[EL] FEC disclosure rule upheld in Van Hollen case

[Smith, Brad]

Haven't seen this posted, yet. The DC Circuit today again upheld the FEC's regulation regarding disclosure of electioneering communications. Plaintiff Rep. Chris Van Hollen had argued that the regulation violated BCRA because it required disclosure only of persons who contributed to an organization making electioneering communications with an intent to fund a specific communication, rather than all donors to the organization. This is the case that the FEC (defending its regulation) had lost in the district court, and the Democrats on the FEC refused to authorize an appeal. The Center for Individual Freedom intervened and carried forth the appeal.

The Court of Appeals, which previously reversed a trial court judgment that the regulation did not pass Chevron step one, now reverses the trial court ruling that the regulation fails Chevron step II.

The opinion is chock full of good stuff.

"That BCRA seeks more robust disclosure does not mean that Congress wasn't also concerned with, say, the conflicting privacy interests that hand in balance. In fact, Congress 'took great care in crafting ... language to avoid violating the important principles in the First Amendment.'"

"BCRA does not require disclosure at all costs: it limits disclosure in a number of ways ... These disclosure limitations suggest Congress's purposes were far more nuanced than the district court's characterization concedes." (emphasis in original).

"The district court downplays Wisconsin Right to Life's disruptive import [on BCRA and the disclosure regime at issue in McConnell v. FEC].

"Just because one of BCRA’s purposes (even chief purposes) was broader disclosure does not mean that anything less than maximal disclosure is subversive." [Reformers have consistently misrepresented Citizens United as requiring more disclosure, as opposed to merely tolerating it]

"It's hard to escape the intuitive logic behind [the FEC's] rationale [for the narrow disclosure regulation]."

The Court then recognized the problem of junk disclosure that we at CCP have been pointing out: "Imagine the following scenario. A Republican donates $5000 to the American Cancer Society (ACS), eager to fund the ongoing search for a cure. Meanwhile, Republicans in Congress, aware of a growth in private donations to ACS, push for fewer federal grants to scientists studying cancer i order to reduce the deficit. In response to their push, the ACS runs targeted advertisements against those Republicans... Wouldn't a rule requiring disclosure of ACS's Republican donor, who did not support the issue ads against her own party, convey some misinformation to the public about who supported the advertisements?" (emphasis in original).

"The FEC's concerns about the competing interests in privacy and disclosure were legitimate." The Court then goes on to quote Talley v. California and McIntyre v. Ohio Elections Commission regarding the important First Amendment interest in favor of privacy in donations, and then notes that "Both an individual's right to speak anonymously and the public's interest in contribution disclosures are now firmly entrenched in the Supreme Court's First Amendment jurisprudence."

This is an incredibly important recognition, because too many judges, like the "reformers," have insisted on ignoring Supreme Court rulings that protect donor privacy and recognize that disclosure infringes on First Amendment rights. But the Court of Appeals notes, "The deleterious effects of disclosure on speech have been ably catalogued." And it points out that the disclosure rule being advocated here (and elsewhere) "would present its own unique harms," forcing a donor to "decide whether a cancer cure or her associational rights are more important to her."

The Court also makes the important point that "the ones who would truly bear the burden of Van Hollen's preferred rule would not be the wealthy corporations or extraordinarily rich private donors... Such individuals ... can readily hire 'legal counsel who specialize in election matters,' who 'not only will assure compliance but will also exploit the inevitable loopholes.' Instead, such requirements 'will have their real bite when flushing small groups, political clubs, or solitary speakers into the limelight, or reducing them to silence.'" [citation omitted.]

"The FEC’s purpose requirement is more than just a permissible construction of BCRA; it’s a persuasive one."

This is a big deal decision. https://www.cadc.uscourts.gov/internet/opinions.nsf/E90D7BF9ECC39D1085257F41006AF4EC/$file/15-5016-1594896.pdf

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
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: Thursday, January 21, 2016 10:21 PM
To: law-election at department-lists.uci.edu; Richard Painter
Subject: Re: [EL] Federalism and "Take Back Our Republic"

I did not feel comfortable sharing the pdf with the list, but I've copied Richard here.

On 1/21/16 1:42 PM, Scarberry, Mark wrote:
Richard Painter’s great, but I wonder how his proposal squares with federalism concepts. Apparently he is suggesting that Congress can enact his proposal as an ordinary statute. He is right that it doesn’t violate the First Amendment, I think, but can Congress really force states to spend money as a condition of imposing taxes? That seems highly unlikely. Perhaps the “blurb” doesn’t accurately describe his proposal. Obviously his exact proposal couldn’t be adopted at the state level either, inasmuch as it would purport to prohibit the federal government from imposing taxes.

Rick, the press release that you quote indicates that a pdf of the book is attached. Do you know whether there is a way for list members to get the pdf? I don’t begrudge Richard the royalties on sale of the physical book for $19, but it doesn’t seem that his goal is to make money (even if it isn’t dark money and however he might choose to spend it).

