The State of Ohio is playing for time in its defense of its “false campaign statements” statute. It wants the case now before the Supreme Court decided on ripeness, win or lose; it wants to hold off a decision on the constitutionality of its law. Some, Rick Hasen among them, believe that this might work. But then again, it might not, and the law could well be put out to pasture without further ado. The petitioner has argued in clear terms that the law is unconstitutional and that, on this point, the recent decision in United States v. Alvarez is dispositive. Petition for Writ of Certiorari at 6-7, Susan B. Anthony List v. Driehaus, 134 S.Ct. 895 (2014) (No. 13-193). And the Court could agree, motivated as well to spare the petitioner another expensive, time-consuming tour through the courts to win the victory that it is virtually guaranteed.
Here are three recent lines of argument about campaign finance, two of them in response to McCutcheon and one of them about the escalating conflict between the FEC Commissioners. Each is interesting in its own way; they are also constituent parts of the basic, most frequently heard defense of the Watergate-era regulatory program.
Category: Campaign Finance Reform
April 14, 2014
The decision in McCutcheon has not been the only source of lively rhetoric in the world of campaign finance. The FEC's commissioners took to very open squabbling, putting their cases in Statements of Reason and elaborating on them in op-eds and letters placed with the New York Times. The conflict in this instance involved Commissioner Ravel on one side and all of the Republican commissioners on the other, and they swiped at each other in strong terms over the properly defined responsibility of FEC Commissioners and the role of courts.
April 10, 2014
Rick Hasen has made an important contribution to the debate about McCutcheon by astutely identifying an issue that had gone mostly unremarked—the Court’s choice to reduce the doctrinal heft of the “appearance of corruption” in step with its narrowed view of “actual corruption.” With the equation of “actual” corruption with quid pro quo corruption, Rick believes, the concern with appearances had to take up the slack in addressing “the public’s concern that money can skew legislative outcomes.” Twice in his piece, Rick refers to a “stand-in” function for appearances—a role in standing in for the decimated actual corruption standard that is no longer capable of dealing with the “broader concern about undue influence.”
Category: The Supreme Court
In an interesting Washington Post article, Professor Heather Gerken has proposed with co-authors a new strategy to advance a core reform objective, the enhancement of transparency, as other options seemingly dwindle after CItizens United and McCutcheon. Heather is well known and well-respected for just such an insistence on thinking beyond the well-traveled, now largely exhausted policy choices. A good example is the Democracy Index, which she constructed to “harness politics to fix politics,” by generating political incentives for the improvement of performance on election administration through the publication of public rankings.
- Justice Breyer’s Dissent in McCutcheon
- An Early Reading of Roberts’ Opinion in McCutcheon, With a Little of Justice Thomas (More to Come)
- Of Something called “PASO” and the Sound of Dog Whistles
- Fiascos and Matters of Degree
- The Kobach Case as Voting Rights Jurisprudence
- Assessing Lobbying Reform in the Obama Administration
- The FEC and the Making of Law “Case-by-Case”
- Forms of Influence and the Best Bet
- Not a Distortion, Really: A Quick Reply to Paul Ryan of the Campaign Legal Center
- Fallout from the IRS Rulemaking on Tax-Exempt “Candidate-Related Activity”