[EL] ELB News and Commentary 9/19/13: Montana, McCutcheon, & DeLay

Thu Sep 19 10:30:27 PDT 2013

Much to chew on in today's news:

On Montana:
1) note the poor reporting. AP says, "Montana’s requirement that political committees disclose their campaign spending is constitutional." Of course, that wasn't the question. Everybody agrees on that. The question was Montana's definition of a political committee - could it define a group as a political committee if it does not have political activity as its primary purpose, and force it to register with the state. The plaintiff, National Association for Gun Rights, is a 501c4 that devotes only a fraction of its activity to electoral politics. I realize it's tough for reporters to understand or capture these nuances, but it would be helpful if they would try harder.
2) While I think the decision is incorrect at several points, Montana's law, as I read it, also does not require these "incidental political committees" to file the names of all donors or members, only those who have made earmarked contributions - that is, the same as under federal law. It is therefore not the equivalent of the broad laws reformers are seeking that would require disclosure of all general donors and members to a c4 (or c6 or whatever) making expenditures, and therefore may not violate Buckley/MCFL privacy concerns. Nor does it require the maintenance of separate bank accounts for election activity. The case is likely to be over-emphasized by those who do not note these distinctions.

On McCutcheon:
"Most court watchers think [McCutcheon will win]"?
- Wow, they're a lot more confident than I am or the people I talk to. Who are these "most court watchers?"

On Tom DeLay:
Just braggin': The Court largely followed the analysis in the Center for Competitive Politics amicus brief, authored by Ben Barr, and laid out in this 2005 op-ed (2005! the wheel's of justice turn slowly) by yours truly: http://online.wsj.com/article/SB113253818381402746.html

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

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Thursday, September 19, 2013 10:48 AM
To: law-election at uci.edu
Subject: [EL] ELB News and Commentary 9/19/13

Tom DeLay Conviction Reversed 2-1 By Texas Appellate Court<http://electionlawblog.org/?p=55380>
Posted on September 19, 2013 7:45 am<http://electionlawblog.org/?p=55380> by Rick Hasen<http://electionlawblog.org/?author=3>

Big news<http://www.khou.com/news/texas-news/Tom-DeLay-verdict-overturned-by-Texas-appellate-court-224405491.html> from Texas.

You can read the majority<http://electionlawblog.org/wp-content/uploads/CR11-087.pdf> and dissenting<http://electionlawblog.org/wp-content/uploads/CR11-087.diss_.pdf> opinions. The majority requires a judgment of acquittal based on legally insufficient evidence, not a new trial.

There could be further appeals.

I expressed concerns about political prosecutions of people like DeLay, John Edwards and Don Siegelman in this Slate piece.<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/04/john_edwards_should_not_be_prosecuted_for_campaign_finance_violations_.html>

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>
“Everyday heroes etched in Supreme Court history”<http://electionlawblog.org/?p=55378>
Posted on September 19, 2013 7:37 am<http://electionlawblog.org/?p=55378> by Rick Hasen<http://electionlawblog.org/?author=3>

USA Today<http://www.usatoday.com/story/news/nation/2013/09/18/plaintiffs-etched-in-supreme-court-history/2834421/>:

Shaun McCutcheon is fast becoming a household name — at least in lofty legal and political circles. “A lot of people know me,” the 46-year-old electrical engineer from Alabama says with obvious satisfaction.

McCutcheon’s name sits atop a case headed to the Supreme Court early next month. Should he win — and most court watchers think he will — wealthy political donors will be able to give limited contributions to as many federal candidates and committees as they want.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
“IRS Suspends Examinations Of Exempt Organizations’ Political Activity”<http://electionlawblog.org/?p=55376>
Posted on September 19, 2013 7:26 am<http://electionlawblog.org/?p=55376> by Rick Hasen<http://electionlawblog.org/?author=3>

Bloomberg BNA<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=36605688&vname=mpebulallissues&jd=a0e1w4u9f4&split=0>:

All Internal Revenue Service examinations of exempt organizations for possibly engaging in too much political activity are on hold until the agency reviews its processes, Acting Commissioner Daniel Werfel said.

