[EL] Kavanaugh/Bluman

Tue Sep 4 12:11:35 PDT 2018

I think the answer to that is a relatively easy one. In *Buckley*, the
"express advocacy" construction was also held to apply to the disclosure
provisions of FECA, which were not ultimately struck as a result of some
perceived inefficacy following the "magic words" construction:

When we attempt to define “expenditure” in a similarly narrow way we
encounter line-drawing problems *79 of the sort we faced in 18 U.S.C. s
608(e)(1) (1970 ed., Supp. IV). Although the phrase, “for the purpose of .
. . influencing” an election or nomination, differs from the language used
in s 608(e)(1), it shares the same potential for encompassing both issue
discussion and advocacy of a political result.104 The general requirement
that “political committees” and candidates disclose their expenditures
could raise similar vagueness problems, for “political committee” is
defined only in terms of amount of annual “contributions” and
“expenditures,”105 and could be interpreted to reach groups engaged purely
in issue discussion. The lower courts have construed the words “political
committee” more narrowly.106 To fulfill the purposes of the Act they need
only encompass organizations that are under the control of a candidate or
the major purpose of which is the nomination or election of a candidate.
Expenditures of candidates and of “political committees” so construed can
be assumed to fall within the core area sought to be addressed by Congress.
They are, by definition, campaign related.
67 But when the maker of the expenditure is not within these categories
when it is an individual other than a candidate or a group other than a
“political committee”1075 —the *80 relation of the information **664 sought
to the purposes of the Act may be too remote. *To insure that the reach of
s 434(e) is not impermissibly broad, we construe “expenditure” for purposes
of that section in the same way we construed the terms of s 608(e) to reach
only funds used for communications that expressly advocate the election or
defeat of a clearly identified candidate.* This reading is directed
precisely to that spending that is unambiguously related to the campaign of
a particular federal candidate.

*Buckley v. Valeo* (1976) 424 U.S. 1, 78–80

The Court proceeded to say that the existence of other interests justified
treating that statute differently:

As narrowed, s 434(e), like s 608(e)(1), does not reach all partisan
discussion for it only requires disclosure of those expenditures that
expressly advocate a particular election result. This might have been fatal
if the only purpose of s 434(e) *81 were to stem corruption or its
appearance by closing a loophole in the general disclosure requirements.
But the disclosure provisions, including s 434(e), serve another,
informational interest, and even as construed s 434(e) increases the fund
of information concerning those who support the candidates. It goes beyond
the general disclosure requirements to shed the light of publicity on
spending that is unambiguously campaign related but would not otherwise be
reported because it takes the form of independent expenditures or of
contributions to an individual or group not itself required to report the
names of its contributors. By the same token, it is not fatal that s 434(e)
encompasses purely independent expenditures uncoordinated with a particular
candidate or his agent. The corruption potential of these expenditures may
be significantly different, but the informational interest can be as strong
as it is in coordinated spending, for disclosure helps voters to define
more of the candidates' constituencies.

*Id*. at 80–81

Just like the disclosure requirements at issue  in *Buckley*, the foreign
national ban serves other interests, as Kavanaugh's opinion notes:

It follows, therefore, that the United States has a compelling interest for
purposes of First Amendment analysis in limiting the participation of
foreign citizens in activities of American democratic self-government, and
in thereby preventing foreign influence over the U.S. political process.

*Bluman v. Federal Election Com'n* (D.D.C. 2011) 800 F.Supp.2d 281, 288,
aff'd (2012) 565 U.S. 1104.

On Tue, Sep 4, 2018 at 10:38 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

