[EL] ELB News and Commentary 3/22/17

Wed Mar 22 08:16:50 PDT 2017

Prof. Hasen (and anyone who would care to weigh in),

Do you agree with Sen. Whitehouse’s contention that someone's "spending $10
million to get Gorsuch confirmed” could be categorized as “dark money”?

---

*Will Gorsuch Break With Scalia, Providing 2d (or 3d) Vote To Allow Flood
of Undisclosed Money in Elections? <http://electionlawblog.org/?p=91744>*

Posted on March 22, 2017 7:49 am <http://electionlawblog.org/?p=91744> by *Rick
Hasen* <http://electionlawblog.org/?author=3>

The Supreme Court has long upheld the constitutionality of requiring
disclosure of the money behind elections, lobbying, and many political
activities. In the 1976 *Buckley v. Valeo *case, the Court held that such
disclosure, while implicating First Amendment rights, served three
important government interests: deterring corruption, providing voters with
valuable information, and helping to enforce other laws (such as the ban on
foreign money in US elections).

Although the Court has repeatedly upheld disclosure laws against First
Amendment challenge, Justice Thomas has taken the position that there is a
constitutional right to anonymity, and Justice Alito has been moving in
that direction (as in his Doe v. Reed concurrence), suggesting that
disclosure laws can chill activity. Justice Scalia, an originalist like
Justice Thomas, disagreed that the original meaning of the First Amendment
required anonymity, famously writing in *Doe*:

*For my part, I do not look forward to a society which, thanks to the
Supreme Court, campaigns anonymously … and even exercises the direct
democracy of initiative and referendum hidden from public scrutiny and
protected from the accountability of criticism. This does not resemble the
Home of the Brave.*

 There has been a continued push by campaign deregulationists to get the
Court to water down corruption on First Amendment grounds—not to throw it
out entirely as to campaigns, but to allow outside groups to mask their
donors. (It is already now pretty easy to do this under federal law, but
that’s a political, not legal, problem. Congress needs to rewrite the laws
to make disclosure work).

So where would a Justice Gorsuch be on this? Would he be with a majority
that has upheld disclosure, or would he be with J. Thomas and, likely
Justice Alito, believing that the “chill” of compelled disclosure requires
constitutional anonymity?

If you watch the exchange with Senator Whitehouse from yesterday’s hearing,
<http://www.slate.com/blogs/the_slatest/2017/03/21/whitehouse_grills_gorsuch_on_dark_money_and_citizens_united.html>I
believe there is a good chance Gorsuch will be in the Thomas/Alito camp. He
spoke of the “chill” and did not really give any reason why disclosure
might be valuable. He never suggested, for example, that the public might
have an interest in knowing who is spending millions to support his
campaign. From Slate:

*And because of our lax disclosure laws, it is often very difficult to
determine who is spending money and how. For example, Whitehouse said,
someone is spending $10 million to get Gorsuch confirmed.*

*“Hypothetically,” he continued, it could be “your friend Mr. Anschutz. We
don’t know because it is dark money
<https://en.wikipedia.org/wiki/Dark_money>.” He asked Gorsuch why someone
thought it was worth $10 million to get him confirmed.*

*“You’d have to ask them,” a frustrated Gorsuch responded.*

*“I can’t,” Whitehouse said, “because I don’t know who they are. It’s just
a front group.”*

What does it matter, if he’s only a second or third vote? Because we can
look to the future, 10 years from now, and there could well be more
Gorsuch’s on the Court.

It makes me worried.

