Today three corporations asked the U.S. Supreme Court to review the Montana Supreme Court’s holding that corporations in Montana may be banned from making independent political expenditures by expressly advocate the election or defeat of state candidates. In the 2010 Citizens United v. FEC decision, the U.S. Supreme Court held that the First Amendment protects such core political speech even if made by corporations in federal elections and could not be banned. But the Montana Supreme Court upheld a ban on corporate independent expenditures for such speech, based on Montana’s uniqueness, especially its history of corruption.

The U.S. Supreme Court has already stayed the Montana Supreme Court’s decision, meaning that corporations can currently speak despite the state court’s holding. The stay is in effect while the U.S. Supreme Court decides whether to accept the case for review, and, if it is accepted, then until the case is decided.

In their petition to the U.S. Supreme Court, the corporations explained that the Montana decision was in conflict with both the Court’s holding that corporations could not be banned from doing core political speech and the Court’s reasoning that the independence of such speech eliminated any risk of corrupting candidates. The petition stressed the importance of upholding respect for the rule of law, the Supreme Court’s decisions, and the Supreme Court itself. It noted the flood of cases that would arise from other states seeking similar as-applied exceptions if Montana’s decision stands. And it noted the profound constitutional problems that would arise if Montana’s arguments were allowed to prevail.  For example, if Montana’s argument that it  is unique because it is sparsely populated were to prevail, this would mean that would-be speakers in densely populated urban areas have greater speech protection than those in suburban or rural areas.

James Bopp, Jr., lead counsel for the corporations, states: “If Montana can ban core political speech because of Montana’s unique characteristics, free speech will be seriously harmed. Speakers will be silenced because of corruption by others over a century ago or because Montana candidates have traditionally spent little money on their campaigns. This puts speakers at the mercy of others and of past actions over which they have no control. The First Amendment’s protections cannot be so conditioned.”

The case in the U.S. Supreme Court is captioned American Tradition Partnership, Inc. v. Bullock. In the Montana Supreme Court, it was captioned Western Tradition Partnership, Inc. v. Attorney General. The petition is available at the James Madison Center website at http://www.jamesmadisoncenter.org/cases/files/2012/02/Cert-Petition-final.pdf.

Tuesday, March 20, 2012

Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

In 2007, New York City created a blacklist. It singled out nearly 12,000 of its most prominent citizens and said that they were the most likely to try to bribe politicians with campaign contributions. So the City published their names on the Internet for everybody to see and reduced the amount of contributions they can make to their chosen candidates by 90%. Everybody else is allowed to give $2750 to candidates for City Council. But the blacklisted citizens are only allowed to give $250. And while everyone else can give $4,950 to candidates for mayor, the blacklisted citizens can only give $450.

This might make sense if the blacklisted people had actually ever tried to bribe politicians. But none had. In fact, for the previous nineteen years, New York City has not had a single instance of corruption tied to campaign contributions. The nearly 12,000 blacklisted people had always played by the rules, but the City punished them anyway.

Strangely, most of the people on the City’s blacklist are not the type of people we normally consider untrustworthy or corrupt. For instance, Lee Bollinger, president of Columbia University, is on the list. So is Paul LeClerc, the president of the New York Public Library, and Donna Lieberman, the director of the New York Civil Liberties Union. The list has numerous leaders of nonprofits, hospitals, museums, churches, and yeshivas. They are all publicly fingered as untrustworthy and punished by having their candidate contribution limits reduced to less than one-tenth of everyone else’s. And while everyone else’s contributions are matched with public money, the blacklisted citizens’ contributions are not matched.

In addition, the City banned all contributions from corporations, partnerships, limited liability corporations, and limited liability partnerships, and put all their executives on the blacklist. The City claimed it needed to do this to eliminate the influence of special interest groups. Hypocritically, though, the City still allows unions to make contributions, and union executives can give up to the much higher, regular limits. The City claims that businesses are more likely to try to bribe city officials in order to get contracts. But unions depend on city officials for their collective bargaining agreements. They have the same incentive as businesses to try to corrupt politicians. But the City still lets unions and its executives contribute up to the regular limits, and matches the executives’ contributions with public money. Business contributions, however, are banned, and their executives’ contributions are reduced more than ten times and not matched.

In 2008, a coalition of citizens subject to these draconian laws challenged them in court. Making contributions to candidates involves First Amendment political speech and association rights, so the coalition alleged that the law’s restrictions violated their constitutional rights. Despite the obvious unfairness in the law, the trial court upheld it as constitutional. The coalition then appealed to the Second Circuit Court of Appeals, which likewise upheld the law.

