[EL] KY Legislative Ethics proposal to require reporting of grassroots lobbying
Paul Ryan
PRyan at campaignlegalcenter.org
Fri Aug 23 13:37:01 PDT 2013
Mr. Lycan,
I'm not writing to express an opinion regarding the KY Legislative Ethics Commission recommendation you wrote about-I haven't given it any thought. And I'm not familiar with similar legislation elsewhere. I'm only writing to explain that the Supreme Court for decades has applied different scrutiny to, and has recognized different governmental interests supporting, reporting/disclosure requirements vis-à-vis direct limits on political contributions and spending. The Court has struck down limits on contributions and expenditures, while upholding disclosure requirements applicable to issue advocacy.
In Citizens Against Rent Control, a case you cite, the Court struck down a limit on contributions to ballot measure committees and, in doing so, noted approvingly the reporting/disclosure requirements applicable to the plaintiff ballot measure committee's issue advocacy. The Court wrote:
"Notwithstanding Buckley and Bellotti, the city of Berkeley argues that § 602 is necessary as a prophylactic measure to make known the identity of supporters and opponents of ballot measures. It is true that when individuals or corporations speak through committees, they often adopt seductive names that may tend to conceal the true identity of the source. Here, there is no risk that the Berkeley voters will be in doubt as to the identity of those whose money supports or opposes a given ballot measure since contributors must make their identities known under § 112 of the ordinance, which requires publication of lists of contributors in advance of the voting. See n. 4, supra." 454 U.S. at 498 (emphasis added).
Similarly, in the other cases you cite-WRTL and Citizens United-the Court invalidated spending limits . . . NOT disclosure requirements. And in Citizens United, the Court explicitly upheld a challenged disclosure requirement. In doing so, the Citizens United Court explicitly rejected the argument that disclosure must be limited to express candidate advocacy and cited its decision in U.S. v. Harriss upholding grassroots lobbying disclosure requirements. The Court wrote:
"The Court has explained that disclosure is a less restrictive alternative to more comprehensive regulations of speech. See, e.g., MCFL,<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1986161155> 479 U.S., at 262, 107 S.Ct. 616.<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1986161155> In Buckley, the Court upheld a disclosure requirement for independent expenditures even though it invalidated a provision that imposed a ceiling on those expenditures. 424 U.S., at 75-76, 96 S.Ct. 612.<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1976142308> In McConnell, three Justices who would have found § 441b<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000546&DocName=2USCAS441B&FindType=L> to be unconstitutional nonetheless voted to uphold BCRA's disclosure and disclaimer requirements. 540 U.S., at 321, 124 S.Ct. 619<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=2003909967> (opinion of KENNEDY, J., joined by Rehnquist, C.J., and SCALIA, J.). And the Court has upheld registration and disclosure requirements on lobbyists, even though Congress has no power to ban lobbying itself. United States v. Harriss,<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1954120885> 347 U.S. 612, 625, 74 S.Ct. 808, 98 L.Ed. 989 (1954)<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1954120885> (Congress "has merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose"). For these reasons, we reject Citizens United's contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy." 558 U.S. at 369.
Regardless of what one thinks of the KY Legislative Ethics Commission recommended reporting/disclosure requirement, a court would/should apply a different constitutional analysis than the analyses employed in the contribution and spending limit cases you cite. Best,
Paul Seamus Ryan
Senior Counsel
The Campaign Legal Center
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From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Eric Lycan
Sent: Friday, August 23, 2013 3:49 PM
To: Rick Hasen; law-election at UCI.edu
Subject: [EL] KY Legislative Ethics proposal to require reporting of grassroots lobbying
A KY political newspaper reports that the Legislative Ethics Commission (which regulates lobbyists, gift rules, etc.) has made recommendations to adopt new legislation. Much of it is unsurprising, but it also includes the following language:
"Recommendation: Require reporting of the Cost of advertising which appears during a session of the General Assembly, and which supports or opposes legislation, if the cost is paid by a lobbyist's employer or a person affiliated with an employer."
