I am posting this column a few days early since I will be traveling this week, but next week I’ll return to the scheduled Wednesday postings.
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Contributions earmarked solely for use in independent expenditures by “hybrid” political committees that engage in both independent expenditures and direct contributions to candidates appears destined to be a coming campaign-finance law battleground. — Judge Edith Brown Clement (2014)
Dan Backer
The cases seem endless — that is, all those campaign cases that are finding their way to courts. One gets dizzy just drying to keep up with all of them as they are listed weekly on Professor Rick Hasen’s Election Law blog.
Recall, last week I posted a story about a campaign finance case that James Bopp, Jr. filed with the Supreme Court on Friday. Before the digital ink on that case could dry, voila, a new campaign finance case found its way to the Court only moments ago.
→ The case: Stop This Insanity Inc Employee Leadership Fund et al v FEC.
The two issues in the case are: (1) Whether a political committee that makes highly restricted direct contributions has a First Amendment right to engage in unrestricted non-contribution activities through a separate and segregated non-contribution account, and (2) Whether the First Amendment forbids a government from restricting political speech based on the disclosure interest—an interest in providing the electorate with information about the sources of election-related spending—including when a more narrowly tailored remedy is available.
→ The man principally behind the case is a mild-mannered and quiet sort of guy, Dan Backer. He is no big time K street lawyer. No, his professional credentials are much more modest. He is the founder and principal attorney for DB Capitol Strategies, a campaign finance and political law firm in Alexandria Virginia. More importantly (and as David Skover and I noted in our book When Money Speaks), he was one of the driving forces behind the successful litigation of McCutcheon v. FEC (2014). When his team lost that case in the D.C. Circuit (in an opinion by Judge Janice Rogers Brown), it did not stop him — he took the case to the Supreme Court where Erin Murphy successfully argued the case for the Petitioner.
And now, Backer and a new team are at it again, in yet another campaign finance case — and again challenging a ruling by Judge Brown and her colleagues on the D.C. Circuit.
Lower Court ruling — “‘You can’t always get what you want'”
→ Court of Appeals decision (D.C. Cir., Aug, 5, 2014), per Judge Janice Rogers Brown (joined by Judges Thomas Griffith and David Sentelle). Here is how Judge Brown began her opinion:
“The iconic musician Mick Jagger famously mused, ‘You can’t always get what you want. But if you try sometimes, well, you just might find, you get what you need.’ The Rolling Stones, You Can’t Always Get What You Want, on Let It Bleed (Decca Records 1969). Here, Stop This Insanity Inc. (STII)—a grassroots organization—wants to remove the congressionally-imposed binds on solicitation by separate segregated funds, a type of political action committee connected to a parent corporation. What it needs, however, it already has—an unrestrained vehicle, in the form of that parent corporation, which can engage in unlimited political spending. Because this less-obsolete and less-onerous alternative exists, we decline Stop This Insanity’s invitation for us to tinker with what has become a statutory artifact.”
And here is how she ended it, albeit with musical flare:
“STII is already capable of sweeping solicitation. And yet, it wants a vehicle capable of soliciting without transparency. The Court has endorsed disclosure as “a particularly effective means of arming the voting public with information,” McCutcheon, 134 S. Ct. at 1460, and the Appellants’ approach would stifle the Government’s ability to achieve that endeavor. Our Constitution does not compel such a result.IIIWe may never know why the Appellants wish to do things the hard way. The Constitution, however, does not guarantee a right to be obstinate. Try as it might, STII will get no satisfaction.”
Tillman Breckenridge
The players
→ Counsel of record on Cert. Petition: Tillman J. Breckenridge.
→ Other Counsel in the Case: The petition was filed by Tillman Breckenridge and Tara Brennan of the Reed Smith law firm, working in conjunction with the William & Mary Law School Appellate and Supreme Court Clinic, and Dan Backer.
→ Counsel for the FEC in Court of Appeals: Erin Chlopak, Acting Assistant General Counsel, Federal Election Commission.
→ The initial advisory opinion request to the FEC and court filing were done by Steven Hoersting and Dan Backer.
Circuit Split
In his cert. petition, Mr. Breckenridge maintains that “the D.C. and Second Circuits directly conflict with the Fifth and Tenth Circuits on whether hybrid PACs can be prohibited.” The cases to which he refers are:
- Stop This Insanity Inc Employee Leadership Fund et al v FEC (D.C. Cir., 2014)
- Vermont Right to Life Comm., Inc. v. Sorrell (2nd Cir., 2014)
- Catholic Leadership Coal. of Tex. v. Reisman (5th Cir., 2014)
- Republican Party of N.M. v. King (10th Cir., 2013)
→ Will such differences in the Circuits be enough to prompt four of the Justices to review the enmeshment issue and/or the discourse one? Here is Professor Rick Hasen’s prediction: “I give this a reasonable chance of a cert. grant, given the circuit split (though not on the disclosure issues, but on the coordination/enmeshment issue.”
