes-voter-id-bill.ht
ml>  and here
<http://www.postcrescent.com/usatoday/article/38742027?odyssey=mod%7Cnewswel
l%7Ctext%7CFRONTPAGE%7Cs> .

Posted in election administration <http://electionlawblog.org/?cat=18> ,
fraudulent fraud squad <http://electionlawblog.org/?cat=8> , The Voting Wars
<http://electionlawblog.org/?cat=60> , voter id
<http://electionlawblog.org/?cat=9>  | Comments Off 

 <http://electionlawblog.org/?p=31192> "Black lawmakers' effort to expand
early voting is rejected in Senate" 

Posted on  <http://electionlawblog.org/?p=31192> March 7, 2012 1:08 pm by
Rick Hasen <http://electionlawblog.org/?author=3>  

The Miami Herald reports
<http://miamiherald.typepad.com/nakedpolitics/2012/03/black-lawmakers-effort
-to-expand-early-voting-is-rejected-in-senate.html> .

Posted in election administration <http://electionlawblog.org/?cat=18> , The
Voting Wars <http://electionlawblog.org/?cat=60>  | Comments Off 

DOJ Making Section 5 Objections in Two Texas Counties
<http://electionlawblog.org/?p=31190>  

Posted on  <http://electionlawblog.org/?p=31190> March 7, 2012 1:07 pm by
Rick Hasen <http://electionlawblog.org/?author=3>  

Texas Redistricting has the details
<http://txredistricting.org/post/18839744901/doj-objects-to-galveston-county
-redistricting> .

Posted in redistricting <http://electionlawblog.org/?cat=6> , Voting Rights
Act <http://electionlawblog.org/?cat=15>  | Comments Off 

Paging Dan Lowenstein <http://electionlawblog.org/?p=31186>  

Posted on  <http://electionlawblog.org/?p=31186> March 7, 2012 12:50 pm by
Rick Hasen <http://electionlawblog.org/?author=3>  

Lawmaker Accused of Bribing Opponent to Step Aside
<http://politicalwire.com/archives/2012/03/07/lawmaker_accused_of_bribing_op
ponent_to_step_aside.html> .

Posted in bribery <http://electionlawblog.org/?cat=54> , campaigns
<http://electionlawblog.org/?cat=59> , chicanery
<http://electionlawblog.org/?cat=12>  | Comments Off 

 <http://electionlawblog.org/?p=31183> "Wisconsin Attorney General J.B. Van
Hollen to appeal judge's ruling to stop state's voter ID law" 

Posted on  <http://electionlawblog.org/?p=31183> March 7, 2012 12:41 pm by
Rick Hasen <http://electionlawblog.org/?author=3>  

AP reports
<http://www.postcrescent.com/article/20120307/APC010401/120307112/Wisconsin-
Attorney-General-J-B-Van-Hollen-appeal-voter-ID-ruling-judge?odyssey=tab%7Ct
opnews%7Ctext%7CFRONTPAGE> .

Posted in Uncategorized <http://electionlawblog.org/?cat=1>  | Comments Off 

Corporations, Unions Want FEC to LOOSEN Campaign Finance Regs. Further
<http://electionlawblog.org/?p=31180>  

Posted on  <http://electionlawblog.org/?p=31180> March 7, 2012 11:37 am by
Rick Hasen <http://electionlawblog.org/?author=3>  

Politico Influence
<http://www.politico.com/politicoinfluence/0312/politicoinfluence213.html> :

ACTIVISTS URGE FEC ACTION ON CITIZENS UNITED: Conservative and labor groups
alike urged the FEC to act swiftly to roll back rules that limit political
spending, our own Robin Bravender is reporting live from the FEC's chambers.
The FEC conducted a public hearing Thursday on its plans to officially
eliminate the rules that were made obsolete by the Supreme Court's Citizens
United decision, although it has already announced it wouldn't enforce them.

Conservative attorney Jim Bopp blasted the panel for taking so long to
overhaul its rules after the high court threw out restrictions on corporate
and labor unions' spending on political ads. And he urged the panel to think
big as it attempts to eliminate its old rules. In the wake of Citizens
United, "now, the presumption is freedom," he said. "That is, corporations
and labor unions can do anything they want in terms of influencing a federal
election, unless it is subject to a specific statutory provision." Labor
attorney Laurence Gold, representing the AFL-CIO, cautioned the panel
against writing new rules to restrict unions' get-out-the-vote activity
beyond what's required by campaign finance law. "We believe your final rules
ought not to be imposing restrictions that aren't there," Gold said.

UPDATE: A fuller Politico report is here
<http://www.politico.com/news/stories/0312/73742.html> .

Posted in campaign finance <http://electionlawblog.org/?cat=10>  | Comments
Off 

 <http://electionlawblog.org/?p=31178> "Can Caucuses Be Defended?" 