[image: hare]
<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91744&title=Will%20Gorsuch%20Break%20With%20Scalia%2C%20Providing%202d%20(or%203d)%20Vote%20To%20Allow%20Flood%20of%20Undisclosed%20Money%20in%20Elections%3F>

Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>

On Wed, Mar 22, 2017 at 11:01 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

> *Will Gorsuch Break With Scalia, Providing 2d (or 3d) Vote To Allow Flood
> of Undisclosed Money in Elections? <http://electionlawblog.org/?p=91744>*
>
> Posted on March 22, 2017 7:49 am <http://electionlawblog.org/?p=91744> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> The Supreme Court has long upheld the constitutionality of requiring
> disclosure of the money behind elections, lobbying, and many political
> activities. In the 1976 *Buckley v. Valeo *case, the Court held that such
> disclosure, while implicating First Amendment rights, served three
> important government interests: deterring corruption, providing voters with
> valuable information, and helping to enforce other laws (such as the ban on
> foreign money in US elections).
>
> Although the Court has repeatedly upheld disclosure laws against First
> Amendment challenge, Justice Thomas has taken the position that there is a
> constitutional right to anonymity, and Justice Alito has been moving in
> that direction (as in his Doe v. Reed concurrence), suggesting that
> disclosure laws can chill activity. Justice Scalia, an originalist like
> Justice Thomas, disagreed that the original meaning of the First Amendment
> required anonymity, famously writing in *Doe*:
>
> *For my part, I do not look forward to a society which, thanks to the
> Supreme Court, campaigns anonymously … and even exercises the direct
> democracy of initiative and referendum hidden from public scrutiny and
> protected from the accountability of criticism. This does not resemble the
> Home of the Brave.*
>
>  There has been a continued push by campaign deregulationists to get the
> Court to water down corruption on First Amendment grounds—not to throw it
> out entirely as to campaigns, but to allow outside groups to mask their
> donors. (It is already now pretty easy to do this under federal law, but
> that’s a political, not legal, problem. Congress needs to rewrite the laws
> to make disclosure work).
>
> So where would a Justice Gorsuch be on this? Would he be with a majority
> that has upheld disclosure, or would he be with J. Thomas and, likely
> Justice Alito, believing that the “chill” of compelled disclosure requires
> constitutional anonymity?
>
> If you watch the exchange with Senator Whitehouse from yesterday’s
> hearing,
> <http://www.slate.com/blogs/the_slatest/2017/03/21/whitehouse_grills_gorsuch_on_dark_money_and_citizens_united.html>I
> believe there is a good chance Gorsuch will be in the Thomas/Alito camp. He
> spoke of the “chill” and did not really give any reason why disclosure
> might be valuable. He never suggested, for example, that the public might
> have an interest in knowing who is spending millions to support his
> campaign. From Slate:
>
> *And because of our lax disclosure laws, it is often very difficult to
> determine who is spending money and how. For example, Whitehouse said,
> someone is spending $10 million to get Gorsuch confirmed.*
>
> *“Hypothetically,” he continued, it could be “your friend Mr. Anschutz. We
> don’t know because it is dark money
> <https://en.wikipedia.org/wiki/Dark_money>.” He asked Gorsuch why someone
> thought it was worth $10 million to get him confirmed.*
>
> *“You’d have to ask them,” a frustrated Gorsuch responded.*
>
> *“I can’t,” Whitehouse said, “because I don’t know who they are. It’s just
> a front group.”*
>
> What does it matter, if he’s only a second or third vote? Because we can
> look to the future, 10 years from now, and there could well be more
> Gorsuch’s on the Court.
>
> It makes me worried.
