December 4, 2001

• The U.S. Supreme Court will review a decision U.S. Court of Appeals for the Eighth Circuit upholding a Minnesota canon of judicial ethics that forbids candidates for elective judicial office from stating their views on disputed political or legal issues. In the case, Republican Party of Minnesota, et al. v. Kelly et al., No. 01-521, the Supreme Court agreed to answer one of the questions posed by the Republican Party of Minnesota, Gregory Wersal, who campaigned for election as an Associate Justice of the Minnesota Supreme Court in 1996 and 1998, and several persons and an organization associated with judicial candidates represented by the Madison Center. Wersal, his wife and members of his campaign committee spoke at Republican Party gatherings, saying Wersal favored strict construction of the Constitution. His campaign literature criticized several Minnesota Supreme Court decisions on issues such as crime, welfare and abortion as being ``marked by their disregard for the legislature and lack of common sense.''
  
  The High Court agreed to answer whether free speech rights are violated by a Minnesota rule that forbids a judicial candidate from "announc[ing] his or her views on disputed legal or political issues" during the course of an election campaign. The Supreme Court will hear arguments in the case next year, with a decision due by the end of June. The Madison Center's Petition for U.S. Supreme Court review of the Eighth Circuit decision can be viewed on the Center's website: www.jamesmadisoncenter.org.
  
  For more information, see http://www.nytimes.com/2001/12/04/national/04SCOT.html?ex=1008469577&ei=1&en=5cdca4b7bdda9d5d

August 23, 2001

The James Madison Center for Free Speech has filed an Amicus Curiae Brief in support of the American Federation of Labor and Congress of Industrial Organizations (‘AFL-CIO") and
DNC Services Corporation/Democratic National Committee ("DNC") in their suit against the Federal Election Commission ("FEC") over release of documents obtained in an FEC investigation. The AFL-CIO and DNC, subjects of a newly closed investigation by the FEC,
have asked the federal district court in D.C. to enjoin the FEC from releasing confidential information obtained by the FEC from the AFL-CIO and DNC during its now closed investigation of their 1996 election activity. On July 17, 2001, the district court granted a preliminary injunction, prohibiting the FEC from releasing the documents, and is now considering
whether to make the injunction permanent. At the heart of the matter is whether the FEC, after an investigation is closed, can lawfully release to the public all the information it has
obtained during the investigation. The James Madison Center for Free Speech argued, in its brief, that the First Amendment rights of free speech and association prohibits the FEC from "automatically releasing, without justification, investigatory information" just because it has that information in its files.

The Madison Center's brief can be viewed on the Center's website, http://www.jamesmadisoncenter.org.

• Recently, James Bopp, Jr. submitted on behalf of the Madison Center two sets of written comments to the Federal Election Commission on proposed rulemaking.

The first comments, submitted on May 7, dealt with the FEC's proposed definition of "Political Committee," which would have broad ramifications, requiring numerous citizen groups that are not currently registered as political committees to do so and making previously unregulated contributions/expenditures count against contribution limits and as triggers for reporting requirements. The comments noted that the proposed regulations violated the constitutionally mandated "major purpose" and "express advocacy" tests, both of which protect citizen groups from such overreaching legislation. The comments set out these two constitutional benchmarks in detail.

The second comments, submitted June 8, commented on the FEC's proposal to require that "independent expenditures" (i.e., communications to the public expressly advocating the election or defeat of a clearly identified candidate that are not coordinated with a candidate) be considered "made" when any contract or agreement is made for an independent expenditure. Both Congress and the public (and the FEC until now) have understood that an independent expenditure is made when it is communicated (e.g., when it is broadcast, not when broadcast time is arranged). Ironically, the statute that the FEC claims gives it authority to make such a new rule only authorized it to make arrangements for the faxing and emailing of certain reports and did not authorize any change in when independent expenditures are considered to be made. The comments noted that the rulemaking therefore lacked authority, then demonstrated how the proposed rule was impractical in the real world of last-minute independent expenditure decisions (where, e.g., broadcast time is arranged and then not used) and created opportunity for opposing candidates to interfere with broadcasting arrangements (providing several examples from real life).

