[EL] CCP v. Harris

[Richard Winger]

read Brown v Socialist Workers '74 Campaign Committee, 459 US 87.
 Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147
      From: Bill Maurer <wmaurer at ij.org>
 To: Edward Still <still at votelaw.com>; Allen Dickerson <adickerson at campaignfreedom.org> 
Cc: "law-election at uci.edu" <law-election at uci.edu> 
 Sent: Monday, November 9, 2015 12:33 PM
 Subject: Re: [EL] CCP v. Harris
   
#yiv1229335475 #yiv1229335475 -- _filtered #yiv1229335475 {panose-1:2 11 6 9 7 2 5 8 2 4;} _filtered #yiv1229335475 {panose-1:2 11 6 9 7 2 5 8 2 4;} _filtered #yiv1229335475 {font-family:Calibri;panose-1:2 15 5 2 2 2 4 3 2 4;} _filtered #yiv1229335475 {font-family:Tahoma;panose-1:2 11 6 4 3 5 4 4 2 4;} _filtered #yiv1229335475 {font-family:Garamond;panose-1:2 2 4 4 3 3 1 1 8 3;} _filtered #yiv1229335475 {font-family:Consolas;panose-1:2 11 6 9 2 2 4 3 2 4;} _filtered #yiv1229335475 {panose-1:2 11 6 9 7 2 5 8 2 4;}#yiv1229335475 #yiv1229335475 p.yiv1229335475MsoNormal, #yiv1229335475 li.yiv1229335475MsoNormal, #yiv1229335475 div.yiv1229335475MsoNormal {margin:0in;margin-bottom:.0001pt;font-size:12.0pt;}#yiv1229335475 h2 {margin-right:0in;margin-left:0in;font-size:18.0pt;font-weight:bold;}#yiv1229335475 a:link, #yiv1229335475 span.yiv1229335475MsoHyperlink {color:blue;text-decoration:underline;}#yiv1229335475 a:visited, #yiv1229335475 span.yiv1229335475MsoHyperlinkFollowed {color:purple;text-decoration:underline;}#yiv1229335475 p {margin-right:0in;margin-left:0in;font-size:12.0pt;}#yiv1229335475 pre {margin:0in;margin-bottom:.0001pt;font-size:10.0pt;}#yiv1229335475 span.yiv1229335475Heading2Char {color:#4F81BD;font-weight:bold;}#yiv1229335475 span.yiv1229335475HTMLPreformattedChar {font-family:Consolas;}#yiv1229335475 span.yiv1229335475hoenzb {}#yiv1229335475 span.yiv1229335475EmailStyle22 {color:#002060;}#yiv1229335475 .yiv1229335475MsoChpDefault {} _filtered #yiv1229335475 {margin:1.0in 1.0in 1.0in 1.0in;}#yiv1229335475 div.yiv1229335475WordSection1 {}#yiv1229335475 Rick’s commented that “There is no constitutional impediment to [disclosure], except as to those groups which can demonstrate a realistic threat of harassment.”    I’ve never seen a discussion of what exactly a plaintiff would have to do to demonstrate a realistic threat of harassment. Wouldn’t evidence of a realistic threat be evidence of actual harassment (for instance, I don’t see those doing the harassing sending out a pre-harassment notice that they will be engaging in future harassment, although I suppose someone could do that)? And what about new groups with new issues? How are they supposed to demonstrate the realistic threat?    In other words, I don’t see the “harassment” standard as protecting much of anything going forward—it is entirely backward looking and, for that reason, utterly useless as a protection against harassment in the first instance.    That is exactly the point Brad made about the inadvertent disclosure analysis of the Ninth Circuit. The court essentially said, you can’t get protection from inadvertent disclosure until the information has been inadvertently disclosed. At which point, it doesn’t matter.    And what’s the standard for harassment? Is it violence or coercion, because I’ve heard a number of commentators (including Justice Scalia) suggest that anything short of that is the price of being involved in politics? Be we already have laws against violence or coercion. So, are laws against assault supposed to be the things that demark the outer edge of how far the government can go in collecting information about those who decide to exercise their fundamental rights?    Isn’t the real standard that anyone who participates in political activity in this country should be aware that by doing so they are opening themselves up to governmental scrutiny in perpetuity with no realistic protection against misuse of the information the government has collected?    Of course, a legitimate response to this is “We don’t care if people are harassed or their information misused.” But, why not say that?    Bill    

