[EL] Misstating Citizens United?

Wed Mar 22 14:31:20 PDT 2017

I’m hopeful that a Democratic Senator will ask Judge Gorsuch to clarify his remarks, then we won’t have to guess at their meaning.

From: "Smith, Brad" <BSmith at law.capital.edu>
Date: Wednesday, March 22, 2017 at 1:56 PM
To: Rick Hasen <rhasen at law.uci.edu>, Election Law Listserv <law-election at uci.edu>
Subject: RE: Misstating Citizens United?

I think that Rick is applying a standard of case summation to Judge Gorsuch that he would not want applied to himself. Rick’s posts below, for example, would imply to the normal reader (I think) a holding in Buckley v. Valeo that is much broader than in the actual case, as noted in the post I’ve linked at the end of this messge.  We all speak in summary, and off-the-cuff oral answers, even from someone as polished as Judge Gorsuch, rarely capture every nuance. Along those lines, don’t be too hard on me either. ☺   http://www.campaignfreedom.org/2017/03/22/hasen-on-gorsuch-on-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
bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
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] On Behalf Of Rick Hasen
Sent: Wednesday, March 22, 2017 11:02 AM
To: Election Law Listserv
Subject: [EL] ELB News and Commentary 3/22/17

Will Gorsuch Break With Scalia, Providing 2d (or 3d) Vote To Allow Flood of Undisclosed Money in Elections?<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fp%3d91744&c=E,1,vQ5MXdT17XJ0RfwntkvR5J2xCqYHJMBAtkGg47as5tgkGDlRjNNSj98jxv7Hs54CV5KpIOegvxHCxQD0oj6Ou_hxD8xaW6VlPfB5IPqPUmo,&typo=1>
Posted on March 22, 2017 7:49 am<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fp%3d91744&c=E,1,e6Rxqo3GHh0giZsyRg7cYtoNPLEiV8BDrHV4decNntX8CTWwvuZihLTtDfxM9wOqILjOSP6H-QIdevj0YARsPhT0SAt5RcK_3mEK6hIG6e-hPn5mbTHGcw,,&typo=1> by Rick Hasen<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fauthor%3d3&c=E,1,UlqXW_Ze5Ebvz4XZS6udGHTAgg3ZeYLShYMpqjRnQVyExYbfGqM6Vo0Esem1OXaWRXwplqIC_YqwO3QppSV_MBuj1Qbs4dsCJ9teDWwcjHg,&typo=1>
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.
[are]<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<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fcat%3d10&c=E,1,cKvQRFYTPb8j9HzijT1OBcUn-Ot1u-y3OIy7R6MFwgAHbx0IvngiDnaD-uioksHA1HFrqx2VwruTxhCyZDDNQGYMam2l4kwnJVUQRA,,&typo=1>, Supreme Court<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fcat%3d29&c=E,1,wOc7dFTXLN9wZtPcHWgzta7o26rjlpv_bMuvreZ6y2iOj-L_llUKdrZs0kMK_xgYha2xJ9a67qGs8k1s3RqSEhygmrrh3PzHJQf1NTaeI-nMbfYh4g,,&typo=1>

Judge Gorsuch Misstates Citizens United’s Holding, and Inexplicably Says Congress Has Ample Room to Enact Expenditure Limits<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fp%3d91730&c=E,1,fe1QoIfjDXzRmfT3VfDdJaXYby1IGZhIoMTqMl8Wz2uAC6cj3A7jRqJrKQCbzfPsYZTFRvR6f_j-8DRZ8EBa142S7AZRz4onxBIkTqJKqEK_t6vA3fDYDPs,&typo=1>
Posted on March 21, 2017 8:37 am<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fp%3d91730&c=E,1,1S8bJ336Jku_N28Q63PO-XQirHd3Mu_ZnTtn9vU50Ts9M84jhqwr7w8V14AL6ALyE3z31TlUGp4RfPVABjCjEE5nEcqFYX5-TPBpZ3Z2azWdnBRCCih4&typo=1> by Rick Hasen<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fauthor%3d3&c=E,1,zzqZAHF2HCyFo3K2xb9qfyarJFjv0FWDK-MQMQbfMPvCq1QB3cr9tumLzHHut0MyDVI1iuWyIpgBMX_REjj6ZsaXf8layncNQYaiwW4mRG7rmWopbpn0yqiz5w,,&typo=1>
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://linkprotect.cudasvc.com/url?a=https://www.supremecourt.gov/opinions/11pdf/11-1179h9j3.pdf&c=E,1,mmw00-gBQ2ZxLYoV9Pw7ZNvmS0NhCt9IL3rUlNCVF1e0-f8GFaPd9cAI-meSDV7UB6CO5IAGva2GccrXI9v82E2UTrFvq-Gzvm6c8tsX5A,,&typo=1> 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<https://linkprotect.cudasvc.com/url?a=http://excessofdemocracy.com/blog/2017/3/no-gorsuch-didnt-misstate-citizen-uniteds-holding&c=E,1,1NvcIVcMSMVHYNJT-ypYuv8Q08pTp8N6IfjnJW7YKLG3DvjhX-jetMeC1Ck3S8Xj5VrM09p35cBltF_NTImArp280bDtA8vC0TonFrc,&typo=1>.
[are]<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<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fcat%3d10&c=E,1,p8KdRFQA4in21Rseay9k3-jjEmJZRS4HpNgbJKQBQ7V_0ic5yGIq_Tl1xQDVBJlUfCLKGHI3Cu2x80OgZWfvsR6xdwp-jt-82GK212hNJg,,&typo=1>, Supreme Court<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fcat%3d29&c=E,1,_n2g_RQIbg6vv0qyMCD_fJj5pnGhIvKB5EStDf7LYx1Ih9-0ohWErpE-vZ3tHG3wiG4v-TwXGo7e84iZQO2kBi7vfMshIFj8-PZahgGzky-C_zU,&typo=1>

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