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

Fri Oct 18 07:33:57 PDT 2013

The 2nd Circuit Pacer says the appeal was filed yesterday, the State filed
its brief today, and oral argument has been set, but no date is mentioned.
Does anyone know when the oral argument on appeal is?

Edward Still
Edward Still Law Firm LLC
130 Wildwood Parkway STE 108-304
Birmingham AL 35209
205-320-2882
still at votelaw.com
www.votelaw.com/blog
www.edwardstill.com
www.linkedin.com/in/edwardstill <http://www.linkedin.com/edwardstill>

On Thu, Oct 17, 2013 at 2:44 PM, Fredric Woocher <fwoocher at strumwooch.com>wrote:

>  Joe:****
>
> ** **
>
> I think you have misconstrued the court’s “amplifying the voice”
> analysis.  The court was not using that point as a justification for
> defending the constitutionality of the restriction on the merits.  The
> court notes that given the procedural posture and wording of the complaint,
> that it is not clear that any injunction the court might issue could apply
> to independent expenditure committees other than NYPPP, and that as a
> result, those other PACs might be limited in the contributions they can
> receive with respect to the upcoming election, while NYPPP (if the
> injunction were to issue) would not be so limited.  The court was therefore
> referring to NYPPP’s voice being unfairly amplified vis a vis other PACs
> wanting to participate in this election due to the nature and timing of the
> injunction request, not in the context of the underlying constitutional
> analysis.****
>
> ** **
>
> And as far as the “deciding to speak quickly enough” point, I think a
> reading of the court’s decision makes it pretty clear that at bottom, the
> court did not believe as a factual matter that this really was an instance
> of the plaintiffs suddenly deciding that they wanted to engage in more
> speech.  (See p. 13 [“But that made-up explanation is so at variance with
> what actually occurred that it calls into question NYPPP’s other factual
> assertions.”].)****
>
> ** **
>
> I think you’re likely correct that the limit will ultimately be held to be
> unconstitutional, but that’s a different issue than whether it is fair to
> suddenly change the rules of the election for one party and not for others
> in the waning days/weeks of an election, which is what the district court
> was faced with deciding at this point.****
>
> ** **
>
> Fredric D. Woocher****
>
> Strumwasser & Woocher LLP****
>
> 10940 Wilshire Blvd., Ste. 2000****
>
> Los Angeles, CA 90024****
>
> fwoocher at strumwooch.com****
>
> (310) 576-1233****
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Joe La Rue
> *Sent:* Thursday, October 17, 2013 11:19 AM
> *To:* Election Law Listserve
> *Subject:* [EL] Breaking News: Federal Court Refuses to Enjoin NY Ban on
> Unlimited Contributions to Independent PACs****
>
> ** **
>
> 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
> ___________________
> *Joseph E. La Rue*****
>
> cell: 480.272.2715
> email: joseph.e.larue at gmail.com****
>
>
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