Copies of the May 7 comments and June 8 comments (without attachments) are available in PDF format at www.jamesmadisoncenter.org. They may also be obtained by email in WordPerfect format (or in printed form, with attachments) by request to madisoncenter@aol.com.

• Supreme Court Holds Coordinated Expenditure Limits Constitutional

Allison R. Hayward

The U.S. Supreme Court held that coordinated expenditures by political parties may be constitutionally limited (Federal Election Commission v. Colorado Republican Federal Campaign Committee, No. 00-191, June 25, 2001). The court rejected arguments made in this facial challenge in behalf of political parties that limits on coordinated expenditures severely burdened protected party speech. The Court applied a lower standard of constitutional scrutiny applicable to political contributions.

The majority opinion, drafted by Justice Souter and jointed by justices Stevens, O'Conner, Ginsberg and Breyer, determined that political parties had not shown that their functions were sufficiently different from other political entities to protect party coordinated activity from regulation. The coordinated activities of PACs, individuals, and other political actors may be restricted as "contributions" under current law. The majority was specifically concerned that unlimited coordinated expenditures could increase the use of party committees by donors to circumvent existing contribution limits. In Buckley v. Valeo, 424 U.S. 1 (1976), the Court had determined that contribution limits could permissibly be applied to prevent circumvention of other limits.

The dissent, filed by Justice Thomas and joined by Justices Scalia, Kennedy, and in part by Chief Justice Rehnquist, determined that the coordinated expenditure limit unconstitutionally burdened political parties without justification. The dissent argued that the standard of exacting scrutiny should be applied to the law as a limit on expenditures.

The coordinated expenditure limit at issue is found at 2 U.S.C. 441a(d). It applies to expenditures by political parties on behalf of their candidates in the general election. Each national and state party committee is permitted an amount per candidate under this law, which is calculated under a formula provided in the law. For example, in 2000 the amounts for coordinated expenditures in Senate campaigns ranged from a low of $135,120 in Delaware to $3,272,876 in California. Cordinated expenditure limits for House campaigns in 2000 were $33,780, except in states with only one congressional district, where the limit was $67,560.

These limits are hard dollar limits, that is, party money used directly in federal elections. Today's decision does not apply to "soft money" which party committees may raise and spend for nonfederal purposes.

• On June 14, James Bopp, Jr., submitted oral and written congressional testimony for the second time in a week on constitutional problems raised by current proposals for campaign finance "reform." This testimony was before the House Administration Committee.

• In UNITED STATES v. UNITED FOODS, No. 00-276, the Court ruled June 25 that particular agricultural marketing order that required mushroom handlers to pay assessments for advertising violated the First Amendment rights of objecting participants. Kennedy wrote for the Court. Breyer dissented, with Ginsburg and O'Connor (in Parts I and III).

• Campaign Finance and the First Amendment

• On June 12, James Bopp, Jr. testified before the Subcommittee on the Constitution of the House Committee on the Judiciary in Washington, D.C., at an oversight hearing entitled "Constitutional Issues Raised by Recent Campaign Finance Legislation Restricting Freedom of Speech." In his oral and written testimony, the Madison Center's General Counsel focused on the damage current bills would inflict on political parties and that McCain-Feingold (S. 27) and Shays-Meehan (H.R. 380) were alike in their "woeful ignorance of -- or outright disdain for -- the constiutionally protected role political parties play in our republican democracy."Copies of the June 12 testimony are available in PDF format at the Madison Center's website, at www.jamesmadisoncenter.org or as attached files in either PDF or WordPerfect format by request to madisoncenter@aol.com.

