Tagged: Constitutional Law

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FAN 18 (First Amendment News) — What to do with the First Amendment? Election Law & Free Speech

I have not taken a position, one way or the other, on these constitutional amendments; we are having a hearing.” — Senator Patrick Leahy, June 3, 2013

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. It is a sign of our times that jaws don’t drop in utter amazement at the ideological lineup at play here.

Protestors at Senate SJ 19 hearing just before it began

Protestors at Senate SJ 19 hearing just before it began

“We are here to declare victory,” said Bobby Burchfield at a Heritage Foundation event this past Monday (see below). The seasoned election law lawyer, who argued on behalf of the RNC in the McCutcheon case, stressed victory because in his view campaign finance reformers have now conceded that their reform measures cannot be reconciled with the First Amendment. Echoing that point, Donald McGahn (former FEC chairman and prominent election law lawyer now with Jones Day) told the Heritage audience: “The so-called reformers are finally admitting that what they want to do is unconstitutional.”

Messrs. Burchfield and McGahn were referring to a proposed constitutional amendment  (S.J. 19) introduced by Senator Tom Udall (D-NM) and co-sponsofed by Senators Michael Bennet (D-CO) and Jon Tester (D-MT) along with 38 others (no Republican co-sponsors — 33 co-sponsors have joined a companion amendment in the House, H.J. Res. 20). A hearing on the Udall proposal took place yesterday in the Senate.

The Senate Hearing

Senator Leahy chatting with Senator Reid (seated).

Senator Leahy chatting with Senator Reid (seated).

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).

Here are a few excerpts from State Senator McKissick’s remarks:

“In 2010 alone Americans For Prosperity, a group funded in large party by the Koch brothers, spent more than a quarter of a million dollars in North Carolina. Another group, Civitas Action, spent more. A new organization that sprang up, called Real Jobs NC, spent almost $1.5 million dollars. Overall, three quarters of all the outside money in state races that year were tied to one man: Art Pope. Pope and his associates poured money into 22 targeted races, and the candidates they backed won in 18.”

Here are a few excerpts from Mr. Abrams’ remarks:

“The description of the constitutional amendment it proposes states, in its text, that it ‘relate[s] to contributions and expenditures intended to affect elections.’ That’s one way to say it, but I think it would have been more revealing to have said that it actually ‘relate[s] to speech intended to affect elections.’ And it would have been even more revealing, and at least as accurate, to have said that it relates to limiting speech intended to affect elections. And that’s the core problem with it. It is intended to limit speech about elections and it would do just that. . . .”

Here are a few excerpts from Professor Raskin’s remarks:

“[I]n several recent 5-4 decisions, the wall protecting democracy from plutocracy has been crumbling under judicial attack. Four years ago, in Citizens United v. FEC, the Roberts Court majority bulldozed an essential block of the wall, the one that kept trillions of dollars in corporate treasury wealth from flowing into federal campaigns. In Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011), the Court stifled public debate and destroyed vast new opportunities for political speech by striking down public financing programs that use matching funds and a trigger mechanism to amplify the voices of less affluent candidates competing to be heard over the roar of big wealth. In McCutcheon v. FEC (2014), the Court took a sledgehammer to the aggregate contribution limits, empowering political tycoons and shrewd business investors to max out to every Member of Congress and all their opponents. All of these assaults on political equality and free speech were justified in the name of the First Amendment.”

See Amy Howe’s SCOTUSblog post here.

→ A vote on S.J. 19 is said to occur later this year. 

A Few Highlights from S.J. 19 Hearing

  • Boxes of petitions calling for a constitutional amendment.

    Boxes of petitions calling for a constitutional amendment.

    Senator Leahy: “Two million Americans have signed petitions calling for a constitutional amendment.” [Stacks of boxes containing the petitions were brought into the hearing room for display.]

