Wednesday, January 28, 2004

found: oral argument at 7th cir. in majors.

Tuesday, January 27, 2004

I filed the motion to strike yesterday.
I also found out that Majors v Abell (I) was reprinted in full in the summer 2003 election law journal.

Monday, January 19, 2004

. Stewart v. Taylor,
96-3108, 01/15/97, 104 F3d 965
Stewart v. Taylor 953 F. Supp. 1047 (SD Ind. 1997)

Friday, January 16, 2004

1/16/04 7:49 PM
1 hour reading state memorandum.
1/16/04 9:23 PM finished draft of motion to strike.
Off to research issue preclusion.

@draft only@ research issue preclusion.
The State defendants’ memorandum, offered for filing 1/13/2004, Part A, discusses McConnell, as requested by the court and, while erroneous, is on topic. The State then goes on in Part B, to argue that McIntyre applies only to referenda, not to candidate elections. This issue is precluded by the finding in Stewart v. Taylor that McIntyre, by its own terms, does apply to candidate elections. If the Indiana Election Commission defendants were unhappy with that ruling, they could have appealed that decision at that time. Having failed to do so, they do not now get a second bite at the apple. Plaintiffs, throughout this litigation, have pointed to Stewart v. Taylor, arguing that defendants are bound by that decision, although no magic words of “issue preclusion” or “res judicata” were used. Plaintiffs move to strike part B of the state’s memorandum.
Even if not struck, the argument carries little weight. McIntyre found that an Ohio statute which required candidate disclaimers was facially invalid, capable of no constitutional application. The court declined to issue an as-applied holding limited to the specific facts which gave Margaret McIntyre standing.
Stewart v. Taylor applied McIntyre to Indiana’s policy of confiscating candidate literature without disclaimers, and of threatening prison and fines. That policy had not changed, and remains at issue. The number and text of the void statute which serves as the pretext for the policy has changed, but the policy today remains the same: it threatens official retaliation for core political speech of the format “Vote for X.” The brochure communicating the policy is largely the same as the brochure at issue in Taylor. The relief in Taylor was limited to a declaration that Ind. Code 3-9-3-2 was unconstitutional, and payment of an agreed sum of damages and legal fees. So by changing the number and text of the statute, defendants avoided direct contempt of the district court, while violating the spirit of that decision. Nothing in the new statute is responsive to the holding in Taylor, but instead addressed express advocacy, skywriting, and other non-essential aspects.
In Watchtower v. Village of Stratton, which the State has yet to mention, the court found that plaintiffs, Jehovah’s witnesses, had standing to raise the issue of anonymous candidate advocacy door to door without a permit from the mayor. The court based that right in McIntyre, impliedly overruling the 6th circuit line of cases that failed to apply McIntyre.
Nothing in McConnell overturns McIntyre or Watchtower, and these remain binding precedent. There are hints in McConnell that the court may someday overturn or distinguish McIntyre if it takes a case on pseudonymous broadcast malicious false election-eve ads, but it has not yet done so, and no lower court has the authority to do so, and this is not such a case.
This court may properly strike Part B of defendants’ memorandum, because that issue was foreclosed by the failure to appeal Taylor. Whether or not it does so, McConnell does not overrule or distinguish McIntyre and Talley as to the constitutionality of anonymous political speech, and the court should proceed to find the statute, as construed, unconstitutional and void.

I ended up not using the exact quotes below in my brief to the 7th circuit, but they influenced what i did end up writing. The next post above is a draft of a motion to strike part of the state's memo on McConnell. The state did not provide an electronic copy of its memo.

Friday, January 02, 2004

A 7 member majority joins Chief Justice Rehnquist in finding that the court
lacks jurisdiction to rule on FECA 318, the disclaimer regulation similar to that at issue in majors. BRCA 311 is upheld only against a narrow attack limited to an express advocacy argument. Therefor it cannot be said that McConnell overrules McIntyre. When the day comes to rule on FECA 318, stare decisis may govern. But that has not come.
"Stewart contends that Mcintyre is controlling." It still is.
Seven of Nine.
I and II Stevens, O'Connor joined by Souter Ginsburg Breyer.
III and IV Rehnquist, C.J. joined by O'Connor, Scalia, Kennedy, and Souter.
Stevens, Breyer, and Thomas each joined parts of this opinion. As to 311,
The Chief is joined by O'Connor, Scalia, Kennedy, Souter, Stevens, and Breyer, seven of nine.
V Breyer, and Stevens, Ginsburg, Souter, O'Connor.
Rehnquist, Scalia, Kennedy.
Thomas, Scalia in part.
Kennedy, Rehnquist, and in part, Thomas and Scalia.
Stevens, Ginsburg, Breyer.

