Wednesday, February 03, 2016
Update: 10th circuit ruling today in Independence Institute case.
http://www.ca10.uscourts.gov/opinions/14/14-1463.pdf
More after I've read it.
On January 23rd I noted that IJ is litigating an ambitious challenge to Colorado's system of semi-private prosecution of campaign finance cases. Complaint.
Today Hasen's Election Law Blog pointed me to a blog entry at More Soft Money Hard Law:
http://www.moresoftmoneyhardlaw.com/2016/02/mrs-hollands-mrs-mcintyres-complaint/
that showed me the case has nuances I'd missed before.
update: welcome electionlawblog readers.
It turns out that Mrs. Holland was subject to a disclaimer complaint, as well as a disclosure issue.
She hired a lawyer and ran up some $3500 in legal fees, which she then countersued to collect from the school board that was involved in the filing of the complaint. The complaint was withdrawn 2 days before a hearing, and she got only last minute notice of the dismissal. So far I do not have a link to her countersuit.
Then, she got threats that if she didn't withdraw the request for attorney fees, she'd be hit with another complaint. She was, in a second complaint that re-claimed the first issues and, curiously, included a complaint under the federal disclaimer statute, although there was no federal candidate or issue involved in any way.
I wonder whether that gives her standing to challenge the federal statute, which is unconstitutional under McIntyre, but nobody's ever litigated it. [I do not count the failed express advocacy arguments raised in McConnell or Citizens United.] Partly because I'm not sure you can get legal fees against the Feds the way you can against a state under 42 USC 1985. Is there a legal fee provision for a winning challenge to a federal statute?
I suspect she doesn't have a justiciable controversy there, but I'd welcome the opinions of those who know more about it. Perhaps I'll post to the election law list.
But she clearly has a justiciable controversy about Colorado's unconstitutional disclaimer statute.
In 2000, the 10th circuit found that Colorado's disclaimer statute was unconstitutional under McIntyre, in Davidson. Davidson involved the Colorado Libertarian Party and some people I knew there, back in the 80s, as some of the parties. So I was surprised anyone was trying to bring a disclaimer complaint against her, since it had already been struck down.
http://www.plainsite.org/dockets/fil7kfkm/court-of-appeals-for-the-tenth-circuit/colorado-right-v-davidson/ p. 49.
It turns out Colorado has re-enacted its unconstitutional disclaimer statute, section 107.5.
This is similar to what Indiana did after Stewart v Taylor, replacing IS 3-9-3-2 with 3-9-3-2.5.
In addition, there are other disclaimer statutes at 108.3, and see also regulation 5.1.
https://www.sos.state.co.us/pubs/elections/CampaignFinance/files/2008Title1Article45.pdf
I found an (incompletely) annotated Colorado campaign finance statute online.
That led me to Independence Institute v Coffman.
https://www.courtlistener.com/opinion/2625754/independence-institute-v-coffman/
I I is a think tank I visited when I was out in Denver last spring.
In Coffman, I I had run some radio ads informing voters about a proposed amendment by initiative that would have amended The Colorado Taxpayer Bill of Rights (TABOR), a sort of Prop-13 kind of deal. One of the amendments, Prop C passed, while another, Prop D, lost, saving Colorado taxpayers 100 million. One of their enemies, a pro-tax group, filed a complaint saying I I needed to register as a political committee. I I brought a facial challenge to the statute, saying the "a major purpose" test was unconstitutionally vague and overbroad. This is Jim Bopp territory; he's won some cases on major purpose tests. I I lost its facial challenge, but won administratively when the ALJ decided it wasn't a political committee.
See also CEW v. Gessler http://www.commoncause.org/states/colorado/issues/money-in-politics/disclosure/court-opinion.pdf for some relevant discussion of the standard of review and related topics.
I I tried to argue that McIntyre was controlling, that Colorado's vague and overbroad regulation of political speech chilled their right to anonymous political speech. I think the court got it mostly right that Buckley v Valeo covers, and upholds, disclosure while McIntyre is about,and strikes down, disclaimer requirements.
