[EL] Grassroots Lobbyign Disclosure
Rick Hasen
rhasen at law.uci.edu
Mon Aug 26 09:27:07 PDT 2013
What about Harriss and lobbying disclosure? And what about CU's
description of what the Court did in Harriss?
On 8/26/2013 9:24 AM, JBoppjr at aol.com wrote:
> Of course, Rick, I remember the quote from /CU/ -- I did not dispute
> that. I only disputed the /Doe v Reed/ claim, which you now concede
> was in error.
> But the real question is not the existence of the voter information
> interest for political activity but what is the political activity to
> which it attaches. So far the Court has only approved a very narrow
> set of political communications to which the voter info interest
> attaches -- IEs and ECs. Narrow indeed, clearly not issue advocacy as
> the "reformers" erroneously claim. Jim Bopp
> In a message dated 8/26/2013 12:11:24 P.M. Eastern Daylight Time,
> rhasen at law.uci.edu <mailto:rhasen at law.uci.edu> writes:
>
> You are right Jim that the Court did not reach the issue in Doe v.
> Reed (" Respondents assert two interests to justify the burdens of
> compelled disclosure under the PRA on First Amendment
> <http://www.law.cornell.edu/supct-cgi/get-const?amendmenti>
> rights: (1) preserving the integrity of the electoral process by
> combating fraud, detecting invalid signatures, and fostering
> government transparency and accountability; and (2) providing
> information to the electorate about who supports the petition.
> See, /e.g. /, Brief for Respondent Reed 39–42, 44–45. Because we
> determine that the State’s interest in preserving the integrity of
> the electoral process suffices to defeat the argument that the PRA
> is unconstitutional with respect to referendum petitions in
> general, we need not, and do not, address the State’s
> “informational” interest. ")
>
> But the Court did reach the issue and accepted the information
> interest in Harriss and Citizens United. Here's a piece of
> Citizens United, which surely you remember:
>
> The Court has explained that disclosure is a less
> restrictive alternative to more comprehensive regulations of
> speech. See, /e.g., //MCFL /, 479 U. S., at 262. 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.
> In /McConnell /, three Justices who would have found §441b to
> be unconstitutional nonetheless voted to uphold BCRA’s
> disclosure and disclaimer requirements. 540 U. S., at 321
> (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
> /, 347 U. S. 612
> <http://www.law.cornell.edu/supct-cgi/get-us-cite?347+612>,
> 625 (1954) (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.
>
> Citizens United also disputes that an informational
> interest justifies the application of §201 to its ads, which
> only attempt to persuade viewers to see the film. Even if it
> disclosed the funding sources for the ads, Citizens United
> says, the information would not help viewers make informed
> choices in the political marketplace. This is similar to the
> argument rejected above with respect to disclaimers. Even if
> the ads only pertain to a commercial transaction, the public
> has an interest in knowing who is speaking about a candidate
> shortly before an election. Because the informational interest
> alone is sufficient to justify application of §201 to these
> ads, it is not necessary to consider the Government’s other
> asserted interests.
>
>
>
>
>
> On 8/26/2013 9:03 AM, JBoppjr at aol.com wrote:
>> Regarding:
>> /The Supreme Court has repeatedly recognized the information
>> interest as sufficient to support disclosure of political
>> activities, from Harriss to Citizens United to Doe v. Reed/
>> Sorry Rick, but not true. /Doe v Reed/ recognized only the
>> state's interest in preventing and discovering fraud, not a voter
>> information interest. Jim Bopp
>> In a message dated 8/26/2013 10:17:30 A.M. Eastern Daylight Time,
>> rhasen at law.uci.edu writes:
>>
>>
>>
>> Steve,
>> I'd like to see more on the substance and less on the
>> hyperbole. Saying "Wrong" is not very edifying.
>> In fact, Lloyd's point is correct as a matter of doctrine.
>> The Supreme Court has repeatedly recognized the information
>> interest as sufficient to support disclosure of political
>> activities, from Harriss to Citizens United to Doe v. Reed.
>> You may disagree with what the Court has said, or the
>> extension to so-called grassroots lobbying, but explanation
>> rather than dismissive tone would be more welcome.
>> Rick
>>
>> On 8/26/2013 6:22 AM, Steve Hoersting wrote:
>>>
>>> Wrong.
>>>
>>> Find and check out a video seminar called A Skeptical Look
>>> at Grassroots Lobbying Disclosure on the Cato Institute website.
>>>
>>> Suffer through the whole thing and you will be much further
>>> along.
>>>
>>> Best,
>>> Steve Hoersting
>>>
>>> On Aug 26, 2013 9:17 AM, "Lloyd Mayer" <lmayer at nd.edu
>>> <mailto:lmayer at nd.edu>> wrote:
>>>
>>> Having recently delved into grassroots lobbying
>>> disclosure, I should note that another rationale
>>> asserted in its favor is providing information to the
>>> targeted members of the public. Providing information
>>> is of course one of government interests stated by the
>>> Court in /Buckley/ for permitting required disclosure
>>> even in the face of constitutional objections, and is
>>> the primary (only?) rationale relied upon in the portion
>>> of the /Citizens United/ decision relating to
>>> disclosure. Of course in those contexts the interest
>>> was providing information to voters, but it is not a
>>> great stretch to expand that interest to include
>>> providing information to the public that is sought to be
>>> influenced in the grassroots lobbying context.
