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

Fri Oct 18 12:09:19 PDT 2013

Item 34 was the last one on the docket when I checked this morning. Item 42
was there when I checked about 3 pm ET. It appears the case has already
been argued.
10/18/2013  34  CASE CALENDARING, for argument on 10/18/2013, SET.[1069103]
[13-3889] 10/18/2013  42  CASE, before DJ, RJL, C.JJ. KOELTL, D.J.,
HEARD.[1069450] [13-3889]

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 Fri, Oct 18, 2013 at 9:33 AM, Edward Still <still at votelaw.com> wrote:

> 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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