"Anonymous speech has a long and vital tradition predating the Constitution (as in
the Federalist Papers), and at least in some circumstances it is constitutionally
protected. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-57, 115 S.Ct. 1511,
131 L.Ed.2d 426 (1995)." Concurring opinion in Coffman.
So all this leaves me wondering if either IJ.org or the Independence Institute would be up for challenging Colorado's re-enacted unconstitutional disclaimer statute. or possibly these things could dealt with in an AGO, if there's someone with standing to request it. I'm also wondering if they would welcome my participation in such a challenge. I don't know if the best way to go about it would be a separate lawsuit, or to amend the current one to add the disclaimer issue. I don't know whether I I should seek to intervene, or permissively join as a plaintiff, or whether, because of res judicata concerns, it should stay out of the current litigation. I happen to know a lot about disclaimer litigation, but overall I know I'm not a very good lawyer. What works best for me is to partner up with people who are very good lawyers, so that I can contribute to an effort without all of it being on my shoulders. In the past this sometimes works out well, as in Stewart v Taylor, or badly, as in Anonymous v Delaware. I've had some conversations about this stuff with both I I and Paul Sherman of IJ.org, without getting anywhere, but maybe it's time to renew those conversations.
In Coffman, the Institute raised serious concerns about how Colorado's disclosure regime chills speech, but it lost. The Institute for Justice is taking a second bite at that apple, and as I said last month I'm not sure how that case will turn out; I could see it going either way. Susan B Anthony List v Driehaus may be their best case, but it's not directly on point. In Kelo, IJ lost in court but won the hearts and minds of the people resulting in legislative victories around the country.
Citizens United has gone sort of the other way. CU won in court but has been losing the battle for hearts and minds; many people think it's just fine to put people in jail for books and movies critical of Hillary Clinton. One of those people is Hillary Clinton, who has promised if elected to appoint justices to overturn CU. After the Iowa caucuses, she remains the front-runner.
It is possible that the Colorado situation will get a legislative fix. The campaign finance act was adopted as a state constitution amendment via initiative, so I'm unclear how much discretion the legislature has to change the procedures, perhaps none. But then statutes and regulations were written to implement the act, and I think the disclaimer statute is part of those. The disclaimer statute could be fixed legislatively, but I don't see this as popular politically so it's unlikely. A lawsuit is needed. The lawsuit should be fairly easy; just point to Davidson, McIntyre, Talley, as well as such cases as Tattered Cover that found a right to anonymity under the Colorado constitution. But, as with Majors v Abell, it depends a lot which judges you get, and how they feel as well as how they think.
CU has left a big hole of indeterminacy in disclaimer cases, although on its own terms it was only talking about speech by corporations, not the Mrs. McIntyres and Mrs. Hollands.
The Institute could probably fund and win a case on Colorado's disclaimer statutes under McIntyre and recoup its losses in Coffman. When I talked to them last spring I didn't get a strong sense that they want to be litigating; they are a think tank and not an advocacy litigation team like IJ.
I recently authored, but have not yet filed, a brief in a Mississippi disclaimer case which sets out these arguments in more detail. I will probably post a link to it here at some point once it is filed, or can provide copies on request.
Miscellaneous link: Colorado's campaign finance manual.
https://www.sos.state.co.us/pubs/elections/CampaignFinance/files/CPFManual.pdf
newspaper article in the paper the ads were printed in.
http://i-70scout.com/blog/2015/10/byers-school-parent-dispute-alleged-violation-of-political-ad-law/
https://www.sos.state.co.us/pubs/elections/CampaignFinance/files/amend_27.pdf
the constitutional amendment goes on for multiple pages of lawyerspeak.
One of the first things I noticed is that the "voluntary" limits, which double the size of allowed campaign contributions, would seem to violate Free Enterprise Club PAC v Bennett.
