No ”Big Sky” for speech in Montana

In the wake of Citizens United, those jurisdictions that had previously imposed campaign spending bans on corporations have had to rethink their state or local laws.

Not the so-called “Last Best Place.”  The Montana Attorney General is defending that state’s expenditure ban.  According to AG Steve Bullock, the state’s 1912 law remains constitutional.  He is arguing that Montana has a different experience with corporate spending, and can show that spending corrupts politicians.

Now, I have said publicly a couple of times that I don’t think Citizens United necessarily controls in jurisdictions where history and experience indicate certain industries or kinds of corporations pose distinctive threats in politics.  Citizens United does require that those jurisdictions have to show that a BAN on independent spending is a tailored response to a genuine threat, and that’s a pretty difficult argument to make. 

What Montana is attempting to argue is that all corporations pose this threat.  Not explicitly – Bullock acknowledges that the state’s corporate expenditure ban comes out of a history of political struggles involving mining companies.  But the litigants in the present case involve a small painting business and a conservative advocacy group – both, as corporations, prohibited from making expenditures in Montana. 

What’s the justification for that?

Filed Under: Blog, Completed Case, Litigation Blog/Press Releases, Western Tradition Partnership v. Bullock Other Links, Montana

Why not disclose? What do you have to hide?

While the latest demagoguery over foreign money in campaigns is experiencing a mammoth backlash, well deserved, one has to ponder why the assertions had any traction at all.  I think part of the explanation may be how easy it is to color a privacy interest as an admission of wrongdoing.  How often have you heard something like  – “Well, why won’t you just tell us?  What do you have to hide?”

It just so happens that Daniel Solove, law professor at George Washington University School of Law, has thought carefully about the power of that kind of argument, and the dangers lurking within it.  In fact, he has a book coming out in 2011 titled Nothing to Hide: The False Tradeoff Between Privacy and Security.  But we need not wait uninformed for that date, as Solove has argued against the same characterization in other works.

In an essay posted on SSRN, Solove presents the problem of disclosure (or “privacy” but he talks about why “privacy” is a inexact way to describe it) as a challenge facing the individual and his or her control over what the rest of the world “has” of that individual.

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog


Monday, the Solicitor General/Federal Election Commission filed its brief in petition for certiorari in what is commonly known as v. Federal Election Commission.

According to the government, this case has morphed into Keating et al v. Federal Election Commission, placing our friend David (and his four fellow travelers) into a pantheon of named parties in FEC matters that includes Senator Mitch McConnell, Francis Valeo, and, of course, Sen. James Buckley—and also bringing together a very different Keating Five.

But, since the case was captioned below as v. Federal Election Commission, it seems a little strange (not to mention confusing) to insist that David Keating assume the mantle of named party and the immortality that comes with it as an individual—when the argument is about committee status. But, whatever. Maybe the Solicitor General is just feeling generous these days.

Filed Under: Blog

Ad buyin’ and drug dealin’

In recognition of David Simon, creator of HBO’s The Wire, who today was awarded a MacArthur Genius Grant, I offer this parody summary of a long-lost episode of The Wire:

The first scene opens with D’Angelo in the project’s courtyard, watching business from the couch. In the background, two younger gang members argue about whether corporations should be treated like people.  One notes sagely that it is hard, if not impossible, to bust a corporation upside the head. They debate the proprieties of referring to fictitious persons as “n*gg@$.”

D’Angelo breaks up the heated argument as he sees unmarked patrolmen cruise pass the projects. He pages Avon, the gang leader, and sets off to a meeting with Avon and his lieutenants.

Avon announces that the mutha$fu#$ng D.A. needs to be taught a thing or two. D’Angelo fears he knows where this is leading. Avon confirms his worst suspicions.

“Yo, we takin’ it to the airwaves, bro. We need to bust up some independent expenditure sh#t on this b*tch’s @$$.”

Filed Under: Blog, Maryland, Oregon

‘Fading disclosure’?

In a recent report, self-styled reform organization Public Citizen decried the trend it sees in the 2010 campaign, where some groups speaking out about candidates are keeping the identities of their donors under wraps. Implicit in this report is a call for the Federal Election Commission to require donors to groups be identified, regardless of whether they meant to fund the group’s communications. The folks at Public Citizen support additional disclaimer and donor reporting such as those set forth in the DISCLOSE Act.

