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Blog
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Welcome to the Holtzman Vogel Law Blog. We aim to keep you
up to date on important legal developments and other items of interest. On this
blog, we'll track developments in the news and changes to the rules and regulations
affecting political committees, corporate PACs, trade associations, non-profit groups
and advocacy organizations. We'll also keep you updated on the lobbying and ethics
arena. The Law Blog is designed to supplement our regular newsletter.
On behalf of the Holtzman Vogel team, I hope you find this site helpful and interesting.
And we hope you'll become a regular visitor. (If you'd like to receive our newsletter,
please click here to sign up.)
Jill Holtzman Vogel
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Monday, April 05, 2010
RNC Seeks Supreme Court Review of "Soft Money" Decision
The Daily Caller reports that the Republican National Committee will file paperwork seeking Supreme Court review of the "soft money" case it recently lost at the district court level ( RNC v. FEC): "The Republican National Committee and Chairman Michael Steele are continuing their push to allow corporations and individuals to make unlimited donations known as 'soft money' to national committees. On Friday, Steele and the RNC appealed to the Supreme Court after a federal court denied the RNC permission to raise soft money for state elections and congressional redistricting, according to Federal Election Commission records."
The RNC's Notice of Appeal is here. More from USA Today here.
Tuesday, March 30, 2010
Holtzman Vogel Memo on SpeechNow Decision
Click here to read the entire post.
Saturday, March 27, 2010
Wash. Post: Ruling allows contributions to activist groups for campaigns
The Washington Post has this article on yesterday's SpeechNow decision. More details on the case are here.
According to the Post article, "The SpeechNow decision effectively widens the field of organizations that can raise and spend money on politics more freely in light of the Citizens United decision, which swept aside decades of legislative restrictions on the role of corporations in political campaigns. In a similar vein, SpeechNow and other independent political groups -- also known as 527 organizations, for their designation under the tax code -- are now free to solicit unlimited contributions as long as they do not donate directly to candidates or coordinate with their campaigns."
The Wall Street Journal opines here.
Click here to read the entire post.
Friday, March 26, 2010
Two Important Court Decisions Rendered Today
This morning, the D.C. Circuit Court of Appeals decided SpeechNow.org v. FEC ( opinion here), ruling that contribution limits cannot be imposed on individuals wishing to give money to organizations that make independent expenditures. However, the court also held that such organizations may still be required to register and file financial disclosure reports with the FEC if the organization is a "political committee."
A few hours later, a three-judge panel of the U.S. District Court for the District of Columbia ruled against the Republican National Committee in its case against the FEC ( opinion here), challenging aspects of BCRA's soft money restrictions.
More inside.
Click here to read the entire post.
Wednesday, March 03, 2010
D.C. Circuit Court of Appeals Rules For Unity08
The D.C. Circuit Court of Appeals ruled for Unity08 in its case against the FEC, overturning a district court ruling, which had upheld the FEC's determination that the group was subject to political committee contribution limits.
Beginning in 2006, Unity08 sought to create a process for nominating a split Presidential ticket, with one Democrat and one Republican candidate. In Advisory Opinion 2006-20, the FEC determined that even if the organization did not support specific candidates, its signature collection efforts to secure ballot access and its overall major purpose were enough to trigger "political committee" status. The D.C. Circuit rejected this position, and likened Unity08 to a "draft committee," which is not treated as a "political committee" under D.C. Circuit precedent.
The court's opinion is here.
Wednesday, February 24, 2010
AP: Cao's campaign finance suit moves to appeals court
AP reports "A Republican-backed challenge of federal campaign finance restrictions has moved to a federal appeals court. U.S. Rep. Ahn "Joseph" Cao (Gow) and Republican leaders filed the suit in 2008. At the heart of the complaint is the federal limit on what state and national parties can spend in coordinated efforts on behalf of a candidate - about $42,000 each. U.S. District Judge Ginger Berrigan threw out part of the challenge late in January. But she also decided several of the main issues in the case should be considered by the 5th U.S. Circuit Court of Appeals. The appeals court is expected to hear arguments in May."
