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Saturday, January 23, 2016

Van Hollen smackdown:
The DC circuit has reversed the lower court.
http://www.campaignlegalcenter.org/sites/default/files/2016-01-21%20Opinion.pdf
or
https://www.cadc.uscourts.gov/internet/opinions.nsf/E90D7BF9ECC39D1085257F41006AF4EC/$file/15-5016-1594896.pdf
One one side, Jan Baran, who tends to represent the GOP establishment, and the FEC, on the other  Trevor Potter, Fred Werthheimer, Gerry Herbert, Congressman Van Hollen, the anti-speech "reform" crowd.

Just as BCRA was overreaching that resulted in Citizens United's overturning Austin, here the Reform faction over reached in trying to get the courts to force the FEC to restrict political speech even more than they usually do. Reform had won below, been reversed on other grounds, and won again below. That decision has now been reversed in strong language. As Hasen points out, this could still go en banc. I don't know if anyone would file a cert petition.

Here, it was not the FEC that brought this winning appeal, it was the intervenor, Center for Individual Freedom. This goes to show how important intervening, and not merely being an amicus, can be in such cases. Edit: Jason reminds me that Hispanic Leadership Fund was also an intervenor.

A few highlights.
Disclosure chills speech. Van Hollen v FEC Slip Op. 1 (DC Cir. 1/21/2016). 

And the FEC’s concerns about the competing interests in privacy and disclosure were legitimate. We began this opinion by acknowledging the unmistakable tension that exists in campaign finance law between speech rights and disclosure rules. The Supreme Court has vigorously protected the public’s right to speak anonymously, even recognizing that anonymous speech has “played an important role in the progress of mankind.” Talley v. California, 362 U.S. 60, 64 (1960). “Anonymity,” the Court elsewhere observed, “is a shield from the tyranny of the majority” and “exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995). This is not to say the Court is naïve to the potential downsides that may accompany this right to anonymity. Much to the contrary, the McIntyre Court acknowledged “political speech by its nature will sometimes have unpalatable consequences,” but, vindicating the right to speak anonymously, declared “our society accords greater weight to the value of free speech than to the dangers of its misuse.” Id.


Van Hollen v FEC (DC Cir.1/21/2016), slip op. at 24.

I need to cite this in an amicus I'm supposed to be writing this week in the Mississippi case.

6 Judge Easterbrook, dubitante in Majors v. Abell, 361 F.3d 349, 356 (7th Cir. 2004), also noted “the Justices’ failure to discuss McIntyre” and concluded it was therefore “impossible for courts at our level to make an informed decision—for the Supreme Court has not told us what principle to apply.” 

Nice to see a case I was involved in being used to defeat Van Hollen and his crew. I lost Majors but it did produce the very interesting dubitante opinion. It gets cited again:

“Disclosure also makes it easier to see who has not done his bit for the incumbents, so that arms may be twisted and pockets tapped.” Majors v. Abell, 361 F.3d 349, 356 (7th Cir. 2004) (Easterbrook, J., dubitante). Van Hollen v FEC (1/21/2016), slip op at 26.

And twice more!

The ones who would truly bear the burden of Van Hollen’s preferred rule would not be the wealthy corporations or the extraordinarily rich private donors that likely motivated Congress to compel disclosure in the first place. Such individuals would have “little difficulty complying” with these laws, as they can readily hire “legal counsel who specialize in election matters,” who “not only will assure compliance but also will exploit the inevitable loopholes.” Majors, 361 F.3d at 357–58 (Easterbrook, J., dubitante). Instead, such requirements “have their real bite when flushing small groups, political clubs, or solitary speakers into the limelight, or reducing them to silence.” Id. at 358. Van Hollen v FEC at 28.

The case finishes with a strong conclusion:
As our discussion of the FEC’s rule has shown, the Supreme Court's campaign finance jurisprudence subsists, for now, on a fragile arrangement that treats speech, a constitutional right, and transparency, an extra-constitutional value, as equivalents. But “the centre cannot hold.” William Butler Yeats, The Second Coming (1919). 

edit: from the election law list:
All,




  To follow up on Brad’s post, I represented another intervenor defendant in the case – Hispanic Leadership Fund.

   If you haven’t read it, I commend to you Judge Easterbrook’s dubitante opinion in Majors v. Abell, 361 F.3d 349 (7th Cir. 2004):  https://scholar.google.com/scholar_case?case=9737092812278680955&q=easterbrook+dubitante&hl=en&as_sdt=6,47  

  Judge Randolph raised this at oral argument, and it clearly played a role in the court’s thinking on the case.  I don’t believe any of the parties cited to this opinion in briefing.

 - Jason







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