Archive for the 'Supreme Court' Category

Few would have guessed that the First Amendment and its application to campaigns would somehow become an issue in the judicial review of President Trump’s beleaguered travel ban. And yet that is what happened, as Judge Kozinski has put this question into play in a dissent from the Ninth Circuit’s denial of en banc rehearing.

Judge Kozinski argues that the courts are opening up a potentially disastrous conflict with the First Amendment, by allowing for judicial inquiry into discriminatory purpose in an officeholder’s (and associates’) comments on the campaign trail. In the defense of the travel ban, the Administration has insisted on its facial neutrality, arguing that religious animus played no role. But a District Court in Hawaii found that repeated references to a Muslim ban during the campaign belied this suggestion of a secular purpose and doomed the order on an Establishment Clause analysis.

Rick Hasen has published a piece in this issue in Slate, arguing that this dissent is "bad on the merits," and would immunize obviously discriminatory purpose revealed in flat-out appeals to racial bias on the campaign trail.   He gives the example of a candidate for county prosecutor who declares that African-Americans should be kept off juries. Would we believe that, as a matter of formal doctrine, courts should ignore this? Kozinski imagines that they should, Hasen argues that they shouldn’t. Perhaps the answer is that they just wouldn’t.

Contribution Limits and “Standards of Review”

March 3, 2017
posted by Bob Bauer

Supreme Court nominee Neil Gorsuch has scattered few clues about his campaign finance jurisprudence. Commentators have had to make do with his concurrence in Riddle v. Hickenlooper, 742 F. 3d 922 (2014), a case involving a concededly defective Colorado law that discriminated against minor or independent candidates in the structure of contribution limits. Gorsuch’s concurrence could be read to question the more permissive standard of review that the Supreme Court in Buckley established for the defense of contribution limits. The Court allowed for scrutiny of contribution restrictions a step or more down from the strictest review: not attention to whether the government had a “compelling” interest and had “narrowly tailored” the means to achieve it, but a question of the state’s “sufficiently important interest” and the use of means that are “closely drawn.”

Gorsuch wrote in Hickenlooper that the two standards were “pretty close but not quite the same thing.” Id. at 931. To some observers, they seem not that close at all. They fear that any shift to a more rigorous standard would be the next and perhaps decisive blow to meaningful campaign finance regulation. The stakes, they believe, are high. But how high? And are there other questions to be raised about the political assumptions, perhaps also effects, of the leeway provided for the imposition of tight limits on contributions?

The Supreme Court will soon decide whether to take up a major case about disclosure and this has received little attention—far less than it should. At issue is the clarification of how far government authority extends in requiring the disclosure of the financing of “issues speech”--speech or just information about candidates’ positions that does not involve engaging in advocacy of their election or defeat. There are reasons why the case might have been overlooked: it involves a small organization in a small state, and the activity concerns state and local, not federal (much less presidential), candidates. Perhaps, also, because it is “just” about disclosure, this case might be supposed to pose little danger of harm to anyone’s rights or legitimate expectations.

This is serious business. As the states move along with their own reform programs, and as litigation proceeds under different standards applied by different circuits and diminishing consistency in the treatment of federal and state or local-level enactment, disclosure doctrine is losing its coherence, and key constitutional distinctions once taken for granted are being rapidly eroded. One disturbing result: the “big” and sophisticated spenders at the federal level are more protected than the “little guy” at the levels below.

In the case in question, Delaware Strong Families v. Denn, the speech took the form of a Voter Guide that reproduced positions supplied by the candidates themselves, or in the case of candidates who declined to cooperate, their stated positions drawn from the public record. DSF is a 501(c)(3) barred from endorsing candidates, unlike an affiliated (c)(4) that may and does. There is no allegation that the (c)(3) is evading the prohibition on partisan speech. Delaware has enacted a disclosure law that applies to this Guide, requiring the disclosure of DSF donors who have given over $100 over a four- year period. The law covers all speech referring to candidates, whether by broadcast, mail or Internet, within 30 days of a primary election or 60 days of a general. It is triggered by the expenditure of more than $500 without regard to the size of the audience.

