soapbox

 why alaska policy forum cert should bve granted.

imporantce:  

free elections require free speech. otherwise you get potempkin elections. yick wo v hopkins.

the important question here is question 3.

the case has properly teed up the question of whether talley and barnette  are still valid, or whether we return to the jim crow days of chaplinski and gobitis, and allow core political speech to be censored or criminalized.

Here APF was not fined even $1 (maine case) ($10) Talley or $100 (McIntyre). However, they were and are threatened with enforcement. First Choice, 9-0, establishes that APF has standing. Nor would their case be mooted by an election being over. Roe v Wade, overturned on other grounds.

This case presents an opportunity to discuss whether Roe's finding of a right to privacy under the constitution survives the case's reversal as to abortion.  

Plaintiffs are more focused on ending the Furgatch reign of error, an interesting but far less important question.

Plaintiffs are correct that the Furgatch principle is unworkable in practice. The Furgatch case  itself illustrates this. "Don't let him do  it!" What does this mean? Vote for Ed Clarke? John Anderson? Ronald Reagan? Blow up the voting booth? Attempt a coup?  Hang Mike Pence?

Frequently the implied, non-express message of such ads may be, 1, vote, 2, get your friends and family to vote, drive people to the polls, become a community organizer, get involved. 3. give me money so i can keep running the ad.  Multiple interpretations are possible. So also with Baker, which could be a sign for a bakery. "Mondale!" is not express advocacy, Tone of voice matters. Mondale! said dismissively or questioningly is not an endorsement. 

@cite article obit of furgatch 

To be the functional equivalent of express advocacy, it must be advocacy and must be express. The intent of the limiting construction in Buckley v Valeo was to exclude most political advocacy. Only express advocacy could be regulated through disclosure. Otherwise political speech would be chilled, threatening First Amendment interests, In McConnell v. FEC, the court below found as a fact that 93% of ads do not contain express advocacy.   

"Many people will vote for smith on tuesday" is news coverage, not advocacy, even if it contains magic words vote for smith. It fails the second prong of the express advocacy test.

"I like Ike" is not express advocacy. It  is implied advocacy.  It is unclear to me what the court meant in Citizens United when it discussed the Hillary film as the functional equivalent of express advocacy. The court decided, 8-1, on these statutory interpretation grounds, and did not reach  constitutional issues. It then had several pages of dicta in praise of disclosure and disclaimers as less burdensome alternatives  that a complete ban on corporate election speech. 

If the court takes the case, I encourage the court to closely scrutinize the role of the campaign legal center in drafting, enforcing, and litigating these cases. By arguing for a "public right to know" the activities of think tanks, they have been undermining roe v wade, katz, barnette,  naacp, miranda, the landmark cases I grew up learning about. 

CLC was a party or amicus to Citizens United, and it did not turn out the way they hoped. But they seized on one confusing passage in the dicta of part IV to make an argument that has been adopted by Gaspee Project v. Mederos, No on E v Chiu   Smith v Helzer etc.

This argument is wrong for 6 reasons. We are not sure it is being made in good faith. 

CU did not overule Talley or McIntyre.

CU did not rule on the constitutionality of the disclaimer provisions. That was not at issue. Instead, plaintiff, an express advocacy expert, brought 4 as-applied challenges to the statute, which each lost.

The Court then discussed disclaimers in dicta, suggesting that in some  future case the court might be open to a narrowly tailored statute directed at for-profit corporations or pay-to-play corporations; regulations of entities which contract with the government. But CU does not suggest disclaimers for individual speech. McIntyre, Gilleo, Grace.   Even for rich old white guys.