Cornell law professor Michael Dorf took a hack at the upcoming reargument in Citizens United v. FEC on his blog yesterday, but unfortunately, missed the pitch. Professor Dorf attempts to argue that if Austin v. Michigan Chamber of Commerce is overruled, the result would be that the Constitution protected corporate speech but limited labor union speech. Professor Dorf makes some rather elementary errors of first principle, however, and it's worth it to head off this argument in the bud.
John McCain and Russ Feingold are together again, joining forces this morning to place a "hold" on John Sullivan, a nominee to the Federal Election Commission. The Senators claim that they have no beef with Sullivan. Rather, they are angry that the FEC just isn't behaving the way they want it to, and so they're holding onto Sullivan until the President replaces some other FEC commissioners with people more to their liking. It's a bit as if the Senators were to announce that they won't vote to seat Judge Sotomayor on the Supreme Court unless Scalia and Alito are replaced, too.
Senators, of course, have a right and a duty to advise and consent on a president's nominees, they have a right to withhold their vote, and they have a right to voice their opinion about how any agency should be run. Still, the idea of holding up one nominee until the President replaces other people in government is a bit extreme, and the type of thing that tends to give Washington a bad name. It even leads some people to conclude that the government is "corrupt," in that imprecise way in which the term is so often thrown around these days.
Although they don't specifically say so, the apparent target of the dynamic duo of reform is Don McGahn, a Republican who has been remarkably successful in leading efforts to alter various FEC enforcement policies and incorrect interpretations. Simply put, McGahn is too good a Commissioner for McCain and Feingold — he is actually effective, which would be fine if he toed the line, but since he doesn't do the latter, they've decided he must go. And when Fred Wertheimer (pictured here, between two unidentified Senators) talks, the Senators jump. As usual, the Senators' statement is full of platitudes and banalities about how the FEC won't enforce the law, blah blah blah. The Senators studiously avoid discussing actual policies and cases at the FEC, as that might make their case a bit harder.
Let's focus on just one case for which McGahn has drawn some heat...
Too often, campaign finance regulations are regarded as incomprehensible and inapplicable to most people's daily lives. However, the Institute for Justice recently completed a study concerning the actual effects of "electioneering communications" restrictions on non-profit organizations and grassroots groups, and the results are troublesome to people everywhere who value First Amendment political rights.
By conducting a survey of registered non-profit organizations in Florida — which held the dubious distinction of having the broadest electioneering communications prohibition in the country (a federal district court recently struck down the law as unconstitutional) — the study aims to measure the actual impact of these laws on the day-to-day operations of small organizations.
The results are noteworthy — the reporting and disclosure requirements in these laws would, according to the non-profit survey participants, negatively affect their ability to fundraise (and, by extension, operate), communicate with members about relevant issues and more generally take valuable time away from the core missions of the groups.
The report thoroughly explains the results and is well worth the read, not to mention timely given the Supreme Court's recent non-decision in the Citizens United case. In fact, the study underscores the broader implications and harm these restrictive and sweeping laws inflict on core political speech.
When this morning began, Supreme Court watchers expected the justices would issue their decision in the campaign finance case of Citizens United v. FEC, No. 08-205. After all, last week, Chief Justice John Roberts had made it clear that this would be the last decision day before the High Court's traditional summer recess. But instead of High Court decision, campaign finance aficionados got a big surprise -- Citizens United would be held over for re-argument early next September (before the Court's next term official begins on the first Monday in October, 2009).
Specifically, the justices ordered the "Hillary: The Movie" case to be reargued to address whether "the Court [should] overrule either or both Austin v. Michigan Chamber of Commerce, and a part of McConnell v. FEC, which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002." Quite frankly, that's even bigger news than the decision that was widely expected to come down in favor of Citizens United today.
The re-argument order -- explicitly on the issues of whether the Supreme Court should overrule Austin, the part of McConnell that facially upheld McCain-Feingold's electioneering communications ban, or both -- puts the entire campaign finance community on notice that the Citizens United decision to come likely will be big and bold, also likely in an attempt by at least five justices to straighten out what has been a confused area of the High Court's jurisprudence.
The latest "hard-hitting research" by so-called campaign finance reformers focuses on the very timely issue of health care legislation and is, of course, cleverly titled "Legislating Under the Influence."
Common Cause released the report this week under the larger banner of continuing to "expose how big-lobbyist money is corrupting public policy."
And while the report does a very thorough job of citing the amount of money various groups in the health care industry have donated to legislators, it fails to make — or even address — its supposed larger point: the connection between campaign contributions and lawmakers' votes. It also fails to place the amounts spent in perspective or to note the amounts spent by groups and individuals with presumably different views, and it lumps together individuals, PACs, and whole "industries" who in fact have radically different views on health system reform.
