Wednesday, January 11, 2017

Update January 12: 
I have now read a just-filed amicus by some law professors, Eric Jaffe as counsel for folks like Nadine Strossen and Juan Non-Volokh.
It's a well-written brief that points out, this is an appeal from a 3 judge court, not a petition for cert.
That enhances the chances it will get heard. It focuses on the importance of anonymity, and cites twice from Easterbrook's dubitante opinion in my case, Majors v Abell.

I now have a better view of II's litigation strategy. They have been spending time and money to lose this case, and similar cases, in the court below, in order to tee up a situation like this, where there is a decent chance the court will take it. II is a big-picture kind of institute; they have expertise, for example, in constitutional conventions, and their work has been cited on some rather obscure clauses of the constitution.  

 They got lucky, perhaps, with the biggest enemy of anonymous speech, Justice Scalia, no longer on the court. I remain unsure if a new Trump justice would be likely to participate; that seems unlikely.
A 4-4 split would not help them because they lost below. One should not assume we know where Sotomayor or Kagan stand on these issues, but I'm still not seeing where a 5th vote comes from, even if they could pick up both Kennedy and Roberts.

So this could end being a landmark case that overthrows Buckley v Valeo, but I wouldn't bet the farm on it. What it might do is clarify, or further muddle, some of the issues with anonymity which are currently indeterminate as a result of Citizens United. I do not think it is the best case for doing so.

I'd rather have seen a disclaimer case, not a disclosure case, raise these issues. But what we might get is a tightening of the Valeo standard, which is unduly permissive. Perhaps, for example, the court will prefer something like the Anderson test, which used to be a ballot access standard, until Crawford applied it more generally to election cases.

It is possible the court will treat this as another opportunity to discuss the express v implied advocacy standard created by Valeo. I would not be surprised to see an amicus from James Bopp. That approach lost in McConnell and Citizens United, but might do ok here. I'm not a fan of the distinction; if any speech demands full First Amendment as core speech, it's express advocacy.

A likely outcome, if the case gets heard, will be no clear majority opinion, but a bunch of partial concurrences and dissents, as in Buckley v ACLF.

Is cert likely in Independence Institute v. Federal Election Commission?\
I mean is the court like to fully hear the appeal, rather than summarily affirm.
The case documents are collected http://www.campaignfreedom.org/litigation/current-litigation/independence-institute-v-fec/.

I am a fellow traveler of I I in most of its projects. The place I used to stay in Denver across the street from them is now closed, condemned by the local zoning authorities, but I am still familiar with their location and agenda. I was offered a chance to work on this project as an intern, but wasn't interested. I didn't see any likely path to victory for them in their campaign finance cases.  They seem to want to overturn the parts of Valeo that authorized disclosure. I don't see even 4 votes for that at the moment. I will assume a fifth vote from whoever Trump eventually gets confirmed. But it's not clear the case would be argued with the 5th member. 

I don't think the groundwork has been laid. 

I will want to take a look at the new amicus brief in the case, which I have not yet read, and will plan to expand on these remarks later. There is lower hanging fruit that I I could be going after, such as Colorado's disclaimer regulations. They seem to be spending time and money and effort to get a case to the supreme court that is most likely to lose. Granted, I am not always right about what the court will do in such cases, and if they win that could be big, if they get a majority opinion to agree to reverse Valeo. That might happen in my lifetime, but I don't see this case doing it.


The Philanthropy brief focuses on the chilling effects to charitable giving if donors must be disclosed,

and the remoteness to state interests in regulating electoral advocacy, since 501c3's are prohibited from electioneering. 

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