[EL] Low Contribution Limits in the Supreme Court

Mon Oct 29 18:22:25 PDT 2018

Good questions, and flattered though I am at the reference to me as
"professor" alas I am a mere third-year law firm associate!

To your first issue, Citizens Against Rent Control v. Berkeley and First
Nat'l Bank of Boston v. Bellotti establish the principle that ballot
measure spending can't be limited because, as we know from Buckley etc.
corruption means quid pro quo not "war chest" corruption or "undue
influence" corruption, so limited to candidates as to limits (see the
defunct opinions in Congressional Rep v. FEC and Austin v. Michigan Chamber
for the corruption definitions that the Court now acknowledges are just
democracy [but see Williams Yulee v. Florida Bar, doesn't carry over into
elected judges because of 5th/14th A due process concerns].) So
out-of-state spending falls within that, just as it would if a state tried
to limit contributions from labor unions, abortion providers, or business
interests. The more interesting contribution source limits/ban cases these
days have to do with regulated industries like gov't contractors and
industries like cannabis and gambling, but definitely not with out-of-state
contributors. That's clearly unconstitutional. They're not covered by the
Blumen rule that's limited to foreign nationals on security grounds (see
also, Holder Humanitarian Law Project [nat'l security concerns passed
strict scrutiny as to speech ban].)

To the second issue, Crawford employed the Anderson/Burdick test applicable
to the mechanics of the electoral process that are reasonable and
nondiscriminatory. That's a very far cry from the strict scrutiny or
closely-drawn test applicable to stopping people from talking about
candidates or issues. Policy underlying the first is that everyone can
vote, but we just want to make sure that you're you, second it's that
you're talking too much, which is an unconstitutional motive in the U.S.

Speaking of Anderson-Burdick, I'd be interested in anyone's opinions that
the level of scrutiny should be ratcheted up. I am aware of third parties
being disadvantaged by uneven application of this rule by lower courts,
which obviously affects speech rights even if cloaked in mechanics of the
process terms.

On Mon, Oct 29, 2018 at 3:34 PM Morgan Kousser <kousser at caltech.edu> wrote:

> Although I know a good deal about voting rights law, I'm only a spectator
> on campaign finance, but I wonder whether Prof. Martin or someone else
> would be kind enough to sketch out answers to two questions for me:
> 1.  Why would it be unjustified for a state to believe that an
> out-of-state corporation or wealthy individual (such as the Koch Brothers
> with all of their investments in fossil fuels that might be regulated by
> many states) might corrupt the state's political process by making a large
> contribution to a candidate or ballot measure?  Hypothetical:  A state
> ballot measure to ban a gas pipeline from the Canadian tar sands from
> crossing the state.
> 2.  If a repeatedly disproven notion that there is widespread voter fraud
> is enough to justify a voter ID law, as in *Crawford*, which is the
> weakest form of rational basis test that I've ever seen in a Supreme Court
> case, then why should a state's notion that a large contribution by someone
> some corporation in or out of the state or even from a foreign country
> require stronger evidence?  Is the right to vote so much less
> constitutionally important than the right to spend limitless amounts of
> money to influence political outcomes?
>   I'm not inviting a lecture on the case law on such limits, just a
> description of a rationale.
> Morgan
>
> On 10/29/2018 9:55 AM, Terry Martin wrote:
>
> At least they're giving it a look. I think that there is finally an
> understanding on the Court that the base limits warrant reconsideration as
> to the level of scrutiny required. The Chief Justice's opinion in
> McCutcheon avoided the standard of review issue because it was an easy case
> ("whatever standard applies" or however he put it vis-a-vie the aggregate
> limit implied a willingness to look at the actual reason behind the limit,
> which would transfer over to the base limit per the gov'ts burden) and
> states have gotten more bold since Shrink Missouri Gov't PAC. In fact, I am
> aware of states actually attempting to limit out-of-state contributions to
> ballot measures, which is frightening in light of the undisputed notion
> that you can't corrupt one. Even if the Court upholds the limits in
> Zimmerman and Lair, legislatures, which are not composed of campaign
> finance attorneys or even necessarily anyone attendant to free expression
> concerns, need guidance as to whether they need actual evidence of
> corruption to regulate campaign speech or they can just justify with people
> thinking government is controlled by powerful people - an impossibly easy
> thesis no matter where in the world you live - and what the regulable
> "appearance of corruption" means (I'll continue to believe it's a
> rhetorical flourish intended to give a lower court the ability to deny an
> as-applied challenge to a base limit). Whether and in what cases such
> justifies the inhibition the freedom of speech requires guidance from our
> Article III branch.
>
> On Mon, Oct 29, 2018 at 7:34 AM <jboppjr at aol.com> wrote:
>
>> Update, the Zimmerman docket sheet says it was rescheduled.  Jim
>>
>> In a message dated 10/29/2018 9:58:57 AM US Eastern Standard Time,
>> jboppjr at aol.com writes:
>>
>> Pausing for a moment to return to the actual subject that brought us
>> together on this list serve, I thought everyone would be interested in the
>> recent actions of the US Supreme Court regarding campaign finance.
>>
>> There are two contribution limit cases currently on Cert Petitions:
>> Zimmerman v Austin, 18-93, and Lair v Mangan, 83-149, mine. In both cases,
>> the Court ordered responses after waiver.  A nibble in my vernacular.
>>
>> Zimmerman was conferenced Friday, not granted on Friday, but missing on
>> the Orders List today, apparently being held. Another nibble.
>>
>> In Lair, Montana's Response is due Nov 14th and, by my calculations, will
>> be conferenced Jan 4th.
>>
>> I believe that the issue of low contribution limits, as in Austin and
>> Montana, is an issue overripe for Supreme Court re-review. Of course, the
>> Court in Randall v Sorrell struck down Vermont's low contribution limits
>> but this has not stopped several Circuits from upholding them based on
>> several justifications.  And with McCutcheon and Citizens United requiring
>> quid pro quo corruption to justify contribution limits, which rarely, if
>> ever, can be met for such low limits, there are now several reasons for the
>> Court to take up this issue.
>>
>> These cases bear watching.  Jim Bopp
>>
>
> --
> Prof. of History and Social Science, Caltech
> surface mail:  228-77 Caltech, Pasadena, CA 91125-7700
> phone 626-395-4080, fax 626-405-9841
> home page:  <http://www.hss.caltech.edu/~kousser/Kousser.html> <http://www.hss.caltech.edu/~kousser/Kousser.html>
>   . . . without the clarity that makes doubt productive, historians will never be able to fulfill their highest moral responsibility, to build a better world . . .
>                       -- from "The New Postmodern Southern Political History"
>   Perfection . . . in any institution is a dangerous myth; there is only the repeated correction of imperfections.  As long as there is discrimination, there will always be more work to do.
>                        -- from "The Strange, Ironic Career of Section 5 of the Voting Rights Act"
>
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