The revelation came during a Sept. 18 House Ways and Means Oversight Subcommittee hearing on the Service’s actions in relation to groups applying for tax exemption, following a May Treasury Inspector General for Tax Administration audit that found the agency inappropriately screened conservative groups’ applications for tax exemption.
See also this written statemen<http://t.co/FW12g8uaRc>t from Werfel.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>
Hello Cincinnati!<http://electionlawblog.org/?p=55374>
Posted on September 19, 2013 7:23 am<http://electionlawblog.org/?p=55374> by Rick Hasen<http://electionlawblog.org/?author=3>

The Presidential Commission on Election Administration (Bauer-Ginsberg) is in Cincinnati for a hearing today and tomorrow.

Catch the live webstream at supportthevoter.gov<https://www.supportthevoter.gov/commission-meeting-livestream/>.

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Posted in election administration<http://electionlawblog.org/?cat=18>
“In Virginia, Slow Going So Far on Rights Restoration for Felons”<http://electionlawblog.org/?p=55372>
Posted on September 19, 2013 7:21 am<http://electionlawblog.org/?p=55372> by Rick Hasen<http://electionlawblog.org/?author=3>

A Chapinblog.<http://blog.lib.umn.edu/cspg/electionacademy/2013/09/in_virginia_slow_going_so_far.php>

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Posted in election administration<http://electionlawblog.org/?cat=18>, felon voting<http://electionlawblog.org/?cat=66>
“Judge rules Montana campaign disclosure law constitutional”<http://electionlawblog.org/?p=55370>
Posted on September 18, 2013 11:02 am<http://electionlawblog.org/?p=55370> by Rick Hasen<http://electionlawblog.org/?author=3>

AP<http://missoulian.com/news/state-and-regional/judge-rules-montana-campaign-disclosure-law-constitutional/article_5e251112-1ff0-11e3-b00f-0019bb2963f4.html>: “A federal judge ruled Tuesday that Montana’s requirement that political committees disclose their campaign spending is constitutional. U.S. District Judge Dana Christensen sided with the state in a new decision, and dismissed a case brought last year by the National Association for Gun Rights.”

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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Campaign Watchdog to Get New Blood, but Other Fixes Await”<http://electionlawblog.org/?p=55368>
Posted on September 18, 2013 9:55 am<http://electionlawblog.org/?p=55368> by Rick Hasen<http://electionlawblog.org/?author=3>

Eliza’s latest.<http://blogs.rollcall.com/beltway-insiders/campaign-watchdog-to-get-new-blood-but-other-fixes-await/>

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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Tea party wants socialist treatment”<http://electionlawblog.org/?p=55366>
Posted on September 18, 2013 8:48 am<http://electionlawblog.org/?p=55366> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico<http://www.politico.com/story/2013/09/tea-party-fec-socialist-treatment-96988.html>: “A national tea party group is asking<http://images.politico.com/global/2013/09/17/2013-09-16_tea_party_leadership_fund_aor.html> for permission to keep their donors secret — just like the socialists.”

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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Donors’ Funds Sidestep Law, Aiding Christie”<http://electionlawblog.org/?p=55364>
Posted on September 18, 2013 8:43 am<http://electionlawblog.org/?p=55364> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT<http://www.nytimes.com/2013/09/18/nyregion/donors-funds-sidestep-law-aiding-christie.html?hp>:

Mr. Christie’s close relationship with the association provides a playbook for how carefully choreographed independent spending campaigns can undermine the rules meant to curtail the political influence of government contractors; New Jersey’s pay-to-play law<https://wwwnet1.state.nj.us/lpd/elec/ptp/p2p.html> strictly limits the participation of state contractors in political giving.

According to an analysis by The New York Times, a third of the $1.65 million the association raised in New Jersey came from people and businesses who had significant contracts with the state, or from utilities, which are prohibited from making any contributions to candidates for governor.

That money has helped set the stage for what Christie allies hope will be an overwhelming re-election victory this November in a Democratic-leaning state, boosting his prospects going into the 2016 presidential race.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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