So there might be multiple ways the Amendment could be vulnerable to a First Amendment lawsuit, and bringing up the possibility might be leverage in settling the current one. Perhaps some of this has already been litigated, I don't know.
http://www.ca10.uscourts.gov/opinions/14/14-1463.pdf
More after I've read it.
On January 23rd I noted that IJ is litigating an ambitious challenge to Colorado's system of semi-private prosecution of campaign finance cases. Complaint.
Today Hasen's Election Law Blog pointed me to a blog entry at More Soft Money Hard Law:
http://www.moresoftmoneyhardlaw.com/2016/02/mrs-hollands-mrs-mcintyres-complaint/
that showed me the case has nuances I'd missed before.
update: welcome electionlawblog readers.
It turns out that Mrs. Holland was subject to a disclaimer complaint, as well as a disclosure issue.
She hired a lawyer and ran up some $3500 in legal fees, which she then countersued to collect from the school board that was involved in the filing of the complaint. The complaint was withdrawn 2 days before a hearing, and she got only last minute notice of the dismissal. So far I do not have a link to her countersuit.
Then, she got threats that if she didn't withdraw the request for attorney fees, she'd be hit with another complaint. She was, in a second complaint that re-claimed the first issues and, curiously, included a complaint under the federal disclaimer statute, although there was no federal candidate or issue involved in any way.
I wonder whether that gives her standing to challenge the federal statute, which is unconstitutional under McIntyre, but nobody's ever litigated it. [I do not count the failed express advocacy arguments raised in McConnell or Citizens United.] Partly because I'm not sure you can get legal fees against the Feds the way you can against a state under 42 USC 1985. Is there a legal fee provision for a winning challenge to a federal statute?
I suspect she doesn't have a justiciable controversy there, but I'd welcome the opinions of those who know more about it. Perhaps I'll post to the election law list.
But she clearly has a justiciable controversy about Colorado's unconstitutional disclaimer statute.
In 2000, the 10th circuit found that Colorado's disclaimer statute was unconstitutional under McIntyre, in Davidson. Davidson involved the Colorado Libertarian Party and some people I knew there, back in the 80s, as some of the parties. So I was surprised anyone was trying to bring a disclaimer complaint against her, since it had already been struck down.
http://www.plainsite.org/dockets/fil7kfkm/court-of-appeals-for-the-tenth-circuit/colorado-right-v-davidson/ p. 49.
It turns out Colorado has re-enacted its unconstitutional disclaimer statute, section 107.5.
This is similar to what Indiana did after Stewart v Taylor, replacing IS 3-9-3-2 with 3-9-3-2.5.
In addition, there are other disclaimer statutes at 108.3, and see also regulation 5.1.
https://www.sos.state.co.us/pubs/elections/CampaignFinance/files/2008Title1Article45.pdf
I found an (incompletely) annotated Colorado campaign finance statute online.
That led me to Independence Institute v Coffman.
https://www.courtlistener.com/opinion/2625754/independence-institute-v-coffman/
I I is a think tank I visited when I was out in Denver last spring.
In Coffman, I I had run some radio ads informing voters about a proposed amendment by initiative that would have amended The Colorado Taxpayer Bill of Rights (TABOR), a sort of Prop-13 kind of deal. One of the amendments, Prop C passed, while another, Prop D, lost, saving Colorado taxpayers 100 million. One of their enemies, a pro-tax group, filed a complaint saying I I needed to register as a political committee. I I brought a facial challenge to the statute, saying the "a major purpose" test was unconstitutionally vague and overbroad. This is Jim Bopp territory; he's won some cases on major purpose tests. I I lost its facial challenge, but won administratively when the ALJ decided it wasn't a political committee.
See also CEW v. Gessler http://www.commoncause.org/states/colorado/issues/money-in-politics/disclosure/court-opinion.pdf for some relevant discussion of the standard of review and related topics.
I I tried to argue that McIntyre was controlling, that Colorado's vague and overbroad regulation of political speech chilled their right to anonymous political speech. I think the court got it mostly right that Buckley v Valeo covers, and upholds, disclosure while McIntyre is about,and strikes down, disclaimer requirements.
