- 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")
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
The Madison Center's brief can be viewed on the Center's website,
- 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 email@example.com.
June 25, 2001
- 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.
The June 14 written testimony analyzed Shays-Meehan (H.R. 380)
at length and attached Bopp's earlier analysis of McCain-Feingold
(S. 27; available on the Madison Center webpage), both demonstrating
the constitutional and policy errors of such proposals. The written
testimony observed that "Shays-Meehan would virtually destroy
the ability of citizen groups to participate in our Republic,
thereby trampling on freedom of speech and association with respect
to the most vital issues of our day." Bopp noted, however,
that "the federal courts have shown greater solicitude for
the Constitution and the workings of
our Republic . . . and may be relied upon to promptly bury such
alleged 'reform.'" Bopp concluded that "members of Congress
have also taken an oath to uphold the Constitution. Passage of
Shays-Meehan would be in derogation of that oath and duty."
Bopp was invited to testify because of his expertise on campaign
finance reform and the Constitution developed through litigating
numerous cases striking down unconstitutional campaign finance
campaign finance laws and regulations (including 8 without loss
against the FEC), publishing scholarly articles, testifying before
legislatures, and submitting comments on proposed FEC regulations.
Copies of the June 14 testimony or the June 12 testimony are
available in PDF format at http://www.jamesmadisoncenter.org.
They may also be obtained by email in WordPerfect format (or in
printed form) by request to firstname.lastname@example.org.
- 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).
June 20, 2001
June 13, 2001
- 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
May 9, 2001
- 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 processprecisely
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 majoritys 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.
May 2, 2001
- 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
April 11, 2001
- 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. IJs brief argues that these compelled
payments run afoul of the U.S. Constitutions 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 companys own advertising campaign,
which is based on differentiating its own mushrooms from those
its competitors. IJs brief maintains that the company cannot
be compelled to contribute to the generic advertising campaign
and that the U.S. Supreme Courts 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.
March 28, 2001
- 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
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, OConnor, 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 candidates 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 States 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.
March 14, 2001
- 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 newspapers
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:
to read more on this controversy and the protests against the
Badger Herald newspaper.
March 7, 2001
- 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
February 8, 2001
- 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
Send check to:
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.
January 10, 2001
- 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
January 8, 2001
- 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.
2003 The Federalist Society