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

[Larry Levine]

I'll address only the first of your points: the effectiveness of blackout
periods. They are form without substance; they do nether harm nor good,
unless there is harm in the appearance of reform where the reform is
meaningless.

Let's start with an acknowledgement that money will find its way into
politics no matter what we do. Now, let's acknowledge that certain interest
groups are motivated to give money to incumbents, and/or to spend money
independently in support of incumbents. So, if a blackout period were to
begin 60 days before an election, then day 50 to 59 before that election
every incumbent would schedule fundraising events and dialing for dollars.
The net effect would not be to diminish contributions to incumbents by
interest groups, just change the calendar for those contributions. A
recently enacted blackout rule by the California State Senate covers a
period leading up to passage of the state budget. We can conclude every
restaurant in town will be booked solid with fundraising receptions for the
month before the blackout begins and starting again the day after the budget
deadline. 

Blackouts will have no effect on how much is given to an incumbent by any
particular contributor, only when the contribution is made. But the press
and the public will accept it as a proper reaction to two recent financial
scandals involving incumbent state senators.

Larry 

 

From: Steve Kolbert [mailto:steve.kolbert at gmail.com] 
Sent: Friday, July 04, 2014 12:37 PM
To: Larry Levine
Cc: law-election at uci.edu
Subject: Re: fundraising blackout rules (prev'ly "Re: [EL] WARNING: SNARK
AHEAD RE: Supreme Court and campaign finance")

 

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-contribution
s-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?Publicat
ionType=Reference&DocumentType=The%20Rules%20of%20the%20House%20of%20Represe
ntatives> , Rule 15.3(b) (adopted 2012); Rules of the Florida Senate
<http://www.flsenate.gov/PublishedContent/ADMINISTRATIVEPUBLICATIONS/rules.p
df> , 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 <tel:%28202%29%20422-2588> 
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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