Thursday, February 04, 2016
I have now read the 10th Circuit opinion in Independence Institute v. WW Williams.
http://www.ca10.uscourts.gov/opinions/14/14-1463.pdf
It upheld Colorado's disclosure regime for electioneering speech that's not express advocacy but is close to an election. It is a solid win for the "reform" faction Fred Werthheimer, Gerry Herbert, etc., who were on the briefs. It is a loss for CCP, Center for Competitive Politics, what I think of as Brad Smith's group. It relies mainly on Citizens United, and the cases like Brumsickle and NOM that have relied on an expansive reading of CU. It says that the Supreme Court's dicta in CU is binding authority, undercutting arguments I made in a brief recently. I I is a corporation, so it falls under CU.
I now think that Ind. Inst. would not be the right plaintiff for a challenge to Colorado's disclaimer provisions; that a lone pamphleteer like Mrs. Holland would be a better plaintiff.
I am ever so slightly miffed at I I for not letting me know they were doing this case; when I met with them last year I introduced myself as an election lawyer wanting to work on these kinds of cases. However, I'm not sure that was a case that could be saved. I see where they were coming from, but I can see how they lost it. I haven't read the briefs, maybe their case looked stronger on paper.
As someone interested in having somebody do a winning challenge to Colorado's disclaimer (but not disclosure) regime, this case doesn't help. There was some vague language in CU that referred to both disclaimers and disclosures without distinguishing between them, and this case takes advantage of that to muddy the waters further. I still think that Colorado's disclaimer statute, 107.5, is unconstitutional, I no longer think that the Institute is a good plaintiff for such a case. Ideally CCP, IJ, and I could work together, but CCP hasn't expressed much interest so far. I understand I'm not everybody's cup of tea. Which it is now time for; that's enough blogging for today.
http://www.ca10.uscourts.gov/opinions/14/14-1463.pdf
It upheld Colorado's disclosure regime for electioneering speech that's not express advocacy but is close to an election. It is a solid win for the "reform" faction Fred Werthheimer, Gerry Herbert, etc., who were on the briefs. It is a loss for CCP, Center for Competitive Politics, what I think of as Brad Smith's group. It relies mainly on Citizens United, and the cases like Brumsickle and NOM that have relied on an expansive reading of CU. It says that the Supreme Court's dicta in CU is binding authority, undercutting arguments I made in a brief recently. I I is a corporation, so it falls under CU.
I now think that Ind. Inst. would not be the right plaintiff for a challenge to Colorado's disclaimer provisions; that a lone pamphleteer like Mrs. Holland would be a better plaintiff.
I am ever so slightly miffed at I I for not letting me know they were doing this case; when I met with them last year I introduced myself as an election lawyer wanting to work on these kinds of cases. However, I'm not sure that was a case that could be saved. I see where they were coming from, but I can see how they lost it. I haven't read the briefs, maybe their case looked stronger on paper.
As someone interested in having somebody do a winning challenge to Colorado's disclaimer (but not disclosure) regime, this case doesn't help. There was some vague language in CU that referred to both disclaimers and disclosures without distinguishing between them, and this case takes advantage of that to muddy the waters further. I still think that Colorado's disclaimer statute, 107.5, is unconstitutional, I no longer think that the Institute is a good plaintiff for such a case. Ideally CCP, IJ, and I could work together, but CCP hasn't expressed much interest so far. I understand I'm not everybody's cup of tea. Which it is now time for; that's enough blogging for today.
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