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu]On Behalf Of Edward Still
Sent: Monday, November 09, 2015 9:04 AM
To: Allen Dickerson
Cc: law-election at uci.edu
Subject: Re: [EL] CCP v. Harris    The Questions Presented were: QUESTIONS PRESENTED 1. Whether a state official’s demand for all significant donors to a nonprofit organization, as a precondition to engaging in constitutionally-protected speech, constitutes a First Amendment injury. 2. Whether the “exacting scrutiny” standard applied in compelled disclosure cases permits state officials to demand donor information based upon generalized “law enforcement” interests, without making any specific showing of need. The cert petition is at http://electionlawblog.org/?p=74940.    
 Edward Still
Edward Still Law Firm LLC 429 Green Springs Hwy, STE 161-304 Birmingham AL 35209
205-320-2882
still at votelaw.com  
www.votelaw.com/blog
www.edwardstill.com
www.linkedin.com/in/edwardstill

    On Mon, Nov 9, 2015 at 10:48 AM, Allen Dickerson <adickerson at campaignfreedom.org> wrote: The point was to protect CCP's donors from scrutiny and potential leaks, inadvertent or otherwise, by a state AG who believed she was entitled to their identities without making any showing of need whatsoever. The case did not address the public informational interest behind campaign finance disclosure, which we couldn't do in any case because that wasn't the state's stated interest. Campaign finance simply wasn't involved.    (Steve: the stated governmental interest was greater efficiency in exercising the AG's law enforcement duties).       
On Nov 9, 2015, at 11:34 AM, Rick Hasen <rhasen at law.uci.edu> wrote: 
I think this case had the potential to undermine campaign disclosure rules if successful, and I think that was the point.
And yes, I absolutely would have written the same comment if it were the Brennan Center or the ACLU suing the Texas AG.
Rick On 11/9/2015 8:08 AM, Allen Dickerson wrote: 
Rick,    Your post seriously misinterprets CCP v. Harris, a case that has nothing to do with political activity or campaign finance. California's registration policy applies only to 501(c)(3) organizations. And CCP, like all 501(c)(3) groups, is prohibited from engaging in political activity. The informational interest undergirding campaign finance disclosure simply isn't implicated here.    A thought experiment: would you have written the same comment if the Brennan Center or ACLU had sued the Texas AG on the same claim?    I recognize the ever-present danger of seeing campaign finance issues everywhere when that's one's area of expertise. But our case is a very poor fit for your political disclosure narrative.     Best, Allen    
On Nov 9, 2015, at 10:48 AM, Rick Hasen <rhasen at law.uci.edu> wrote: 

