FAN 117 (First Amendment News) Center for Competitive Politics Prevails in Challenge to Utah Campaign Finance Law

Columnist George Will held them out as the go-to group when it comes to the First Amendment and campaign finance laws. The group: The Center for Competitive Politics. Consistent with that reputation, the Center has recently prevailed in a challenge it leveled against  a Utah campaign finance law (Utah Taxpayers Association v. Cox). Here are some excerpts from a press release from the Center:

Screen Shot 2016-07-19 at 9.39.24 PM

“In an agreement approved by a federal judge this afternoon, Utah agreed not to enforce a state campaign finance law that violated the First Amendment. The complex law required nonprofit advocacy groups to register with the state and publicly report their supporters’ private information, threatening donations to those organizations.”

“The agreement, known as a consent decree, was approved by U.S. District Court Judge Dale A. Kimball and settles a lawsuit filed on behalf of three Utah groups by attorneys at the Center for Competitive Politics, America’s largest nonprofit working to promote and defend First Amendment rights to freedom of political speech, assembly, and petition.”

Allen Dickerson, CCP Legal Director and the lead attorney in the lawsuit said, ‘This complicated law chilled speech and association protected by the First Amendment. By regulating speech about any public policy issue and groups with only trivial connections to elections, Utah failed to regulate with the care the Constitution demands. We appreciate the work done by Attorney General Sean Reyes’s office to settle this litigation and provide necessary guidance to all advocacy groups in Utah.'”

The plaintiffs were represented by Center for Competitive Politics’ Allen Dickerson and Staff Attorney Owen Yeates.

Here are a few excerpts from the consent decree:

“The State Defendants and their agents, officers, and employees agree not to enforce the law currently codified at Utah Code Ann. §§ 20A-11-701 to -702, as modified to create a donor reporting regime by H.B. 43, because imposing such requirements on Plaintiffs for engaging in constitutionally protected political advocacy and political issues advocacy is unconstitutional unless those organizations are political action committees or political issues committees for which such advocacy is their major purpose. In particular, the State Defendants will not impose fines against corporations for failing to comply with the donor reporting regime unless those organizations are political action committees or political issues committees for which such advocacy is their major purpose; file or refer criminal charges against such corporations; or otherwise enforce the donor reporting regime unless those organizations are political action committees or political issues committees for which such advocacy is their major purpose.”

Colorado Petitions SCOTUS in Campaign Disclosure-Requirements Case

The case is Williams v. Coalition for Secular GovernmentThe issue in the case is whether Buckley v. Valeo’s “wholly without rationality” test apply to all dollar thresholds that trigger campaign finance disclosures, or are thresholds below some as- yet-undefined amount subject to heightened constitutional scrutiny?

In its cert. petition Colorado notes:

“To trigger campaign finance disclosure regulations, States rely on dollar thresholds ranging from zero to amounts in the thousands. Recognizing that setting a disclosure threshold is a policy decision entitled to deference, this Court held in Buckley v. Valeo that disclosure thresholds must be upheld unless they are “wholly without rationality.” 424 U.S. 1, 83 (1976). The Tenth Circuit, however, has rejected this test. In two decisions, it has held that Colorado’s disclosure threshold for “issue committees” is too low, although it declined to explain what number would be constitutional. Under that reasoning, even groups that spend $3,500 on campaign advocacy—a figure over ten times greater than the amount that triggers similar disclosure regulations in other States—are exempt from Colorado’s disclosure laws.”

Colorado urged the Court to grant review for the following reasons:

“I.  This Court’s review is necessary to resolve the circuit split over the standard of review for campaign finance triggering thresholds.”

“A. The Circuits are split three ways over Buckley’s ‘wholly without rationality’ test.”

“B. The outcome below conflicts with cases from the Fifth, Ninth, and Eleventh Circuits, which uphold disclosure thresholds for issue committees ranging from $0 to $500.”

“II. The constitutional standards that govern campaign finance disclosure laws, particularly laws that apply in the ballot issue context, are exceptionally important in dozens of States.”

“III. Because it comes from the outlier circuit after a bench trial, this case is an excellent vehicle for resolving the confusion among the lower courts.”

Frederick Yarger, Solicitor Generall, counsel of record for Colorado.

The challenge to the Colorado law was brought by the Center for Competitive Policits.

The ACLU & Campaign Finance Laws: Marcia Coyle Interviews Outgoing Legal Director Steven Shapiro

Steven Shapiro, ‘Jagger’ of Civil Liberties, Reflects on ACLU Career, Challenges, National Law Journal, July 13, 2016. Here is an excerpt:

Coyle: Given the Roberts Court’s ongoing deregulation of campaign finance laws and the increasing role of money in our elections, do you see the ACLU changing its position against limits on campaign expenditures?

Shapiro: “It is the most debated policy in the history of the ACLU. It had come before the national board repeatedly. The most recent occasion was three years ago. The board made some changes in the policy but it did not change the basic opposition to expenditure limits. There’s always the possibility and likelihood it will come back before the board in the future, but in the short term, the ACLU position remains unwilling to trust the government with the power to decide how much political speech is tolerable. It doesn’t think that’s the answer to money in politics.”

