Thursday, July 03, 2014
Vermont's unconstitutional disclaimer statute has been upheld again, this time by the 2nd circuit.
http://electionlawblog.org/?p=62960
Green Mountain Future was an earlier similar case.
Once again, it's the wrong client, and the wrong arguments.
After Citizen's United, corporations aren't going to win these cases, at least without some clever arguments such as overbreadth. The suits need to be brought by individuals, even if some corporation is the real party in interest. It is hard sometimes to know whether James Bopp is losing these cases on purpose; he has a long history of sabotaging his own cases on exactly this issue, whether disclaimer statutes are constitutional. He has both won and lost more of these cases than anyone else.
Instead of directly saying these statutes are unconstitutional under the controlling precedents, he makes circular arguments about express advocacy, major purpose, vagueness, and so forth. Again, he has won many cases with these arguments over the years, but they lost in Terry v Ky RtL, they lost in McConnell v FEC, they lost in Citizens United, and they lost today in Vermont.
Having lost on disclaimers, he is now going to appeal a different part of the case, with a high chance for cert but an uncertain outcome.
Bopp is right to think there's something wrong with Vermont's scheme. In addition to disclaimers, there is an "obtain permission from your opponent" provision, a 24 hour reporting requirement, and a low reporting threshhold. Vermont is clearly trying to punish speech it can't directly prohibit, but doesn't like.
Since the client is a Right to Life group, I expect they will stick with Bopp as their lawyer, and we may get to see this play out.
I had a client once from Vermont, who was the Anonymous in Anonymous v Delaware (2000). I'm not sure what he (or she) is up to lately. I do not have co-counsel in Vermont. That's been one of my bottlenecks in trying to do these cases. I've been taking a bunch of CLE classes lately, so as soon as I send in my $200, motion, and 6 box-tops, I will be reinstated to practice in Indiana. I don't know yet how active I'll get in litigating these issues I still case a lot about.
http://electionlawblog.org/?p=62960
Green Mountain Future was an earlier similar case.
Once again, it's the wrong client, and the wrong arguments.
After Citizen's United, corporations aren't going to win these cases, at least without some clever arguments such as overbreadth. The suits need to be brought by individuals, even if some corporation is the real party in interest. It is hard sometimes to know whether James Bopp is losing these cases on purpose; he has a long history of sabotaging his own cases on exactly this issue, whether disclaimer statutes are constitutional. He has both won and lost more of these cases than anyone else.
Instead of directly saying these statutes are unconstitutional under the controlling precedents, he makes circular arguments about express advocacy, major purpose, vagueness, and so forth. Again, he has won many cases with these arguments over the years, but they lost in Terry v Ky RtL, they lost in McConnell v FEC, they lost in Citizens United, and they lost today in Vermont.
Having lost on disclaimers, he is now going to appeal a different part of the case, with a high chance for cert but an uncertain outcome.
Bopp is right to think there's something wrong with Vermont's scheme. In addition to disclaimers, there is an "obtain permission from your opponent" provision, a 24 hour reporting requirement, and a low reporting threshhold. Vermont is clearly trying to punish speech it can't directly prohibit, but doesn't like.
Since the client is a Right to Life group, I expect they will stick with Bopp as their lawyer, and we may get to see this play out.
I had a client once from Vermont, who was the Anonymous in Anonymous v Delaware (2000). I'm not sure what he (or she) is up to lately. I do not have co-counsel in Vermont. That's been one of my bottlenecks in trying to do these cases. I've been taking a bunch of CLE classes lately, so as soon as I send in my $200, motion, and 6 box-tops, I will be reinstated to practice in Indiana. I don't know yet how active I'll get in litigating these issues I still case a lot about.
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