“Democracy for GrownUps”
 Posted on November 9, 2015 7:46 am by Rick Hasen I have written this review of Bruce Cain’s Democracy More or Less for the New Rambler Review.  It begins: 
Modern American democracy is often messy, increasingly polarized, sometimes stupefying, and surprisingly decentralized. Our Congress functions (or doesn’t) mainly along party lines under rules set in a Constitution more than 200 years old which does not recognize political parties, and indeed was designed to stifle their emergence. Divided government in times of polarized parties has undermined accountability as each side can blame the other for policy failures, and we lurch from one potential government shutdown to another thanks in part to polarization and in part to internal fighting within the Republican Party. Much power devolves to the state and local level, where we often see one-party rule rather than the partisan stalemate of Congress. State one-partyism extends even to the rules for conducting elections, where a majority of states use partisan election officials to set the rules of the game and to carry out our elections, and where state legislatures draw their own legislative districts only mildly constrained by Supreme Court one-person, one-vote requirements. Our campaign finance system is careening toward deregulation, with a series of Supreme Court decisions and partially enforceable congressional measures leading to the creation of political organizations, some of which can shield their donors’ identities, allowing the wealthiest of Americans to translate their vast economic power into political power. Money spent to influence elections is complemented by money spent to influence public policy through lobbying, creating a system in which those with great wealth and organizational ability have a much better chance of having their preferences enacted in law and having their preferred candidates elected, than average Americans have. It is no wonder that the reform impulse in American politics is strong. States with the initiative process have experimented with top-two primaries in which the top two vote getters, regardless of party, go to a runoff, and redistricting reform featuring either citizen commissions or substantive limits on legislative self-dealing. The National Popular Vote movement seeks an end run around the antiquated rules of the Electoral College, which violate modern accepted principles of one-person, one-vote by giving small states outsized power relative to their populations. Reformers push a constitutional amendment to overturn the Supreme Court’s decision in Citizens United and other cases which hamstring the government’s ability to control money in politics. Good government groups regularly clamor for redistricting reform (often joined by the political party on the losing side of redistricting in each state), expansion of voting rights for former felons and others, and the end of corruption and patronage. Some even call for constitutional conventions with citizen participants chosen by lottery. But as Bruce Cain argues in his terrific new book, the never-ending efforts at reform present tradeoffs, and attempts to achieve either pure majoritarianism or government meritocracy can have unintended and unwanted consequences. Further, many reform efforts are oversold as a cure for all that ails American democracy. Cain argues for a Goldilocks-like pluralist reform agenda which recognizes that busy citizens lack interest in governing and capacity to make complex decisions. Instead, politics is conducted through intermediaries across the range of local, state, and national governing arenas. Pluralism “prioritizes aggregation, consensus, and fluid coalitions as a means of good democratic governance.” (p. 11) 
<share_save_171_16.png> Posted in theory 
ELB Podcast Episode 6. Nate Persily: Can the Supreme Court Handle Social Science In Election Cases?
 Posted on November 9, 2015 7:42 am by Rick Hasen Can the Supreme Court handle social science evidence in election law cases? Will lack of good data determine the outcome of the Supreme Court’s upcoming one person, one vote decision in Evenwel v. Abbott? What role will and should evidence play in assessing questions such as the constitutionality of McCain-Feingold’s soft money ban or Texas’s strict voter identification law. On Episode 6 of the ELB Podcast, we talk to law professor and political scientist Nate Persily of Stanford Law School, one of the country’s leading redistricting and election law experts. You can listen to the ELB Podcast Episode 6 on Soundcloud or subscribe at iTunes.   <share_save_171_16.png> Posted in ELB Podcast, Supreme Court 
“Democratic Group Called iVote Pushes Automatic Voter Registration”
 Posted on November 9, 2015 7:38 am by Rick Hasen NYT: 
As Republicans across the country mount an aggressive effort to tighten voting laws, a group of former aides to President Obama and President Bill Clinton is pledging to counter by spending up to $10 million on a push to make voter registration automatic whenever someone gets a driver’s license. The change would supercharge the 1993 National Voter Registration Act, known as the “motor voter” law, which requires states to offer people the option of registering to vote when they apply for driver’s licenses or other identification cards. The new laws would make registration automatic during those transactions unless a driver objected. The group, called iVote — which is led by Jeremy Bird, who ran Mr. Obama’s voter turnout effort in 2012 — is betting that such laws could bring out millions of new voters who have, for whatever reason, failed to register even when they had the opportunity at motor vehicle departments…. Kris W. Kobach, the secretary of state in Kansas and a Republican, who has been a leading advocate of stricter voting laws, said he opposed automatic registration because people who chose not to register were clearly not interested in voting. “The assumption that by making what is already easy automatic that will somehow bring people to the polls is just erroneous,” Mr. Kobach said. “I just think it’s a bad idea. It’s not going to increase participation rates.” Mr. Kobach has pushed for some of the nation’s most restrictive voting laws, including one that requires proof of citizenship. He said automatic registration would make that kind of check impossible. “You’re going to end up with aliens on the voter rolls,” Mr. Kobach said. “It’s inevitable that an automatic registration system would result in many of them getting on.” 
