The Fifth Circuit has announced that it will set oral argument in Catholic Leadership Coalition, Inc., et al. v. Reisman, et al., the week of April 28. See the June 2013 press release announcing the appeal here. NLF represents plaintiffs-appellants.
This Breitbart Texas story on the recently-filed lawsuit by Empower Texans against the TEC links to last year’s Lex Politico post explaining the ill-conceived (and ultimately vetoed) SB 346, which would have regulated nonprofits as political committees but excepted labor unions.
With each working day at the United States Supreme Court that passes, we get closer to a decision in McCutcheon. It could come tomorrow. Here is the op-ed by myself and Dan Backer, which originally ran in October, on why a victory for Shaun McCutcheon would be an important victory for the First Amendment in all contexts.
Prof. Rick Hasen on possibility of a decision in McCutcheon v. FEC from the Supreme Court Monday.
The arguments made by the State of Texas, attempting to defend section 253.037(a) of the Election Code, are truly remarkable and borderline frivolous. The provision requires any group organized based on common principle (instead of, for example, fidelity to an identified candidate) to (a) register, (b) collect contributions from ten persons, and (c) wait 60 days, all before spending more than $500 even on their own, independent speech (“independent expenditures” in constitutional jargon). The State’s arguments are, thankfully, entirely foreclosed by decades of Supreme Court precedent. But they deserve more attention and discussion, and this blog will delve into them more deeply and explain just how dim a view at least some attorneys at the Texas Attorney General’s office have of the First Amendment rights of Texans to organize for political advocacy.
In a nutshell, Texas is arguing that the plaintiffs before the Fifth Circuit (three “general purpose” political committees and a nonprofit 501(c)(4)) have no business complaining about a waiting period on their speech, because Texas generously affords multiple “choices” for the exercise of First Amendment rights, and plaintiffs should have either spent money through a nonprofit organization or registered as “specific purpose” committees to support identified candidates. Appellants’ reply brief responds to these dubious arguments.
In Catholic Leadership Coalition, Inc. v. Reisman (background here), the Attorney General’s office filed its brief for appellee David Reisman and the other members of the Texas Ethics Commission on December 5, arguing, among other things, that Texas PACs can be required to wait 60 days after registering with the State before spending any money (at least, any in excess of $500). NLF’s brief on behalf of appellants (three Texas general purpose committees and one 501(c)(4), namely the Catholic Leadership Coalition, Texas Leadership Institute for Public Advocacy, Friends of SAFA Texas, and Texas Freedom PAC), arguing that the First Amendment prohibits such prior restraints on speech, is here.
Appellants’ reply brief is due December 23.
Former El Paso Mayor John Cook sued a local church after it permitted the use of its facilities in a petition-signing effort related to a recall effort against him (alleging the use of the church’s facilities to be an illegal corporate contribution under Texas law). The case is still being litigated on appeal (and raises very important issues of the constitutionality of the contribution ban in the context of a ballot measure (hint-it is not constitutional), and of the authority of a court to overturn an election result where a measure supporter is found to have made an illegal contribution). But this story is about the city rejecting his request that taxpayers pay his legal bills:
Former Mayor John Cook’s claim that the city should pay his $550,000 legal bill that stemmed from fighting a recall effort was unanimously denied by the City Council on Tuesday.
In a prepared statement, the city said that Cook initiated a suit tied to his recall as an individual and not an elected official, and that city had not approved the litigation.
Maybe Cook, who just announced a run for the Democratic nomination for Land Commissioner in 2014 (the same race in which George P. Bush is seeking the Republican nomination), wants the taxpayers to fund his recall litigation so that he can preserve his campaign funds for the 2014 race.
The story also cites a dispute as to whether the recall is properly considered an initiative or a referendum.
Yesterday the Supreme Court announced its October argument calendar, available here via SCOTUSblog (which includes links to the case info pages). McCutcheon, our case challenging the federal aggregate contribution limits, will be argued on the second day of the new term, Oct. 8.
This long Boston Globe piece by Christopher Rowland provides an interesting look at the ideological disputes at work between Republican and Democratic FEC Commissioners. Those who like to describe the FEC as “hobbled” or ineffectual should take account of a simple fact: the FEC is not quite like other federal agencies in that the subject of its jurisdiction happens to be the most fundamental of all civil rights: the right to speak about and engage in politics. Punishment should not be meted out based on flimsy evidence or novel applications of the campaign finance laws. We understand these principles as applied in the criminal justice system, and they are equally important when it comes to policing political activity. Commissioner McGahn, a Republican campaign finance attorney who has served on the Commission since 2008, discusses a bit of his philosophy in the article:
On matters of campaign finance, he is generally opposed to government interference and believes the Federal Election Commission for decades has unfairly trampled the free-speech rights of candidates, campaign contributors, and special interest groups.
McGahn openly disdains what he calls “reform-industry lobbyists,’’ whom he claims are out to chill political speech with disclosure rules and restrictions on political advertising.
“They have spent their entire life chasing this unicorn of a regulated political state, and it’s just failed miserably,’’ he added. “It’s not really our job to . . . use taxpayer money to push the pet agenda of reform industry lobbyists.’’
“You can’t horse-trade when it comes to the First Amendment,’’ McGahn declared.
McGahn cast himself as a champion of the little guy. He sides with individual politicians and campaign contributors who he says must navigate a maze of rules erected by “unelected bureaucrats’’ seeking to stifle speech and legitimate campaign activity.
Most reporting on the FEC focuses, of course, on the critics of McGahn’s position to the effect that the FEC is dead and ineffectual. But McGahn’s comments deserve more attention.