[EL] more McCutcheon/campaign finance: Gerken, Gorod, Hasen
Rick Hasen
rhasen at law.uci.edu
Tue Apr 8 08:32:24 PDT 2014
Thomas Alone on Campaign Finance? <http://electionlawblog.org/?p=60206>
Posted on April 8, 2014 8:30 am <http://electionlawblog.org/?p=60206>by
Rick Hasen <http://electionlawblog.org/?author=3>
I have written this oped
<http://electionlawblog.org/wp-content/uploads/hasen-thomas-daily-journal.pdf>
in the /Daily Journal/ (reprinted with permission). It begins:
Justice Clarence Thomas is not afraid to go it alone at the Supreme
Court. In Citizens United v. Federal Election Commission, the 2010
case striking down the law preventing business corporations from
spending money from their general treasury on elections, the vote
was 8-1 in favor of a disclosure law also challenged by the
plaintiffs. Thomas also was alone in Doe v. Reed, a 2010 case
upholding the ability of the state of Washington to make public the
names of voters signing referendum petitions. Again in Shelby County
v. Holder, the 2013 blockbuster case preventing Congress from
enforcing a part of the Voting Rights Act which required states with
a history of racial discrimination in voting to get approval before
making changes in their voting rules, Thomas alone would have gone
farther than the majority. While the majority struck the coverage
formula of the act, leaving the preclearance provision standing in
case Congress could enact a new constitutional coverage formula,
Thomas was ready to strike preclearance, too. "By leaving the
inevitable conclusion unstated, the Court needlessly prolongs the
demise of that provision," he wrote.
But it was somewhat of a surprise last week when Thomas wrote only
for himself in the McCutcheon campaign finance case, depriving Chief
Justice John Roberts of a majority opinion. McCutcheon concerned the
constitutionality of a federal law which limited the total amount of
money that an individual could donate to all federal candidates for
office, political parties, and certain political committees in a
two-year period. Since the 1976 opinion of Buckley v. Valeo, the
Supreme Court has reviewed challenges to spending limits under
strict scrutiny, but challenges to campaign contribution limits
under a laxer "exacting scrutiny" standard.
The piece concludes:
This time in McCutcheon, Scalia and Kennedy seemed willing to go
along with some faux judicial restraint. If Thomas had his way, all
campaign contribution limit laws would be subject to immediate
challenge and would fall rather quickly. The gradualism of the chief
justice means that's a project that takes a few more years.
The chief justice's gradualism also means that the court takes less
public heat. It is hard to explain to the public how an opinion on
aggregate contribution limits affects what's left of campaign
finance law. Lower court application of McCutcheon will take a few
years, and the heat from the opinion will dissipate. Then, when the
court is ready, it can deliver the knockout blow. It did that in
both the voting rights area, first warning
of the unconstitutionality of the act and then striking it down, and
in the WRTL-Citizens United sequence as to corporate spending in
candidate elections.
Thomas has no interest in faux judicial restraint or a PR effort
for the benefit of the court. But the other justices seem to be
warming to the chief justice's velvet glove.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
Gorod: The False Minimalism of John Roberts
<http://electionlawblog.org/?p=60202>
Posted on April 8, 2014 8:24 am <http://electionlawblog.org/?p=60202>by
Rick Hasen <http://electionlawblog.org/?author=3>
The following is a guest post fromBrianne Gorod
<https://theusconstitution.org/about/people/staff/brianne-gorod> of CAC:
Chief Justice Roberts' attempt to portray his decision in
/McCutcheon v. FEC/
<http://www.supremecourt.gov/opinions/13pdf/12-536_e1pf.pdf> as
minimalist actually shows just how far from minimalist it is.
According to the Chief Justice, no one should worry about the
consequences of the Court's decision because "there are multiple
alternatives available" that would accomplish the Government's
asserted interest without, in the majority's view, unnecessarily
abridging First Amendment rights. It would be a comforting thought
if there were any truth to it. But as Rick has pointed out
<http://www.scotusblog.com/2014/04/symposium-does-the-chief-justice-not-understand-politics-or-does-he-understand-it-all-too-well/>,
there is no chance that these alternatives will come to pass:
Congress is not going to pass any new campaign finance laws (this
Congress barely passes any laws at all, as the Chief surely knows),
and the FEC is not going to strengthen its enforcement of existing
laws (Republican commissioners on the FEC are no more in favor of
campaign finance regulation than Republican members of Congress).
But what today's Congress would do tells us little, if anything,
about what the Congress that enacted the aggregate contribution
limit would have done had it known that the Supreme Court would
conclude that aggregate contribution limits are unconstitutional.