First, why is this year different?

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog, DISCLOSE, Disclose Act

Schnur’s scarlet letter

Dan Schnur, ubermensch of the California Fair Political Practices Commission, is providing us all with a valuable object lesson: its not just the text of campaign finance restrictions that can suppress political expression—the attitude of state regulators matters just as much.

BNA’s Money & Politics Report quotes Schnur this morning as saying this:

“Political consultants in both parties too often engage in borderline behavior under the assumption that being fined in the months after the election is the worst thing that can happen to their candidate,” Schnur said. “Well, that’s not the worst thing that can happen. Before you step too close to the line, ask your candidate if he or she would like their name in a headline along with the words ‘FPPC’ and ‘investigation’ in the weeks before an election.”

This is a threat.

Filed Under: Blog, California

Kentucky ruling on low contribution limits

Last week, a federal district court judge enjoined Kentucky from enforcing the $100 contribution limit applicable to campaigns for Count Boards of Elections. That’s the right decision.

The order is here. Relying on Nixon v. Shrink Missouri (not the Randall plurality, notably) the court concluded that the $100 limit was not closely tailored to achieves the state’s interest in battling corruption. The court here instead found that plaintiffs had shown the limit was so low as to “make individual contributors’ political association ineffective” and credited the evidence that large independent expenditures in school board elections have taken over. “Candidates who rely on individual donations cannot compete.”

Filed Under: Blog, Kentucky

Campaign finance history article published

I’m featured in the latest issue of the Election Law Journal.  The article, The Michigan Auto Dealers Prosecution: Exploring the Department of Justice’s Mid-Century Posture Toward Campaign Finance Violations investigates the pursuit of three sets of auto dealers for small dollar corporate contributions in the 1946 and 1948 election cycles.  The conventional wisdom had been that the Department of Justice would not prosecute under the Tillman Act, or under Taft Hartley, for violations of the corporate contribution and expenditure bans. 

Something about the auto dealers was different . . . but what?  A Great Man view of history might attribute the difference to the role played by the charismatic Arthur Summerfield, but such a superficial treatment of this important era isn’t at all satisfying.

The answer takes you into the gritty world of Michigan Republican politics, accompanied by an insider’s view of the Truman Justice Department under Tom Clark available only with the recent release of key documents.

In the end, the record in the auto dealers prosecution reveals real reservations among prosecutors about the constitutionality of the Tillman Act and Taft Hartley.  This prosecution nevertheless went ahead due to a confluence of idiosyncratic political factors.  This story is in fact the exception that sheds light on the rule.

A sample of the endorsements of my new article that I hope and expect to receive:

“A real page-turner.  I couldn’t put it down.”

                                Arthur Schlesinger


“I always knew Hayward would amount to something.  The question was just how long it would take.”

                                Herb Alexander


“A blockbuster.  I have to rethink everything I thought I knew.  But it will an existential crisis worth weathering.  Bravo!  Bravo! Allison”

                                Trevor Potter


 “Get back to work.”

                                Brad Smith & Sean Parnell

Filed Under: Blog

New York union stifled by ‘byzantine’ campaign finance laws

A quick read of today’s coverage of the New York union expenditure decision boggles the mind. Does New York really prevent PACs from making expenditures? How could that be? Or as my kids say, WTF (“why the face?”)?

The judge who rejected a New York union’s motion for a temporary restraining order and preliminary injunction yesterday issued no written opinion, which doesn’t help alleviate the confusion. No, for an explanation of what did—and didn’t—happen, you need to dig into New York’s state campaign finance laws more deeply. And that’s a path fraught with peril. So, I did it, and now you don’t have to!

Filed Under: Blog, Disclosure, Disclosure Press Release/In the News/Blog, New York

Limits to contribution limits?

Defenders of the regulation of politics, at least since Buckley v. Valeo, have been looking for new and compelling reasons why lawmakers should be able to restrict the political activity of others.  For example, in Randall v. Sorrell the regulators tried to argue that spending limits fulfilled a state interest in giving officeholders more free time.

Out of Kentucky comes a new one, at least one we’ve never seen before: Political speech and association restrictions: They’re for the children. 

Filed Under: Blog