[EL] KY Legislative Ethics proposal to require reporting of grassroots lo...

Sat Aug 24 05:57:13 PDT 2013

This is not true:

The Court has struck down limits on  contributions and expenditures, while 
upholding disclosure requirements  applicable to issue advocacy

Buckley upheld independent expenditure reports after limiting them  to 
express advocacy communications thus protecting issue  advocacy.  McConnell and 
Citizens United upheld  electioneering communications reporting after being 
convinced by studies that  ECs were the functional equivalent of express 
advocacy -- not genuine  issue advocacy.

So there is actually no Supreme Court precedent approving the reporting of  
issue advocacy or grass root lobbying at all, only cases limiting campaign  
finance reporting to express advocacy or its functional equivalent.  Jim  
Bopp

In a message dated 8/23/2013 4:41:01 P.M. Eastern Daylight Time,  
PRyan at campaignlegalcenter.org writes:

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=19
86161155) _  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=200390
9967)  (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 
215  E Street NE 
Washington,  DC 20002 
Ph.  (202) 736-2200 ext. 214 
Mobile  Ph. (202) 262-7315 
Fax  (202) 736-2222 
Website:  http://www.campaignlegalcenter.org/ 
Blog:  http://www.clcblog.org/ 
To  sign up for the CLC Blog, visit: 
http://www.campaignlegalcenter.org/index.php?option=com_forme&fid=1&Itemid=63 
Follow us on  Twitter @_CampaignLegal_ (http://bit.ly/j8Q1bg)    
Become a  _fan on  Facebook_ (http://on.fb.me/jroDv2) 

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 

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 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=54746&title=Law%20and%20Political%20Process%20Study%20Group%20Panel%20at%20APSA%2
0on%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. 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=54743&title=“
U.S.%20Is%20Suing%20in%20Texas%20Cases%20Over%20Voting%20by%20Minorities”&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.” 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=54740&title=“
Prosecutors%20charge%202%20campaign%20aides%20for%20Miami%20mayoral%20candidate%20Francis%20Suarez%20in%20absentee-ballot%20probe”
&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) . 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=54737&title=“Justice%20Department%20Sues%20Texas%20Over%20Voter%20ID%20Law”
&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/)  

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=54734&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. 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=54732&title=“Campaign%20Finance%20and%20the%20Cost%20of%20Doing%20Business”
&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. 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=54730&title=And%20We’re%20Back%20to%20the%20“Messes%20with%20Texas”
%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) . 

(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=54727&title=“Eric%20Holder%20Sues%20Texas%20Over%20Voter%20ID.%20Here’
s%20Why%20It’s%20a%20Long%20Shot.”&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_ (http://electionlawblog.org/) 

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