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91744&title=Will%20Gorsuch%20Break%20With%20Scalia%2C%20Providing%202d%20(or%203d)%20Vote%20To%20Allow%20Flood%20of%20Undisclosed%20Money%20in%20Elections%3F>
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
> Court <http://electionlawblog.org/?cat=29>
>
>
>
>
>
> *Will Democrats Filibuster Gorsuch, Forcing McConnell to Go Nuclear?
> <http://electionlawblog.org/?p=91742>*
>
> Posted on March 22, 2017 7:38 am <http://electionlawblog.org/?p=91742> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> Carl Hulse
> <https://www.nytimes.com/2017/03/22/us/politics/joviality-at-neil-gorsuchs-hearing-masks-drama-behind-the-scenes.html?ref=politics> suggests
> this is a live possibility. The signals I had seen suggested Democrats
> would not filibuster.
>
> We’ll see.
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91742&title=Will%20Democrats%20Filibuster%20Gorsuch%2C%20Forcing%20McConnell%20to%20Go%20Nuclear%3F>
>
> Posted in Supreme Court <http://electionlawblog.org/?cat=29>
>
>
>
>
>
> *“Judge Gorsuch: Do You Back the ‘One Person, One Vote’ Principle?”
> <http://electionlawblog.org/?p=91740>*
>
> Posted on March 22, 2017 7:23 am <http://electionlawblog.org/?p=91740> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> Doug Smith, author of On Democracy’s Doorstep
> <https://www.amazon.com/Democracys-Doorstep-Inside-Supreme-Brought-ebook/dp/B00H0V04TE/ref=as_at?creativeASIN=B00H0V04TE&linkCode=w50&tag=thedailybeast-autotag-20&imprToken=RUiC3c-9qcdvwgANwKXXTA&slotNum=0>, has
> written this article
> <http://www.thedailybeast.com/articles/2017/03/22/judge-gorsuch-do-you-back-the-one-person-one-vote-principle.html> for
> the Daily Beast.
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91740&title=%E2%80%9CJudge%20Gorsuch%3A%20Do%20You%20Back%20the%20%E2%80%98One%20Person%2C%20One%20Vote%E2%80%99%20Principle%3F%E2%80%9D>
>
> Posted in Supreme Court <http://electionlawblog.org/?cat=29>
>
>
>
>
>
> *“Gorsuch Could Undermine Trump Travel Ban”
> <http://electionlawblog.org/?p=91738>*
>
> Posted on March 22, 2017 7:11 am <http://electionlawblog.org/?p=91738> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> Ciara Torres-Spelliscy blogs.
> <http://www.brennancenter.org/blog/gorsuch-could-undermine-trump-travel-ban>
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91738&title=%E2%80%9CGorsuch%20Could%20Undermine%20Trump%20Travel%20Ban%E2%80%9D>
>
> Posted in Supreme Court <http://electionlawblog.org/?cat=29>
>
>
>
>
>
> *“Former Colorado GOP chairman Steven Curtis charged with voter fraud”
> <http://electionlawblog.org/?p=91736>*
>
> Posted on March 21, 2017 8:56 pm <http://electionlawblog.org/?p=91736> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> The Denver Channel
> <http://www.thedenverchannel.com/news/politics/former-colorado-gop-chairman-steven-curtis-charged-with-voter-fraud> with
> a story that is just too rich:
>
> *The former chairman of the Colorado Republican Party is charged with
> forgery and voter fraud for allegedly forging his wife’s mail-in ballot
> from last year’s election, according to court records and sources….*
>
> *The Colorado Secretary of State’s Office says this is the only voter
> fraud case that has ended in charges stemming from last year’s election.*
>
> *Curtis spoke about voter fraud ahead of last year’s election.*
>
> *“It seems to be, and correct me if I’m wrong here, but virtually every
> case of voter fraud I can remember in my lifetime was committed by
> Democrats,” he told KLZ 560.*
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91736&title=%E2%80%9CFormer%20Colorado%20GOP%20chairman%20Steven%20Curtis%20charged%20with%20voter%20fraud%E2%80%9D>
>
> Posted in chicanery <http://electionlawblog.org/?cat=12>, The Voting Wars
> <http://electionlawblog.org/?cat=60>
>
>
>
>
>
> *“Watch Sen. Whitehouse Grill Gorsuch About Dark Money, Corporate Power,
> and Citizens United” <http://electionlawblog.org/?p=91734>*
>
> Posted on March 21, 2017 1:49 pm <http://electionlawblog.org/?p=91734> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> Slate
