[EL] FW: FEC disclosure rule upheld in Van Hollen case

[Robbin Stewart]

Thanks Jason. I brought and argued Majors v Abell, and that dubitante
opinion is about all I got out of it,
so I enjoyed finding it quoted 4 times in Van Hollen, which looks like an
important case.
Majors was the (citation omitted) in Brad's post above.
If the case continues, either en banc or with a cert petition,and anybody's
doing an amicus, feel free to contact me.
http://ballots.blogspot.com/2016/01/van-hollen-smackdown-dc-circuit-has.html

On Fri, Jan 22, 2016 at 12:03 PM, Jason Torchinsky <jtorchinsky at hvjt.law>
wrote:

> All,
>
>   To follow up on Brad’s post, I represented another intervenor defendant
> in the case – Hispanic Leadership Fund.
>
>    If you haven’t read it, I commend to you Judge Easterbrook’s dubitante
> opinion in Majors v. Abell, 361 F.3d 349 (7th Cir. 2004):
> https://scholar.google.com/scholar_case?case=9737092812278680955&q=easterbrook+dubitante&hl=en&as_sdt=6,47
>
>
>   Judge Randolph raised this at oral argument, and it clearly played a
> role in the court’s thinking on the case.  I don’t believe any of the
> parties cited to this opinion in briefing.
>
>  - Jason
>
>
>
> Jason Torchinsky
>
>
> From: <law-election-bounces at department-lists.uci.edu> on behalf of
> Bradley Smith <bsmith at law.capital.edu>
> Date: Thursday, January 21, 2016 at 11:32 PM
> To: "law-election at department-lists.uci.edu" <
> law-election at department-lists.uci.edu>
> Subject: [EL] FEC disclosure rule upheld in Van Hollen case
>
>
> 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 <614.236.6317>*
>
> *http://law.capital.edu/faculty/bios/bsmith.aspx
> <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
> <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
> *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 <%28614%29%20236-6317>*
>
> * <bsmith at law.capital.edu>bsmith at law.capital.edu <bsmith at law.capital.edu>*
>
> *
> <http://www.law.capital.edu/faculty/bios/bsmith.asp>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
> <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
> *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 <334-329-7258>.
> A complimentary PDF version is attached as well.*
>
>
>
> [image: 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
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
>
>
> _______________________________________________
> Law-election mailing listLaw-election at department-lists.uci.eduhttp://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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
>
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