Click here to read the entire post.
Tuesday, February 23, 2010
Clarification Order in San Diego Case
Via Rick Hasen's blog comes news that the federal district court in Thalheimer v. City of San Diego (noted earlier here) has issued a new order clarifying its ruling. The new order makes clear that the court has preliminarily enjoined the City of San Diego from enforcing its contribution limits as they applied to independent expenditure committees, and that both individuals and "non-individual entities" (such as corporations, labor unions, trade associations, etc.) may now freely contribute to those committees.
Tuesday, February 23, 2010
Denver Post: Colorado's high court rejects ban on campaign contributions
The Denver Post reports " Colorado's top court Monday rejected a voter-approved measure to bar holders of large, no-bid government contracts from making campaign contributions....The state's high court found Colorado's Amendment 54 vague, overbroad and 'so incomplete or riddled with omissions that it cannot be salvag(ed), according to the decision....The decision, affirming a lower court ruling, puts at ease directors and significant shareholders of businesses and nonprofits with government contracts as well as their relatives, who were also barred from giving under the amendment. And labor unions again will be able to readily give hundreds of thousands of dollars to state and local candidates through small donor committees ahead of November."
Click here to read the entire post.
Wednesday, February 17, 2010
Federal District Court Halts Enforcement of Contribution Limits to Independent Expenditure Committees
In what is likely to be a preview of the D.C. Circuit's decision in SpeechNow.org v. FEC, the District Court for the Southern District of California, in Thalheimer v. City of San Diego, has granted a preliminary injunction preventing enforcement of San Diego's contribution limits to independent expenditure committees. The court adopted the view of the 4th Circuit ( North Carolina Right to Life, Inc. v. Leake) and the D.C. Circuit ( EMILY's List v. FEC), and found that "it is 'implausible' that contributions to committees making only independent expenditures corrupt or create the appearance of corruption." The court noted that "in this case, the City has produced no evidence linking contributions to independent expenditure committees with undue influence on a candidate or officeholder's judgement."
The court's ruling is only a preliminary injunction order, which does not constitute a final decision on the merits. The case will now proceed to trial, and the City of San Diego will presumably attempt to produce evidence showing that contributions to independent expenditure committees can corrupt candidates.
(In the court's order, it also upheld the City's $500 individual contribution limit.)
Click here to read the entire post.
Wednesday, February 17, 2010
Ken Klukowski on SpeechNow.org
Ken Klukowski (fellow and senior legal analyst with the American Civil Rights Union) has this op-ed on the SpeechNow.org case, which is currently pending before the D.C. Circuit. He explains, "In short, Citizens United looked at the First Amendment issues about regulating the spending of money for political speech, and SpeechNow looks at the First Amendment issues about regulating the raising of money for political speech."
Thursday, February 11, 2010
Supplemental Briefing in RNC v. FEC
The Republican National Committee filed a supplemental brief in its challenge to aspects of BCRA's national party soft money prohibition, arguing that the Supreme Court's decision in Citizens United v. FEC effectively overturned the soft money ban:
As previously asserted by the Plaintiffs, to the extent McConnell found that contributions to national political parties were “suspect,” irrespective of their end use, it premised this conclusion on the historical practice of national parties to provide large donors of non-federal funds with preferential access to federal candidates and officeholders. [***] Now that the Supreme Court has stated that preventing access and gratitude is not a proper government interest, Citizens United, slip op. at 43-44, the [national party soft money] Restriction is unconstitutional. Not only is the Restriction unconstitutional as applied to Plaintiffs’ activities, it is facially unconstitutional since McConnell’s foundation of corruption cannot stand.
The Federal Election Commission and the Democratic National Committee have filed briefs disagreeing. Among other things, they argue that only the Supreme Court may overrule McConnell, and that it has not yet done so. The FEC's supplemental brief is here.