<share_save_171_16.png> Posted in election administration, The Voting Wars, voter registration 
“Inside the abandoned plans of Ted Cruz’s super PACs”
 Posted on November 9, 2015 7:32 am by Rick Hasen Teddy Schleifer for CNN: 
The super PACs are staffed in part by a few individuals with no formal political experience, including Neugebauer, who has been the groups’ main fundraiser and formerly its chief executive officer — in addition to one of its lead donors. The groups have only recently begun hiring their first political professionals, including a new professional fundraiser: Campbell Smith, a finance official at the National Rifle Association, the super PACs confirmed to CNN. The ditched buy is at the heart of the dispute between the campaign and the super PAC — a dispute that spilled out into the public this week, with several campaign advisers telling Politico that they want to see Keep the Promise purchase advertising time immediately. Campaigns and super PACs frequently read one another’s messages in the press with a fine-toothed comb to learn thinking that they cannot legally directly share with one another. It’s a reflection of the divided campaign finance world, where super PACs are allowed to raise unlimited amounts of cash (donations must still be reported to the Federal Election Commission), but the catch is that campaign and super PAC officials aren’t allowed to coordinate. Neugebauer’s pitch at The Broadmoor came without Cruz staffers in the room, for instance, a donor said. And amid increasing questions about the super PAC, campaign officials are coming to the defense of Neugebauer, who left his role at the super PAC in a shake-up, and are praising his ability to incentivize two more eight-digit donations with a $10 million check of his own. 
<share_save_171_16.png> Posted in campaign finance, campaigns 
“The battle over campaign finance reform is changing. Here’s how.”
 Posted on November 9, 2015 7:31 am by Rick Hasen WaPo talks with Josh Silver of represent.us. <share_save_171_16.png> Posted in campaign finance 
Bauer on Justice Kennedy on Citizens United at Harvard
 Posted on November 9, 2015 7:23 am by Rick Hasen Bauer blogs.  <share_save_171_16.png> Posted in campaign finance, Supreme Court 
Breaking: #SCOTUS <mime-attachment.png> Political Disclosure, Denies Cert. in CCP v. Harris
 Posted on November 9, 2015 7:19 am by Rick Hasen The Supreme Court, without noted dissent, has denied cert. in Center for Competitive Politics v. Harris. The question concerns whether CA AG Harris can have access to CCP’s donor list for law enforcement purposes (and not for public disclosure) or whether such access violates the First Amendment. This cert. denial follows a string of cases in which the Supreme Court has endorsed disclosure as the appropriate way to deal with political activity (rather than campaign finance limits). These cases include McConnell v. FEC, Citizens United v. FEC, and Doe v. Reed.  Aside from Justice Thomas (and to some extent Justice Alito), the Court has a strong belief in the benefits of disclosure in providing valuable information to voters, deterring corruption, and aiding in law enforcement. It is clearJustice Kennedy is upset that political forces have not enhanced disclosure since Citizens United. There is no constitutional impediment to it, except as to those groups which can demonstrate a realistic threat of harassment. The claims of harassment of contributors to conservatives causes have turned out to be greatly exaggerated. I explore this most recently in Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, 27 Journal of Law and Politics 557 (2012). This is good news, although disclosure is far from enough to deal with other problems with our campaign finance system.   <share_save_171_16.png> Posted in campaign finance, campaigns, Supreme Court 
“California’s ballot could be a blockbuster next November”
 Posted on November 8, 2015 7:05 pm by Rick Hasen John Myers for the LAT: 
The list of measures is very much a work in progress. Most campaigns are still gathering voter signatures or waiting for their proposals to be vetted by state officials. But political strategists have identified at least 15 — perhaps as many as 19 –measures that all have a shot at going before voters next fall. The last time California’s ballot was that long was in November 2004, when there were16 propositions. The March 2000 ballot had 20. Here are the expected 2016 ballot initiatives A number of political forces help explain why so many are lined up now. For starters, there’s the 2011 law that moved everything but measures written by the Legislature to the general election ballot. As a result, June primary ballots are now almost barren of contentious campaigns. There is also a lingering hangover from the state’s record-low voter turnout in 2014: a new and extremely low number of voter signatures needed to qualify an initiative for the ballot. 
<share_save_171_16.png> Posted in direct democracy 
“As Lawrence Lessig’s Long-Shot Bid Ends, What’s To Come For His Key Issue?”