Posted on  <http://electionlawblog.org/?p=31178> March 7, 2012 11:35 am by
Rick Hasen <http://electionlawblog.org/?author=3>  

Scott LeMieux weighs in
<http://prospect.org/article/can-caucuses-be-defended>  on the Hasen
<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/02/congr
ess_should_kill_the_republican_and_democratic_state_caucuses_and_mandate_pri
maries_instead_.html> /Bernstein
<http://www.tnr.com/article/politics/101404/bernstein-caucuses-primaries>
debate.

Posted in political parties <http://electionlawblog.org/?cat=25> , primaries
<http://electionlawblog.org/?cat=32>  | Comments Off 

 <http://electionlawblog.org/?p=31175> "Congratulations Government
Employees, You Might Soon Be Able To Run For Office" 

Posted on  <http://electionlawblog.org/?p=31175> March 7, 2012 10:47 am by
Rick Hasen <http://electionlawblog.org/?author=3>  

It
<http://tpmmuckraker.talkingpointsmemo.com/2012/03/hatch_act_modernization.p
hp> 's about time to modernize the Hatch Act in this way.

Posted in Uncategorized <http://electionlawblog.org/?cat=1>  | Comments Off 

 <http://electionlawblog.org/?p=31172> "Wisconsin judge who blocked photo ID
law for April 3 vote signed petition to recall Wisconsin Gov. Scott Walker" 

Posted on  <http://electionlawblog.org/?p=31172> March 7, 2012 10:06 am by
Rick Hasen <http://electionlawblog.org/?author=3>  

AP reports
<http://www.htrnews.com/article/20120307/MAN0101/303080036/Update-Judge-who-
blocked-photo-ID-law-vote-signed-Walker-recall-petition?odyssey=nav%7Chead>
. I find the judge's signing of the recall petition troubling, even if it is
not grounds for recusal in this case. The judge certainly has a right to
vote, but this kind of public political activity can undermine confidence in
the judiciary's impartiality.

Posted in judicial elections <http://electionlawblog.org/?cat=19> , recall
elections <http://electionlawblog.org/?cat=11>  | Comments Off 

 <http://electionlawblog.org/?p=31169> "Trutanich paid for YouTube views of
D.A. campaign videos" 

Posted on  <http://electionlawblog.org/?p=31169> March 7, 2012 9:34 am by
Rick Hasen <http://electionlawblog.org/?author=3>  

<http://www.latimes.com/news/local/la-me-new-trutanich-20120304,0,5353416,fu
ll.story> LA Times: "An unlikely Internet sensation has struck it big on
YouTube: Los Angeles City Atty. Carmen Trutanich. Two polished videos
promoting his run for district attorney last month show Trutanich driving
the gritty streets of Los Angeles telling war stories from his days as a
prosecutor: being shot at by a street gang and sending a killer to death
row. Within days, the videos amassed 725,000 views on YouTube, with the most
popular clip leaping past any campaign video from GOP presidential
candidates Mitt Romney, Newt Gingrich or Rick Santorum. A Trutanich news
release trumpeted the videos' popularity as showcasing 'broad support behind
Trutanich's candidacy from a vast online and grass-roots audience.' But the
campaign statement left out a key detail: It paid for many of those YouTube
views. After The Times questioned the video's view count, Trutanich's
campaign acknowledged that it had hired an online marketing firm to drum up
views by aggressively advertising the videos across the Internet. The Los
Angeles firm said it was paid to generate 150,000 to 250,000 views but that
a huge online audience then followed naturally."

Posted in chicanery <http://electionlawblog.org/?cat=12> , social media and
social protests <http://electionlawblog.org/?cat=58>  | Comments Off 

 <http://electionlawblog.org/?p=31166> "Court's Map Could Push New York
Legislature to Act" 

Posted on  <http://electionlawblog.org/?p=31166> March 7, 2012 9:25 am by
Rick Hasen <http://electionlawblog.org/?author=3>  

<http://www.rollcall.com/issues/57_105/Court_Map_Could_Push_New_York_Legisla
ture_to_Act-212921-1.html> Roll Call:"A federal judge unexpectedly tightened
the redistricting vice on the deadlocked New York state Legislature this
week, pushing the body to come up with a compromise or cede the redraw to an
apolitical observer. The release of a court-drawn draft map by U.S.
Magistrate Judge Roanne Mann late Monday surprised the Albany political
establishment - she wasn't expected to release a map until next week - and
added immense pressure to the Democratic-held Assembly and Republican-held
state Senate to draw new Congressional lines."

Posted in redistricting <http://electionlawblog.org/?cat=6>  | Comments Off 

Voters Appeal Decision Rejecting Challenge to Senator Lugar
<http://electionlawblog.org/?p=31162> 's Indiana Residency 

Posted on  <http://electionlawblog.org/?p=31162> March 7, 2012 8:23 am by
Rick Hasen <http://electionlawblog.org/?author=3>  

See here <http://electionlawblog.org/wp-content/uploads/lugar-press.pdf> .

Posted in campaigns <http://electionlawblog.org/?cat=59> , residency
<http://electionlawblog.org/?cat=38>  | Comments Off 

-- 
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 <http://electionlawblog.org/> 

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Law-election at department-lists.uci.edu
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-- 
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

-- 
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

-- 
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

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