[EL] big 2d Circuit campaign finance case; more news
Rick Hasen
rhasen at law.uci.edu
Wed Jul 2 11:16:57 PDT 2014
A reader points out that in my post below I incorrectly called Carey v
FEC a DC Circuit case. It was a trial court case.
Sorry for the error.
On 7/2/14, 9:27 AM, Rick Hasen wrote:
>
>
> 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.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D62960&title=Big%20Campaign%20Finance%20News%3A%20Second%20Circuit%20Accepts%20Limits%20on%20Contributions%20to%20Independent%20Campaign%20Committees%20in%20Some%20Circumstances%2C%20Creating%20Circuit%20Split&description=>
> 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.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D62957&title=%E2%80%9CWhy%20the%20Civil%20Rights%20Act%20Couldn%E2%80%99t%20Pass%20Today%E2%80%9D&description=>
> 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.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D62955&title=%E2%80%9CThe%20Defiant%20Mississippi%20Loser%E2%80%9D&description=>
> 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.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D62953&title=%E2%80%9CMarijuana%2C%20Voters%20Bill%20of%20Rights%20to%20miss%20Nov.%20ballot%E2%80%9D&description=>
> 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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--
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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