• The president's action affirming the new restrictions on the dissemination of an individual's medical records received applause not only from the general public but also from some self-styled leading civil-liberties advocates. Unfortunately, neither President Bush nor the civil liberties advocates who should know better appear to have considered the First Amendment implications of their push for new privacy protections. http://www.pff.org/RandysPOVsinLegalTimes/MaysPOV043001.htm
• A Minnesota judicial canon barring contacts between political parties and candidates for judicial office and curbing candidates’ expression of views on political issues does not violate free speech guarantees, a sharply divided panel of the U.S. Court of Appeals for the Eighth Circuit ruled April 30. (Republican Party of Minnesota v. Kelly, 8th Cir., No. 99-4021, 4/30/01) (BNA, 5-4-01, Regulation, Law & Economics) In a strongly-worded, 32-page dissent, Judge C. Arlen Beame declared: "First, the court misconstrues Minnesota law, reading it with such latitude as to contradict one-hundred fifty years of development in Minnesota's judicial selection processes. Second, the court supplants constitutionally guaranteed rights with its own notions of preferred judicial policy. Finally, the court countenances restrictions on fundamental, protected activity that are neither necessary nor narrowly tailored. In the final analysis, the court sustains a set of restrictions which probably have no practical effects other than to quash election-related speech and association, and thus undermine a democratic process–precisely the fear that prompted the drafting of the First Amendment." Judge Beame suggested that the majority was influenced by its favor of the system of judicial appointment, rather than election, which is the system provided for by the Minnesota constitution. He also challenged the majority’s reliance on judicial independence, arguing that while judges must act neutral on the bench, the rationale for judicial independence does not support campaign conduct restrictions.

• CONSTITUTIONAL LAW, PROPERTY LAW & REAL ESTATE

BABY TAM & CO., INC. v. CITY OF LAS VEGAS, No 00-16123 (9th Cir. April 26, 2001)

Amended zoning ordinance may apply to prohibit uses (adult bookstore) that pre-existed it. To read the full text of this opinion, go to: [PDF File] http://caselaw.lp.findlaw.com/data2/circs/9th/0016123p.pdf

• On March 8, 2001, the Institute for Justice filed an amicus curiae brief with the U.S. Supreme Court in United States v. United Foods, Inc. In this case, the U.S. Supreme Court is reviewing a decision by the U.S. Court of Appeals for the Sixth Circuit striking down as unconstitutional a federal government program requiring mushroom producers to contribute funds for generic mushroom advertising efforts. IJ’s brief argues that these compelled payments run afoul of the U.S. Constitution’s free speech guarantee as the First Amendment protects both the right to speak freely as well as the right to refrain from speaking. In this particular case, United Foods objects to the mandatory assessment program because the generic advertising campaign it is required to support undermines the company’s own advertising campaign, which is based on differentiating its own mushrooms from those its competitors. IJ’s brief maintains that the company cannot be compelled to contribute to the generic advertising campaign and that the U.S. Supreme Court’s decision in Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997), upholding a similar generic advertising scheme for the California tree fruit industry should be overturned.

• On February 28, 2001, the United States Supreme Court heard argument in Federal Election Commission v. Colorado Republican Federal Campaign Committee. This case, making its second appearance before the Supreme Court, involves a First Amendment challenge to the federal regulations that govern so-called "hard money" expenditures by the state and national organizations of each political party. "Hard money" is money that a political party spends in connection with an individual candidate. In contrast, "soft money" is money that a political party sends independent of any individual candidate (although the lines are often blurred). While these sorts of restrictions on spending are an infringement on free speech under the landmark case of Buckley v. Valeo, 424 U.S. 1 (1976), they are constitutional if they are linked to a legitimate fear that the money contributed and spent by a candidate's campaign will create a risk of corruption, or even the appearance of corruption. Under this system, direct contributions to federal candidates have been limited ($1,000 per individual, $5,000 per political action committee), while "soft money" contributions to political parties have not. Coordinated "hard money" expenditures by a political party lie somewhere in between.

