Jurisprudence & Litigation

This morning the Supreme Court summarily affirmed the decision of a 3 judge panel of the U.S. District Court for the District of Columbia in Bluman v. Federal Election Commission, upholding the power of government to bar political contributions to parties, PACs, and candidates from non-resident aliens. The decision was no surprise here or elsewhere.

The Montana Supreme Court on December 30 launched a headlong frontal assault on the U.S. Supreme Court’s opinion in Citizens United v. FEC. We predict that the U.S. Supreme Court will make quick work of this frivolous and misguided opinion.

A federal court recently ruled that a defamation suit filed by former Ohio Rep. Steven Driehaus against the Susan B. Anthony List can move to trial.

Former Rep. Driehaus sued SBA List alleging that billboards they provided during campaign season claiming that he voted in favor of taxpayer-funded abortions constituted defamation and led to a “loss of livelihood.”  Representative Driehaus considers himself pro-life, but voted in favor of the federal health care overhaul which, according to SBA List, did not include provisions explicitly prohibiting taxpayer-funded abortions.  SBA List’s claim against Driehaus stems from a study by the US Conference of Catholic Bishops, which also took the stance that the bill did not provide adequate measures to prevent certain insurance pools with access to federal funds from paying for abortion services.  Driehaus claims that current statutes and an executive order fully prevent taxpayer money from going towards abortions, which SBA list disputes.

The complaint made it to the Ohio Elections Commission, which concluded that there was probable cause that SBA List violated Ohio’s draconian false statements law.  For those of you who do not live in Ohio, it may seem odd that a state panel exists for determining the validity of campaign ads.  In some regards, the panel is similar to FactCheck.org.  The panel, however, has the ability to threaten citizens with fines and criminal charges if they don’t toe the government line on their version of the “truth.”Although he ultimately dropped the complaint, Driehaus then filed a defamation suit.Emily Buchanan, the executive director of SBA list, made this statement to Fox News:

Today a three judge panel for the U.S. District Court for the District of Columbia ruled that non-resident foreigners do not have a right to make political contributions or express advocacy expenditures in U.S. elections. The horrible threat of a foreign takeover of U.S. elections now seems behind us.

CCP Academic Advisor and First Amendment champion Joel M. Gora, a Professor of Law at Brooklyn Law School, has written a stellar analysis of the much maligned Supreme Court decision in Citizens United v. Federal Election Commission.

In “The First Amendment…United,” Gora thoroughly recounts the outcomes of the case, defending it as an endorsement of First Amendment protections for the political speech of corporate, labor, and non-profit entities. The decision reversed statutes which had previously made it illegal for these groups to speak out in elections. Aside from the more minor immediate effects, Gora explains that the lasting legacy of Citizens United lies in its enthusiastic support for the First Amendment.

Justice Elena Kagan’s dissent in Arizona Free Enterprise Club (AKA McComish) yesterday is being praised by the so-called campaign finance ‘reform’ community today. The New York Times, for example, writes:

Justice Elena Kagan, writing in dissent, dissects the court’s willful misunderstanding of the result. Rather than a restriction on speech, she says, the trigger mechanism is a subsidy with the opposite effect: “It subsidizes and produces more political speech.” Those challenging the law, she wrote, demanded – and have now won – the right to “quash others’ speech” so they could have “the field to themselves.” She explained that the matching funds program – unlike a lump sum grant to candidates – sensibly adjusted the amount disbursed so that it was neither too little money to attract candidates nor too large a drain on public coffers.

There are a lot of things wrong with Justice Kagan’s dissent, but that’s the subject of a later post. For now, I just want to focus on one of the more interesting things she wrote, which might give ‘reformers’ pause before celebrating this dissent any further.