On a related matter: Federal judge rules donor disclosure required for political documentary
This from the JURIST website (Sept. 23, 2014):
The US District Court for the District of Colorado denied on Monday a request by Citizens United for a preliminary injunction to allow the conservative organization to air a political documentary without disclosing the film’s advertising donors as required by state law. The documentary, Rocky Mountain Heist, which the group hopes to air before November’s elections, “concerns various Colorado advocacy groups and their impact on Colorado government and public policy.” Citizens United argued, on First Amendment grounds, that its organization should be considered a “press entity,” entitled to the same exemptions as traditional media outlets, which are not required to disclose their donors. Otherwise, the group argued, it would be the victim of “viewpoint-based discrimination.” The court disagreed stating that people should be able to “discern the private interests behind speech when determining how much weight to afford it.” Citizens United intends [press release] to appeal this ruling to the US Court of Appeals for the Tenth Circuit.
Supreme Court: Results of Sept. 29th Conference
The following free expression First Amendment cases were up for consideration at the Court’s Monday, September 29th “Long Conference.” The list of cases is set out below and will be UPDATED on this blog as soon as the results are available:
- Williams-Yulee v. The Florida Bar (docket #: 13-1499): ACTION: Cert. ?
Issue: Whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.
- City of Indianapolis, Indiana v. Annex Books, Inc. (docket #: 13-1441) ACTION: Cert. ?
Issue: Whether, to satisfy the First Amendment as applied in Renton v. Playtime Theatres, Inc. and its progeny, an hours-of-operation regulation targeting negative secondary effects must be supported by highly specific, statistically significant empirical evidence.
- Ashley Furniture Industries, Inc. v. United States (docket #: 13-1367) ACTION: Cert. ?
Issues: (1) Whether a statute that denies a government benefit based on a recipient’s failure to express support for a proposed course of government action, is subject to, and survives, strict scrutiny under the First Amendment; and (2) whether, to successfully defend a viewpoint-discriminatory statute subject to intermediate scrutiny under Central Hudson Gas & Electric Corp. v. Public Service Commission, the government must prove that non-discriminatory measures would fail to satisfy the government’s interests.
- Mehanna v. United States (docket #: 13-1125) ACTION: Cert. ?
Issue: Whether a citizen’s political and religious speech may constitute provision of “material support or resources” to a foreign terrorist organization (FTO) under the “coordination” rubric of Holder v. Humanitarian Law Project, when the government conceded that petitioner was not instructed by the FTO, and the evidence showed that he did not interact with the FTO, but rather viewed, translated, and disseminated materials of his own choosing, while expressing moral support for certain views of the FTO, and associating on the Internet with persons who the government claims had themselves associated with the FTO.
Compelled speech? — Pro-life pregnancy centers file cert. petition challenging state disclosure requirements
→ The case: Pregnancy Care Center of New York v. City of New York (case #: 13-1504)
→ Issues: (1) Whether compelling a noncommercial pro-life speaker to declare it lacks a medical license passes strict scrutiny; and (2) whether a compelled speech law is unconstitutionally vague if the City can deem speakers as needing to comply, because of their “appearance,” without any ability for the speaker to know whether it must comply.
→ Cert. petition here (Matthew Bowman, counsel of record)
→ Second Circuit opinion here (per Judge Judge Rosmary Pooler joined by Judges Richard Wesley and Raymond Lohier)
→ See David Orentlicher, “Abortion and Compelled Physician Speech” (Aug. 25, 2014)
→ See G. Edward White, “The Evolution of First Amendment Protection for Compelled Commercial Speech” (Aug. 1, 2014)
(Hat tip to Maureen Johnston, SCOTUSblog)
Flashback: Kozinski on Nimmer
Mel Nimmer (copyright: Alex Kozinski, used w permission)
I recently came upon a remembrance of the late UCLA Law Professor Mel Nimmer; it was by one of his former Contracts students, Alex Kozinski. It is titled: “I licensed Nimmer.” Here is a passage from it:
While Nimmer was always soft-spoken and polite in class, we found out he had used the F-word before the Supreme Court. One of my classmates had heard a rumor to that effect and we were all wondering whether inside the mild-mannered Professor Nimmer was a Lenny Bruce trying to break free. So at the beginning of class, one student (probably me) asked him about his representation of Paul Robert Cohen in the Supreme Court: “Is it true that the Chief Justice wouldn’t let you quote what was written on Cohen’s jacket?”“Well, he tried,” Nimmer answered. “When I started speaking, the Chief Justice said: ‘Mr. Nimmer, the Court is familiar with the facts of your case so there is no need to state them.’” Nimmer continued, “I felt that if I let him censor what I said in the Supreme Court I’d be conceding that the word was taboo in other courtrooms as well. So I responded, ‘I think I can summarize the facts very briefly, Mr. Chief Justice,’ and I did.”The class was silent as we waited for Nimmer to quote that summary, but he never did. I guess he thought that kind of language wasn’t appropriate for the classroom.