>>>
>>> Lloyd Hitoshi Mayer
>>>
>>> Professor of Law & Associate Dean
>>>
>>> Notre Dame Law School
>>>
>>> P.O. Box 780
>>>
>>> Notre Dame, IN 46556-0780
>>>
>>> campus address: 1106 Eck Hall of Law
>>>
>>> (574) 631-8057 <tel:%28574%29%20631-8057>/cell: (574)
>>> 598-0740 <tel:%28574%29%20598-0740>/fax: (574) 631-4197
>>> <tel:%28574%29%20631-4197>
>>>
>>> Web Bio: http://law.nd.edu/directory/lloyd-mayer/
>>>
>>> SSRN Author Page:
>>> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=504775
>>>
>>> *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
>>> <mailto:law-election-bounces at department-lists.uci.edu>]
>>> *On Behalf Of *Eric Lycan
>>> *Sent:* Monday, August 26, 2013 8:46 AM
>>> *To:* Smith, Brad; law-election at uci.edu
>>> <mailto:law-election at uci.edu>
>>> *Subject:* Re: [EL] KY Legislative Ethics proposal to
>>> require reporting of grassroots lo...
>>>
>>> *Thanks to everyone from both points of view for the
>>> informative responses. *
>>>
>>> **
>>>
>>> *I am aware of the case law (though Harris was a new one
>>> to me) as to disclosure of electoral spending, and also
>>> that many states have grassroots lobbying disclosure.
>>> What is not clear to me is how the anti-corruption
>>> rationale applies to allow regulation of non-electoral,
>>> indirect speech on current legislative issues (as
>>> opposed to ballot issues addressed in Belotti). If
>>> independent expenditures are not sufficiently corrupting
>>> to justify a ban on IEs, can independent non-electoral,
>>> non-candidate/officeholder speech be regulated - even to
>>> the extent of requiring disclosure - when there can be
>>> no corrupting influence (recognizing that not everyone
>>> agrees with that premise)? It seems to me that removing
>>> the electoral element from the equation takes the
>>> anti-corruption rationale off the field.*
>>>
>>> **
>>>
>>> *The regulation of direct lobbying might be the
>>> justification for regulation of speech by the lobbyist’s
>>> employer; however, if the ability to make contributions
>>> does not affect the ability of a (non-corporate)
>>> contributor to make unlimited IEs in the post-CU world,
>>> perhaps the added element of lobbyist involvement does
>>> not justify the regulation of such purely issue-related
>>> speech.*
>>>
>>> **
>>>
>>> *If anyone is aware of challenges to state grassroots
>>> lobbying laws, I would be very interested in the courts’
>>> analyses. And of course your thoughts, which are
>>> compelling reading. Thanks.*
>>>
>>> **
>>>
>>> **
>>>
>>> */D. Eric Lycan/*
>>> Steptoe & Johnson PLLC
>>> 2525 Harrodsburg Road, Suite 300
>>>
>>> Lexington, KY 40504
>>> O: 859-219-8213 <tel:859-219-8213> F: 304-933-8715
>>> <tel:304-933-8715> C: 859-621-8888 <tel: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
>>> <mailto:law-election-bounces at department-lists.uci.edu>]
>>> *On Behalf Of *Smith, Brad
>>> *Sent:* Sunday, August 25, 2013 9:02 AM
>>> *To:* law-election at uci.edu <mailto:law-election at uci.edu>
>>> *Subject:* Re: [EL] KY Legislative Ethics proposal to
>>> require reporting of grassroots lo...
>>>
>>> For reasons Jim and Allen have addressed, and a couple
>>> others as well, I think it is dishonest to say that the
>>> Court has "approved," "upheld," or "sanctioned" the type
>>> of disclosure that the reform community and CLC now seek
>>> to impose broadly on 501c4 groups. There is certainly
>>> language in Citizens United (especially when coupled
>>> with McConnell and Doe v. Reed) to make one project that
>>> the Court would uphold such regulation if presented
>>> squarely with the issue today. But for now the
>>> controlling precedent, in which the Court has squarely
>>> faced that issue, remains Buckley (and also MCFL), which
>>> does not sanction that type of disclosure and was not
>>> altered by Citizens United.
>>>
>>> The particular Kentucky rule may have different
>>> implications because the Court has seemed willing to
>>> tolerate more regulation of the behavior of registered
>>> lobbyists. However, one could also consider it a weaker
>>> case for such regulation, since the language the reform
>>> community seeks to rely on in Citizens United and
>>> McConnell did concern candidates running for office, not
>>> any advertising discussing issues.
