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

[Robbin Stewart]

http://ballots.blogspot.com/2014/07/vermonts-unconstitutional-disclaimer.html

Thursday, July 03, 2014
Vermont's unconstitutional disclaimer statute has been upheld again, this
time by the 2nd circuit.
http://electionlawblog.org/?p=62960

Green Mountain Future was an earlier similar case.

Once again, it's the wrong client, and the wrong arguments.

After Citizen's United, corporations aren't going to win these cases, at
least without some clever arguments such as overbreadth. The suits need to
be brought by individuals, even if some corporation is the real party in
interest. It is hard sometimes to know whether James Bopp is losing these
cases on purpose; he has a long history of sabotaging his own cases on
exactly this issue, whether disclaimer statutes are constitutional. He has
both won and lost more of these cases than anyone else.

Instead of directly saying these statutes are unconstitutional under the
controlling precedents, he makes circular arguments about express advocacy,
major purpose, vagueness, and so forth. Again, he has won many cases with
these arguments over the years, but they lost in Terry v Ky RtL, they lost
in McConnell v FEC, they lost in Citizens United, and they lost today in
Vermont.

Having lost on disclaimers, he is now going to appeal a different part of
the case, with a high chance for cert but an uncertain outcome.

Bopp is right to think there's something wrong with Vermont's scheme. In
addition to disclaimers, there is an "obtain permission from your opponent"
provision, a 24 hour reporting requirement, and a low reporting threshhold.
Vermont is clearly trying to punish speech it can't directly prohibit, but
doesn't like.
Since the client is a Right to Life group, I expect they will stick with
Bopp as their lawyer, and we may get to see this play out.


On Wed, Jul 2, 2014 at 12:27 PM, Rick Hasen <rhasen at law.uci.edu> 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>....
>
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