  • Senator Grassley: “Today freedom of speech is threatened as it has not been in many decades.”
  • Senator Reid: “Is there any member of this Committee who believes the status quo is good?”
  • Senator McConnell: “Everyone on this panel knows this proposal will not pass . . . . This is a political exercise and that’s all it is.”
  • Senator Jefferson Sessions (R-AL): “The First Amendment . . . is not a collective right.”
  • Senator Cruz: “Citizens are still astonished that members of Congress would dare support repealing the First Amendment. . . . This amendment is about power and about politicians silencing citizens. . . . We are in a strange point in time when Democrats abandon the First Amendment, and, indeed, propose repealing it.”
  • Professor Raskin: “Don’t be intimidated; the people are with you. . . . [The Petitioners in Citizens United] could have won, and should have won, on that point [i.e., statutory grounds].”
  • Senator Charles Schumer (D-NY): “The First Amendment has always had a balancing test.”
  • Senator Jean Klobuchar (D-MN) question to Mr. Abrams: “Do you support any other limits [beyond disclosure] on campaign contributions . . . .?  Mr. Abrams: “I’ve pretty well come to the conclusion that contribution limits . . . ought to fall. I think they should be disclosed, but it seems to me that we’ve reached a point, both in our jurisprudence and our politics, where if we know what the money is and where it is coming from that . . . we can trust the public to make a rational decision . . . .”
  • Senator Reid quoting Senator Mitchell (apparently from statement made in 1987 or 1988): “‘We Republicans have put together a responsible and Constitutional campaign reform agenda. It would restrict the power of special interest PACS, stop the flow of all soft money, keep wealthy individuals from buying public office.'”

* * * * 

Ken Kulkowski: “Only one amendment has modified a previous amendment. The Eighteenth Amendment was ratified in 1919 and empowered Congress to forbid alcohol nationwide. Then the Twenty-First Amendment was ratified in 1933 to repeal the Eighteenth Amendment and allow alcohol to flow once again.” [Source: here]

* * * * 

Heritage Foundation Event

The day before the Senate hearing on S.J. 19, the proposed amendment was a topic of discussion at the Heritage Foundation. The panel was moderated by Elizabeth Slattery with comments by Bobby Burchfield, Donald McGahn, and Hans A. von Spakovsky. Here are a few excerpts from their remarks:

Mr. Burchfield: “The McCutcheon decision is plainly correct.  McCutcheon like Citizens United did not break new First Amendment ground” since both decisions were consistent with Buckley v. Valeo, which rejected the idea of leveling the political playing field rationale. “The self-styled reform community is trying to read into the First Amendment what democratic government should be. The First Amendment does not impose on government a duty to limit speech.”  

Dan McGahn

Dan McGahn

Mr. McGahn: Under S.J. 19, could “Congress prohibit a labor union from communicating with its members?  What about the NRA and its members?” Can S.J. 19’s ban be “speech selective?”  Would it apply to “pastors and their congregation? What about bloggers who aired a video like the one in Citizens United?  What about books?”  McGahn also analogized S.J. 19 with the British Licensing Order of 1643 and the Stamp Act of 1765 in that all of these measures required permission from the government to speak.

Mr. von Spakovsky: “Nearly all means of communication require spending money—from the ‘humblest handbill or leaflet’ to political advertisements run during prime time on ‘television, radio, and other mass media,’ which are “indispensable instruments of effective political speech. . . . Supporters of this amendment claim that restricting the amount of money that may be spent on political speech and activity is not the same as limiting speech, but that is the equivalent of saying that limiting the amount of newsprint a newspaper may buy does not limit the newspaper’s speech. Coincidentally, the proposed constitutional amendment has one glaring exception: It would not apply to the press. Thus,The New York Times and MSNBC could continue to spend as much money, newsprint, and airtime as they want supporting their preferred candidates (or attacking those they oppose), but individuals, associations, and non-media corporations would be strictly limited in their political speech. This is certainly no way to ‘level the playing field.'”

 A video of the event should be available soon (check here)

Call for Constitutional Convention?  Read More

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FAN 17.3 (First Amendment News) Senator Cruz Introduces Two Free Speech Bills

Senator Ted Cruz

Senator Ted Cruz

Today in the course of a Senate Judiciary Committee hearing concerning S.J. 19 (a proposal to amend the First Amendment) Senator Ted Cruz (R-TX) announced that he was introducing two bills  “to protect the individual right to free speech in the wake of Democrats’ efforts to effectively repeal the First Amendment by allowing Congress to regulate spending on political speech.” As the robust Committee discussion went back and forth, Senator Cruz paused for a moment to say a few words about the pair of bills he was introducing: 