The Court spent a good deal of time questioning whether coordinated expenditures by a political party raise a sufficient threat of corruption (or the appearance thereof) to justify the restriction on free speech. Justice Scalia pointed out that the current system might actually promote corruption by creating incentives for large contributors to give "soft money" to the political party in an amount they could not contribute to a candidate or to a party as "hard money." The "soft money" contribution goes unreported to the Federal Elections Commission, and there is nothing stopping the contributor from letting the candidates of a party know where the money funding "issue" advertising in their district originated. As a result, the FEC regulation of coordinated expenditures creates less disclosure of where campaign money is coming from, not more. As another Justice noted, "[t]hat seems to me just completely contrary to the whole idea of the truth that the First Amendment is designed to vindicate."

None of the Justices seemed particularly adamant that the regulations were necessary to prevent corruption; rather, the split amongst the Court seemed to revolve around the practical effect of striking down the FEC regulations. Counsel for the CRFCC noted that the FEC regulations have the effect of limiting a political party's ability to do precisely what it is intended to do--promote the candidates running as members by using resources from across the country where they will do the party the most good. While the FEC argues that this will create the possibility for corrupting both candidates and the party leaders, the practical reality is that the regulations do nothing to prevent the actual or apparent improprieties, and only create confusion and inefficiencies in the way federal campaigns are run in this country. However, given the extent to which "soft money" has been targeted in individual districts in prior elections, don't look for a quantum change in the way federal elections are funded should the Court strike down these regulations.

March 21, 2001

• Cook v. Gralike

99-929

Decided February 28, 2001

Summary Judgement to Plaintiff Gralike, (W.D. Mo. 996 F.Supp. 901), Affirmed 191

F.3d 911 (8th Cir. 1999) http://caselaw.lp.findlaw.com/data2/circs/8th/981494p.pdf

Affirmed - Amendments to Article VIII of the Missouri Constitution are unconstitutional; found at http://supct.law.cornell.edu/supct/html/99-929.ZS.html, Opinion by Stevens, J., Concurring opinions by Thomas J., Rehnquist, C.J, O’Connor, J.

In response to U.S. Term Limits v. Thornton, 514 U.S. 779, the voters in Missouri adopted an amendment to the Article VIII of their State Constitution requiring that the Secretary of State place alongside the name of each candidate for the U.S. Congress one of the following phrases depending on their views: "DISREGARDED VOTERS INSTRUCTION ON TERM LIMITS" for incumbents who failed to vote in favor of the legislation supporting the proposed amendment; or "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS" for candidates who failed to take a "Term Limit" pledge. Don Gralike, a non-incumbent candidate for Congress, refused both commands and instead filed suit in Federal District Court. The District Court agreed that the so-called "Scarlet Letter Amendment" placed an impermissible burden on a candidate’s First Amendment right to speak freely. The Eighth Circuit agreed, holding that the requirement was coercive and contrary to the Speech and Debate Clause of the U.S. Constitution.

Justice Stevens, writing for the majority, held that Missouri Article VII exceeded the State’s authority under the Elections Clause of Article I, Section 4, which gives the states the limited authority to impose procedural time, place and manner regulations. The Chief Justice believed that the Missouri provision also violated the First Amendment. Justice Kennedy concurred with the majority opinion but based his opinion on federalism grounds. Justice Thomas, who dissented in U.S. Term Limits concurred with the majority only because the State of Missouri, Petitioner, conceded the validity of that case.

• In a Wall Street Journal editorial, editor-in-chief of the University of Wisconsin-Madison Badger Herald Julie Bosman describes the student response to the newspaper’s decision to run an ad by David Horowitz entitled "Ten Reasons Why Reparations for Slavery is a Bad Idea –and Racist Too." At least 15 student newspapers have refused to run the ad, including papers at Harvard, Columbia, Notre Dame, and UVA. The Daily Californian at Berkeley ran a front-page apology after running the ad. Visit: http://www.opinionjournal.com/editorial/feature.html?id=85000705 to read more on this controversy and the protests against the Badger Herald newspaper.