> <http://www.slate.com/blogs/the_slatest/2017/03/21/whitehouse_grills_gorsuch_on_dark_money_and_citizens_united.html> with
> the video.
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91734&title=%E2%80%9CWatch%20Sen.%20Whitehouse%20Grill%20Gorsuch%20About%20Dark%20Money%2C%20Corporate%20Power%2C%20and%20Citizens%20United%E2%80%9D>
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
> Court <http://electionlawblog.org/?cat=29>
>
>
>
>
>
> *Judge Gorsuch Misstates Citizens United’s Holding, and Inexplicably Says
> Congress Has Ample Room to Enact Expenditure Limits
> <http://electionlawblog.org/?p=91730>*
>
> Posted on March 21, 2017 8:37 am <http://electionlawblog.org/?p=91730> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> From an exchange with Sen. Leahy at today’s hearing:
>
> Judge Gorsuch, questioned on Citizens United, said the following (my
> transcription):
>
> *I think there is lots of room for legislation in this area that this
> court has left. The Court indicated that if proof of corruption can be
> demonstrated a different result may obtain on expenditure limits….*
>
> *I think after Citizens United made clear that quid pro quo corruption
> remains a vital concern and a subject for potential legislation. And I
> think there is ample room for this body to legislate, even in light of
> Citizens United, whether it has to do with contribution limits, whether it
> has to with expenditure limits, or whether it has to do with disclosure
> requirements.*
>
> This is incorrect. In American Tradition Partnership v. Bullock,
> <https://www.supremecourt.gov/opinions/11pdf/11-1179h9j3.pdf> the Supreme
> Court majority (the same majority in Citizens United) held that it would
> NOT consider evidence of corruption to justify a spending limit. It needed
> only a paragraph to dispose of the case given its holding in Citizens
> United. The dissenters (the same dissenters in Citizens United) argued in
> contrast that the Court should consider evidence of corruption which could
> justify an expenditure limit.
>
> Instead, in Citizens United the Court left NO room for spending limits,
> apart from spending limits applied to foreign individuals and entities
> (which it allowed via a summary affirmance in *Bluman v. FEC). *
>
> I explain all of this in Citizens United and the Illusion of Coherence
> <http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1166&context=mlr> in
> the Michigan Law Review.
>
> So either Judge Gorsuch does not understand the scope of Citizens United
> and its holding, or he is trying to soften its harshness by wrongly
> suggesting Congress has room to legislate spending limits.
>
> I don’t believe he would actually uphold any spending limit Congress
> passes (expect as to foreign spending).  I explain why based on reading his
> earlier opinions here.
> <http://www.cnn.com/2017/03/01/opinions/worry-about-gorsuch-hasen/>
>
> Update: Derek Muller disagrees
> <http://excessofdemocracy.com/blog/2017/3/no-gorsuch-didnt-misstate-citizen-uniteds-holding>
> .
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91730&title=Judge%20Gorsuch%20Misstates%20Citizens%20United%E2%80%99s%20Holding%2C%20and%20Inexplicably%20Says%20Congress%20Has%20Ample%20Room%20to%20Enact%20Expenditure%20Limits>
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
> Court <http://electionlawblog.org/?cat=29>
>
>
>
>
>
> *“Trump’s White House Counsel Don McGahn Has Combative Record”
> <http://electionlawblog.org/?p=91728>*
>
> Posted on March 21, 2017 7:32 am <http://electionlawblog.org/?p=91728> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> Peter Overby
> <http://www.npr.org/2017/03/20/520862756/trumps-white-house-counsel-don-mcgahn-has-combative-record>for
> NPR.
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91728&title=%E2%80%9CTrump%E2%80%99s%20White%20House%20Counsel%20Don%20McGahn%20Has%20Combative%20Record%E2%80%9D>
>
> Posted in election law biz <http://electionlawblog.org/?cat=51>