Would it have adopted one or more of the Chief's proposed
alternatives? Quite possibly. And that fact illustrates one of the
most problematic, but also overlooked, aspects of judicial
review---that it can produce disruptions to democratic preferences
that are not constitutionally required.
Judicial review is generally (and rightly) justified as an integral
part of our constitutional system; it ensures that laws and
regulations are consistent with our nation's highest law. In
/McCutcheon/, the Court's majority claims that the aggregate
contribution limits cannot stand because they violate the First
Amendment. Whether one agrees with that conclusion or not (and as I
<http://blog.constitutioncenter.org/2014/04/john-roberts-meet-john-roberts/>
and others
<http://www.courier-journal.com/story/opinion/contributors/2014/04/04/supreme-court-undermining-us-constitution/7315863/>
have written, there are many reasons to disagree with it), most
would find unobjectionable the general principle that laws that are
inconsistent with the Constitution should not stand. But as I have
written elsewhere
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2265455>,
judicial review often produces disruptions to democratic preferences
that are /not/ constitutionally required, and that is a much more
significant problem.
Judicial review produces these greater-than-necessary democratic
disruptions because the law the Court declares unconstitutional is
not automatically replaced with the constitutional alternatives that
policymakers might have enacted had they known their preferred
policy was unconstitutional. Put slightly differently, when
policymakers enact laws, they do so in reliance on the existing
state of the law. They enact some laws and not others based on
which laws seem necessary to achieve desired policy goals in light
of other laws already on the books. This is an eminently reasonable
approach to legislating, except for one problem: when the Court
strikes down law /Z/ as unconstitutional,s constitutional law /Y /is
not in place even though policymakers would have enacted it had they
known law Z was unconstitutional.
In the case of /McCutcheon/, if the Congress that enacted the
aggregate contribution limits had known they were unconstitutional,
it might have enacted other laws to achieve at least some of the
same effects. For example, it might have enacted different
individual contribution limits, or it might have further
strengthened disclosure laws. And even if one wonders whether such
regulations will remain constitutional for long in light of the
conservative majority's incremental campaign
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/the_subtle_awfulness_of_the_mccutcheon_v_fec_campaign_finance_decision_the.html>
to wipe out all but the most innocuous aspects of campaign finance
regulation, the Chief's list of alternatives suggests that there are
at least some alternative laws that might survive review by the
current Court. But, again, these alternatives are not the law even
though the Congress that enacted the aggregate contribution limits
might well have favored such laws had it known the contribution
limits would fall. As a result, we have disruptions to democratic
preferences that the Constitution does not require.
As I argue at much greater length in my article
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2265455> on this
topic, these greater-than-necessary democratic disruptions are cause
for concern, and there are modest steps the Court and Congress can
both take to avoid these disruptions, or at least ameliorate them
when they occur. But suffice it to say for present purposes, the
Chief's list of alternatives should not reassure anyone that the
Court's decision is a modest one. Just the opposite.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
Nondisclosure Disclosure: Giving Lawmakers an Excuse to Ignore the
Hard Questions <http://electionlawblog.org/?p=60198>
Posted on April 8, 2014 8:03 am <http://electionlawblog.org/?p=60198>by
Heather Gerken <http://electionlawblog.org/?author=6>
/Authored by Heather Gerken, Wade Gibson, and Webb Lyons/
On Monday, Bob Bauer offered a characteristically thoughtful and
generous response
<http://www.moresoftmoneyhardlaw.com/2014/04/novel-proposal-heather-gerken-plus-one-also-yale/>
to a "nondisclosure disclosure" proposal that we pitched in the
Washington Post
<http://www.washingtonpost.com/opinions/rerouting-the-flow-of-dark-money-into-political-campaigns/2014/04/03/1517ac6e-b906-11e3-9a05-c739f29ccb08_story.html> last
week. The proposal was a simple one. Any advertisement funded directly
or indirectly by an organization that does not disclose its donors must
acknowledge that fact with a simple and truthful disclaimer: "This ad
was paid for by 'X,' which does not disclose the identity of its
donors." By requiring organizations that do not disclose their donors to
acknowledge that fact, we wrote, Congress could provide voters with a
helpful shorthand and give donors an important choice: put their money
into transparent organizations (like the parties or Superpacs), or fund
groups that keep their donors hidden but risk running ads that may not
persuade cynical voters.
