[EL] Tea Party Leadership Fund will not be alone

[Steve Hoersting]

Yes, CCP will take a victory on pre-emption grounds, on the issue of
solicitation adminstration -- much as our friends at IJ are content to
remove economic restrictions by invoking the First Amendment, wherever they
can.

But CCP will have to move to the First Amendment side of this matter at
some point, and preferably in the second half of this case ... or soon find
another case that does.

Steve
Sent from my phone.
On Apr 17, 2014 5:44 PM, <BZall at aol.com> wrote:

>  Just to be clear, the rationale for the sort of compelled government
> speech and disclosure at issue here is based in anti-consumer protection,
> not theories about election-related disclosures. That is a different part
> of the First Amendment doctrine, because there is thought to be an
> important governmental interest in protecting vulnerable residents from
> fraud related to fundraising.
>
> The extension of such theories to political activities, as in recent New
> York legislation, rests on a completely different First Amendment
> calculation, and recent Supreme Court decisions (such as the much-maligned
> *McCutcheon*) reflect only a single governmental interest powerful enough
> to justify governmental compulsion to speak/disclose: corruption or the
> appearance of corruption.
>
> The really interesting part of the CCP case is in its application of the
> preemption doctrines (express, field and conflict) to the state's rationale
> for requesting the information for anti-fraud purposes. Just as the Supreme
> Court has moved to limit federal and state actions to limit political
> speech, it has also limited the ability of states to enact laws that either
> conflict with federal law or enter into a space that the federal government
> has fully occupied, leaving no room for state-level regulation. See, e.g.,
> Sprietsma v. Mercury Marine, 537 U.S. 51 (2002)(state common law on
> liability for propeller guard defects not preempted by rules for watercraft
> propeller design from the federal agencies). The most recent example
> familiar to this list is the EAC cases, Arizona and Kobach, where the
> Supremes said that states could not require more on a federal voter
> registration form than the federal agency permitted, but could sue the
> agency to force it to respect constitutional limitations on its own power.
> But that was only one of a recent spate of Supreme Court cases on
> preemption, including several involving state immigration-related laws.
> See, e.g., Chamber of Commerce v. Whiting, No. 09-115, (2011) (Arizona
> state licensing power not preempted by comprehensive federal scheme to
> limit verification of aliens' ability to accept employment); Arizona v.
> U.S., No. 11-182 (2012)(Arizona statutes on unlawful presence largely
> preempted by comprehensive federal scheme regulating aliens' residence in
> the U.S.).
>
> The preemption issues in CCP are whether Congress has occupied the field
> by expressly providing only a single method and highly-restrictive
> procedure for sharing federal forms with state agencies, or whether the
> California requirement for an unredacted 990 Schedule B list of donors
> makes the express Congressional intention to protect taxpayer information
> impossible to achieve (note this latter point well if you think requiring
> donor disclosure in the tax context is easy). This is either field
> preemption or conflict preemption of a fairly-plain vanilla form, and an
> issue easily handled by most federal courts. This is a recent change in
> federal law, and the California defense relies on outdated cases handed
> down before that legal change.
>
> The key question, as always in a preemption case, is what Congress
> intended, not what the agency did, and there are likely differing views on
> that, but the lengthy series of restrictions Congress imposed on the
> sharing of 990 Schedule B lists of donors both on the agency and on states
> who receive that information from the IRS is a pretty good indication that
> Congress wants that information protected. The question is whether the
> judge will see California's requirement as an evasion of those
> restrictions; California cannot do indirectly what it is not permitted to
> do directly. And California's sole defense is that it tries to keep that
> information confidential; that may not be enough.
>
> Barnaby Zall
> Of Counsel
> Weinberg, Jacobs & Tolani, LLP
> 10411 Motor City Drive, Suite 500
> Bethesda, MD 20817
> 301-231-6943 (direct dial)
> bzall at aol.com
> _____________________________________________________________
> U.S. Treasury Circular 230 Notice
>
> Any U.S. federal tax advice included in this communication (including
> any attachments) was not intended or written to be used, and cannot be
> used, for the purpose of (i) avoiding U.S. federal tax-related penalties
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> tax-related matter addressed herein.
> _____________________________________________________________
>
>  In a message dated 4/17/2014 5:02:23 P.M. Eastern Daylight Time,
> hoersting at gmail.com writes:
>
> The Center for Competitive Politics has sued California to protect its
> donor list -- donations for c3 activities; far beyond elections.
>
>
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