There is more, much more, about the law of contracts, copyright, and, yes, about young Alex and his interactions with the famed professor.
(Hat tip to the CJ of the Ninth Circuit)
Lenny Bruce (1925-1966)
Video Clips of the Week (2 oldies)
- “The First Amendment ProjectL No Joking!” (with clips from Lenny Bruce, Robin Williams, Richard Dreyfuss, lawyer Martin Garbus, and others)
- “Laughter and the First Amendment“: Chicago Humanities Festival, 2010, with Burt Joseph, Geoffrey Stone, Ron Collins, Judges Dianne Wood & William Bauer)
Volokh Watch
- “New York high school bars National Guard recruiter from distributing National Guard T-shirts (and bars students from wearing them),” Sept. 25, 2014
- “May a criminal libel statute punish even true statements (when said for ‘bad motives’ or ‘unjustifiable ends’)?,” Sept. 25, 2014
Today in Civil Liberties History
September 29, 1956: “In an attempt to restrict the activities of the NAACP, Virginia passed a set of laws against barratry, champertry, and maintenance. Barratry is defined as “stirring up” litigation by encouraging people to sue when they might not have done so on their own. The laws were a blatant attempt to prevent the NAACP from pursuing civil rights cases in the state. In NAACP v. Button, decided on April 2, 1963, the Supreme Court declared the laws unconstitutional.” [source here]
Genevieve Lakier
Quick Hits
Scholarly Articles
- Genevieve Lakier, “The Invention of Low-Value Speech” (Sept. 19, 2014)
- Todd E. Pettys, “Free Expression, In-Group Bias, and the Court’s Conservatives: A Critique of the Epstein-Parker-Segal” (Sept. 21, 2014)
- David Orentlicher, “Abortion and Compelled Physician Speech” (Aug. 25, 2014)
- G. Edward White, “The Evolution of First Amendment Protection for Compelled Commercial Speech” (Aug. 1, 2014)
- Sarah C. Haan, “The CEO and the Hydraulics of Campaign Finance Deregulation” (July 2014)
- Julie E. Cohen, “The Zombie First Amendment” (July 29, 2014)
- Ciara Torres-Spelliscy, “The Democracy We Left Behind in Greece and McCutcheon” (July 18, 2014)
- John D. Inazu, “More is More: Strengthening Free Exercise, Speech, and Association” (July 1, 2014)
Op-Eds, News Stories & Blog Posts
Nota bene:
- John Paul Stevens, “Oops!,” Harold Leventhal Lecture (Sept. 12, 2014)
- Calvin Massey, “The Irony of Justice Stevens’ Speech Entitled ‘Oops!,'” The Faculty Lounge (Sept. 23, 2014
- David J. Skorton, ” Civility and Free Speech: Are They Incompatible?,” The Cornell Daily Sun, Sept. 29, 2014 (Skorton is the President of Cornell University)
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- “Forest Service clarifies proposal on news photos in wilderness, after First Amendment out,” Fox News, Sept. 27, 2014
- Greg Lukianoff, “7 Things Cracked Got Wrong About Free Speech,” Huffington Post, Sept. 26, 2014
- Stephen Schwinn, “Seventh Circuit Reverses Injunction Against Wisconsin Political Spending Investigation,” Constitutional Law Prof Blog, Sept. 25, 2014 (7th Cir. opinion here)
- Ruthann Robson, “Ninth Circuit Rejects Apel’s First Amendment Claim on Remand,” Constitutional Law Prof Blog, Sept. 22, 2014 (9th Cir. opinion here)
Last FAN Column: #33: “What is a PAC? The next big issue?”
Next FAN Column: #35 — Wednesday, Oct 8th