As to the disclosure requirements involving “any political matter of national importance” under the new Communications Act §315(e)(1)(B), the Government suggests that the disclosure enables viewers to evaluate the message transmitted.6 First, insofar as BCRA §504 requires reporting of “request[s for] broadcast time” as well as actual broadcasts, it is not supported by this goal. Requests that do not mature into actual purchases will have no viewers, but the information may allow competitors or adversaries to obtain information regarding organizational or political strategies of purchasers. Second, even as to broadcasts themselves, in this noncandidate-related context, this goal is a far cry from the Government interests endorsed in Buckley, which were limited to evaluating and preventing corruption of federal candidates. Ibid.; see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 354 (1995).

For sure, national political party committees exist in large part to elect federal candidates, but as a majority of the District Court found, they also promote coordinated political messages and participate in public policy debates unrelated to federal elections, promote, even in off-year elections, state and local candidates and seek to influence policy at those levels, and increase public participation in the electoral process. See 251 F. Supp. 2d 176, 334—337 (DC 2003) (per curiam) (Henderson, J., concurring in judgment in part and dissenting in part); id., at 820—821 (Leon, J.). Indeed, some national political parties exist primarily for the purpose of expressing ideas and generating debate. App. 185—186 (declaration of Stephen L. Dasbach et al. ¶11 (describing Libertarian Party)).

As these activities illustrate, political parties often foster speech crucial to a healthy democracy, 251 F. Supp. 2d, at 820 (Leon, J.), and fulfill the need for like-minded individuals to ban together and promote a political philosophy, see Jones, supra, at 574; Eu, supra, at 225. When political parties engage in pure political speech that has little or no potential to corrupt their federal candidates and officeholders, the government cannot constitutionally burden their speech any more than it could burden the speech of individuals engaging in these same activities.

Nevertheless, I would entertain plaintiffs’ challenge to §305 on the merits and uphold the section. Like BCRA §§201, 212, and 311, §305 serves an important–and constitutionally sufficient–informational purpose. Moreover, §305’s disclosure requirements largely overlap those of §311, and plaintiffs identify no reason why any candidate already in compliance with §311 will be harmed by the marginal additional burden of complying with §305. Indeed, I am convinced that “the important governmental interest of ‘shed[ding] the light of publicity’ on campaign financing,” invoked above in connection with §311, ante, at 9 (opinion of Rehnquist, C. J.), would suffice to support a legislative provision expressly requiring all sponsors of attack ads to identify themselves in their ads. That §305 seeks to achieve the same purpose indirectly, by withdrawing a statutory benefit, does not render the provision any less sound.
*. * Justice Ginsburg and Justice Breyer join this opinion in its
It appears there may be three votes to repeal McIntyre's holding that anonymous campaign speech is protected by the First Amendment, if it is speech by the rich.
Four votes are opposed.
Majors' speech is not an attack ad, and resembles McIntyre more than Austin. But Majors argues the statute is facially invalid as well as as-applied, and cannot be enforced even against the rich.
The Chief Justice and Scalia dissented in McIntyre. Perhaps there is a case somewhere which will lead a majority of the court to overturn
McIntyre, Talley, ACLF, and Watchtower v. Stratton.
But McConnell has not done so, so this panel of the Seventh circuit is bound by these four controlling precedents.

A recent Minnesota decision on disclaimers, @, discusses a similar regulation.
The dissents by the Chief Justice and Justices Scalia, Kennedy, and Thomas make clear that there is opposition to further intrusions into campaign speech.
This is a sad day for the freedom of speech.
....would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.
- Scalia.
The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech.Nevertheless, the Court today upholds what can only be described as the most significant abridgment of the freedoms of speech and association since the Civil War. With breathtaking scope, the Bipartisan Campaign Reform Act of 2002 (BCRA), directly targets and constricts core political speech, the "primary object of First Amendment protection." -Thomas.
The First Amendment guarantees our citizens the right to judge for themselves the most effective means for the expression of political views and to decide for themselves which entities to trust as reliable speakers.
The First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech. Citizens must be free to use new forms, and new forums, for the expression of ideas. The civic discourse belongs to the people and the Government may not prescribe the means used to conduct it.

