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

Sat Aug 24 09:29:14 PDT 2013

Jim,

I’m struggling to understand how you can read this passage from Citizens United: “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”; and then write: “McConnell and Citizens United upheld electioneering communications reporting after being convinced by studies that ECs were the functional equivalent of express advocacy.”

The 8 members of the Court upholding the challenged disclosure requirements in Citizens United gave no indication they had been “convinced” that the ads were “the functional equivalent of express advocacy.”  On the contrary, the Court held that it made no difference whether the ads were the “functional equivalent of express advocacy” and explicitly rejected the “contention that the disclosure requirements must be limited to speech that is the functional equivalent of express advocacy.”

And in doing so, the Citizens United Court explicitly distinguished spending restrictions, citing its decision in WRTL, from the disclosure requirements at issue in Citizens United.  The Court wrote: “As a final point, Citizens United claims that, in any event, the disclosure requirements in § 201 must be confined to speech that is the functional equivalent of express advocacy.  The principal opinion in WRTL limited 2 U.S.C. § 441b's restrictions on independent expenditures to express advocacy and its functional equivalent.  Citizens United seeks to import a similar distinction into BCRA's disclosure requirements.  We reject this contention.”  558 U.S. at 368-69 (citation to WRTL omitted).

And you, Jim, rejected the notion that the ads at issue in Citizens United were the “functional equivalent of express advocacy,” repeatedly characterizing the ads as “issue advocacy” in the complaint you filed in the case.  Your amended complaint filed on 12/21/2007 refers to “issue-advocacy ad” in para. 18, refers to the ads as “protected issue advocacy” in para. 18, argues that the ads are subject to disclosure only because the FEC refused to include “the Supreme Court’s issue-advocacy safe harbor” established in WRTL in para. 22, and again refers again to the ads as “issue advocacy” in para. 27.

Give yourself some credit, Jim!  It seems you and your co-counsel throughout the Citizens United litigation convinced the Court that the ads were NOT the functional equivalent of express advocacy.  Yet the Court upheld the disclosure requirements applicable to the ads anyway.

And there’s also the Supreme Court’s decision in Harriss, where the Court held with respect to lobbying-related disclosure (i.e., what you would likely call “genuine issue advocacy”): “Under these circumstances, we believe that Congress, at least within the bounds of the Act as we have construed it, is not constitutionally forbidden to require the disclosure of lobbying activities.”  United States v. Harriss, 347 U.S. 612, 625 (1954).

And there’s the Court’s decision in Bellotti, where, with respect to corporate spending regarding a ballot referendum (i.e., what you would likely call “genuine issue advocacy”), the Court wrote: “Identification of the source of advertising may be required as a means of disclosure, so that the people will be able to evaluate the arguments to which they are being subjected.  In addition, we emphasized in Buckley the prophylactic effect of requiring that the source of communication be disclosed.  435 U.S. 765, 792 (internal citations omitted) (citing Buckley, 424 U.S. at 66-67; Harriss, 347 U.S. at 625-626).

In short, what I wrote yesterday (“The Court has struck down limits on contributions and expenditures, while upholding disclosure requirements applicable to issue advocacy.”) is indeed true.  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
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From: JBoppjr at aol.com [mailto:JBoppjr at aol.com]
Sent: Saturday, August 24, 2013 8:57 AM
To: Paul Ryan; Eric.Lycan at Steptoe-Johnson.com; rhasen at law.uci.edu; law-election at uci.edu
Subject: Re: [EL] KY Legislative Ethics proposal to require reporting of grassroots lo...

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<mailto: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=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
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>
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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 Eric Lycan
Sent: Friday, August 23, 2013 3:49 PM
To: Rick Hasen; law-election at UCI.edu<mailto: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

[cid:image001.png at 01CE1F1F.E190E620]

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 and Political Process Study Group Panel at APSA on Shelby County&description=]<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.
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=54743&title=â€œU.S. Is Suing in Texas Cases Over Voting by Minoritiesâ€&description=]<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.”
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=54740&title=â€œProsecutors charge 2 campaign aides for Miami mayoral candidate Francis Suarez in absentee-ballot probeâ€&description=]<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>.
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=54737&title=â€œJustice Department Sues Texas Over Voter ID Lawâ€&description=]<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/>
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=54734&title=More Analysis of DOJ Filings Against Texas&description=]<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.
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=54732&title=â€œCampaign Finance and the Cost of Doing Businessâ€&description=]<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.
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=54730&title=And Weâ€™re Back to the â€œMesses with Texasâ€ Headlines&description=]<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>.
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=54727&title=â€œEric Holder Sues Texas Over Voter ID. Hereâ€™s Why Itâ€™s a Long Shot.â€&description=]<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<http://electionlawblog.org/>

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