“Senate Democrats are seeking unfettered power to regulate and stifle political speech, which is why today, it’s more important than ever to champion the freedoms enshrined in our Constitution,” Sen. Cruz said. “Once Congress can prohibit spending money, it can prohibit almost every form of speech, whether it comes to books, films, television advertisements, or events. The pair of bills I filed today will not only encourage more freedom and transparency in the campaign finance system, but once again put individual Americans on a level playing field with the media and politicians when it comes to exercising our First Amendment rights.” [See video clip here]

SuperPAC Elimination Act of 2014

The first bill is entitled “the SuperPAC Elimination Act of 2014.” The bill was offered as an amendment to the Federal Election Campaign Act of 1971. The proposed law would “eliminate limitations on direct contributions to candidates” and “require disclosure of certain contributions within 24 hours or receipt, and for other purposes.” The bill’s stated purpose would be to “allow unlimited direct contributions by citizens and lawful permanent residents of the United States to candidates in Federal elections.”

The disclosure section of the bill provides in relevant part that “[i]f a candidate receives an aggregate amount of contributions in excess of $200 from any contributor during a calendar year the principal campaign committee of such candidate shall submit to the Secretary or the Commission, and the Secretary of State, as appropriate, in writing, a notification containing the name of the candidate and office sought by the candidate, the identification of the contributor, and the date of the receipt and amount of the contribution.”

The Free All Speech Act

The Senator’s second bill is entitled “The Free All Speech Act.” The first part of the bill provides that “[a]ny law that restricts the political speech of American citizens shall apply with equal force to media corporations, such as the New York Times, the American Broadcasting Company (ABC), the National Broadcasting Company (NBC), and the CBS Television Network.” Another section of the bill states that to “the extent that the application of a law to a media corporation under subsection (a) is found unconstitutional, such law shall have no force or effect with respect to American citizens.”

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FAN 17.2 (First Amendment News) Latest Snapshot of Roberts Court’s Record on Free Expression Issues This Term

Here is the latest snapshot of what the Roberts Court has done this Term in connection with free expression cases.

Decided Cases

Cert Granted

Already Argued & Ruling Pending 

Selected Pending Cases: Petition Stage

Cert. Denied

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FAN 17.1 (First Amendment News) — Court Denies Review in Reporter’s Privilege Case

Earlier this morning, the Supreme Court denied review in Risen v. United States, a reporter’s privilege case involving the Pulitzer Price winning New York Times journalist James Risen.

The two issues raised in the case were:

(1) Whether journalists have a qualified First Amendment privilege when subpoenaed to reveal the identity of confidential sources in a federal criminal trial; and (2) whether a federal common law privilege should be recognized under Federal Rule of Evidence 501 to provide protection to journalists who are subpoenaed to reveal the identity of their confidential sources in a federal criminal trial.

In a complex array of vote lineups on various aspects of the main opinion, the Circuit Court (led by Chief Judge William B Traxler, Jr. and joined in some parts by Judges Albert Diaz and Roger Gregory) ruled against James Risen. The Chief Judge declared that “there is no First Amendment testimonial privilege, absolute or qualified, that protects reporter from being compelled to testify in criminal proceedings about criminal conduct that reporter personally witnessed or participated in, absent showing of bad faith, harassment, or other such non-legitimate motive, even where reporter has promised confidentiality to source; in present case, federal trial court erred by quashing trial subpoena issued to journalist who allegedly received classified information about covert operation from former CIA case officer, in criminal prosecution of that individual for disclosure of classified information, since there is no First Amendment reporter’s privilege in criminal cases.” The Chief Judge also noted that there was no federal common-law reporter’s privilege protecting confidential sources, and if there were one the federal government would have satisfied it in this case.

Joel Kurtzberg of Cahill Gordon and Reindel filed the cert. petition on behalf of Mr. Risen. Lee Levine of Levine Sullivan Kock and Schulz filed an amicus brief on behalf of ABC and other media groups in support of the Petitioner. And Joshua Wheeler of the Thomas Jefferson Center for the Protection of Free Expression also filed an amicus brief in support of the Petitioner.