"Anonymous speech has a long and vital tradition predating the Constitution (as in
the Federalist Papers), and at least in some circumstances it is constitutionally
protected. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-57, 115 S.Ct. 1511,
131 L.Ed.2d 426 (1995)." Concurring opinion in Coffman.
So all this leaves me wondering if either IJ.org or the Independence Institute would be up for challenging Colorado's re-enacted unconstitutional disclaimer statute. or possibly these things could dealt with in an AGO, if there's someone with standing to request it. I'm also wondering if they would welcome my participation in such a challenge. I don't know if the best way to go about it would be a separate lawsuit, or to amend the current one to add the disclaimer issue. I don't know whether I I should seek to intervene, or permissively join as a plaintiff, or whether, because of res judicata concerns, it should stay out of the current litigation. I happen to know a lot about disclaimer litigation, but overall I know I'm not a very good lawyer. What works best for me is to partner up with people who are very good lawyers, so that I can contribute to an effort without all of it being on my shoulders. In the past this sometimes works out well, as in Stewart v Taylor, or badly, as in Anonymous v Delaware. I've had some conversations about this stuff with both I I and Paul Sherman of IJ.org, without getting anywhere, but maybe it's time to renew those conversations.
In Coffman, the Institute raised serious concerns about how Colorado's disclosure regime chills speech, but it lost. The Institute for Justice is taking a second bite at that apple, and as I said last month I'm not sure how that case will turn out; I could see it going either way. Susan B Anthony List v Driehaus may be their best case, but it's not directly on point. In Kelo, IJ lost in court but won the hearts and minds of the people resulting in legislative victories around the country.
Citizens United has gone sort of the other way. CU won in court but has been losing the battle for hearts and minds; many people think it's just fine to put people in jail for books and movies critical of Hillary Clinton. One of those people is Hillary Clinton, who has promised if elected to appoint justices to overturn CU. After the Iowa caucuses, she remains the front-runner.
It is possible that the Colorado situation will get a legislative fix. The campaign finance act was adopted as a state constitution amendment via initiative, so I'm unclear how much discretion the legislature has to change the procedures, perhaps none. But then statutes and regulations were written to implement the act, and I think the disclaimer statute is part of those. The disclaimer statute could be fixed legislatively, but I don't see this as popular politically so it's unlikely. A lawsuit is needed. The lawsuit should be fairly easy; just point to Davidson, McIntyre, Talley, as well as such cases as Tattered Cover that found a right to anonymity under the Colorado constitution. But, as with Majors v Abell, it depends a lot which judges you get, and how they feel as well as how they think.
CU has left a big hole of indeterminacy in disclaimer cases, although on its own terms it was only talking about speech by corporations, not the Mrs. McIntyres and Mrs. Hollands.
The Institute could probably fund and win a case on Colorado's disclaimer statutes under McIntyre and recoup its losses in Coffman. When I talked to them last spring I didn't get a strong sense that they want to be litigating; they are a think tank and not an advocacy litigation team like IJ.
I recently authored, but have not yet filed, a brief in a Mississippi disclaimer case which sets out these arguments in more detail. I will probably post a link to it here at some point once it is filed, or can provide copies on request.
Miscellaneous link: Colorado's campaign finance manual.
https://www.sos.state.co.us/pubs/elections/CampaignFinance/files/CPFManual.pdf
newspaper article in the paper the ads were printed in.
http://i-70scout.com/blog/2015/10/byers-school-parent-dispute-alleged-violation-of-political-ad-law/
https://www.sos.state.co.us/pubs/elections/CampaignFinance/files/amend_27.pdf
the constitutional amendment goes on for multiple pages of lawyerspeak.
One of the first things I noticed is that the "voluntary" limits, which double the size of allowed campaign contributions, would seem to violate Free Enterprise Club PAC v Bennett.
So there might be multiple ways the Amendment could be vulnerable to a First Amendment lawsuit, and bringing up the possibility might be leverage in settling the current one. Perhaps some of this has already been litigated, I don't know.
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