• ELDRED v. RENO, No 99-5430 (D.C. Cir March 02, 2001)

Neither the First Amendment nor the Copyright Clause of the Constitution of the United States constrains the Congress from extending for a period of years the duration of copyrights, both those already extant and those yet to come.

To read the full text of this opinion, go to: http://laws.lp.findlaw.com/dc/995430b.html

• On Monday, Feb 12 the Claremont Institute will sponsor a lunch followed by a debate/discussion of the Electoral College with Michael Uhlmann (a former Special Counsel to President Reagan, Dr. Uhlmann wrote the classic defense of the Electoral College while Counsel to the Senate Judiciary Committee in 1970) and John Judis, editor at The New Republic and author of several books on politics. The lunch is scheduled for noon, with the forum beginning at 1:15 p.m. It will be held at the Hyatt Regency on Capitol Hill (400 New Jersey Ave., NW). There is also an evening banquet, featuring an award presentation to Jim Rogan.

The Claremont Institute is offering a special rate to Federalist Society members: Lawyers Division Members--$20; Student Division Members--$10. To Register: Call Marianne Benson at 909-621-6825. For more information, visit: http://www.claremont.org

• APPELLATE COURT COMMITTEE OF THE SAN DIEGO COUNTY BAR ASSOCIATION PRESENTS:

The U.S. Supreme Court And The Presidential Election-Politics And Precedent
Thursday, February 8, 2001 Noon  1.0 GEN
Bar Center, 1333 Seventh Avenue, San Diego CA 92101
$25 member of the SDCBA and this Committee
$30 member of the SDCBA, not this Committee
$35 not a member of the SDCBA

(Includes Lunch)

Send check to:

SDCBA

1333 Seventh Avenue

San Diego, Ca. 92101

Credit Card reservations may be made by fax, but will not be processed without a signature and card billing address. Fax: (619) 338-0042 Registrations must be received by noon on Monday, February 5, 2001. Sorry, no walk-in registrants will be accommodated.

• The Supreme Court today granted cert. in Lorillard Tobacco/Altadis USA, Inc. v. Reilly, Nos. 00-596 and -597. The First Circuit had held that Massachusetts's regulations on tobacco advertising (principally restricting tobacco advertising within 1000 feet of schools and baggy-jean outlets to avoid marketing to children) were not preempted by the Federal Cigarette Labeling and Advertising Act and did not violate the First Amendment under the Central Hudson test. Lorillard and Altadis seek to revisit that determination, in the persons of Ken Geller of Mayer Brown and Rick Bress of Latham. (These two cases have been consolidated for argument.) http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagename=law/View&c=Article&cid=ZZZJCNESQHC&live=t

• The Chapman University Law Review will host a symposium entitled The Spending Clause: Enumerated Power or Blank Check, on January 19, 2001, from 8:30 a.m. to 5:00 p.m. at the Chapman University School of Law in Orange, California. 6 Hours of CLE credit are available. Details and on-line registration are available at http://www.chapman.edu/law/students/ConLawSymp.html

Federal Election Commissioner Bradley A. Smith will deliver the keynote address. Other conference participants are: Richard Epstein, James Parker Hall Distinguished Service Professor, University of Chicago Law School; Erwin Chemerinsky, Irmas Professor of Public Interest Law, Legal Ethics, and Political Science, University of Southern California Law School; Earl Maltz, Distinguished Professor, Rutgers University School of Law; Lynn Baker, Thomas Watt Gregory Professor of Law, University of Texas Law School; John C. Eastman, Associate Professor, Chapman University School of Law; Celestine McConville, Associate Professor, Chapman University School of Law; Denis Binder, Professor, Chapman University School of Law Conference papers and proceedings will be published in a forthcoming issue of the Chapman University Law Review.