The basic purpose of our proposal is to harness politics to fix
politics, reducing the value of anonymous outlets and pushing money
toward transparent ones. But it also solves what we call the
"whack-a-mole" problem. Our proposal regulates the ad, not the
organization. As we wrote in the Post, "it doesn't repeat the mistake
we've continually made in campaign finance: engaging in the regulatory
equivalent of whack-a-mole by targeting the troublemakers du jour while
leaving space for new organizations to emerge during the next campaign
cycle."
Bauer is skeptical. We take all of his points seriously and agree with
many of them. We thought it might be helpful, however, to identify the
main issues on which we disagree.
First, Bauer thinks that the purpose of disclosure is to "bring to the
audience's attention what they could not fairly be expected to uncover
for themselves." He agrees that it's appropriate to disclose that "an ad
was paid for by a specific organization" or that "its content was
'approved' by a candidate." But, he insists, voters can figure out for
themselves whether an ad is funded anonymously through an "Internet
inquiry or a question put directly to the ad sponsor."
We think the task for voters is a good deal harder than he suggests.
Take a look at the websites for the "Ready for Hillary" Superpac (which
does disclose its donors) and Karl Rove's "Crossroads GPS" (which
doesn't). You certainly can't figure out which organization discloses
its donors from the sites. If you start doing Google searches, you'll
eventually figure it out because Crossroads GPS is the media's favorite
target. But for the run-of-the-mill 501(c)(4)? At the very least, you'd
have to figure out it was a (c)(4) and then figure out what that means
under the tax code. More importantly, a "transparent" shell organization
can still be funded by organizations that fail to disclose their donors.
"Americans for America" may disclose, for instance, that its funding
comes from "Good People for Good" and "People for Puppies," thus forcing
voters to follow a money trail that even reporters find complex
nowadays. We don't think it's fair to expect voters to go through that
much work every time a 30-second ad flashes across the screen. Why not
tell voters the simple fact of the matter? Some ads are funded
anonymously. There's no reason voters shouldn't be able to sort between
ads funded transparently and ads funded anonymously.
Bauer's concern goes deeper. He worries that our proposal "is crafted to
suggest that there is information missing that should have been supplied
and is being withheld." That might be the gloss voters put on the
disclosure. But our proposal is essentially no different from the "stand
by your ad" requirement. That requirement demands that the connection
between the ad and a candidate is identified. Ours demands that the
connection between the ad and an anonymous donor is identified. Even if
Bauer is correct that our proposal has normative force, it conveys the
same message as the (constitutional) "stand by your ad" requirement or,
indeed, any (constitutional) requirement that certain organizations
disclose their donors. Like Bauer, we think it's acceptable to require
501(c)(4)s to disclose the names of their donors. But then surely it's
acceptable to require 501(c)(4)s to disclose the fact that their donors
are anonymous. The greater includes the lesser.
Good lawyer that he is, Bauer does not merely chide us for going too
far, but for not going far enough. He worries that our proposal would
give legislators unable to enact disclosure requirements an easy way
out. They could "resort instead to a form of shaming" with "the 'ought'
. . . replaced by a 'you don't have to but really should.'"
Fair enough. This worry might have kept us up at night a few years ago.
But now that Congress has proved itself incapable of enacting something
as basic as disclosure requirements in the wake of the wildly unpopular
Citizens United, we'd just be happy to give Congress an excuse to do
something. To do anything, really. Perhaps we should take it as a
warning sign that we are more cynical about politics than one of the
most respected and clear-eyed campaign lawyers in the country. Or
perhaps Bob is just a cheerier, more optimistic soul than any of us.
Finally, Bauer casts doubt on our "whack-a-mole" pitch. "[W]hy should
Congress not have to consider on its merits each and every form of
disclosure as it affects different organizations" and create separate
regulations for each new organization that springs up? Bauer suggest
that the "most challenging aspect of this proposal is the excuse it
gives lawmakers to ignore hard questions."
We think this is a feature of our proposal, not a bug. Political
interests are shape shifters; they take new forms whenever they wish to
get around a regulatory roadblock. When donors couldn't give the parties
soft money, they turned to issue ads, then 527s, then Superpacs, then
501(c)(4)'s. Congress and the FEC have shown themselves utterly
incapable of keeping up. Given that the politics of the moment prevent
regulators from answering Bauer's hard question, we're just hoping that
they'll be able to answer an easy one. Should anonymously funded ads
disclose that fact? The answer should be yes.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> | Tagged
Bob Bauer <http://electionlawblog.org/?tag=bob-bauer>, Campaign finance
<http://electionlawblog.org/?tag=campaign-finance-2>, disclosure
<http://electionlawblog.org/?tag=disclosure>, money and politics
<http://electionlawblog.org/?tag=money-and-politics>
--
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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