Rather, it relies on untested and arguably untrue assumptions about the nature of the legislative process and campaign finance in general, in addition to cashing in on the latest victory for "reformers" by quoting language from the Caperton v. A.T. Massey Coal Co. opinion on the "serious risk of actual bias."
However, it's important to note that Caperton was a case of supposed judicial bias, which is potentially concerning. Caperton has no impact whatsoever on legislative bias, which is natural and it's almost ridiculous to assume otherwise. How many politicians have no agenda or thoughts on major issues of the day? Voters expect their candidates to take firm, passionate stances on issues - not remain detached and as indifferent on an outcome as a judge. Perhaps by utilizing alarming language that would lead someone to believe that a risk of bias equals complete buying of votes, Common Cause hopes to distract readers from the fact that this report in no way proves that.
Like many states across the country, Minnesota is facing difficult choices as precipitously falling tax revenues are creating huge budget deficits. Gov. Tim Pawlenty has made a number of emergency cuts -- referred to as "unallotments"-- in order to balance his state's budget.
Here at CCP, we're big fans of axing one of the programs on Gov. Pawlenty's list of "unallotments." The Political Contribution Refund program is set to end on June 30, which will save Minnesota taxpayers $10 million every two years. Under the program:
"candidates who agree to abide by state campaign spending limits are allowed to seek contributions of up to $50 from individuals and $100 from married couples with the enticing promise that the state will reimburse the full amount."
At today's FEC meeting, the agency adopted two new rules of agency procedure. Both of the FEC's procedural changes will allow members of the regulated community to request in-person hearings before the Commission — the first in advance of Commission adoption of final audit reports that assert violations of the Federal Election Campaign Act or agency regulations, and the second at Commission meeting when issuance of draft advisory opinions are being discussed. A third proposed rule on notice to respondents in non-complaint generated matters was put off until the next meeting.
To listen to an audio file of today's FEC meeting — split into three parts — click here, here and here [all files are Windows Media Player format; part one is 48:50, part two is 15:39 and part three is 38:15].
CCP's comments strongly recommended increased opportunities for hearings before the FEC, including for those requesting advisory opinions and those subject to audits.
Yesterday, a Denver district judge temporary halted a so-called "pay-to-play" ban preventing certain state contractors from donating to state campaigns, according to a story today in The Denver Post.
Groups, including those in the business and labor communities, have criticized the ban as an unconstitutional infringement on the rights of Coloradans to participate in politics.
Judge Catherine Lemon agreed with opponents of Amendment 54, who argued the measure was "confusing, discriminatory and in violation of free-speech rights." The case will now head to trial.
From the story:
The amendment prevents anyone tied to an entity that receives a no-bid government contract greater than $100,000 from giving to political parties or candidates at any level.
Plaintiffs complained that vagaries in the language left would-be contributors afraid of donating, even if the rules might not apply to them.
"In my mind, it's just not a close case," Lemon said after hours of arguments. "When First Amendment freedoms are involved, the state has got to come forward with evidence of a sufficiently important (threat)."
Everyone has an interest in their government — contractors, doctors, teachers, etc. — and there's no justifiable reason to give people unequal First Amendment rights. The proper way to combat the possibility or perception of undue influence by state contracters is a transparent bidding process and vigilance on the part of the press and the public. The answer is not arbitrarily restricting the First Amendment rights of citizens.
Arizona's system of taxpayer financed campaigns may have already seen its last election. The Arizona Capitol Times reported Friday that the state's Senate Judiciary Committee voted 4-3 to advance SCR1025, a referendum that would allow Arizonans to vote to end the state's decade-long failed experiment with publicly-funded campaigns.
Arizona's current system of allowing candidates to choose to have the taxpayers foot their campaign bills was only narrowly enacted by ballot initiative in 1998, lacking any organized opposition at the time.
Under Arizona's so-called "Clean Elections Act," candidates who choose to "participate" in the public funding program, and who raise a minimum number of small dollar qualifying donations, are then entitled to a lump sum of campaign money bestowed by the state's Citizens Clean Elections Commission, so long as the "participating" candidates agree to be a part of public debates and limit their campaign expenditures. But those expenditure limits are little more than an illusion because, if a non-participating opponent (or any independent group) outspends the taxpayer financed candidate, then each opposing "participating" candidate receives dollar-for-dollar matching funds from — you guessed it — the taxpayers.
The matching funds provisions are currently being constitutionally challenged in federal district court in the case of McComish v. Bennett. And, just today, CCP filed a friend-of-the-court brief, arguing that the matching funds provisions are unconstitutional since they penalize non-participating candidates and their supporters for exercising their First Amendment rights to spend unlimited amounts of lawfully raised and constitutionally protected campaign contributions. Indeed, this was the constitutional rule established by the U.S. Supreme Court just a year ago when it struck down the federal Millionaire's Amendment in the case of Davis v Federal Election Commission.