The First Amendment commands that Congress "shall make no law ... abridging the freedom of speech." The command cannot be read to allow Congress to provide for the imprisonment of those who attempt to establish new political parties and alter the civic discourse. Our pluralistic society is filled with voices expressing new and different viewpoints, speaking through modes and mechanisms that must be allowed to change in response to the demands of an interested public. As communities have grown and technology has evolved, concerted speech not only has become more effective than a single voice but also has become the natural preference and efficacious choice for many Americans. The Court, upholding multiple laws that suppress both spontaneous and concerted speech, leaves us less free than before. Today's decision breaks faith with our tradition of robust and unfettered debate.

The McConnell plaintiffs, inclusive of the consolidated cases, include those associated with Brian Majors through the Libertarian Party, which is itself a plaintiff, as it was in Valeo. 1:01 am 01/03/04. Plaintiff Ron Paul is a former Libertarian candidate for president. His co-plaintiffs Michael Cloud and
Carla Howell have run for office in Massachusetts. Howell got 12% of the vote for Governor. Cloud got 19% in the U.S. Senate race. Steve Dasbach, a witness cited in McConnell, is a former Indiana and National Libertarian Party Chair, and is an associate of Majors, Martin, and Metzger.
These associative connections illustrate the severity of the burden if Majors and those like him are prevented from speaking.
If the disclaimer laws are upheld, innocent people could be jailed for pure political speech.
This would have a chilling effect of the sort the court discusses where it declines to make an exception for all minor parties, but allows as-applied challenges by parties with evidence of a perception of harrasment.

Together with No. 02-1675, National Rifle Association et al. v. Federal Election Commission et al., No. 02-1676, Federal Election Commission et al. v. McConnell, United States Senator, et al., No. 02-1702, McCain, United States Senator, et al. v. McConnell, United States Senator, et al., No. 02-1727, Republican National Committee et al. v. Federal Election Commission et al., No. 02-1733, National Right to Life Committee, Inc., et al. v. Federal Election Commission et al., No. 02-1734, American Civil Liberties Union v. Federal Election Commission et al., No. 02-1740, Adams et al. v. Federal Election Commission et al., No. 02-1747, Paul, United States Congressman, et al. v. Federal Election Commission et al., No. 02-1753, California Democratic Party et al. v. Federal Election Commission et al., No. 02-1755, American Federation of Labor and Congress of Industrial Organizations et al. v. Federal Election Commission et al., and No. 02-1756, Chamber of Commerce of the United States et al. v. Federal Election Commission et al., also on appeal from the same court.

District Court's decision upholding BCRA §311's expansion of FECA §318(a) to include mandatory electioneering-communications-disbursements disclosure is affirmed because such inclusion bears a sufficient relationship to the important governmental interest of "shed[ding] the light of publicity" on campaign financing, Buckley, 424 U. S., at 81. Assuming, as the Court must, that FECA §318 is valid both to begin with and as amended by BCRA §311's amendments other than the electioneering-communications inclusion, the latter inclusion is not itself unconstitutional. P. 9.
sylabus mcconnel.

roughest notes on mcconnell brief:


The court, by order of 12/15/2003, has requested that the parties brief how and whether McConnell v. FEC affects this litigation.

McConnell was heard by the Supreme Court pursuant to statutory jurisdiction for expedited review of the three-judge court’s voluminous opinion.
The limited jurisdiction of the court turns out to be key to the holding as to the disclaimer provisions of BCRA, which might have affected the outcome of this case.
McConnell upheld section 311of BCRA against a limited attack, but lacked jurisdiction to decide the constitutionality of FECA 318. § 318 is a disclaimer provision not unlike the ones at issue in McIntyre, Stewart v. Taylor, and this case.
No plaintiff raised a challenge to “the stand by your ad” provisions. None of the plaintiffs extensively briefed the 311 issue, and it was at least mostly waived. McConnell was a facial challenge, not precluding further as-applied challenges to provisions including “stand by your ad.”

McConnell is several hundred pages. It consolidates numerous plaintiffs, defendants, intervenors, and actions. Over a dozen major issues of constitutional law are involved.
The part most relevant to this case is the Chief Justice’s opinion for a majority as to part @ IV and V.