In upholding the law, the Second Circuit disregarded a number of United States Supreme Court decisions. For instance, the Supreme Court has said that you cannot have different contribution limits for different groups of people unless there is a demonstrated need for the different limits. New York City doesn’t have one, but the Second Circuit upheld the low limits for the blacklisted citizens anyway. Similarly, the Supreme Court has ruled that you cannot ban political speech on the basis of the identity of the speaker. New York City, though, bans all contributions from business organizations on the basis of their corporate identity. Furthermore, the Supreme Court has held that low contribution limits need special justification to be upheld, but the Second Circuit upheld them despite the fact that there has been no corruption for over 19 years under the regular contribution limits.

Yesterday, the coalition of citizens asked the Supreme Court to take their case. Their attorney, James Bopp, Jr, said that court of appeals cannot be allowed to defy the Supreme Court. “Lower courts have to follow the Supreme Court,” Mr. Bopp explained. “The Supreme Court has repeatedly ruled that if the government wants to limit candidate contributions, it has to demonstrate that there is an actual problem with corruption. New York City, though, doesn’t have any corruption, because its regular contribution limits fixed that 19 years ago. So these extra-low contribution limits for just some citizens are unnecessary and, therefore, unconstitutional.”

Mr. Bopp also took issue with the way the City treats unions and business organizations differently. “The City claims that it needs to ban contributions from businesses because they might try to bribe city officials to be receptive to business interests. But what about the unions? They negotiate multi-billion dollar collective bargaining agreements with New York City. They have the same incentive to try to bribe officials, yet they are still allowed to make contributions.” Mr. Bopp explained that under the Constitution’s guarantee of equal protection, the government cannot discriminate against corporations while giving preferential treatment to unions.

Mr. Bopp expressed his hope that the Supreme Court will take this case. “The Court agrees to hear only a small number of cases each year,” Mr. Bopp said. “But this is one that the Court needs to hear. It has important implications, not just for New York City, but for the whole country. After all, if New York City can blacklist and punish citizens that haven’t done anything wrong, then any city or state can.”

The case is Ognibene v. Parkes. The petition asking the Supreme Court to take the case is available in PDF online at the James Madison Center’s website, www.jamesmadisoncenter.org, under “Ognibene v. Parkes.” It can be accessed directly by following this link:

http://www.jamesmadisoncenter.org/cases/files/2011/09/Cert-Petition.pdf.

James Bopp, Jr. has a national federal and state election law practice with The Bopp Law Firm. He is General Counsel for the James Madison Center for Free Speech and former Co-Chairman of the Election Law Subcommittee of the Federalist Society.
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James Bopp, Jr., an attorney representing Mr. Hatchett, states: “this is the second time these overreaching campaign finance laws have been ruled unconstitutional in situations like this. It’s encouraging to see the federal court affirm, once again, that individuals in Wisconsin can send a post card concerning a referendum in their own town without registering and filing reports with the state.”

The case is titled Hatchett v. Barland. Mr. Hatchett won a preliminary injunction in April, 2010, allowing him to immediately undertake his activities without complying with the challenged laws, and now the court has ruled those laws are unconstitutional in situations such as Mr. Hatchett’s. The court’s Order is here　

North Carolina’s Public Campaign Finance Fund provides state supreme court candidates with the option to receive public funding if they agree to limit how much money they raise and spend on their campaigns. The Fund’s matching fund scheme also gives publicly-funded candidates additional dollars based on the spending of nonpublicly-funded candidates and third party groups.

Albuquerque’s Open and Ethical Election Code provides taxpayer funding for Albuquerque city council and mayoral candidates who agree to limit how much money they raise and spend on their campaigns. Under the scheme, city council candidates receive $1 for each registered voter in their area. In addition, candidates may receive “matching funds” if they are outspent by their opponent or by independent groups.

New Mexico Turn Around, a free market oriented advocacy organization, filed suit earlier this year against Albuquerque’s public funding scheme for city council candidates, asserting it is an unconstitutional infringement of their First Amendment free speech rights.

The federal order, agreed to by the parties, follows the Supreme Court’s recent decision in Arizona Free Enterprise Club’s Freedom PAC v. Bennett, which declared unconstitutional a similar Arizona scheme.

“The court’s decision here is just a straightforward application of the Supreme Court’s decision in Bennett,” said James Bopp, Jr., counsel for the plaintiffs. “Requiring people to effectively fund candidates they opposed simply by exercising their First Amendment rights is blatantly unconstitutional.”

Virginia law requires congressional candidates to collect 1,000 signatures before they can appear on the ballot. Even though Lux collected over 1,200 signatures, he was refused a place on the ballot because he witnessed most of the signatures himself. Under Virginia law, candidates may witness their own signatures, and a candidate may run for Congress without residing in a given congressional district. But, only congressional district residents can legally gather signatures and Lux did not reside in the congressional district where he was running.

