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October 20, 2006

Kentucky: Yarmuth failed to give "millionaire's amendment" notice

The Louisville Courier-Journal reports: John Yarmuth violated a federal campaign finance law by failing to notify his 3rd Congressional District opponents that he has loaned his campaign more than $350,000, according to three campaign finance experts.

The so-called “millionaire’s amendment” that took effect with sweeping campaign finance reform in late 2002 is intended to offset wealthy candidates’ financial advantage, but also can protect incumbents who aren’t as likely to rely on their own funds for a campaign.

And it has the potential to allow incumbent U.S. Rep. Anne Northup to broaden her financial advantage in the race by tripling how much she can get from individuals — from $2,100 to $6,300.

Yarmuth, a wealthy Democrat seeking to unseat the well-financed Northup, a five-term incumbent, has contributed $390,000 to his general election campaign — going over the $350,000 limit on Sept. 29, according to his latest campaign report filed Sunday. -- Yarmuth may have violated campaign law

January 24, 2006

Supreme Court says courts must consider "as applied" challenges to BCRA

The New York Times reports: The Supreme Court, ruling today in an important campaign finance case, opened the door to a new round of legal challenges to the limits Congress placed four years ago on election advertisements paid for by corporations and broadcast during the weeks before federal elections.

The court's opinion was surprising, coming only six days after the argument. It was unsigned, barely two pages long, and unanimous.

It may, however, have considerable impact, given that the court itself, two years ago, had appeared to foreclose further challenges to the "electioneering communications" portion of the Bipartisan Campaign Reform Act of 2002. The Supreme Court at that time upheld the law, usually known as McCain-Feingold after the names of its Senate sponsors, in a 5-to-4 decision that considered multiple free-speech challenges to the statute "on its face" rather than in particular applications.

The court ruled today that both the government and a special three-judge federal district court here had misinterpreted its earlier decision to foreclose future challenges to the advertising restrictions as they applied to particular advertisements or to particular corporate sponsors.

The justices vacated the lower court's opinion and ordered it to consider the merits of an anti-abortion group's argument that the statute, if applied to an advertisement the group sought to broadcast on Wisconsin television stations in the summer of 2004, would violate the First Amendment rights to free speech and to petition the government. -- Justices Ask Court to Reconsider Campaign Finance Case - New York Times

May 19, 2003

BCRA stay Thanks to Marty

BCRA stay

Thanks to Marty Ledermar Of SCOTUSblog for providing a link to the stay order and partial dissent by the 3-judge court. Two judges granted the stay and Judge Leon dissented in part.

May 12, 2003

Legal Times wrap up on

Legal Times wrap up on McConnell v. FEC

Despite the title, "Campaign Finance Ruling Gives No Satisfaction" reports on both the good and the bad points for lots of positions in the case.

May 10, 2003

Many parties seek stay on

Many parties seek stay on BCRA ruling

After the NRA filed its motion to stay the decision in McConnell v FEC, the court entered an order requiring all motions to be filed by noon on Friday. The order is here. You may see the stay applications at the Campaign Media Center's site.

May 7, 2003

McConnell v FEC As usual,

McConnell v FEC

As usual, the Campaign Legal Center is doing a great job in gathering and putting on the web all the documents in the McConnell case. In addition to the decision and opinions, the CLC has posted summaries by many of the interested parties, a link to the documents unsealed by the court, and the stay motions filed in the case. To see the jurisdictional statement filed by McConnell, go here. (Thanks to Howard Bashman for the link to the latter.)

May 5, 2003

Jurisdictional Statement Filed by Opponents

Jurisdictional Statement Filed by Opponents of Campaign Finance Law

SCOTUSblog reports:

The lead plaintiffs in McConnell v. FEC have already filed a jurisdictional statement in the Supreme Court seeking review of those portions of the three-judge court's opinion that upheld significant provisions of the BCRA, and that concluded that challenges to other provisions were nonjusticiable at this time.

[Thanks to Goldstein & Howe for making this available.]

May 4, 2003

McConnell v FEC fallout Can

McConnell v FEC fallout

Can parties start raising and spending soft money? That's the question discussed in this article from the New York Times and this one in the Washington Post.

While I have been tied up in depositions (yes, even on Saturday), Rick Hasen, Howard Bashman, and SCOTUSblog have been collecting news stories and making intelligent commentary about the case.

May 2, 2003

McConnell v FCC The Court

McConnell v FCC

The Court has issued the McConnell decision. Get it here. The main opinion is 171 pages, and pages 5-15 contain a summary of all the rulings. Each of the judges wrote separately on some issues. The Court also issued a ruling on the sealed material -- it appears that much of the information previously sealed must be refiled as part of the public record.