This seems of very dubious constitutionality (see, e.g., Citizens Against Rent Control v Berkeley, WRTL, Citizens United, etc.). If the state cannot prohibit independent, express candidate advocacy, it is hard to justify significant regulation of pure grassroots advocacy. I would like to read other thoughts, though, on the extent to which the reporting requirement might survive challenge as a justifiable speech restriction. Does the fact that is applies only to employers of lobbyists alter the corruption rationale analysis? Is mere reporting an insignificant burden? Is anyone aware of similar legislation elsewhere, or a challenge to such?
Thanks.
D. Eric Lycan
Steptoe & Johnson PLLC
2525 Harrodsburg Road, Suite 300
Lexington, KY 40504
O: 859-219-8213 F: 304-933-8715 C: 859-621-8888
Eric.Lycan at Steptoe-Johnson.com<mailto:Eric.Lycan at Steptoe-Johnson.com>
www.steptoe-johnson.com<http://www.steptoe-johnson.com/>
Twitter: @KYcampaignlaw
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From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Friday, August 23, 2013 1:04 AM
To: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: [EL] ELB News and Commentary 8/23/13
Law and Political Process Study Group Panel at APSA on Shelby County<http://electionlawblog.org/?p=54746>
Posted on August 22, 2013 8:03 pm<http://electionlawblog.org/?p=54746> by Rick Hasen<http://electionlawblog.org/?author=3>
I hope to see many of you in Chicago:
Law and Political Process Study Group
Panel 1 The Future of the Voting Rights Act After the Shelby County Case
Date:
Thursday, Aug 29, 2013, 2:00 PM-3:45 PM
[ ]
Location:
Hilton 4A, 4th Floor
Subject to change. Check the Final Program at the conference.
Chair(s):
Bruce E. Cain
Stanford University
Author(s):
Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the Voting Rights Act
Charles Stewart
Massachusetts Institute of Technology
Stephen D. Ansolabehere
Harvard University
Racially Polarized Voting, Dilution, and Preclearance: Post-Shelby County
Richard L. Engstrom
Duke University
Shelby County and the Illusion of Minimalism
Richard L. Hasen
University of California-Irvine
The Constitutional Structure of Voting Rights Enforcement
Franita Tolson
Florida State University
Discussant(s):
Luis Ricardo Fraga
University of Washington,
Guy-Uriel Charles
Duke University School of Law
[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D54746&title=Law%20and%20Political%20Process%20Study%20Group%20Panel%20at%20APSA%20on%20Shelby%20County&description=>
Posted in Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
"U.S. Is Suing in Texas Cases Over Voting by Minorities"<http://electionlawblog.org/?p=54743>
Posted on August 22, 2013 5:50 pm<http://electionlawblog.org/?p=54743> by Rick Hasen<http://electionlawblog.org/?author=3>
Charlie Savage reports <http://www.nytimes.com/2013/08/23/us/politics/justice-dept-moves-to-protect-minority-voters-in-texas.html?hp> for the NYT.
[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D54743&title=%E2%80%9CU.S.%20Is%20Suing%20in%20Texas%20Cases%20Over%20Voting%20by%20Minorities%E2%80%9D&description=>
Posted in Department of Justice<http://electionlawblog.org/?cat=26>, election administration<http://electionlawblog.org/?cat=18>, redistricting<http://electionlawblog.org/?cat=6>, 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
"Prosecutors charge 2 campaign aides for Miami mayoral candidate Francis Suarez in absentee-ballot probe"<http://electionlawblog.org/?p=54740>
Posted on August 22, 2013 5:48 pm<http://electionlawblog.org/?p=54740> by Rick Hasen<http://electionlawblog.org/?author=3>
Miami Herald<http://www.miamiherald.com/2013/08/22/3580232/prosecutors-charge-2-campaign.html>: "Miami-Dade prosecutors on Thursday charged two political operatives for Miami mayoral candidate Francis Suarez - including his campaign manager - with unlawfully submitting absentee-ballot requests online on behalf of voters....Francis Suarez, a sitting city commissioner and lawyer, was cleared of any wrongdoing during the investigation, according to the Miami-Dade state attorney's office. His only involvement was advising his campaign to seek legal advice to make sure any online requests did not run afoul of the law."