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FAN 17 (First Amendment News) — New Bio Reveals How Scalia Helped to Save a PBS Station

A soon to be released 650-page biography of Antonin Scalia reveals some interesting tidbits about the Justice and his career as it relates to free speech. The book is titled Scalia: A Court of One (Simon & Schuster, June 10, 2014). Bruce Allen Murphy, the Fred Morgan Kirby Professor of Civil Rights at Lafayette College, is the author of this heavily-researched and well-documented new biography. Professor Murphy’s previous judicial biographies include The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices (1982), Fortas: The Rise and Ruin of a Supreme Court Justice (1988), and Wild Bill: The Legend and Life of William O. Douglas (2003).

Bruce Allen Murphy

Bruce Allen Murphy

Tellingly, the yet-to-be-distributed book has already been praised and criticized. That said, Murphy’s biography affords a new opportunity to revisit the history of Justice Scalia’s interaction with the First Amendment, both before and during his career on the Court. Readers of this column will recall Scalia’s recent call for law schools to place more emphasis on teaching the First Amendment. Recall, too, the Justice’s repeated criticism of the holding in New York Times Co. v. Sullivan.

Turning back the biographical clock, and as Professor Murphy recounts it, in January of 1971 Antonin Scalia (he was 35) went to work as general counsel for the Office of Telecommunications Policy. During Scalia’s tenure there President Nixon “became convinced that the national news and public affairs division of the Public Broadcasting Service . . ., which depended on government funding, was an ‘enemy’ group staffed by relentless liberal journalists. Nixon decided to try to take control of this agency, or, if he could not, to destroy it by cutting off its funding.”

Sometime later, word reportedly came down from the Nixon White House to “get a particular PBS station off the air.” According to an OTP official then working there, “Nino said, ‘hell, write back a memo that says it’s illegal.’ While Scalia acknowledged that [the purported illegality] was not true, he added, ‘Hell, they don’t know that.'” Subsequently, the OTP official “told a reporter that he did precisely what Scalia recommended and the White House soon dropped the issue.”

To be sure, there is more to this story, but I refer readers to the Murphy’s biography to learn how the matter ultimately played out, politics and all.

Before leaving the Murphy biography, readers might be interested to know that he devotes a chapter (#8) to the originalist debate over the meaning of the First Amendment as interpreted by then Circuit Judges Robert Bork and Antonin Scalia in the case of Ollman v. Evans (1984).

More on Justice Scalia

Speaking of Justice Scalia and free speech, the following is a list of his First Amendment free expression majority opinions authored during his tenure on the Roberts Court. Notice the vote margin when he is assigned to write for the Court.

→ Aside: Coming in 2015: A play titled “The Originalist

Federal Court Affirms Right to Videorecord Police 

Read More

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FAN 16.3 (First Amendment News) — Unanimous Judgments: The Roberts Court’s Record in First Amendment Free Expression Cases

Earlier today the Supreme Court handed down its ruling in Wood v.Moss.  The vote was 9-0 and the opinion was authored by Justice Ruth Bader Ginsburg.  In part, the Court held that

Government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the gov- ernment actor fears, dislikes, or disagrees with the views expressed. See, e.g., Police Dept. of Chicago v. Mosley . . . . The fundamental right to speak, however, does not leave people at liberty to publicize their views “ ‘whenever and however and wherever they please.’ ” United States v. Grace . . . In deciding whether the protesters have alleged violation of a clearly established First Amendment right, this Court assumes without deciding that Bivens v. Six Unknown Fed. Narcotics Agents, . . . , which involved alleged Fourth Amendment violations, extends to First Amendment claims . . . .

Accordingly, the Court ruled that the Secret Service agents were entitled to immunity; the Ninth Circuit was reversed. (See Professor Ruthann Robson’s comments on the case here.)

Beyond the qualified immunity point of this opinion, what is interesting is that in Wood the Court denied a First Amendment claim by a unanimous vote. When it comes to free expression First Amendment cases, the Roberts has consistently been unanimous in cases in which the claim was denied. In other words, the only time the judgment is unanimous in such cases is when a free speech claim is rejected. Wood is but the latest case in this string of First Amendment opinions.