This is the summary (page number are included):

5
I. DESCRIPTION AND CHART OF THE COURT’S RULINGS
In light of the number of provisions in BCRA being challenged, the complexity of the
issues presented by each challenge, and the variety of positions and voting combinations
taken by the three judges on this District Court, we set forth a brief description and a chart,
on a section by section basis, of the various rulings
A. Title I
Section 323(a) of BCRA bans national parties from soliciting, receiving, directing,
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transferring, and spending nonfederal funds (i.e., soft money). Judge Henderson strikes this
section down as unconstitutional in its entirety. Judge Leon, for different reasons, files a
concurrence, joining with Judge Henderson, except with respect to the ban on national parties
from using (i.e., ?directing,? ?transferring,? and ?spending?) nonfederal funds (i.e., soft
money) for ?federal election activity? of the type defined in Section 301(20)(A)(iii). As to
that type of conduct, Judge Leon upholds the constitutionality of Congress’s ban on the use
of nonfederal funds by national parties for Section 301(20)(A)(iii) communications. Judge
Kollar-Kotelly upholds Section 323 (a) in its entirety. Accordingly, Judge Leon’s decision
regarding Section 323(a) controls.
Section 323(b) prohibits state parties from using nonfederal money for ?federal
election activities? as defined in Section 301(20)(A) of BCRA. Judge Henderson strikes
these sections down as unconstitutional in their entirety. Judge Leon, for different reasons,
joins Judge Henderson in a separate concurrence, but only with respect to those party
activities set forth in Subsections (i), (ii), and (iv) of Section 301(20)(A). As to Section
301(20)(A)(iii), Judge Leon upholds the constitutionality of Congress’s prohibition on state
and local parties from spending nonfederal funds for communications that promote, oppose,
attack or support a specific federal candidate. In a separate opinion, Judge Kollar Kotelly
finds Section 323(b) constitutional and concurs with Judge Leon’s discussion of Section 301
(20)(A)(iii).
Section 323(d) prohibits national, state, and local parties from soliciting funds for, or
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making donations, to § 501(c) organizations that make expenditures, or disbursements, in
connection with federal elections, or to § 527 national organizations. Judge Henderson
strikes this section down as unconstitutional in its entirety. Judge Leon, for different reasons,
joins in that conclusion in a separate concurrence. Judge Kollar-Kotelly files a separate
dissent in which she finds the entire section constitutional.
Section 323(e) prohibits, but for certain enumerated exceptions, federal officeholders
and candidates from soliciting, receiving, directing, transferring, or spending, nonfederal
money in connection with any local, state, or federal election. Judge Henderson and Judge
Kollar-Kotelly, for different reasons, in separate opinions uphold the constitutionality of this
section in its entirety. Judge Leon concurs with respect to the restriction on federal
officeholders and candidates receiving, directing, transferring or spending any nonfederal
funds in connection with any federal or state election, but files a separate dissent with regard
to any prohibitions on a federal candidate, or officeholder, from soliciting funds for the
national parties.
Section 323(f) prohibits state officeholders and candidates from using nonfederal
funds for public communications that refer to a clearly identified candidate for federal office
and that promote, oppose, attack, or support a candidate for this office. Judge Leon upholds
this section in its entirety. Judge Kollar-Kotelly concurs with Judge Leon’s opinion. Judge
Henderson, dissents and finds the entire section unconstitutional.
8
B. Title II
Section 201 of BCRA sets forth a primary, and ?backup? definition, of an
?electioneering communication? (i.e., so-called ?issue ads?). In addition, it sets forth certain
disclosure requirements for those who fund these electioneering communications. Judge
Henderson strikes down both the primary and backup definition as unconstitutional. Judge
Leon, for different reasons, concurs in her judgment with respect to the primary definition.
Judge Kollar-Kotelly dissents and upholds the primary definition as constitutional as
discussed in her separate opinion. With respect to the backup definition, Judge Leon, who
writes a separate opinion, upholds its constitutionality with its final clause severed. Judge
Kollar-Kotelly, as expressed in her opinion, concurs in that conclusion solely as an
alternative to this Court’s finding that the primary definition is unconstitutional. Finally,
with regard to Section 201’s disclosure requirements, Judge Kollar-Kotelly and Judge Leon,
for the reasons set forth in the per curiam opinion, uphold their constitutionality with one
exception. Judge Henderson strikes down the disclosures requirements in a separate dissent.
Section 202 provides that disbursements by persons for electioneering
communications, or contracts to purchase the same, that are coordinated with either a federal
candidate or a candidate committee, or a political party committee will be treated as
contributions to that candidate’s campaign or political party committee. Judge Kollar-
Kotelly and Judge Leon, for the reasons set forth in the per curiam opinion, find this section
constitutional. Judge Henderson, in a separate dissent concludes that this Section is