DSF sued and won in district court, then suffered a reversal of fortune in the Third Circuit Court of Appeals. The short opinion issued by the Third Circuit is striking in its breadth and, one might say, daring. It looks past the critical Buckley distinction between express and issue advocacy, apparently in the belief that, on this point, the 1976 decision has been overtaken by the decisions in McConnell and Citizens United, especially the latter, which it reads to allow for the regulation of any issues speech that could influence voter choice. So, on the assumption that its position is well supported by recent developments in the constitutional law, the Third Circuit embraced this view:

By selecting issues on which to focus, a voter guide that mentions candidates by name and is distributed close to an election is, at a minimum, issue advocacy. Thus, the disclosure requirements can properly apply to DSF’s Voter Guide…”

793 F.3d 304, 309 (July 16, 2015)

The State of Delaware has joined with reform organizations to defend this proposition. It concedes that the statute is expansive in reach, sweeping in smaller organizations and small-scale spending. But it justifies aggressive disclosure policy in a state the size of Delaware, where a little spending goes a long way. It contends that states have the right to decide how much spending is effective in the local conditions in which it occurs, taking in account the size of the electorate and other factors, and to apply disclosure requirements accordingly.   And the states can conclude that issues speech—in this case, the duplication of material the candidates supply –triggers mandatory disclosure of small donors in the interests of an informed electorate.

The case brought by the Independence Institute against the “electioneering communication” disclosure requirement enacted by McCain-Feingold could prove to be highly significant.  This is an as-applied challenge; it contests the mandatory reporting of a "pure" issue ad if, within specified days prior to an election, it refers to a public official who is also a candidate for federal office. Some believe that this claim was foreclosed by McConnell v. FEC and Citizens United.  Independence Institute disagrees, arguing that the Court has never held that issue speech loses constitutional protection against disclosure, including donor disclosure, just because it airs during an election season.

What may stand in the way are summary comments the Court has made, most notably in Citizens United, where the Justices suggested that it did not matter to the application of the electioneering communication requirement whether a communication contained the “functional equivalent of express advocacy.”  558 U.S. 310, 369.  One reading is that the Court had no patience with disclosure objections, end of story. Even a "pure" issue ad—even such an ad run with no apparent electioneering interest or motive –is subject to disclosure if it includes a reference to a public official who was a candidate.

Perhaps this is what the Court intended to say, but this interpretation puts considerable weight on general statements and very little or none at all on the line of authority established by Buckley that campaign finance law could not override the distinction in the constitutional law between campaign and issues speech.

The Ninth Circuit yesterday issued a decision on judicial campaign finance, Wolfson v. Concannon, controlled by and very much in the spirit of Williams-Yulee. Arizona may prohibit a judicial candidate from directly soliciting campaign contributions, and also from endorsing nonjudicial candidates and participating in their campaigns.  The Court found the State to have a compelling interest sufficient to cover all the prohibitions: “an interest in preserving public confidence in the integrity of the state’s sitting judges.”  After that, it was smooth sledding, courtesy of Williams-Yulee, and the Court batted away the plaintiff’s claims that the bans were both under-and over-inclusive, and that Arizona could have employed less restrictive means of satisfying its interest.

A concurrence by Judge Berzon adds a note of genuine interest to an otherwise predictable, workmanlike analysis.  She suggests that the prohibition on endorsements of and campaigning for other candidates was more correctly considered in relation to another interest, equally compelling, in the independence of the judiciary.  Williams-Yulee may well control the outcome on the question of personal fundraising, but “the bans on endorsements and campaigning for nonjudicial candidates and causes… are quite different.”  Supporting those bans is an interest in

society’s concern with maintaining both the appearance and the reality of a structurally independent judiciary, engaged in a decision-making process informed by legal, not political or broad, nonlegal policy considerations.
Berzon writes that prohibiting alliances between judicial and other candidates protects against “politicization” of the judiciary.  Her concern is not the risk of bias in particular decisions but instead preserving a “structurally independent judiciary. “