 Posted on November 8, 2015 4:26 pm by Rick Hasen Michel Martin interviews Lessig for NPR. <share_save_171_16.png> Posted in campaign finance, campaigns 
“Lawmakers Ponder New Redistricting Methods”
 Posted on November 8, 2015 1:03 pm by Rick Hasen CBS Miami: 
Oliva, who is set to take over as speaker of the House after the 2018 elections, said in the wake of the failed session that he was ready to consider an independent redistricting commission that would recommend maps to the Legislature. The House and Senate also failed to agree on a congressional redistricting plan during an August special session. “I’m for looking into it, because I certainly think that we need to have maps that aren’t disputed halfway into the next Census,” Oliva said. At the same time, he pointed out some of the pitfalls for a commission. 
  <share_save_171_16.png> Posted in citizen commissions, redistricting 
“‘SNL’ Gives Donald Trump Just 12 Minutes On Screen”
 Posted on November 8, 2015 12:59 pm by Rick Hasen Variety: 
His minimal appearance on the show would suggest NBC was extremely cognizant of TV’s so-called “equal time” rule, which mandates that U.S. broadcast and radio stations that grant appearances to political candidates must provide an equal amount of time to other candidates who request it….Candidates who want equal time are not guaranteed to get what Trump received. NBC could send them to various programs operated by NBC News, or to NBC-owned stations or some of the network’s affiliates. But other people striving for the office could certainly gain publicity for themselves by making the request – and bring more scrutiny to the broadcast network, which is owned by Comcast’s NBCUniversal unit. 
<share_save_171_16.png> Posted in campaigns 
What To Do About Truthiness in Campaigns? Not Much
 Posted on November 8, 2015 12:54 pm by Rick Hasen The New York Times notes that truth seems to be a particular casualty of the 2016 election. It might make one think of laws barring false campaign speech.  But there are serious constitutional impediments to such laws, as I explored recently in A Constitutional Right to Lie in Campaigns and Elections?, 74Montana Law Review 53 (2013).   <share_save_171_16.png> Posted in campaigns 
“In Seattle, a Campaign Finance Plan That Voters Control”
 Posted on November 8, 2015 12:52 pm by Rick Hasen NYT editorial: 
In Tuesday, Seattle voters advanced the city’s reputation for progressivism when they approved a bold and unusual campaign finance reform plan. The plan will draw on real estate taxes to give every registered voter $100 in “democracy vouchers” to spend on candidates in the next city elections. The 10-year, $30 million experiment in taxpayer subsidized elections was approved by a 20 percent margin in an initiative that supporters said was a reaction to the ability of affluent donors to dominate campaigns. Under the plan, every voter will receive four $25 vouchers in every election cycle to be used only as campaign contributions to candidates in city races. Candidates are free to decline the money, but those who accept it will have to observe lower campaign spending and contribution limits, and agree to participate in at least three debates against rivals. The program will be financed by a property tax levy that works out to an estimated $9 a year on a $450,000 property. The unusual initiative is being closely watched by government reform groups in other parts of the nation, some of which helped finance the effort to get the initiative approved. 
  <share_save_171_16.png> Posted in campaign finance 
Listen to the Oral Argument in Shapiro v. McManus Case
 Posted on November 8, 2015 12:40 pm by Rick Hasen Here, at Oyez. <share_save_171_16.png> Posted in redistricting, Supreme Court 
“Garcetti explains email endorsement mistake”
 Posted on November 8, 2015 12:31 pm by Rick Hasen KPCC reports. 
Los Angeles Mayor Eric Garcetti expanded Friday on an email gaffe involving his endorsement of presidential candidate Hillary Clinton. The Thursday email episode made headlines around the country. Through a city email account, a communications staffer for the mayor sent out an email quoting Garcetti endorsing Clinton for president. Just over an hour later, that email was retracted. Even later on Thursday, his campaign confirmed that Garcetti is backing Clinton. At an event downtown Friday afternoon, Garcetti called the email from his office a mistake. 
<share_save_171_16.png> Posted in campaigns 
“Feds investigate Gov. Susana Martinez adviser Jay McClesky, campaign funds”
 Posted on November 8, 2015 12:26 pm by Rick Hasen Santa Fe New Mexican: 
For the past several months, the FBI has been interviewing some state Republicans about Gov. Susana Martinez’s fundraising activities going back to her first run for governor. One prominent New Mexico Republican, who spoke on the condition of anonymity, confirmed being interviewed in recent months by federal agents about funds from Martinez’s campaign, as well as money from her 2011 inauguration committee, going to the governor’s political consultant, Jay McCleskey. 

This person also said agents asked questions about different “fundraising vehicles,” such as political action committees, used by Martinez’s political wing, though it was unclear what potential violations federal agents are investigating. 
<share_save_171_16.png> Posted in campaign finance, chicanery --  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 hhttp://www.law.uci.edu/faculty/full-time/hasen/ http://electionlawblog.org 

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 --  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 hhttp://www.law.uci.edu/faculty/full-time/hasen/ http://electionlawblog.org 

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