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

Sat Aug 24 19:28:46 PDT 2013

What has been missing from this discussion so far is the relevant fact that
it concerns Kentucky.
Y'all are failing to take into consideration the Kentucky exception to the
First Amendment.
More of us operate most of the time on the assumption that the hierachical
model of the courts we learned in junior high is correct -that the Supreme
Court decides cases and lower courts follow them. The reality is more
complex.

In 1960, in Talley,and again in 1995 in McIntyre, the Supreme Court ruled
that anonymous campaign speech is protected by the First Amendment, and
states such as Kentucky can require disclosure by means of disclaimers. So
you might expect Kentucky courts to follow these rulings. But they havent.

Morefield v Moore, Wilkinson v Jones, KY RtL v Riley, Gable v Patton,
Freedom Forum v FEC are examples of cases where Kentucky courts have
refused to Follow the rule in Talley.
The geographic scope of the Kentucky exception varies over time - see
Peterslie v NC, TN v Acey, Majors v Abell. But Kentucky's always been
solidly covered. It is on my to-do list to someday strike down Kentucky's
unconstitutional disclaimer rules, but it's a non-trivial challenge. The Ky
"Legislative Ethics Commission" knows that they can pass unconstitutional
disclosure statutes faster than we can challnege them, and do so with
relative impunity.

On Fri, Aug 23, 2013 at 3:48 PM, Eric Lycan
<Eric.Lycan at steptoe-johnson.com>wrote:

>  *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*
> www.steptoe-johnson.com
>
> Twitter:* @KYcampaignlaw*
>
>
>
> [image: cid:image001.png at 01CE1F1F.E190E620]
>
> * *
>
> *From:* 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
> *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
>
> [image: 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.*
>
> [image: 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.”
>
> [image: 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>
> .
>
> [image: 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/>
>
> [image: 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.
>
> [image: 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.
>
> [image: 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>
> .
>
> [image: 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
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
>
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