Event Reminder: CCP-Cato Institute Conference on January 26, 2015: The Past and Future of Buckley v. Valeo
On January 30, 1976, the United States Supreme Court handed down Buckley v. Valeo, still its most important decision at the intersection of campaign finance and the First Amendment. The Court brought forth a per curiam opinion that invalidated significant parts of the 1974 amendments to the Federal Election Campaign Act. The Buckley Court denied Congress the power to limit campaign spending. But not completely. The same Court decided Congress could restrict contributions to candidates to prevent quid pro quo corruption or “the appearance of corruption.” Giving citizens an “equal voice” in elections, however, could not justify suppressing speech.
Buckley remains a vital precedent that restrains and empowers Congress. But should Buckley be considered a First Amendment failure? Or did it embrace inevitable compromises that were both worse and better than everyone desired? How does Buckley affect the law and American politics and campaigning today? Does the decision have a future? Please join us to discuss these essential questions of First Amendment law and politics.
The January 26 event is free of charge and will be held at The Cato Institute at 1000 Massachusetts Avenue, NW in Washington, DC. The program will begin at 9:00 AM and conclude at 12:30 PM with a luncheon to follow. More information, including an agenda and a full list of great speakers can be found here. All those interested in attending should RSVP at the following link.
In the News
American Prospect: How Big Money Has Hurt the GOP
Eliza Newlin Carney
The granddaddy of all campaign-finance rulings—the high court’s landmark 1976 decision in Buckley v. Valeo to uphold the post-Watergate contribution caps and disclosure rules—turns 40 on January 30. The Buckley anniversary will be the topic of two major campaign-finance conferences, one hosted by the Cato Institute and the Center for Competitive Politics on January 26, the other hosted by Demos on January 28 at the National Press Club. It’s all part of what I argue is an increasingly urgent campaign-finance conversation that the Citizens United ruling and its aftermath have moved to the front burner.
CCP
Citizens Misguided: Media Myths about Citizens United Persist in 2016?
Luke Wachob
The Daily Beast recently marked the six year anniversary of Citizens United by carrying on one of the decision’s most prominent legacies: spurring members of the media to embarrass themselves by failing to grasp even the most basic aspects of the ruling.
Jay Michaelson, “a writer and LGBT activist in the USA who writes on spirituality, Judaism, sexuality, and law” according to his Wikipedia page, turned his expert eye to the case in an article titled, “How Citizens United Gave Us Bernie Sanders and Donald Trump.”
Oh, boy. Let’s make some corrections…
5) “These pseudo-corporations don’t have to disclose their donors and can spend unlimited amounts on elections, as long as they’re not officially coordinating with specific candidates (which has turned out to be a joke).”
Here’s a doozy of an error. Six years later, there’s no excuse for still believing that Citizens United allowed undisclosed contributions to super PACs. It unequivocally did not. Citizens United did not affect disclosure law in any way. Furthermore, super PACs are required to disclose all of their contributors who give over $200 (the same threshold that applies to candidates and PACs). In other words, we know the same information about super PAC donors that we know about every political donor since the 1970s.
Disclosure
ABC News: Appeals Court Upholds FEC Rule on Disclosure Requirements
Sam Hananel, Associated Press
The ruling upheld a Federal Election Commission regulation that narrows disclosure requirements for corporations and labor groups paying for ads that run close to Election Day.
The regulation says groups running the ads only have to reveal donors who contribute for the express purpose of paying for the ads. That means donors who choose not to say how they want their money used can remain anonymous…
Writing for the panel, Judge Janice Rogers Brown said the court gave the FEC wide latitude to interpret Congress’ mandate. Just because one of the purposes of campaign reform laws was broader disclosure “doesn’t mean that anything less than maximal disclosure is subversive,” she said.
Rogers said the FEC had a valid concern that some contributors to a union or corporation’s general treasury may not support the group’s political ads. She agreed with the agency’s reasoning that a rule requiring more disclosure could mislead voters as to who really supports the ads and would be too burdensome for the groups to disclose.
Executive Action
The Hill: McConnell: Executive order on campaign finance would be illegal
Jordain Carney
“Obama is again considering imposing his ‘enemies list’ regulation by executive order — just weeks after Congress voted overwhelmingly to pass, and the president signed into law, legislation prohibiting him from doing that very thing,” he said from the Senate floor.
The president is reportedly considering requiring federal contractors to disclose their political contributions to outside groups. Congressional Democrats have pushed the Obama administration for years to finalize a proposed regulation to require federal contractors to disclose their political donations.
But a provision included in last month’s omnibus spending bill blocks any funds from being used to require federal contractors to disclose political donations as part of the bidding process.
Independent Groups
New York Times: As Jeb Bush Struggles, Some Allies Blame His ‘Super PAC’
Ashley Parker and Maggie Haberman
Interviews with more than a dozen donors and advisers to the candidate revealed a complicated picture of dissatisfaction with the group and its chief strategist, Mike Murphy. Few wanted to openly criticize the group or Mr. Murphy on the record, but many raised questions about the role they had played in the campaign.
Continue reading the main story
Related Coverage
Some donors quietly worry about how the cash-rich group is spending its money, confounded by how few tangible results the tens of millions it has pumped into the race have yielded. Others have expressed dismay with negative advertisements Right to Rise has run and a 15-minute pro-Bush documentary that it produced.