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unconstitutionally overbroad.
Section 203 of Title II prohibits labor unions, corporations and national banks from
using money from their general treasury to fund ?electioneering communications,? as defined
by Section 201. Instead, under Section 203, such communications must be paid from a
separately segregated fund (?SSF?). Section 203 also includes an exception from the SSF
requirement for certain nonprofit corporations (i.e., the ?Snowe-Jeffords exception?). Judge
Kollar-Kotelly upholds this section as constitutional. Judge Leon joins Judge Kollar-
Kotelly’s opinion upholding the constitutionality of this section as it applies to the backup
definition in Section 201. Judge Henderson strikes down this Section as unconstitutional in
its entirety. Judge Kollar-Kotelly and Judge Leon additionally uphold the disclosure and SSF
requirements as well as the Snowe-Jeffords exemption provision for certain nonprofit
corporations organized under Sections 501(c)(4) and 527 of the Internal Revenue Code in
their respective opinions.
Section 204 (?The Wellstone Amendment?), in effect, withdraws the Snowe-Jeffords
exception of Section 203. Judge Henderson strikes down Section 204 in its entirety. Judge
Leon concurs in her result as it applies to MCFL exempt organizations only. As to nonprofit
corporations that do not qualify for the MCFL exemption, Judge Leon concurs with Judge
Kollar-Kotelly’s conclusion, but for different reasons, in upholding Section 204 as it applies
to non MCFL organizations.
Section 212 provides certain reporting requirements for independent expenditures.
10
Judge Kollar-Kotelly and Judge Leon, for the reasons set forth in the per curiam opinion,
conclude that challenge to this provision is not ripe for review, and therefore hold that the
Court does not have jurisdiction to resolve the plaintiffs’ challenges at this time. Judge
Henderson dissents from this view and finds Section 212 unconstitutional in its entirety.
Section 213 requires national parties, in essence, to choose between making
coordinated expenditures under the Party Expenditures Provision or unlimited independent
expenditures on behalf of their federal candidates. All three judges concur that this section
is unconstitutional. Judge Henderson’s opinion includes a discussion of her separate reasons.
Judge Kollar-Kotelly concurs in Judge Leon’s separate opinion on this section.
Section 214 addresses coordinated expenditures paid for by persons other than party
committees and candidate committees. Section 214 repeals the current FEC regulations on
coordinated expenditures, and directs the FEC to promulgate new regulations that do not
require ?an agreement or formal collaboration to establish coordination.? Judge Kollar-
Kotelly and Judge Leon, for the reasons set forth in the per curiam opinion, find that the
plaintiffs’ challenge under Section 214(b) and Section 214(c) is nonjusticiable and the Court
therefore lacks jurisdiction to consider their challenge. As to Sections 214(a) and 214(d),
however, they find those sections constitutional for the reasons set forth in the per curiam
opinion. Judge Henderson dissents, finding the Section unconstitutional in its entirety.
C. Title III and V
Sections 304, 316, & 319, collectively known as the ?Millionaire Provisions,? allow
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opponents of self-financed candidates, and in certain circumstances, to raise money in larger
increments and accept unlimited coordinated party expenditures. All three judges conclude,
for the reasons set forth in Judge Henderson’s opinion, that this Court lacks standing to
entertain challenges to these provisions.
Section 305 denies a candidate the ?lowest unit charge? for broadcast advertisements
on radio and television unless the candidate promises not to refer to another candidate in his
or her advertisements. For the reasons set forth in Judge Henderson’s opinion, all three
judges conclude that this Court lacks standing to entertain the plaintiffs’ challenge at this
time.
As explained in Judge Henderson’s opinion, the Court similarly finds that the
plaintiffs do not have standing to challenge Section 307, which increases and indexes
contribution limits.
Section 311 establishes certain disclosure requirements for the sponsors of
electioneering communications. Judge Kollar-Kotelly and Judge Leon, for the reasons set
forth in the per curiam opinion, uphold this provision as constitutional. Judge Henderson,
dissents, and finds this section unconstitutional for the reasons set forth in her opinion.
Section 318 prohibits donations by minors to federal candidates, or to a committee of
a political party. All three judges agree that this section is unconstitutional. Each judge
writes a separate concurrence setting forth his/her reasoning as to this section.
Section 504 requires broadcast licenses to collect and disclose records of any request
to purchase broadcast time for communications that ?is made by or on behalf of a legally
qualified candidate for public office? or that relates ?to any political matter of national
importance,? including communications relating to ?a legally qualified candidate,? ?any
election to federal office,? and ?a national legislative issue of public importance.? Judge
Henderson finds this section unconstitutional. Judge Leon and Judge Kollar-Kotelly, concur
in that result, but not in her reasoning. Judge Kollar-Kotelly concurs in Judge Leon’s
separate opinion on this section.