Steven Shapiro

Steven Shapiro

“Whether or not the Supreme Court is going to do anything about expenditure limits depends a lot on who is sitting in that fifth seat or ninth seat. I would be surprised just given the way the Supreme Court functions, that there would be a decision flat out overrulingCitizens United in the near future. Maybe with a different majority it gets there over time. I suspect what you will see is a more expansive definition of what constitutes corruption which justifies regulation.” [ht: David Keating]

See also: FAN 110 — Steve Shapiro to Step Down as ACLU’s Legal Director, May 25, 2016

Hillary Clinton: On Amending the First Amendment 

 David Weigel, Clinton will push constitutional amendment to ‘overturn Citizens United, Washington Post, July 16, 2016

“Hillary Clinton will call for a constitutional amendment to “overturn Citizens United” in her first 30 days as president and plans to make that announcement today to progressive activists at the annual Netroots Nation conference.

“‘I will also appoint Supreme Court justices who understand that this decision was a disaster for our democracy,” Clinton will say in a video message, scheduled to run near the end of today’s final keynote session. “I will fight for other progressive reforms, including small-dollar matching and disclosure requirements. I hope some of the brilliant minds in this room will seek out cases to challenge Citizens United in the courts.'”

Erica Goldberg, Amending the Constitution to Undo Citizens United, In a Crowded Theater, July 18, 2016

Professor Erica Goldberg

Professor Erica Goldberg

“I remain agnostic on whether we should amend our constitution to accommodate greater restrictions on election spending.  There are reasonable arguments that Citizens United actually changed very little (and, indeed, channeled funding to groups that must disclose their financial sources instead of groups that don’t have that obligation).”

“There is a conflicting interpretation that Citizens United unleashed into elections an unprecedented torrent of money, which likely has a corrupting influence.  Regardless of campaign finance reform, lobbyists and leaders for all sorts of well-funded causes – progressive, libertarian, and conservative – engage politicians using tactics and platforms based on influence and power.  However, given that our country has become increasingly disenchanted with what it sees as “money in politics” (one reason I believe Donald Trump became a viable candidate), a sensible, sophisticated constitutional amendment would reduce cynicism about politics and perhaps make elections fairer.”

Flashback: FAN 18: What to do with the First Amendment? Election Law & Free Speech, June 4, 2014

To amend or not to amend? The question lingers and the debate continues. In the political maelstrom, some liberals push to amend the First Amendment while conservatives push back against the idea of tinkering with the Bill of Rights. . . . 

Senate Hart Building, Rm. 216, 10:30 a.m — Senator Patrick Leahy (D-Vt.) chaired the hearing. Sixteen senators were present at various times during the hearing. Introductory comments were made by  Chairman Leahy (statement here) and Senator Chuck Grassley (R-IA) (statement here). Their remarks were followed by the first panel of witnesses, which consisted of Majority Leader Harry Reid (D-Nev.) (statement here) followed by comments from Minority Leader Mitch McConnell (R-KY) (statement here). “This joint appearance,” said Committee Chairman Patrick Leahy (D-Vt.), “is a first in the Committee’s history as far as we can tell.”  

Prior to the second panel’s statements, comments were offered by Senator Richard Durbin (D-IL) and Senator Ted Cruz (R-TX) (video clip here).  The second panel consisted of statements by Floyd B. McKissick, Jr. (a state Senator from North Carolina) (statement here), Floyd Abrams (Partner, Cahill Gordon & Reindel) (statement here), and Jamie Raskin (Professor of Law, American University, Washington College of Law) (statement here).

First Amendment Challenge: Three professors Sue UT Austin Over the Right to Ban Guns 

This from Inside Higher Education: “Three professors at the University of Texas at Austin are suing the institution over its response to the state’s new campus carry law, which explicitly permits licensed, concealed weapons on campus. The law is supposed to go into effect Aug. 1 on public university campuses in the state, and a year later at community colleges.”

“Specifically, the professors seek the right to ban guns from their classrooms — something the university has maintained would put it out of compliance with the new law. The professors, who argue that both state law and university policies are vague on that point, on Friday were granted a hearing for a preliminary injunction on having to allow weapons in class. It’s scheduled for early next month.”

“In addition to criticizing the university’s handling of the new law, the lawsuit alleges violations of the First and Second Amendments, as well as equal protection under the law.”

According to the complaint “Compelling professors at a public university to allow, without any limitation or restriction, students to carry concealed guns in their classrooms chills their First Amendment rights to academic freedom.”

Movie Ratings & the First Amendment 

This from The Hollywood Reporter: “Imagine Coke, Pepsi and Dr. Pepper formed a trade association that inspected soft drinks, and despite knowing that a certain ingredient caused debilitating diseases that would result in one million deaths, decided to put labels on bottles certifying that the contents are suitable for children under 17 to drink.”

Unknown“That’s a hypothetical conjured up by plaintiffs suing the Motion Picture Association of America over films rated ‘G,’ ‘PG,’ and ‘PG-13’ that contain tobacco imagery. ‘This case is no different,’ write the plaintiffs in a memorandum filed Friday.