>>>
>>> /Bradley A. Smith/
>>>
>>> /Josiah H. Blackmore II/Shirley M. Nault/
>>>
>>> /Professor of Law/
>>>
>>> /Capital University Law School/
>>>
>>> /303 E. Broad St./
>>>
>>> /Columbus, OH 43215/
>>>
>>> /614.236.6317 <tel:614.236.6317>/
>>>
>>> /http://law.capital.edu/faculty/bios/bsmith.aspx/
>>>
>>> ------------------------------------------------------------------------
>>>
>>> *From:*law-election-bounces at department-lists.uci.edu
>>> <mailto:law-election-bounces at department-lists.uci.edu>
>>> [law-election-bounces at department-lists.uci.edu
>>> <mailto:law-election-bounces at department-lists.uci.edu>]
>>> on behalf of JBoppjr at aol.com <mailto:JBoppjr at aol.com>
>>> [JBoppjr at aol.com <mailto:JBoppjr at aol.com>]
>>> *Sent:* Sunday, August 25, 2013 8:37 AM
>>> *To:* PRyan at campaignlegalcenter.org
>>> <mailto:PRyan at campaignlegalcenter.org>;
>>> Eric.Lycan at Steptoe-Johnson.com; rhasen at law.uci.edu
>>> <mailto:rhasen at law.uci.edu>; law-election at uci.edu
>>> <mailto:law-election at uci.edu>
>>> *Subject:* Re: [EL] KY Legislative Ethics proposal to
>>> require reporting of grassroots lo...
>>>
>>> Regarding:
>>>
>>> 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.”
>>>
>>> Let me try to help you with your struggle.
>>>
>>> /McConnell/upheld the EC provision because studies
>>> convinced the majority that ECs were the functional
>>> equivalent of express advocacy and did not apply to
>>> genuine issue advocacy. /WRTL/ then narrowed the
>>> definition of functional equivalent to apply only when
>>> there is no reasonable interpretation of the message of
>>> the communication other than it appeals for a vote for
>>> or against a candidate -- "the appeal to vote test."
>>>
>>> /CU/argued that the disclosure provision should also be
>>> limited by the "appeal to vote test" -- the /WRTL/
>>> definition of functional equivalent. This is what the
>>> Court rejected -- leaving disclosure to encompass all
>>> ECs upheld by /McConnell/-- which the Court said was the
>>> functional equivalent of express advocacy and did not
>>> encompass genuine issue advocacy.
>>>
>>> It is true that Kennedy used the phrase "functional
>>> equivalent of express advocacy" without referencing
>>> whether it was WRTL's or McConnell's -- leading some to
>>> be confused about this. However, the parties were
>>> arguing that it should be limited to WRTL's "appeal to
>>> vote test" -- WRTL's new definition of functional
>>> equivalent.
>>>
>>> So we are now back to McConnell's definition of ECs,
>>> which does not apply -- said the McConnell Court -- to
>>> genuine issue advocacy.
>>>
>>> Some times you need to look at what the parties are
>>> arguing to understand what the Court rejected.
>>>
>>> Jim Bopp
>>>
>>> In a message dated 8/24/2013 12:29:15 P.M. Eastern
>>> Daylight Time, PRyan at campaignlegalcenter.org
>>> <mailto: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
>>> <tel:%28202%29%20736-2200%20ext.%20214>
>>>
>>> Mobile Ph. (202) 262-7315 <tel:%28202%29%20262-7315>
>>>
>>> Fax (202) 736-2222 <tel:%28202%29%20736-2222>
>>>
>>> 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>
>>> [mailto: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 <mailto:rhasen at law.uci.edu>;
>>> law-election at uci.edu <mailto: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
>>> <tel:%28202%29%20736-2200%20ext.%20214>
>>>
>>> Mobile Ph. (202) 262-7315 <tel:%28202%29%20262-7315>
>>>
>>> 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
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>>> <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 onAugust 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 inVoting 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 onAugust 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.
>>> 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 inDepartment 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 onAugust 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
>>> 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 inabsentee 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 onAugust 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
>>> 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 inDepartment 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 onAugust 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 inDepartment 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 onAugust 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
>>> 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 incampaign finance
>>> <http://electionlawblog.org/?cat=10> |Comments Off
>>>
>>>
>>> And We’re Back to the “Messes with Texas”
>>> Headlines <http://electionlawblog.org/?p=54730>
>>>
>>> Posted onAugust 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
>>> We’re Back to the “Messes 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 inDepartment 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 onAugust 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
>>> Holder Sues Texas Over Voter ID. Here’s Why
>>> It’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 inDepartment 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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>>>
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>>> This e-mail and any attachments are confidential and may
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>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu
>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>> --
>> 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
>> hhttp://www.law.uci.edu/faculty/full-time/hasen/
>> http://electionlawblog.org
>>
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>
> --
> 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
> hhttp://www.law.uci.edu/faculty/full-time/hasen/
> http://electionlawblog.org
>
--
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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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