>
>
>
>
>
> *“Senators must press Gorsuch on campaign finance laws”
> <http://electionlawblog.org/?p=91726>*
>
> Posted on March 21, 2017 7:29 am <http://electionlawblog.org/?p=91726> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> Ann Ravel SacBee oped.
> <http://www.sacbee.com/opinion/op-ed/soapbox/article139408353.html>
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91726&title=%E2%80%9CSenators%20must%20press%20Gorsuch%20on%20campaign%20finance%20laws%E2%80%9D>
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
> Court <http://electionlawblog.org/?cat=29>
>
>
>
>
>
> *Would a Gorsuch Confirmation Be Like Putting John Finnis and Natural Law
> on the Supreme Court? <http://electionlawblog.org/?p=91724>*
>
> Posted on March 21, 2017 7:25 am <http://electionlawblog.org/?p=91724> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> Steve Mazie makes the case.
> <http://www.economist.com/blogs/democracyinamerica/2017/03/moral-hazard>
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91724&title=Would%20a%20Gorsuch%20Confirmation%20Be%20Like%20Putting%20John%20Finnis%20and%20Natural%20Law%20on%20the%20Supreme%20Court%3F>
>
> Posted in Supreme Court <http://electionlawblog.org/?cat=29>
>
>
>
>
>
> *“If Judge Gorsuch is Really Like Justice Scalia, Then He Will Be No Fan
> of Voting Rights” <http://electionlawblog.org/?p=91722>*
>
> Posted on March 21, 2017 7:22 am <http://electionlawblog.org/?p=91722> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> Josh Douglas
> <http://www.huffingtonpost.com/entry/58d11e77e4b07112b6473198> for HuffPo.
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91722&title=%E2%80%9CIf%20Judge%20Gorsuch%20is%20Really%20Like%20Justice%20Scalia%2C%20Then%20He%20Will%20Be%20No%20Fan%20of%20Voting%20Rights%E2%80%9D>
>
> Posted in Supreme Court <http://electionlawblog.org/?cat=29>
>
>
>
>
>
> *James Sample: Dems Should Hold Filibuster Confrontation for Nomination
> that Matters More <http://electionlawblog.org/?p=91720>*
>
> Posted on March 21, 2017 7:21 am <http://electionlawblog.org/?p=91720> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> Watch.
> <https://livestream.com/accounts/18968940/events/7055388/videos/152277320>
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91720&title=James%20Sample%3A%20Dems%20Should%20Hold%20Filibuster%20Confrontation%20for%20Nomination%20that%20Matters%20More>
>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>
>
>
>
>
> *Bauer on Hasen on Kozinski on the Travel Ban
> <http://electionlawblog.org/?p=91718>*
>
> Posted on March 21, 2017 7:19 am <http://electionlawblog.org/?p=91718> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> Bob concurs
> <http://www.moresoftmoneyhardlaw.com/2017/03/judge-kozinskis-complaint-first-amendment-realismin-travel-ban-case/> in
> the judgment.
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91718&title=Bauer%20on%20Hasen%20on%20Kozinski%20on%20the%20Travel%20Ban>
>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>
>
>
>
>
> *“Huefner’s Legislation and Regulation in a Nutshell”
> <http://electionlawblog.org/?p=91716>*
>
> Posted on March 21, 2017 7:18 am <http://electionlawblog.org/?p=91716> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> New book coming
> <http://www.westacademic.com/Professors/ProductDetails.aspx?NSIID=17892> from
> the great Steve Huefner.
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91716&title=%E2%80%9CHuefner%E2%80%99s%20Legislation%20and%20Regulation%20in%20a%20Nutshell%E2%80%9D>
>
> Posted in legislation and legislatures
> <http://electionlawblog.org/?cat=27>
>
>
>
>
>
> --
>
> 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 <(949)%20824-3072> - office
>
> 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
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>

-- 
Steve Klein
Attorney*
https://www.linkedin.com/in/stephenrklein

**Licensed to practice law in Illinois and Michigan*
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