April 5, 2003

Why the delay on McConnell v FEC?

Despite Nina Totenberg's usually fine reporting (discussed here), it seems that the concern over an ulterior motive or some in-fighting on the three-judge court is pretty overblown.

Tony Mauro has an article on law.com covering the possible effect of a delayed ruling, and Howard Bashman has some down-to-earth analysis of the possbile reasons for the delay.

April 4, 2003

More on the McConnell v FEC delay

After Nina Totenberg's report last Saturday (discussed here), the Washington Post follows up today with more
details.

March 31, 2003

Nina Totenberg on the BCRA case

Nina Totenberg had a report Saturday on NPR that the 2 district judges on the McConnell v FEC case are trying to write an opinion -- or at least the facts of the opinion -- after looking at Circuit Judge Henderson's draft. She says there is "frostiness" between Henderson and the other two judges. She also says that the opinion will probably be about 1,000 pages long. (Oh, goody, just how I needed to spend a week or so.)

Thanks to J.J. Gass of the Brennan Center for pointing this out to me.

March 24, 2003

Still no word from the court hearing the BCRA challenge

The Washington Post reported today,

More than six weeks after a special federal appeals court indicated it would rule on the nation's new campaign finance law, no decision has been handed down, and lawyers in the landmark case worry the Supreme Court will be hard-pressed to hear it this term, as originally planned.

With no ruling in sight from the three-judge panel in U.S. District Court in Washington, the Supreme Court's regular spring calendar is already full. From the beginning, it was agreed that the Supreme Court would promptly review the case, regardless how the three-judge panel ruled.

January 21, 2003

Secrecy in the McConnell v FEC suit

The 3-judge court hearing McConneell v FEC has remanded to a single judge the motions by news organizations to make all documents and testimony public. (via Campaign & Media Legal Center)

December 21, 2002

McConnell v FEC -- secret documents

Earlier I noted that several news organizations have asked the McConnell v FEC court to unseal all the confidential portions of the depositions and documents in the case. The Justice Department has opposed the motion with an argument that sound like it is trying to protect informants in a case of extortion. Oh, maybe they are.

What is really happening is that DOJ wants to protect the informants from public embarrassment, not from disclosure to the "criminals." Their names and testimony are known to everyone in the case. We are the ones in the dark.

Let's say the Wiggit Corp. paid "non-federal" funds (soft money) to Sen. X's leadership PAC because Sen. X said that he needed some money (hint, hint) to get reelected so that he could help Wiggit on its efforts to obtain legislation relieving it of liability for the exploding wiggit problem. Don't you think the public has a right to know that?

December 18, 2002

McConnell v FEC -- secret documents

ABCNEWS.com reports that several news organizations (including ABC) have filed a motion with the federal court considering the McConnell v FEC case to have the court unseal all the briefs, affidavits, depositions, and documents submitted to the court. The court had allowed parties and witnesses to designate any part of the testimony as "confidential." Because of this, nearly every party filed a brief and then redacted it for public distribution.

December 9, 2002

McConnell v FEC

Here is the Roll Call story on the oral argument in the suit testing the constitutionality of the Bipartisan Campaign Reform Act.

November 8, 2002

McConnell v FEC

While my attention has been on the Alabama Governor's recount, the Washington Post has published a couple of articles on the McConnell case. Nineteen states, DC, and two territories have filed an amicus brief supporting the McCain-Feingold law. See "States Back Campaign Finance Law". The States' brief and several other amicus briefs are here.

The briefs filed by the parties in the case were heavily redacted or completely sealed (in the case of the DOJ brief). See "The Thick Black Line of Protection."

The briefs for the plaintiffs are here. Those for the intervenor-defendants are here.

October 21, 2002

McConnell v FEC depositions

Roll Call has an article in today's paper about the depositions in the MConnell v FEC suit. Sen. McCain has repeated his allegation that Sen. McConnell "encouraged [Republican] Senators to support the tobacco industry on a legislative matter in return for soft money- financed issue ads."

October 17, 2002

McConnell v FEC

Thomas Mann of Brookings and Lisa Danetz of National Voting Rights Institute just pointed out that the affidavits have all been posted by the Campaign & Media Law Center. Just a little something to read for all the campaign finance mavens out there.

McConnell v FEC

The trial is getting closer. Oral argument will be 4 December. (I wonder who is charge of distributing tickets.) Witness lists have been filed -- see the Campaign & Media Law Center for a copy. All testimony is by affidavit or deposition. The Democracy 21 site has several affidavits from its side (pro-BCRA). I am looking for the plaintiffs' affidavits.

October 15, 2002

Depositions in the BCRA suit

Roll Call reports that Sen. McConnell is seeking to have large portions of his deposition as well as portions of Sens. McCain's and Feingold's depositons sealed. The parties to the suit agreed that anyone could declare portions of his own deposition as confidential to prevent political foes using it, but apparently McConnell is sealing portions of depositions that make charges against him.