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

[JBoppjr at aol.com]

Regarding:
 
It  will be interesting to see whether the Second Circuit rehears this case 
in banc,  assuming the prevailing party moves for rehearing. 
 
The 2nd Circuit has very restrictive rules on granting rehearing so  they 
never do (to my knowledge).  They did not even grant rehearing in  Randall v 
Sorrell.  So off to the Supreme Court with a big Circuit split on  both the 
PAC and IEPAC issues.  Jim
 
 
In a message dated 7/2/2014 2:58:40 P.M. Eastern Daylight Time,  
rkelner at cov.com writes:

 
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
fax: (202)  778-5503
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] 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.
 
 
 
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=62960&title=Big%20Campaign%20Finance%20News:%20Second%20Circuit%20Accepts%20Limit
s%20on%20Contributions%20to%20Independent%20Campaign%20Committees%20in%20Som
e%20Circumstances,%20Creating%20Circuit%20Split&) 


 
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 written_  this 
article in_ 
(http://dyn.politico.com/printstory.cfm?uuid=4C8AD4D6-4E72-4C84-B19E-67B19252CE4C)  Politico, which also discusses the Voting Rights Act  
renewal. 
 

 
 
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=62957&title=“Why%20the%20Civil%20Rights%20Act%20Couldn’t%20Pass%20Today”
&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. 
 
 
 
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=62955&title=“The%20Defiant%20Mississippi%20Loser”&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. 
 
 
 
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=62953&title=“Marijuana,%20Voters%20Bill%20of%20Rights%20to%20miss%20Nov.%20ballot
”&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_ (mailto:rhasen at law.uci.edu) 
http://www.law.uci.edu/faculty/full-time/hasen/
_http://electionlawblog.org_ (http://electionlawblog.org/) 

=

_______________________________________________
Law-election  mailing  list
Law-election at department-lists.uci.edu
http://department-lists.uci.edu/mailman/listinfo/law-election
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140702/96f3687f/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/unknown
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140702/96f3687f/attachment.bin>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/unknown
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140702/96f3687f/attachment-0001.bin>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/unknown
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140702/96f3687f/attachment-0002.bin>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/unknown
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140702/96f3687f/attachment-0003.bin>