One of the plaintiffs had argued that 311 was an unconstitutional extension of the FECA disclaimer rules. FECA, per Buckley, had been held to be limited to express advocacy.
BCRA extended FEC regulation to implied advocacy within 60 days of a federal election and certain other terms and conditions.

At the risk of oversimplifying McConnell, the case upheld a soft money ban and regulation of certain implied advocacy, in parts I and II, coauthored by Stevens, J. and O’Connor, J., joined by three other justices. At least 5 of the justices dissented in part.
Per Red Lion, the court upheld extensive reporting requirements for broadcast media. 1/1/04 10:38 PM.

Justice Stevens, in a footnote to his partial dissent, indicates that he may no longer support his own opinion in McIntyre.

Nothing in the majority opinion holds or suggests that it is overturning Talley, McIntyre,
ACLF, and Watchtower. Talley was 6-3, McIntyre 7-2, ACLF 9-0 on the issue of whether name badges requirements were unconstitutional under McIntyre, and Watchtower v. Stratton was 8-1, so even if Justice Stevens no longer supports McIntyre in some future case raising the issue, there remains a strong majority on the court for the proposition that criminalizing anonymous campaign speech requires, and cannot pass, strict scrutiny.

Justices Kennedy Scalia Thomas and the Chief Justice each dissent in part, concerned that core political speech is imperiled. This makes it unlikely that trends toward more regulation of campaign speech will result in Talley and McIntyre being overruled at some future date.
The majority opinion is primarily a regulation of campaign finance, following Valeo and Austin, rather than a pure speech case such as Tornillo, Sullivan, Grace or Gilleo.

In understanding these cases, it is useful to avoid the catch all term “disclosure”, and use more specific terms including disclaimers, reporting, coerced confessions. No single rule covers all forms of disclosure. The Talley line of cases holds that disclaimer bans are unconstitutional. Valeo and McConnell uphold reporting so long as it is closely related to the substantial government interest in avoiding corruption and the appearance of corruption. Miranda is an example of a different set of constraints on disclosure.

McIntyre carefully distinguished between disclaimer cases, like Talley, or Illinois v White, and reporting cases such as Valeo, Alabama ex rel. Patterson v. NAACP, Bates v. Little Rock, Socialist Workers 74 Campaign Committee v Brown.

McConnell is in this second category. While upholding expanded reporting, it does not directly confront the issue of the unconstitutionality of the FECA’s disclaimer provisions, which are like those found unconstitutional in McIntyre. McIntyre found that an Ohio statute requiring disclaimers on candidate literature was facially invalid. The federal statute requiring disclaimers on candidate literature is facially invalid for the same reasons, and is not currently enforced by the FEC commissioners, who are deadlocked on the issue. But McConnell did not raise or resolve this issue. It only addressed the narrower question, that if the disclaimer provision is presumed valid, can it be extended to implied advocacy under the new electoral communications rules.
Plaintiff’s theory was that the electoral communications rules were themselves unconstitutional, and therefore the disclaimers could not be extended to them. This theory collapses once the electoral communications rules were upheld. Therefore, the decision was not based on whether or not disclaimer requirements are constitutional or not, but was just about which classes of communications they apply to.
Therefore, McConnell is not on directly on point as to Majors v. Abell’s claim that Indiana’s disclaimer regulations, more draconian than those struck down in McIntyre,
are unconstitutional.

Justice Thomas has a different view of McIntyre, saying that it presumptively overruled Valeo as to reporting, although it claimed not to. I do not agree with that analysis, but his conclusion is that McIntyre is and should be good law, that the government should not interfere in political speech.
Prior to McConnell, this court indicated that, if persons was construed to mean persons, it would find IC 3-9-3-2.5 unconstitutional per McIntyre and Talley. McConnell has not changed that. Nor should the Indiana Supreme Court’s advisory musings misapplying McIntyre and ACLF, and failing to mention Watchtower, deter this court from its stated intention of following binding precedent.

McConnell is a significant case. Like Jenness v. Fortson, Burdick v. Takushi, and Timmons v. Twin Cities Area New Party, it authorizes legislative meddling in the association rights of political groups with only lax review. But what it does not do is overturn McIntyre’s holding that governments may not require disclaimers on political speech, nor that such requirements be subjected to strict scrutiny, the kiss of death.
Nor, for that matter, does McConnell change the fact that Indiana’s statute and custom is unconstitutional per Smith v. California, as a criminal suppression of speech with no mens rea element.

This page is powered by Blogger. Isn't yours?