> Judge Kavanaugh’s Sloppy Illogic in the Bluman Foreign Campaign Spending
> Case: A Question to Ask at the Hearings
> <https://electionlawblog.org/?p=100969>
>
> Posted on September 4, 2018 10:18 am
> <https://electionlawblog.org/?p=100969> by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> In an earlier post <https://electionlawblog.org/?p=99897>, and in pieces
> in Politico
> <https://www.politico.com/magazine/story/2017/09/26/russian-facebook-ads-regulation-215647>
>  and Slate,
> <https://slate.com/news-and-politics/2018/02/the-campaign-finance-loophole-that-could-make-the-next-russian-attack-perfectly-legal.html> I
> explained how Judge Kavanaugh’s opinion for a three-judge court in Bluman
> v. FEC opens a huge gaping hole in campaign finance law allowing for
> foreign governments, entities, and individuals to spend unlimited sums to
> influence federal elections so long as they avoid words of express
> advocacy, like “Vote for Stein.” Kavanaugh upheld the foreign spending ban,
> but construed it for constitutional reasons to apply only to express
> advocacy.and not to “issue ads” (like “Hillary is a Satan”).
>
> As Justin points out <https://electionlawblog.org/?p=100965>, Judge
> Kavanaugh’s construction of the statute was unnecessary to reach the result
> of upholding the statute: none of the plaintiffs wanted to run issue ads.
>
> But I wanted to point to a more fundamental flaw in Judge Kavanaugh’s
> logic that might be worth a question on this topic at the hearing:
>
> In *Buckley v. Valeo*,
> <https://www.law.cornell.edu/supremecourt/text/424/1#writing-USSC_CR_0424_0001_ZO> the
> Court faced a similar question: the law limited to $1,000 the amount an
> (American) individual could spend “relative to” a clearly identified
> candidate for federal office. To avoid vagueness problems, the Court
> construed it to apply only to express advocacy and not issue advocacy. (And
> that express advocacy definition mattered to define the scope of required
> disclosure of independent expenditures). But then the Court went on to
> strike the individual spending limit *despite* having construed it
> narrowly to avoid vagueness problems. The Court wrote:
>
> *We find that the governmental interest in preventing corruption and the
> appearance of corruption is inadequate to justify § 608(e)(1)’s ceiling on
> independent expenditures. First, assuming, arguendo, that large independent
> expenditures pose the same dangers of actual or apparent quid pro
> quoarrangements as do large contributions, § 608(e)(1) does not provide an
> answer that sufficiently relates to the elimination of those dangers.
> Unlike the contribution limitations’ total ban on the giving of large
> amounts of money to candidates, § 608(e)(1) prevents only some large
> expenditures. So long as persons and groups eschew expenditures that, in
> express terms advocate the election or defeat of a clearly identified
> candidate, they are free to spend as much as they want to promote the
> candidate and his views. The exacting interpretation of the statutory
> language necessary to avoid unconstitutional vagueness thus undermines the
> limitation’s effectiveness as a loophole-closing provision by facilitating
> circumvention by those seeking to exert improper influence upon a candidate
> or officeholder. It would naively underestimate the ingenuity and
> resourcefulness of persons and groups desiring to buy influence to believe
> that they would have much difficulty devising expenditures that skirted the
> restriction on express advocacy of election or defeat, but nevertheless
> benefited the candidate’s campaign. Yet no substantial societal interest
> would be served by a loophole-closing provision designed to check
> corruption that permitted unscrupulous persons and organizations to expend
> unlimited sums of money in order to obtain improper influence over
> candidates for elective office.*
>
> (My emphasis)
>
> The question about *Bluman* is why Judge Kavanaugh did not go down the
> same path as the Court did in *Buckley*? If indeed the statute banning
> foreign money had to be interpreted to apply only to express advocacy,
> leaving the issue advocacy path wide open and therefore the express
> advocacy ban ineffective, why not strike the entire statute down as serving
> “no substantial soceital interest?” “It would naively underestimate the
> ingenuity and resourcefulness of [foreign] persons and [foreign] groups
> desiring to buy influence to believe that they would have much difficulty
> devising expenditures that skirted the restriction on express advocacy of
> election or defeat, but nevertheless benefited the candidate’s campaign.”
>
> Given that Kavanaugh is a self-professed First Amendment zealot
> <https://slate.com/news-and-politics/2018/09/brett-kavanaughs-supreme-court-tenure-could-mean-the-end-of-all-campaign-finance-limits.html> in
> the campaign finance area, why did his logic not cause him to strike the
> whole statute down?  (Probably because he’d no longer be up for a Supreme
> Court appointment.)
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D100969&title=Judge%20Kavanaugh%E2%80%99s%20Sloppy%20Illogic%20in%20the%20Bluman%20Foreign%20Campaign%20Spending%20Case%3A%20A%20Question%20to%20Ask%20at%20the%20Hearings>
>
> Posted in campaign finance <https://electionlawblog.org/?cat=10>, Supreme
> Court <https://electionlawblog.org/?cat=29>
>
>
>
>
> Kavanaugh, Foreign Agents, and American Elections
> <https://electionlawblog.org/?p=100965>
>
> Posted on September 4, 2018 6:40 am
> <https://electionlawblog.org/?p=100965> by *Justin Levitt*
> <https://electionlawblog.org/?author=4>
>
> Justin here, with my own take on Kavanaugh and the election process, also
> cross-posted over at the Take Care blog <https://takecareblog.com/>:
>
> In the 2016 elections, we were hacked.  I don’t mean the breach of the
> DNC systems
> <https://assets.documentcloud.org/documents/4598902/DOJ-Russian-Indictments.pdf>,
> serious as that was.  And I don’t mean intrusion into the mechanics of
> casting and counting ballots: media frenzy aside, that structure mostly
> held up.  Someone broke into two states’ voter registration databases
> <https://www.nytimes.com/2016/08/30/us/politics/harry-reid-russia-tampering-election-fbi.html>,
> poked around, and left – but there’s no indication that any registration or
> vote was changed, anywhere in the country.
>
> What I mean is that *we*, the people, were hacked.  Entities of a foreign
> nation-state figured out what we cared about, and what we fought about, and
> turned the volume up to 11.  We were hit by true “crisis actors”: agents
> pretending to be who they were not
> <https://www.nytimes.com/2017/09/07/us/politics/russia-facebook-twitter-election.html>,
> not in the aftermath of crisis but in an attempt to foment it.  They invaded
> our social spaces
> <https://www.nytimes.com/2018/02/17/technology/indictment-russian-tech-facebook.html>,
> with a specific eye to disrupting the election conversation.  And because
> of a 2011 case called *Bluman v. FEC
> <https://scholar.google.com/scholar_case?case=1121532194737627452>*,
> written by Judge Brett Kavanaugh, much of it may have been legally
> authorized.
>
> If there’s a voting case that Senators should be focusing on this week,
> it’s *Bluman*.  It’s not really the case’s substantive connection to a
> Russian threat that should catch the Senate’s eye.  Instead, it’s Judge
> Kavanaugh’s judicial process.  The opinion, written for a three-judge trial
> court, shows little respect for the Supreme Court.  It shows little respect
> for Congress.  And it shows little respect for deep analysis.  Instead, it
> offers a simplistic answer — what amounts to little more than a policy
> preference — to a series of what should have been hard questions.
>
> Continue reading → <https://electionlawblog.org/?p=100965#more-100965>
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D100965&title=Kavanaugh%2C%20Foreign%20Agents%2C%20and%20American%20Elections>
>
> Posted in campaign finance <https://electionlawblog.org/?cat=10>, statutory
> interpretation <https://electionlawblog.org/?cat=21>, Supreme Court
> <https://electionlawblog.org/?cat=29>
>
>
>
>
>
> --
>
> 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
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
>
>
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