[EL] Breaking News: Federal Court Refuses to Enjoin NY Ban on Unlimited Contributions to Independent PACs

[Joe La Rue]

There are at least two problems with the court's analysis.  First, it
penalizes the plaintiff because, in the court's view, he didn't decide to
speak quickly enough.  The court seems to suggest that the plaintiff should
have challenged the law right on the heels of *Citizens United*, rather
than waiting four years.  In any event, he should have challenged the law
earlier in this political cycle if he wanted to speak.

The problem with that, of course, is that politics is a fast-moving game.
Someone speaks, someone else wants to respond with speech.  Someone wins a
primary, someone wants to speak in his support in the general election.
And in both cases, the speaker did not realize he would want to speak until
the triggering event occurred.

But according to this court, the plaintiff should have known earlier, and
decided to speak earlier.

The second obvious, screaming problem with this decision is that the court
expressed concern about an injunction "amplifying the voice" of some groups
over others.  But this is merely a re-working of the old "leveling the
playing field" argument that has been rejected by the Supreme Court as a
rationale for restricting speech.  It's not a valid interest for the
government.  It should not be a valid interest for a court, either.

What's interesting to me is that the Court obviously recognized that the
plaintiffs will ultimately win this lawsuit.  The Court did not conduct a
"likelihood of success on the merits" analysis, but rather focused only
upon the balance of hardships.  The plaintiffs will still likely win.  Of
course, by then, it will be too late for their speech to make any
difference, once again proving the old adage that justice delayed is
justice denied.


Joe
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*Joseph E. La Rue*
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email: joseph.e.larue at gmail.com


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