Unanimous Judgments Denying First Amendment Expression Claim

  1. Rumsfeld v. Forum for Academic & Institutional Rights (2006) [vote: 8-0] [3rd Cir., reversed & remanded]
  2. Davenport v. Washington Educ. Association (2007) [vote: 9-0] [Wash. S. Ct., vacated & remanded]
  3. New York State Bd. of Elections v. Lopez Torres (2008) [vote: 9-0] [2nd Cir., reversed]
  4. Pleasant Grove City, UT, et al v. Summum (2009) [vote: 9-0] [10th Cir., reversed]
  5. Locke v. Karass (2009) [vote: 9-0] [First Cir., affirmed]
  6. Milavetz, Gallop, & Milavetz v. United States (2010) [vote: 9-0] [8th Cir., affirmed in part, reversed in part & remanded]
  7. Nevada Commission on Ethics v. Carrigan (2011) [vote: 9-0] [Nevada S. Ct., reversed & remanded]
  8. Reichle v. Howards (2012) [vote: 8-0] [10th Cir., reversed & remanded]
  9. Wood v.Moss (2014) [vote: 9-0] [9th Cir., reversed]

Conclusion

Of the Roberts Court’s 32 free expression First Amendment opinions, 28% were decided by a unanimous vote and against the free expression claim being asserted.

See also: FAN 11.3: The Roberts Court on Free Speech, & Snapshots of 2013-2014 Term

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FAN 16.2 (First Amendment News) Democracy 21 Responds to RNC Lawsuit

Press Release, May 23, 2014

RNC Challenge to Political Party Soft Money Ban Filed Today in Federal District Court Has Already Been Rejected Twice by Supreme Court

Statement by Democracy 21 President Fred Wertheimer

The RNC filed a lawsuit today in Federal District Court in Washington, D.C. challenging for the third time the ban on national parties raising and spending unlimited contributions, or soft money. They have lost this same argument twice before in the Supreme Court.

The RNC lost this argument in the Supreme Court in the McConnell case in 2003 and lost again in the RNC case in 2010, decided after the Citizens United decision.

In the 2010 RNC case, Chief Justice Roberts and Justice Alito joined in the 6 to 3 Supreme Court decision that summarily upheld the lower court decision reaffirming the constitutionality of the soft money ban.

The RNC cannot get around the soft money ban and the Supreme Court decisions upholding the ban by the use of blue smoke and mirrors.

The RNC has no basis for bringing this lawsuit and apparently wants to obtain three strikes before they will accept the fact that they cannot raise and spend soft money.

The RNC is attempting to sell an illusion that the RNC can raise and spend soft money without raising and spending the soft money that the law, upheld by the Supreme Court, prohibits the RNC from raising and spending.

The RNC is also attempting to make believe that the two previous losses they had in the Supreme Court in challenging the soft money ban somehow aren’t relevant to this case and the RNC’s desire to raise and spend soft money.

Representative Chris Van Hollen intervened in the 2010 RNC case to defend the ban on political party soft money and he has indicated he will move to intervene in the RNC case filed today.

Democracy 21 lawyers will join with others in representing Representative Van Hollen in this case, as we did in the 2010 RNC case.

Federal law prohibits the national parties from raising contributions above the federal contribution limits, or soft money, and from spending any such funds.

Federal law also prohibits federal officeholders and national party officials from soliciting any such soft money contributions.

Contact Kathryn Beard, Democracy 21 @ kbeard@democracy21.org

 

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FAN 16.1 (First Amendment News) — RNC Lawsuit Challenges Soft Money Restrictions in McCain-Feingold

Press Release (complaint available here)

