[EL] KY Legislative Ethics proposal to require reporting of grassroots lo...
JBoppjr at aol.com
JBoppjr at aol.com
Sun Aug 25 05:37:07 PDT 2013
In a message dated 8/24/2013 12:29:15 P.M. Eastern Daylight Time,
PRyan at campaignlegalcenter.org writes:
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
Follow us on Twitter @CampaignLegal
Become a fan on Facebook
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=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)
[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
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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