[EL] fundraising blackout rules (prev'ly "Re: WARNING: SNARK AHEAD RE: Supreme Court and campaign finance")

[Steve Kolbert]

First, I want to say thank you, Larry, for spurring me to look into the
question of fundraising blackouts. It's not an area I previously knew much
about, and I found it very interesting.

Second, I don't have fully formed thoughts concerning the policy wisdom or
the effectiveness of fundraising blackout periods. My initial, gut reaction
is to think that while blackouts are no panacea, they do more good than
harm. But again, I haven't given the subject much thought or seen any
evidence about either blackouts' benefits or drawbacks; I could certainly
be persuaded to change my mind.

Third: the more interesting question, I think, is the one you initially
asked (and I have modified slightly): can a legislature enact an internal
legislative rule, similar to Florida House Rule Rule 15.3(b) and Florida
Senate Rule 1.361(1), imposing a limited, session-long fundraising blackout
on sitting legislators alone, but not on non-officeholders? I've not
thought much about this, either, so I did some quick-and-dirty,
less-than-comprehensive investigating. And while it's not the slam-dunk I
assumed, it seems to me that the answer is yes, such a legislative rule
would be valid if appropriately drafted, and that Florida's dual rules are
appropriately drafted.

Regarding the potential First Amendment issues, there is an excellent law
student comment surveying the law on the topic: Dru Swaim, State Session
Freeze Laws--Potential Solution or Unconstitutional Restriction?, 37
Seattle U. L. Rev. 255 (2013). First, Swain notes that at least two courts
have outright upheld blackout periods against challenges. Second, Swain
reports that only a single case, a district court opinion in Arkansas, has
invalidated a restriction applying only to incumbents and not to
challengers. Swain characterizes the decision as an outlier, both because
courts have not followed it, and for its reliance on distinguishable and
later-overturned precedent. Third, and particularly important here, Swain
points out that courts invalidating blackout laws view a blackout
provision's application to both challengers and incumbents as a reason *to
strike* the law -- *not* a factor in favor of its constitutionality --
since challengers cannot cast votes or take other official action during
session, and so contributions to challengers bear less of a risk of
corruption or its appearance. Indeed, the Florida Supreme Court invalidated
an earlier statutory version of the state's fundraising blackout provision
in part because it applied to both officeholders and challengers; the court
noted, however, that a more narrowly drafted blackout period would pass
constitutional muster. See State v. Dodd, 561 So. 2d 263 (Fla. 1990).

One thing Swain fails to mention is an element unique to Florida's blackout
rule, which cuts against potential challenges: Florida's provision is
enacted via legislative rule, while most (perhaps all, if the NCSL's list
<http://www.ncsl.org/research/elections-and-campaigns/limits-on-contributions-during-session.aspx>
is still accurate) other blackout provisions are enacted in statute or
administrative provision.

Courts, of course, are generally hesitant to interfere with the
legislature's internal rules and procedures. See, e.g., Nixon v. United
States, 506 U.S. 224 (1993) (holding that a challenge to Congress'
impeachment/removal of a district judge was a nonjustifiable political
question); Nat'l Ass'n of Social Workers v. Harwood, 69 F.3d 622 (1st Cir.
1995) (holding that legislative immunity bars a challenge to a state
legislative prohibition on private lobbyists, but not government lobbyists,
from entering the state legislative chamber during session); Davids v.
Akers, 549 F.2d 120 (9th Cir. 1977) (finding, paradoxically, that judicial
review of state legislative committee assignments was not a political
question, but that "a judicially discoverable and manageable standard
cannot be found" and otherwise writing an opinion that directs courts to
stay out of internal legislative affairs); Common Cause v. Biden, 909 F.
Supp. 2d 9 (D.D.C. 2012) (holding, among other things, that a suit to
overturn the Senate's filibuster is a nonjusticiable political question),
aff'd, 748 F.3d 1280 (D.C. Cir. 2014) (recognizing that the Speech or
Debate Clause would bar a suit against the Senate or individual Senators to
change the Senate's internal rules); Hastings v. United States, 837 F.
Supp. 3 (D.D.C. 1993) ("The legal issue posed in Nixon [v. United States,
cited above] is identical to that [here] . . . ."); Brown v. Hansen, 27
V.I. 175 (D.V.I. 1992) (holding that issue of whether new territorial
legislative procedures were validly enacted was nonjusticiable political
question); Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham, 912
So.2d 204 (Ala. 2005) (rejecting, as nonjusticiable, question of internal
legislative procedure governing what constitutes a voting majority in state
legislature); In re Jud. Conduct Comm., 751 A.2d 514 (N.H. 2000)
(rejecting, as nonjusticiable, action to force state legislative committee
investigating possible impeachment of a judge to allow investigators from
judicial branch agency with concurrent jurisdiction to attend all
proceedings of the legislative committee); State ex rel. Grendell v.
Davidson, 716 N.E.2d 704 (Ohio 1999) (rejecting, as nonjusticiable, an
action to require the state legislature to follow certain procedures);
Mecham v. Ariz. House of Reps., 782 P.2d 1160 (Ariz. 1989) (holding that
the courts have no jurisdiction to review the state legislature's
impeachment/removal decisions).

