[EL] “Judge tosses Kentucky’s ban on corporate campaign donations”

[Allen Dickerson]

Rick,


I wrote a short piece on this topic for the Toledo Law Review a few years back. My own conclusion was that Austin's equal protection holding had not been overturned by Citizens United, but that the Eighth Circuit decision in Minn. Citizens Concerned for Life v. Swanson was correct in stating that (1) Austin applied strict scrutiny to equal protection claims in this area, and so (2) a fact-specific inquiry would be required, one that took account of Citizens United's rejection of the anti-distortion rationale.


It seems such a fact-specific inquiry did take place here, and that the state conceded that corporations and unions were similarly situated in the context of Kentucky law. (P. 10) ("During oral argument, Defendants further conceded that there are no relevant differences between LLCs and corporations in this context that would justify such disparate treatment.").  Since Austin required the application of strict scrutiny, that concession was fatal.


The article is "What Remains of Austin After Citizens United," 44 U. Tol. L. Rev. 569 (2013) if anyone is interested. Given recent cases, including this one and Wagner, the topic is ripe for fuller consideration.


Thanks for raising an interesting point.


Allen


Allen Dickerson

Legal Director

Center for Competitive Politics

(703) 894-6800

________________________________
From: law-election-bounces at department-lists.uci.edu <law-election-bounces at department-lists.uci.edu> on behalf of Rick Hasen <rhasen at law.uci.edu>
Sent: Friday, April 1, 2016 10:52 AM
To: law-election at UCI.edu
Subject: Re: [EL] “Judge tosses Kentucky’s ban on corporate campaign donations”

Opinion: http://electionlawblog.org/wp-content/uploads/Protect-My-Check-v.-Dilger-EDKY.pdf


On 4/1/16 9:43 AM, Rick Hasen wrote:
“Judge tosses Kentucky’s ban on corporate campaign donations”<http://electionlawblog.org/?p=81427>
Posted on April 1, 2016 7:27 am<http://electionlawblog.org/?p=81427> by Rick Hasen<http://electionlawblog.org/?author=3>

AP<http://www.washingtontimes.com/news/2016/mar/31/judge-issues-temporary-injunction-in-campaign-fina/>:

A federal judge has ruled that Kentucky cannot bar a corporation from contributing to political campaigns while no such restrictions apply to other organizations such as labor unions.

The ruling stems from the heated battle over “right-to-work” legislation in the state: the labor unions that oppose those measures are allowed to make political donations, while a non-profit corporation that promotes them is not.

I have not yet seen this opinion (if anyone has it please send it along), but it seems to conflict with the Supreme Court’s equal protection holding in Austin v. Michigan Chamber of Commerce<https://scholar.google.com/scholar_case?case=3609582225306729508&hl=en&as_sdt=6&as_vis=1&oi=scholarr>, which rejected just such an argument because Michigan’s law (on expenditures) targeted corporations (though not media corporations) but not unions:

Because we hold that § 54(1) does not violate the First Amendment, we must address the Chamber’s contention that the provision infringes its rights under the Fourteenth Amendment. The Chamber argues that the statute treats similarly situated entities unequally. Specifically, it contends that the State should also restrict the independent expenditures of unincorporated associations with the ability to accumulate large treasuries and of corporations engaged in the media business.

Because the right to engage in political expression is fundamental to our constitutional system, statutory classifications impinging upon that right must be narrowly tailored to serve a compelling governmental interest. Police Department of Chicago v. Mosley,408 U. S. 92, 101 (1972)<https://scholar.google.com/scholar_case?case=7757495192285749706&hl=en&as_sdt=6,44&as_vis=1>. We find that, even under such strict scrutiny, the statute’s classifications pass muster under the Equal Protection Clause. As we explained in the context of our discussions of whether the statute was overinclusive, supra, at 660-661, or underinclusive, supra, at 665 and this page, the State’s decision to regulate only corporations is precisely tailored to serve the compelling state interest of eliminating from the political process the corrosive effect of political “war chests” amassed with the aid of the legal advantages given to corporations.

Although a different aspect of Austin was overruled in Citizens United, I believe this aspect of the opinion remains good law.

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


--
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
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