[EL] big 2d Circuit campaign finance case; more news

[Rick Hasen]

    Big Campaign Finance News: Second Circuit Accepts Limits on
    Contributions to Independent Campaign Committees in Some
    Circumstances, Creating Circuit Split
    <http://electionlawblog.org/?p=62960>

Posted on July 2, 2014 9:26 am <http://electionlawblog.org/?p=62960>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Today a unanimous Second Circuit panel issued an 84-page opinion in 
Vermont Right to Life, Inc. v. Sorrell 
<http://electionlawblog.org/wp-content/uploads/12-2904_opn.pdf>. Most of 
the opinion is devoted tor rejecting a number of arguments raised 
against Vermont disclosure rules applied to independent groups. This is 
quite consistent with the rulings of other courts since /Citizens 
United//: /most disclosure challenges have failed.

But the most interesting part of the decision comes in the last 22 pages 
or so. As I understand it, Vermont Right to Life had two committees, one 
which made only independent expenditures (what we would now generally 
call a Super PAC) and another which made contributions to candidates. 
The Second Circuit agreed that if there were just the Super PAC, it 
would be unconstitutional to limit contributions to the group (following 
the Citizens United-SpeechNow line of cases).  But VRTL did not dispute 
that the two different groups were "enmeshed" with one another, and the 
Second Circuit held that the overlap between the two groups provided a 
basis for limiting contributions to /both/ of them. A separate bank 
account is not enough according to the Second Circuit, although it seems 
to be enough in other circuits (see, e.g., the Carey v. FEC case from 
the D.C. Circuit).  This sets up a Circuit split and the potential for 
either en banc review in the Second Circuit or Supreme Court review.

Here is the relevant language about enmeshment beginning on page 68:

    Although some courts have held that the creation of separate bank
    accounts is by itself sufficient to treat the entity as an
    independent-expenditure-only group, see, e.g.,Emily's List v. Fed.
    Election Comm'n, 581 F.3d 1, 12 (D.C. Cir. 2009),21 we do not
    believe that is 1 enough to ensure there is a lack of
    ""prearrangement and coordination." A separate bank account may be
    relevant, but it does not prevent coordinated expenditures --
    whereby funds are spent in coordination with the candidate. See Stop
    This Insanity, Inc. Emp. Leadership Fund v. Fed. Election Comm'n,
    902 F. Supp. 2d 23, 43 (D.D.C. 2012). Nor is it enough to merely
    state in organizational documents that a group is an
    independent-expenditure-only group. Some actual organizational
    separation between the groups must exist to assure that the
    expenditures are in fact uncoordinated. We therefore decline to
    adopt the reasoning of the Fourth Circuit in NCRL III. There, the
    Fourth Circuit rejected North Carolina's argument that NCRL-FIPE (a
    similar organization to VRLC-FIPE) was "not actually an independent
    expenditure committee because it [was] 'closely intertwined'" with
    NCRL and NCRL-PAC, two organizations (similar to VRLC and VRLC-PC)
    that did not limit their activities to independent expenditures.
    NCRL III, 525 F.3d at 294 n.8. The Fourth Circuit concluded based
    only on NCRL-FIPE's organizational documents that the group was
    "independent as a matter of law."22 Id. We do not agree that
    organizational documents alone satisfy the anti-corruption concern
    with coordinated expenditures that may justify contribution limits.

    There is little guidance from other courts on examining coordination
    of expenditures, but we conclude that, at a minimum, there must be
    some organizational separation to lessen the risks of coordinated
    expenditures. Separate bank accounts and organizational documents do
    not ensure that "information [] will only be used for independent
    expenditures." Catholic Leadership Coal. of Tex. v. Reisman, No.
    A-12-CA-566-SS, 2013 WL 2404066, at *177 (W.D. Tex. May 30, 2013)
    (emphasis added) ("The informational wall [that plaintiff] asserts
    it can raise to keep its independent expenditure activities entirely
    separate from its direct campaign contribution activities is thin at
    best. This triggers the precise dangers of corruption, and the
    appearance of corruption, which motivated the Court in Buckley to
    uphold the challenged contribution limits."). As discussed below,
    whether a group is functionally distinct from a
    non-independent-expenditure-only entity may depend on factors such
    as the overlap of staff and resources, the lack of financial
    independence, the coordination of activities, and the flow of
    information between the entities.

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


    "Why the Civil Rights Act Couldn't Pass Today"
    <http://electionlawblog.org/?p=62957>

Posted on July 2, 2014 8:38 am <http://electionlawblog.org/?p=62957>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Todd Purdum, author of the new book, An Idea Whose Time Has Come: Two 
Presidents, Two Parties and the Battle for the Civil Rights Act of 1964 
<http://us.macmillan.com/anideawhosetimehascome/ToddPurdum>, has 
writtenthis article in 
<http://dyn.politico.com/printstory.cfm?uuid=4C8AD4D6-4E72-4C84-B19E-67B19252CE4C> 
Politico, which also discusses the Voting Rights Act renewal.

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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>


    "The Defiant Mississippi Loser" <http://electionlawblog.org/?p=62955>

Posted on July 2, 2014 8:34 am <http://electionlawblog.org/?p=62955>by 
Rick Hasen <http://electionlawblog.org/?author=3>

/The Hill/ reports 
<http://thehill.com/blogs/ballot-box/senate-races/211127-the-defiant-mississippi-loser>on 
McDaniel's efforts to challenge the #MSSEN results.

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Posted in campaigns <http://electionlawblog.org/?cat=59>, recounts 
<http://electionlawblog.org/?cat=50>


    "Marijuana, Voters Bill of Rights to miss Nov. ballot"
    <http://electionlawblog.org/?p=62953>

Posted on July 2, 2014 8:33 am <http://electionlawblog.org/?p=62953>by 
Rick Hasen <http://electionlawblog.org/?author=3>

The latest 
<http://www.cincinnati.com/story/news/politics/elections/2014/07/01/marijuana-voters-bill-of-rights-to-miss-november-ballot/11901311/> 
from Ohio.

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>



-- 
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
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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