[EL] big 2d Circuit campaign finance case; more news
Rick Hasen
rhasen at law.uci.edu
Wed Jul 2 13:43:05 PDT 2014
I don't follow the Second Circuit closely. What is the likelihood of en
banc review if the challengers seek it?
On 7/2/14, 1:31 PM, Smith, Brad wrote:
> This raises a good question Ben - may a corporation that maintains a
> PAC be prohibited, under this decision, from making independent
> expenditures in accordance with Citizens United? I don't think so, but
> that would seem to be the Second Circuit's logic.
>
> /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 Benjamin
> Barr [benjamin.barr at gmail.com]
> *Sent:* Wednesday, July 02, 2014 4:21 PM
> *To:* Edward Still
> *Cc:* law-election at UCI.edu
> *Subject:* Re: [EL] big 2d Circuit campaign finance case; more news
>
> I'm curious about the findings of fact by the lower court.
>
> The Second Circuit views the related Vermont Right to Life entities as
> mere bank accounts--shells without formal organizational separation.
> But the case law underlying decisions like /EMILY's List/ and
> /Carey/ inform that a PAC is a separate organization from the main
> organization, or from other PACs/. /And there is both a special
> fluidity and rigidity about roles held by individuals in these
> groups--they may serve in various related organizations so long as
> they wear their proverbial separate hats and follow rules preventing
> the sharing of certain information or resources. These sort of
> arrangements are common across a wide array of non-profit entities, as
> Ed and Byron note. To impose stricter requirements would be to impose
> onerous staffing and personnel requirements on already-strained
> non-profits in the quixotic pursuit of ending "corruption."
>
> That sort of overly rigid formality is what came to the fore in
> /Carey/, a case I brought with Steve Hoersting, Dan Backer, and Allen
> Dickerson a few years back. If the FEC had its way, we would have
> needed to clone the group in question, a meagerly funded veterans
> organization, to engage in meaningful advocacy. But the court
> understood that separate, segregated accounts and following the
> applicable rules means that related entities can, indeed, be related
> and be so bold as to speak and engage the public about elections.
>
> The Second Circuit seems confused about groups being "enmeshed
> financially" without understanding how formal rules of separation for
> related entities work. I do hope en banc reconsideration cures this
> confusion.
>
> Forward,
>
> Benjamin Barr
>
>
>
> On Wed, Jul 2, 2014 at 3:50 PM, Edward Still <still at votelaw.com
> <mailto:still at votelaw.com>> wrote:
>
> Byron has a good point. Here is a list of national groups I used
> as examples recently:
>
> a.EMILY'S List (hard money and soft money accounts)
>
> b.U.S. Chamber of Commerce (& its PAC)
>
> c.Sierra Club (& its Political Committee)
>
> d.League of Conservation Voters (& Education Fund)
>
> e.AFL-CIO (and COPE)
>
> f.NAACP (& its National Voter Fund)
>
> g.Human Rights Campaign (& its Federal PAC)
>
> In each of these cases, one organization engages in one type of
> political activity and its sister engages in another.
>
> Ed
>
> Edward Still
> Edward Still Law Firm LLC
> 130 Wildwood Parkway STE 108-304
> Birmingham AL 35209
> 205-320-2882 <tel:205-320-2882>
> still at votelaw.com <mailto:still at votelaw.com>
> www.votelaw.com/blog <http://www.votelaw.com/blog>
> www.edwardstill.com <http://www.edwardstill.com>
> www.linkedin.com/in/edwardstill <http://www.linkedin.com/edwardstill>
>
>
>
>
> On Wed, Jul 2, 2014 at 2:08 PM, Byron Tau <btau at politico.com
> <mailto:btau at politico.com>> wrote:
>
> Anyone think it has any broader implications beyond perhaps
> leading to a review about the permissibility of hybrid PACs,
> though?
>
> Aren't some trade associations set up in similar ways? 501c +
> federal PAC + IE arm?
>
> --
> Byron Tau
> Lobbying and campaign finance reporter || POLITICO
> c: 202-441-1171 <tel:202-441-1171>
> d: 703-341-4610 <tel:703-341-4610>
> Follow: @byrontau <http://twitter.com/byrontau>
> Subscribe to: http://www.politico.com/politicoinfluence/
>
> ------------------------------------------------------------------------
> *From:* law-election-bounces at department-lists.uci.edu
> <mailto:law-election-bounces at department-lists.uci.edu>
> [law-election-bounces at department-lists.uci.edu
> <mailto:law-election-bounces at department-lists.uci.edu>] on
> behalf of Kelner, Robert [rkelner at cov.com
> <mailto:rkelner at cov.com>]
> *Sent:* Wednesday, July 02, 2014 2:56 PM
> *To:* Rick Hasen; law-election at UCI.edu
> *Subject:* Re: [EL] big 2d Circuit campaign finance case; more
> news
>
> Today's Second Circuit decision should not affect stand alone
> Super PACs because it turns on ties between a Super PAC and a
> connected traditional PAC. These so-called "hybrid" PACs are
> not particularly useful and have not to date played a major
> role in the campaign finance system.
>
> That said, it seems to me that the Second Circuit opinion
> equates the existence of a traditional PAC that can make
> direct candidate contributions with "coordination." It is
> not necessarily the case that a traditional PAC coordinates
> with candidates merely because it makes contributions to
> candidates. The Court is on firmer ground when it cites
> evidence of a "fluidity" of funds flowing between the Super
> PAC and its connected traditional PAC. But this highlights
> the narrowness of the holding. Many Super PACs are estabished
> as stand alone entities without connected traditional PACs,
> and the Second Circuit's decision provides one more reason not
> to form a hybrid PAC.
>
> It will be interesting to see whether the Second Circuit
> rehears this case in banc, assuming the prevailing party moves
> for rehearing.
>
> Robert K. Kelner
> COVINGTON & BURLING LLP
> 1201 Pennsylvania Avenue, NW
> Washington, DC 20004
> phone: (202) 662-5503 <tel:%28202%29%20662-5503>
> fax: (202) 778-5503 <tel:%28202%29%20778-5503>
> rkelner at cov.com <mailto:rkelner at cov.com>
>
> This message is from a law firm and may contain information
> that is confidential or legally privileged. If you are not the
> intended recipient, please immediately advise the sender by
> reply e-mail that this message has been inadvertently
> transmitted to you and delete this e-mail from your system.
> Thank you for your cooperation.
>
> *From:*law-election-bounces at department-lists.uci.edu
> <mailto:law-election-bounces at department-lists.uci.edu>
> [mailto:law-election-bounces at department-lists.uci.edu
> <mailto:law-election-bounces at department-lists.uci.edu>] *On
> Behalf Of *Rick Hasen
> *Sent:* Wednesday, July 02, 2014 12:28 PM
> *To:* law-election at UCI.edu
> *Subject:* [EL] big 2d Circuit campaign finance case; more news
>
>
> 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&>
>
> Posted incampaign 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 inVoting 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 incampaigns <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 inThe 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 <tel:949.824.3072> - office
>
> 949.824.0495 <tel:949.824.0495> - fax
>
> rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> <mailto:Law-election at department-lists.uci.edu>
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> <mailto:Law-election at department-lists.uci.edu>
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
--
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
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140702/37d60f46/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140702/37d60f46/attachment.png>
View list directory