Center for Public Integrity: Is ‘dark money’ boosting Bernie Sanders?
Cady Zuvich
Hillary Clinton’s presidential campaign labeled the Friends of the Earth Action as “dark money” group in a recent blog post titled “Sanders’ ‘No Super PAC’ Myth.”
But Friends of the Earth Action rejects the “dark money” label.
“We’ve got a long history of engaging in the political process that predates super PACs and Citizens United,” said Erich Pica, president of the environmentally-minded nonprofit. “So they can call us a dark money group, but we are mainly small-donor driven.”…
The Sanders ad blitz is twofold, Pica said. He sees Sanders as more committed than Clinton to environmental issues, but he also wants to force a conversation on climate change — a topic that has yet to be robustly discussed in debates.
CBS News: Are some PACs scamming donors?
CBS News
American Liberty also solicited money for veterans on behalf of Conservative StrikeForce. CBS News obtained this script saying: “Can StrikeForce count on your support of our veterans during these important times…?”
But we couldn’t find any money going to veterans’ causes.
We looked at federal records and found since 2011, Conservative StrikeForce and other PACs raised over $33 million, largely from Republican retirees. Yet only 8 percent actually went to the causes they claimed to support. The rest went to a group of companies who used those donations to make more money.
Congress
Washington Post: On Citizens United anniversary, Harry Reid picks a 6-year-old scab with John McCain
Amber Phillips
So what’s Reid getting at here, bringing all this up nearly four years later? With the caveat that we can’t read the senator’s mind, we do know that McCain is not a lock to win election to a sixth term, and Democrats would love to see him — among other potentially vulnerable Republicans — fall in November so they can take back the chamber. McCain faces Rep. Ann Kirkpatrick (D-Ariz.).
Along those lines, Reid is probably acutely aware of how well 2016 candidates on both sides are doing by bashing billionaires, or at least making clear how unbeholden they are to them. Maybe that wasn’t so much the case in 2010 or 2012, but campaign finance reform could be a winning issue for Senate Democrats in 2016.
Free Speech
Weekly Standard: Got a License to Carry That Notepad?
The Scrapbook
And in the last few Democratic debates, Hillary Clinton has been vocal about wanting to overturn Citizens United, the landmark Supreme Court case on campaign finance. This particular case hinged on whether showing a film criticizing Clinton herself would constitute a campaign finance violation. During oral arguments, Obama’s deputy solicitor general argued that properly enforcing campaign finance laws might mean banning books, as well as films. In order to enforce the preferred campaign finance regime of many Democrats, the government would have to legally define who has the right to criticize politicians, as well as when and how it’s allowable. And yet, liberals claim to be scandalized the High Court found this unconstitutional.
It would be nice to see the media get half as animated about these Democratic outrages as they did about a satirical press law proposed by an obscure Republican state legislator.
Supreme Court
Washington Post: How the Supreme Court can change politics as usual
Jeffrey Bellin
That doesn’t mean the justices should let McDonnell off the hook. When it hands down its decision, the court should make clear that McDonnell’s behavior was both politics as usual (as he claims) and a federal felony (as the government contends). That ruling would give proper deference to Congress’s authority to criminalize public corruption and mitigate the damage caused by the court’s recent decisions deregulating campaign finance.
Candidates and Campaigns
CNN: Hillary Clinton: The cure for Citizens United is more democracy
Hillary Clinton
We can’t let this continue. It’s time to reclaim our democracy, reform our distorted campaign finance system and restore access to the ballot box in all 50 states.
That starts with reversing Citizens United. And that’s where my comprehensive plan to restore common sense to campaign finance begins. As president, I’ll appoint Supreme Court justices who recognize that Citizens United is bad for America. And if necessary, I’ll fight for a constitutional amendment that overturns it.
ABC News: Ted Cruz Gets a Light Saber at Town Hall, As Part of a Question on Citizens United
The States
Colorado Independent: Federal lawsuit attacks Colorado’s money-in-politics enforcement system
Corey Hutchins
Today, the nonprofit Institute for Justice, a public interest group based near Washington, DC, filed a federal lawsuit attacking Colorado’s system of private party enforcement for regulating campaign finance laws.
The Institute is suing on behalf of Tammy Holland, a Colorado mother from Strasburg, who had taken out ads in her local newspaper about an upcoming school board election. “Tammy did not endorse any particular candidate; she just wanted voters to know their options,” the Institute wrote in a news release. “For the ads, Tammy found herself sued not once, but twice, by school board officials who sought to silence her speech.”
Los Angeles Times: Federal investigators focus on small campaign donations to L.A. Councilwoman Nury Martinez
David Zahniser
Campaign-finance probes at City Hall have historically centered on large contributions, the kind that illegally exceed spending limits. But this time around, federal investigators have been focusing on donations listed in Martinez’s contribution filings of just $5 and $10.
Those types of small donations were important to Martinez’s campaign, helping her to qualify for a much larger pool of “matching funds” — taxpayer money provided to candidates who demonstrate grass-roots support.
Five constituents in Martinez’s San Fernando Valley district, all of them listed in city records as small donors, said they were contacted by the FBI or other investigators over the last four months. Three of those five said they had also appeared before the federal grand jury.