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith, Brad
Sent: Wednesday, January 20, 2016 2:13 PM
To: 'Rick Hasen'; law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: Re: [EL] Take Back Our Republic???


Take Back Our Republic has printed 5,000 copies in the first printing, more than 1,000 of which will be distributed in New Hampshire and Iowa in late January and early February.
Leading to the obvious question for a book published by a corporation: would it be permissible to prohibit this type of political advocacy, but for Citizens United?

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault
  Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
(614) 236-6317
<mailto:bsmith at law.capital.edu>bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
<http://www.law.capital.edu/faculty/bios/bsmith.asp>http://www.law.capital.edu/faculty/bios/bsmith.asp

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Wednesday, January 20, 2016 1:35 PM
To: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: [EL] ELB News and Commentary 1/20/16

[snip]

Richard Painter with the Conservative Case for Campaign Finance Reform<http://electionlawblog.org/?p=79150>
Posted on January 20, 2016 9:47 am<http://electionlawblog.org/?p=79150> by Rick Hasen<http://electionlawblog.org/?author=3>

Can’t wait to read this.  Release:

Take Back Our Republic Publishes Book by former President George W. Bush White House Aide:

“Taxation Only with Representation:  The Conservative Conscience and Campaign Finance Reform” by Richard W. Painter



Author Richard Painter was President George W. Bush’s chief White House ethics lawyer, and he is now a law professor at the University of Minnesota.  He wrote the book throughout 2014 and 2015 with the financial support of a full year residential fellowship from Harvard University’s Safra Center for Ethics.

Painter’s book discusses in detail:
·         How the current system of campaign finance undermines the system of participatory democracy envisioned by the original Tea Party and the founding fathers of our Country.
·         The fact that conservative political thinkers from Edmund Burke to Barry Goldwater have warned against the corrupting influence of costly elections.
·         Campaign money is driving the growth of excessive government spending and regulation and encourages the growth of inefficient and corrupt government sponsored enterprises (GSEs).
·         Campaign money is silencing the voice of social conservatives and faith-based voters on virtually every issue, ranging from protection of human life and religious freedom to school choice, drugs, pornography and gambling.
·         Campaign money is increasingly likely to originate outside the United States, giving sovereign wealth funds, foreign governments and even terrorist organizations ample opportunity to influence our government and undermine our national security and independence.



The principal solution Painter proposes is to allow ordinary voters to participate in funding political campaigns out of their tax dollars.   His proposed “Taxation only with Representation” amendment or statute can be enacted at the national or state level and does not run afoul of any existing first amendment rights in the Constitution.  It provides:

Neither the government of the United States nor any state or subdivision thereof shall levy an income tax, sales tax, property tax, inheritance tax or any other tax upon any natural person over 18 years of age who is a citizen of the United States or upon his or her estate unless the United States government or the state levying said taxes pays an amount totaling at least two hundred dollars within the same calendar year or within the immediately following calendar year to the campaign of one or more candidates for elected federal or state or local office chosen by such citizen for whom such citizen is also eligible to vote or running for office in the state in which the citizen resides.  A citizen’s right to designate taxpayer funded political contributions pursuant to this amendment is waived in any year in which the citizen fails to designate a recipient of such payment or dies before designating a recipient of such payment. Every five years after adoption of this amendment, Congress shall by statute or, in the event Congress shall not enact such a statute, the United States Treasury shall by regulation, adjust the taxpayer funded political contribution amount to be more or less than two hundred dollars to reflect changes in the purchasing power of the United States dollar within the preceding five years.

Painter proposes that the private sector develop innovative solutions to bring more small donors into the fray.  For example, a “Democracy Dollars” program in which retailers would, in place of making their own contributions to PACs, allow customers to give money to candidates of their choice based on customer loyalty points.  Painter urges that when the private sector tries to help citizens solve the campaign finance problem, government must not be allowed to stand in the way.

Take Back Our Republic has printed 5,000 copies in the first printing, more than 1,000 of which will be distributed in New Hampshire and Iowa in late January and early February.

The book can be found on Amazon.com<http://www.amazon.com/Taxation-Only-Representation-Richard-Painter/dp/1939324122/ref=sr_1_1?ie=UTF8&qid=1453239273&sr=8-1&keywords=taxation+only+with+representation> or at or by contacting Take Back Our Republic at 334-329-7258<tel:334-329-7258>.  A complimentary PDF version is attached as well.


[Share]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79150&title=Richard%20Painter%20with%20the%20Conservative%20Case%20for%20Campaign%20Finance%20Reform&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>


[snip]


--

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



_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
http://department-lists.uci.edu/mailman/listinfo/law-election


--
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
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160122/dc81b8ca/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: ATT00001.png
Type: image/png
Size: 1504 bytes
Desc: ATT00001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160122/dc81b8ca/attachment.png>