The MPAA, its studio members and the National Association of Theatre Owners are defending against what they see as an impingement of free speech. In response to a putative class action flagging such films as Dumb and Dumber ToTransformers: Age of Extinction and Iron Man 3 as featuring smoking imagery yet recommended for young audiences, the defendants characterize movie ratings as “opinions” about what most American parents would think about the suitability of a motion picture for viewing by children.

“‘The First Amendment provides those opinions with ‘full constitutional protection’ against civil liability,’ argued the MPAA’s lawyers in a motion.

“The plaintiffs are now fighting against the possibility their lawsuit is stricken under California’s SLAPP statute. . . .”

Henry Barnes, Ban on smoking in movies ‘infringes free speech’, says MPAA,  The Guardian, July 19, 2016

Free Speech  on College Campuses

Is the University Killing Free Speech and Open Debate? | We the Internet Documentary, July 14, 2016 (Around the county college students are silencing speakers in the name of safe spaces. Filmmaker Rob Montz visits his alma mater of Brown University to find out what happened to free speech and debate on campus in We the Internet‘s first mini documentary.)

Filmmaker Rob Montz

Filmmaker Rob Montz

(credit: Dave DiFilippo for The Wilson Times)

(credit: Dave DiFilippo for The Wilson Times)

Forthcoming Books

  1. 51u1jvfyLML._SX332_BO1,204,203,200_Robert E. Mutch, Campaign Finance: What Everyone Needs to Know (Oxford University Press, August 1, 2016)
  2. Lyombe Eko, The Regulation of Sex-Themed Visual Imagery: From Clay Tablets to Tablet Computers ( Palgrave Macmillan, 2016)
  3. Milton Cantor, The First Amendment under Fire: America’s Radicals, Congress, and the Courts (Transaction Publishers, Jan. 31, 2017)
  4. Stephen Smith, First Amendment Studies in Arkansas: The Richard S. Arnold Prize Essays (University of Arkansas Press, Oct. 1, 2016)

Scholarly Articles

  1. Taggert J Brooks, Brad R. Humphreys, & Adam Nowak, Strip Clubs, ‘Secondary Effects’, and Residential Property Prices, SSRN, July 14, 2016
  2. John M. Kang, Prove Yourselves: Oliver Wendell Holmes and the Obsessions of Manliness, West Virginia Law Review (2016)

News, Editorials, Op-eds, & Blog Posts 

  1. Andrea Noble, Threats against police: Crime or free speech?, Washington Times, July 19, 2016
  2. Scott K. Johnson, House Science Committee convinced fraud investigations stifle free speech, ARS Technica, July 15, 2016
  3. Tabatha Abu El-Haj, The RNC Will Be a First Amendment Disaster, Slate, July 15, 2016
  4. Elizabeth Nye,  Abortion Ambiguities Remain Post-FACE Act, First Amendment Law Review (blog, 2016)
  5. Bruce Smith, Both Sides Dealt Setback in Tour Guide Free-Speech Lawsuit, Associated Press, July 11, 2016
  6. Peter Roff, Freezing Free Speech, US News & Wolrd Report, July 11, 2016

YouTube Video

Today in First Amendment History 

This from Today in Civil Liberties History: “Communist Party Leaders Arrested; Test of Smith Act Ahead”

“The top leaders of the Communist Party were arrested under the Smith Act on this day. The Smith Act, enacted on June 29, 1940, made it a crime to advocate the violent  overthrow of the government. After a stormy trial, in which the prosecutor relied primarily on Marxist writings and offered no evidence of any planned effort to overthrow the U.S. government, 11 party leaders were convicted. The appeal of their convictions resulted in the Supreme Court decision, Dennis v. United States on June 4, 1951, in which the Court upheld the convictions as well as the constitutionality of the Smith Act. Civil libertarians regarded the Dennis decision as a serious blow to First Amendment rights.”

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule of Cases Already Argued

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Pending Petitions*

  1. Williams v. Coalition for Secular Government 
  2. Wolfson v. Concannon
  3. Lee v. Tam
  4. Dart v.
  5. Pro-Football v. Blackhorse 
  6. Packingham v. North Carolina

Review Denied

  1. Delaware Strong Families v. Denn 
  2. Scholz v. Delp
  3. Herson v. City of Richmond
  4. Hodge v. Talkin
  5. POM Wonderful, LLC v. FTC
  6. Cressman v. Thompson
  7. Justice v. Hosemann 
  8. Electronic Arts, Inc. v. Davis
  9. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  10. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  11. Town of Mocksville v. Hunter
  12. Miller v. Federal Election Commission
  13. Sun-Times Media, LLC v. Dahlstrom
  14. Rubin v. Padilla
  15. Hines v. Alldredge
  16. Yamada v. Snipes
  17. Center for Competitive Politics v. Harris
  18. Building Industry Association of Washington v. Utter (amicus brief)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims):  Cert. denied

Freedom of Information Case

→ The Court’s next Conference is on September 26, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

NEXT SCHEDULED FAN POST, #118: Wednesday, July 27, 2016

LAST SCHEDULED FAN POST, #116Farber on Scalia & the Abortion Protest Cases

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