Today, the Republican National Committee (RNC) and the Republican Party of Louisiana (LAGOP) filed suit in federal court challenging federal soft-money restrictions in the McCain-Feingold campaign finance law that prevent political parties from having their own independent-expenditure accounts and that prevent state and local political parties from using soft money — i.e., state-regulated money — for voter registration and get-out-the-vote activities.
        The Federal Election Commission (FEC) has recognized that political committees may have independent-expenditure accounts, which may receive unlimited contributions for making independent expenditures about federal candidates, and may also have a separate account to make contributions to candidates. Contribution accounts are subject to a “base contribution limit,” usually $5,000 annually, restricting how much an individual may contribute to them.
        However, the FEC prohibits political parties from having independent-expenditure accounts, which means that the RNC’s independent expenditures must be funded by contributions limited to $32,400 a year.
        In the lawsuit, Republican National Committee v. FEC, the RNC and Chairman Reince Priebus want to establish an RNC independent-expenditure account and to solicit unlimited contributions to it. However, political parties are currently prohibited from having independent-expenditure accounts and national political party officers are limited in how much they may solicit for an independent-expenditure account — only up to the base contribution limits — even though base limits on contributions to independent-expenditure accounts are unconstitutional.
        The Republican Party of Louisiana, and its Chairman Roger Villere, also are suing in order to establish and to solicit unlimited contributions to the LAGOP’s own independent-expenditure account.
        In addition, the LAGOP has joined with two Louisiana local political parties, Jefferson Parish Republican Parish Executive Committee and Orleans Parish Republican Executive Committee, to seek to do independent “federal election activities” with Louisiana state-regulated money (often called “soft money”),  instead of so-called “federal funds” (often called “hard money”). Federal election activity includes voter-identification, voter-registration near federal elections, and get-out-the-vote activities, as well as any public communications that merely mention a federal candidate. State and local parties must currently use federal funds even for independent federal election activity. Federal funds are subject to burdensome regulations that prevent many state and local political parties from engaging in federal election activity.
        The controlling legal principle undergirding all the suit’s claims is that the Supreme Court has held in Citizens United v. FEC and McCutcheon v. FEC, that “independent expenditures . . . do not give rise to corruption or the appearance of corruption.” As a result, it is unconstitutional to impose contribution limits on independent expenditure activities – which has given rise to independent-expenditure accounts. The same reasoning applies to political parties’ independent campaign activities.
        In the alternative, the Plaintiffs ask the court to declare all soft money provisions of McCain-Feingold to be unconstitutional on their face, reversing McConnell v. FEC, since there is no evidence of quid-pro-quo corruption where a political party sought to corrupt their own candidates. McCutcheon v. FEC recently decided that only quid-pro-quo corruption can justify contribution limits and McConnell upheld the soft money bans despite no evidence of quid-pro-quo corruption, so McConnell was wrongly decided.
        James Bopp, Jr., lead attorney for Plaintiffs comments:
After Citizens United, there is no justification for restricting funds that political parties receive for independent campaign activity. In an era when independent-expenditure accounts can solicit unlimited contributions and spend enormous amounts to influence political races, political parties are constitutionally entitled to compete equally with them with their own independent campaign activity. Political parties are an important part of our political system and success in this case will help empower them again.

May 23, 2014
Contact: James Bopp  (see link above) 

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FAN 15.2 (First Amendment News) — Justice Scalia on the First Amendment & Legal Education

In a recent speech entitled “Reflections on the Future of the Legal Academy,” Justice Antonin Scalia had a few things to say about legal education and the First Amendment. The remarks were made on May 11, 2014 at the William & Mary Law School, this by way of a commencement address. The relevant passage is:

In more than a few law schools, including some of the most prestigious (the University of Chicago, for example), it is possible to graduate without ever having studied the recent First Amendment. Can someone really call himself an American lawyer who has that gap in his compendious knowledge of the law? And can a society that depends so much upon lawyers for shaping public perceptions and preserving American traditions regarding the freedom of speech and religion, afford so ignorant a bar?

[Hat tip to William Baude]

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FAN 15 (First Amendment News) — Free Speech & Judicial Elections: The Return of Kaus’ Crocodile

If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges. Justice Sandra Day O’Connor (2002)

The case is Wolfson v. Concannon (9th Cir., May 9, 2014). The issue: whether several provisions in the Arizona Code of Judicial Conduct (Canon 4) restricting judicial candidate speech run afoul of First Amendment protections. Held: Yes, but only as to non-incumbent judicial candidates. The vote: 1-1-1. Judge Richard A. Paez wrote the main opinion, Judge Marsha S. Berzon wrote a concurring opinion, and Judge Richard Tallman dissented in part.

Anita Y. Woudenberg argued on behalf of the Appellant, Kimberly A. Demarchi argued on behalf of the Arizona Bar Association, and Charles A. Grube, Assistant Attorney General in the Arizona Attorney General’s Office, argued on behalf of the Appellees. The case, of course, revisits the Supreme Court’s 5-4 holding in Republican Party of Minnesota v. White (2002). (BTW: The White case was successfully argued by James Bopp, Jr., with whose firm Ms. Woudenberg is affiliated.)