Florida's courts, in particular, recognize the principle that the judiciary
will generally stay out of the legislature's internal affairs. See Harden
v. Garrett, 483 So. 2d 409 (Fla. 1985) (holding that courts have no
jurisdiction to entertain election contests for state legislative seats, in
light of state constitutional provision granting legislature the power to
judge its members' election returns); McPherson v. Flynn, 397 So. 2d 665
(Fla. 1981) (holding that courts have no jurisdiction to entertain a
challenge to the qualifications of a sitting state legislator, in light of
state constitutional provision granting legislature the power to determine
qualifications of members).

There are of course, counter-examples. See, e.g., Bond v. Floyd, 385 U.S.
116 (1966) (permitting federal judicial intervention, ostensibly on First
Amendment grounds, into state legislative decision to bar black
representative-elect from taking office in the 1960s-era Georgia
legislature); Larsen v. Penn. Senate, 152 F.3d 240 (3d Cir. 1998)
(permitting federal judicial review of state legislative impeachment
proceeding). But the general trend is toward courts staying out of the
legislature's business. And if courts are generally not to inject
themselves into the internal legislative proceedings, then it seems
unlikely that they would invalidate a legislative rule imposing a
fundraising blackout, especially where that rule is narrowly drafted to
comply with the First Amendment.

So if someone were to challenge Florida's dual legislative rules imposing a
limited, session-long fundraising blackout on sitting legislators but not
on non-officeholders, the challenge would present a close call, but I
expect the rules to be upheld. And back to the broader discussion at issue,
such limited-focus blackout periods are one example of a reform that does
not benefit incumbents.


Steve Kolbert
(202) 422-2588
steve.kolbert at gmail.com
@Pronounce_the_T


On Fri, Jul 4, 2014 at 1:50 AM, Larry Levine <larrylevine at earthlink.net>
wrote:

> First, how long would you expect that to hold up under legal challenge?
>
> Second, what difference does it make for incumbents, who a far easier time
> raising funds than a challenger in most instances?
>
> I raise it as an example of how reforms always sound better than they are.
>
> Larry
>
>
>
> *From:* Steve Kolbert [mailto:steve.kolbert at gmail.com]
> *Sent:* Thursday, July 03, 2014 2:16 PM
> *To:* larrylevine at earthlink.net
> *Cc:* law-election at UCI.edu
> *Subject:* Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign
> finance
>
>
>
> With regard's to Larry's question regarding fundraising blackout periods
> applying only to incumbents, not challengers:
>
> Internal legislative rules in both chambers of the Florida Legislature
> prohibit fundraising during the 60-day annual legislative session. See Rules
> of the Florida House of Representatives
> <http://www.myfloridahouse.gov/Sections/Documents/publications.aspx?PublicationType=Reference&DocumentType=The%20Rules%20of%20the%20House%20of%20Representatives>,
> Rule 15.3(b) (adopted 2012); Rules of the Florida Senate
> <http://www.flsenate.gov/PublishedContent/ADMINISTRATIVEPUBLICATIONS/rules.pdf>,
> Rule 1.361(1) (adopted 2012). These internal legislative rules do not apply
> to challengers, who may raise funds during the blackout period.
>
> I'm not aware of whether any incumbent has challenged either of these
> rules either in court or internally within the Legislature. However, as I
> recall, there is an official ruling or opinion (or something) in one
> chamber or the other (or perhaps both), finding that the blackout rules do
> not apply to legislators running for federal office and raising funds for
> their federal campaign.
>
>
>
> Steve Kolbert
> (202) 422-2588
> steve.kolbert at gmail.com
> @Pronounce_the_T
>
>
>
> On Thu, Jul 3, 2014 at 4:12 PM, Larry Levine <larrylevine at earthlink.net>
> wrote:
>
> Take, for instance, blackout periods. Can you prohibit an incumbent from
> raising funds during certain times like when the budget is being debated
> and not prohibit challengers during the same period?
>
>
>
>
>
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