Laws requiring campaign donation disclosure can reinforce conformist pressures, notes my colleague Ilya Shapiro on the episode of the tech CEO who stepped down after an outcry over his donation to California’s Prop 8 campaign a few years ago. [Forbes] On the wider significance of the episode (not mostly one of law or regulation, since the government did not and in my view should not get involved either way), I recommend Conor Friedersdorf’s careful analysis in the Atlantic.
“…Yet”. Daniel Fisher explains yesterday’s 5-4 decision by the Supreme Court in McCutcheon v. FEC, which may be more significant as a clue to the direction of future Court thinking on campaign finance and the First Amendment as for its actual direct effect. Cato submitted an amicus brief on the side that prevailed, and my colleagues Trevor Burrus and Ilya Shapiro have flash reactions (earlier). More: Ilya Shapiro now has a longer treatment out at SCOTUSBlog.
Trevor Burrus on the serious side of the case that elicited Cato’s humorous amicus brief the other day [Forbes]:
Susan B. Anthony List v. Driehaus… will be argued [before the Supreme Court] in April. The case is a challenge to Ohio’s bizarre statute prohibiting knowingly or recklessly making “false” statements about a political candidate or ballot initiative. In other words, the Ohio Election Commission (OEC) essentially runs a ministry of truth to which any citizen can submit a complaint. Amazingly, twenty other states have such laws.
Laws against lying in political speech are not administered by disinterested truth seekers, but by people with their own political convictions. They chill large amounts of truthful speech and deprive the public of hearing a robust debate on the issues. And, as we will see, they are used by political opponents to turn campaigning into litigation.
It’s actually on a serious subject: can a state (Ohio) purport to ban false, exaggerated or “truthy” speech about candidates, or does that impermissibly chill speech protected by the Constitution’s First Amendment? My colleagues Ilya Shapiro, Trevor Burrus and Gabriel Latner co-authored it on behalf of political humorist/Cato fellow P.J. O’Rourke in the pending SCOTUS case of Susan B. Anthony List v. Driehaus. Read it here, alongside Ilya Shapiro’s summary, and here’s David Lat of Above the Law calling it the “Best Amicus Brief Ever.“
Details are all over; D’Souza, a well-known conservative commentator, is the author of a book criticizing President Obama in particularly harsh terms. Here’s what happened after a big-league trial lawyer got caught donating in others’ names to John Edwards in 2004 (“slap on wrist“). More: Ken White, Popehat; Ann Althouse.
Further: Alison Frankel at Reuters on how laundering/straw donor charges are brought “surprisingly frequently” with less than clear patterns of who gets off with civil settlements and who gets indicted (& thanks for cite).
And more: I didn’t do as good a job of explaining the link to our 2006 post as I might, and some readers have misinterpreted it. As reported there, the John Edwards campaign paid only a $9,500 civil fine for accepting the illegal contributions. The lawyer and law firm that arranged the donations paid a larger fine of $50,000, several times the size of the offending contributions, in a civil (not criminal) penalty.
“… is to allow citizens to monitor government, not to allow government to monitor citizens.” — Center for Competitive Politics on Sen. Dick Durbin’s demand that private donors provide information about their involvement with the American Legislative Exchange Council, an organization for state legislators, and with the issue of “stand your ground” self-defense law.
Eugene Volokh in a Federalist Society video on campaign regulation and the First Amendment. A dissent: Scott Greenfield.
P.S. Beware of setting up a state-level group to promote controversial views on issues, even if promoting candidates is not your primary purpose [Adler on cert petition in Corsi v. Ohio Elections Commission]
“Attention, liberals: The ACLU wouldn’t be able to sue the NSA if it weren’t for Citizens United.” [Wendy Kaminer, The Atlantic]
They “propose giving Congress unchecked new power over spending on political speech” [John Samples, Cato Policy Analysis] More on Citizens United here, here, here (Democrats’ platform), here, here (Michael Kinsley: case was “correctly decided”), here, here, here (Wendy Kaminer), here, here, here, here (unions as beneficiaries), even more, and on the “corporations aren’t people” sound bite and related rights-abolishing proposals, here, here, here, and here.
P.S. Self-recommending: forthcoming Michael McConnell in YLJ on Citizens United.
Brad Smith on how Woodrow Wilson and Henry Ford used early versions of campaign finance law to settle scores with Michigan opponent Truman Newberry [Law and Liberty]
Great moments in international human rights: “United Nations-affiliated election monitors from Europe and central Asia will be at polling places around the U.S. looking for voter suppression activities by conservative groups … Liberal-leaning civil rights groups met with representatives from the OSCE this week.” OSCE stands for “Organization for Security and Cooperation in Europe (OSCE), a United Nations partner on democratization and human rights projects.” [Alexander Bolton, The Hill]
More: Julian Ku writes that although the OSCE is transnational, it is not “U.N.-affiliated,” and notes that contrary to some speculation, the observers’ appearance was unrelated to a separate request to the U.N. by the NAACP asking it to regulate voting methods in the U.S.
…take note of what labor unions are doing on the Michigan ballot [Emilio Rocca/CEI, earlier] More: Shikha Dalmia, WSJ.