Lux brought suit challenging, on constitutional grounds, the law that forbade him from gathering signatures in furtherance of his own candidacy. He lost in the court below last August, but now the appellate court has ruled that the lower court must reconsider its decision.

“There is simply no reason for prohibiting Mr. Lux from circulating his own petitions,” said James Bopp, Jr., lead counsel for Lux. “Not only does it hurt Mr. Lux; it also hurts the voters who signed his petition. It’s unfortunate that Mr. Lux could not get relief in time for him to appear on the ballot, but hopefully, the lower court will now do justice and strike down this law so that future candidates, including Mr. Lux, will not be barred from circulating their own petitions.”

The case, called Lux v. Judd, now returns to the U.S. District Court for the Eastern District of Virginia, before Judge Henry Hudson. The decision handed down today from the Fourth Circuit Court of Appeals in Richmond, Virginia, is available on the website of the James Madison Center for Free Speech, at www.jamesmadisoncenter.org, under the case Lux v. Judd.

James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech, former Co-Chairman of the Election Law Subcommittee of the Federalist Society, and was recently recognized as the Republican Lawyer of the Year by the National Republican Lawyers Association.

Thursday, June 30, 2011. On Wednesday, a citizen coalition led by Protect Marriage Washington asked a federal court to prevent Washington Secretary of State Sam Reed from publishing the names and addresses of thousands of citizens who signed a controversial referendum petition in 2009.

Approximately 138,000 Washingtonians signed a petition in 2009 to repeal a law that gave same-sex partners all the legal rights of married couples. The petition was successful in forcing a referendum vote in November of that year, but at the election Washingtonians voted to sustain the law. Now, almost two years later, and though the election is over, advocacy groups and the Secretary of State continue to press for the release of the names of petition signers.

The question is, Why do they want them? Not only is it unclear what purpose it would serve to release the names at this point, there is also a very good reason not to release them. Together with its briefing to the court, Protect Marriage Washington presented hundreds of pages of documented examples of threats and reprisals directed at supporters of traditional marriage, not only in Washington but across the country. The evidence includes death threats, extensive vandalism, overt threats of destruction of property, arson and threats of arson, intimidating emails and phone calls, hate mail, mailed envelopes containing white suspicious powder, blacklists, loss of employment and job opportunities, and gross expressions of anti-religious bigotry, including vandalism and threats directed at religious institutions and religious adherents—all for doing nothing more than standing up for traditional marriage.

“What is becoming increasingly evident,” said James Bopp, Jr., lead counsel for Protect Marriage Washington, “is that some groups and individuals, certainly a minority, have resorted to advancing their cause, not by debating the merits of the issue but by discouraging participation in the democratic process itself. The First Amendment was designed to ensure that all groups, whatever their persuasion, could participate fully in our Republic. That breaks down when some groups or individuals are cowed into silence for fear that they or their families will be targeted or threatened if they speak up.”

The case is Doe #1 v. Reed. Protect Marriage Washington’s brief in support of its motion for summary judgment is available on the website of the James Madison Center for Free Speech, at  http://www.jamesmadisoncenter.org/cases/files/2011/06/209-Plaintiffs-Motion-Brief-for-Summary-Judgment.pdf.

James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech and former Co-Chairman of the Election Law Subcommittee of the Federalist Society.

Albuquerque’s Open and Ethical Election Code provides taxpayer funding for Albuquerque city council and mayoral candidates who agree to limit how much money they raise and spend on their campaigns. Under the scheme, city council candidates receive $1 for each registered voter in their area. In addition, candidates may receive “matching funds” if they are outspent by their opponent or by independent groups.

New Mexico Turn Around says that it wants to get involved in Albuquerque’s upcoming city council races, but is reluctant to do so because it does not want its speech to trigger matching funds to candidates they seek to defeat.

According to James Bopp, Jr., counsel for the plaintiffs, “under this system, simply running an ad against a candidate can result in that candidate getting more taxpayer money.” Says Bopp, “candidates and their supporters are prevented from campaigning because doing so will likely result in providing additional funds to the very candidates they want to oppose.”

The federal courts seem to agree. In 2010 two federal courts of appeals prevented similar public funding schemes from operating in Connecticut and Florida. And a similar Arizona law is currently pending before the Supreme Court.

The case is New Mexico Turn Around v. Baily, 1:11-cv-536. Copies of the complaint and motion for preliminary injunction are available in PDF online at the James Madison Center’s website, www.jamesmadisoncenter.org, under “New Mexico Turn Around v. Baily.”