Judge Paez began his opinion on a rhetorical high note: “A state sets itself on a collision course with the First Amendment when it chooses to popularly elect its judges but restricts a candidate’s campaign speech. The conflict arises from the fundamental tension between the ideal of apolitical judicial independence and the critical nature of unfettered speech in the electoral political process.”

Justice Otto Kaus (1920-1996)

Justice Otto Kaus (1920-1996)

 By contrast, Judge Berzon opened by way of echoing a cautionary metaphor: “Sitting for judicial election while judging cases, Justice Otto Kaus famously quipped, is like “brushing your teeth in the bathroom and trying not to notice the crocodile in the bathtub.”

As for Judge Tallman, he was more direct: “I agree with the majority that strict scrutiny . . . is the appropriate standard. I agree that we should limit our decision to non-incumbent judicial candidates. And I agree that Rules 4.1(a)(5) (campaigning for others) and 4.1(a)(6) (personal solicitation) are unconstitutional as applied to those candidates. I concur in the majority opinion only on those points. I part company with my colleagues as to Rules 4.1(a)(2) (giving speeches on behalf of others), (3) (endorsing others), and (4) (soliciting money for others).”

Three judges, three opinions. Still, they all agreed that the rules prohibiting speechifying, endorsements, and fundraising “present the closest question.”

The 7th Circuit, by comparison, upheld a similar set of laws in Siefert v. Alexander  (2010) and in Bauer v. Shepard (2010). Those cases employed a Pickering balancing test instead of strict scrutiny. And those cases, unlike Wolfson, involved campaign restrictions on elected sitting judges rather than on a non-incumbent candidate running for a judicial office. As to the appropriate standard of review, in his White concurrence, Justice Anthony Kennedy, who voted with majority, declared: “Whether the rationale of Pickering and Connick v. Myers (1983), could be extended to allow a general speech restriction on sitting judges — regardless of whether they are campaigning — in order to promote the efficient administration of justice, is not an issue raised here.”

 Judge Berzon duly stressed the limited scope of the Court’s ruling:In sum, the principles applicable to the constitutionality of political restrictions on sitting judges diverge dramatically from those we apply to today’s challenge to restrictions on a judicial candidate not now a judge. The standard of review may well differ. And the powerful interests supporting such restrictions differ, too. I need not address, as the issue is not before us, whether the particular restrictions we review today would be constitutional as applied to sitting judges.”

More on this case as things develop.

First Amendment Cases Awaiting Decision 

The following First Amendment freedom of expression cases are awaiting a decision by the Supreme Court:

First Amendment Cases Already Decided

The following First Amendment freedom of expression case was handed down by Supreme Court this Term:

Related Cases, see also

Forthcoming Event on McCutcheon Case

On Wednesday June 18th @ noon the Cato Institute will host a program entitled “McCutcheon v. FEC: Two Books on the Supreme Court’s Latest Campaign Finance Case.” The event will feature:

The discussion will be moderated by Ilya Shapiro, a Senior Fellow in Constitutional Studies, Cato Institute.

Here is a description of the program:

Shaun McCutcheon (photo credit: NYT)

Shaun McCutcheon (photo credit: NYT)

On April 2, the Supreme Court issued its latest blockbuster ruling on campaign finance, McCutcheon v. FEC, striking down the “aggregate” contribution limits on how much money any one person can contribute to election campaigns (leaving untouched the “base” limits on donations to individual candidates or party committees). Within days of the decision, while pundits and activists were still battling in the media, two e-books were published about the case. One was by Shaun McCutcheon himself, an Alabama engineer who has quickly gone from political neophyte to Supreme Court plaintiff, thus providing a rare first-person layman’s account of high-stakes litigation. The other was by two law professors specializing in First Amendment law, Ronald Collins and David Skover, who dissect the Court’s ruling and put it in the broader context of campaign finance regulation.

 To register to attend this event, click the button below and then submit the form on the page that opens, or email events@cato.org, fax (202) 371-0841, or call (202) 789-5229 by noon on Tuesday, June 17, 2014.

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