[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D54740&title=%E2%80%9CProsecutors%20charge%202%20campaign%20aides%20for%20Miami%20mayoral%20candidate%20Francis%20Suarez%20in%20absentee-ballot%20probe%E2%80%9D&description=>
Posted in absentee ballots<http://electionlawblog.org/?cat=53>, campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12> | Comments Off
"Justice Department Sues Texas Over Voter ID Law"<http://electionlawblog.org/?p=54737>
Posted on August 22, 2013 5:45 pm<http://electionlawblog.org/?p=54737> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo reports<http://www.washingtonpost.com/politics/justice-department-sues-texas-over-voter-id-law/2013/08/22/ac654a68-0b4b-11e3-9941-6711ed662e71_story.html>.
[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D54737&title=%E2%80%9CJustice%20Department%20Sues%20Texas%20Over%20Voter%20ID%20Law%E2%80%9D&description=>
Posted in Department of Justice<http://electionlawblog.org/?cat=26>, 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
More Analysis of DOJ Filings Against Texas<http://electionlawblog.org/?p=54734>
Posted on August 22, 2013 4:29 pm<http://electionlawblog.org/?p=54734> by Rick Hasen<http://electionlawblog.org/?author=3>
Zack Roth<http://tv.msnbc.com/2013/08/22/justice-department-sues-to-block-texas-voter-id-law/>
Lyle Denniston<http://www.scotusblog.com/2013/08/u-s-sues-texas-over-voter-id/>
[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D54734&title=More%20Analysis%20of%20DOJ%20Filings%20Against%20Texas&description=>
Posted in Department of Justice<http://electionlawblog.org/?cat=26>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
"Campaign Finance and the Cost of Doing Business"<http://electionlawblog.org/?p=54732>
Posted on August 22, 2013 4:26 pm<http://electionlawblog.org/?p=54732> by Rick Hasen<http://electionlawblog.org/?author=3>
Steve Klein <http://wyliberty.org/feature/campaign-finance-and-the-cost-of-doing-business/> on the McCain campaign conciliation agreement.
[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D54732&title=%E2%80%9CCampaign%20Finance%20and%20the%20Cost%20of%20Doing%20Business%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
And We're Back to the "Messes with Texas" Headlines<http://electionlawblog.org/?p=54730>
Posted on August 22, 2013 4:18 pm<http://electionlawblog.org/?p=54730> by Rick Hasen<http://electionlawblog.org/?author=3>
The Week<http://theweek.com/article/index/248642/the-justice-department-messes-with-texas-over-its-voter-id-law> on today's DOJ move.
[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D54730&title=And%20We%E2%80%99re%20Back%20to%20the%20%E2%80%9CMesses%20with%20Texas%E2%80%9D%20Headlines&description=>
Posted in Department of Justice<http://electionlawblog.org/?cat=26>, 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
"Eric Holder Sues Texas Over Voter ID. Here's Why It's a Long Shot."<http://electionlawblog.org/?p=54727>
Posted on August 22, 2013 4:16 pm<http://electionlawblog.org/?p=54727> by Rick Hasen<http://electionlawblog.org/?author=3>
TNR reports<http://www.newrepublic.com/article/114436/eric-holder-sues-texas-over-voter-id-law-why-he-might-lose>.
[Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D54727&title=%E2%80%9CEric%20Holder%20Sues%20Texas%20Over%20Voter%20ID.%20Here%E2%80%99s%20Why%20It%E2%80%99s%20a%20Long%20Shot.%E2%80%9D&description=>
Posted in Department of Justice<http://electionlawblog.org/?cat=26>, Voting Rights Act<http://electionlawblog.org/?cat=15> | 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<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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