Wednesday, January 27, 2010
SCOTUSblog Review of SpeechNow.org v. FEC Oral Argument
SCOTUSblog has a review of arguments here.
Click here to read the entire post.
Wednesday, January 27, 2010
AP: Appeals Court Skeptical of Campaign Finance Rules
AP reports "In the first court hearing since the Supreme Court ruling on campaign finance regulations, a federal appeals court seemed poised Wednesday to strike down additional limits on money in politics. The U.S. Circuit Court of Appeals for the District of Columbia gave every indication it would make it easier for independent advocacy groups to raise money for use in campaigns for president and Congress." (Note: the article incorrectly identifies the plaintiff as FreeSpeech.org. The organization is SpeechNow.org.)
Click here to read the entire post.
Thursday, January 21, 2010
Arizona Republic: Federal judge strikes down Ariz. matching funds
The Arizona Republic reports "A U.S. District Court judge has declared a portion of an Arizona program that gives candidates public money for their campaigns unconstitutional - and she has given the system's defenders 10 days to convince a higher court otherwise. Judge Roslyn Silver ruled Wednesday that a portion of the state's 12-year-old Clean Elections system should be shut down. But her 10-day delay in implementing the ruling gives the Arizona Citizens Clean Elections Commission time to appeal."
Click here to read the entire post.
Tuesday, November 03, 2009
EMILY's List Update From SCOTUSBlog
SCOTUSBlog notes, "The D.C. Circuit Court’s deeply controversial ruling in September, removing federal restrictions on high-volume spending in federal elections by non-profit advocacy groups, is not going to be challenged further in the Circuit Court. Monday was the deadline for parties to seek en banc review by the full Court of the panel ruling in the EMILY’s List case, but U.S. Solicitor General Elena Kagan will not seek it, concluding that she has no authority to do so. She still has the option, in coming weeks, of asking the Supreme Court to hear it, however."
Click here to read the entire post.
Thursday, October 22, 2009
FEC Announces It Will Not Seek Rehearing in EMILY's List Case
In a press release, the Federal Election Commission announced "The Federal Election Commission will not seek rehearing en banc in EMILY’s List v. FEC." Also, "The Commission will issue guidance to political committees in the near future."
Click here to read the entire post.
Wednesday, October 14, 2009
AP: Federal judge in Ga. sanctions 'birther' attorney
AP reports "A federal judge in Georgia fined a leader of the movement challenging President Barack Obama's citizenship and warned her against using the legal system to pursue "political rhetoric and insults."
U.S. District Judge Clay D. Land's scathing 43-page order Tuesday said California lawyer and dentist Orly Taitz filed "frivolous" litigation and attempted to misuse the federal courts to push a political agenda."
Click here to read the entire post.
Tuesday, October 13, 2009
Politico: Campaign finance laws face a reset
Politico has this op-ed/report on the current lack of clarity in campaign finance law. Politico explains, "A series of court decisions expected this fall could put the nation on track to return to turn-of-the-century campaign finance laws." Also included is this telling preview of what we can expect from the media if opponents of campaign finance regulations are victorious in the coming months: "The loosening of the rules will inevitably lead to more campaign finance scandals, which have always made for good journalism."
Click here to read the entire post.
Thursday, October 08, 2009
D.C. Circuit Court of Appeals Schedules Dec. 4 Oral Argument in SpeechNow.org v. FEC Appeal
The D.C. Circuit will hear the appeal in SpeechNow.org v. FEC on December 4, 2009. The outcome of the case, however, may have already been decided in the EMILY's List decision.
Click here to read the entire post.
Monday, October 05, 2009
Reform Groups File Amicus Brief in SpeechNow.org Case, Refer to Constitutional Discussion in EMILY's List as "merely dictum, and therefore not binding"
Three so-called "reform" organizations (Campaign Legal Center, Common Cause, and Democracy 21) that seek to protect campaign finance regulation, filed an amicus brief in SpeechNow.org v. FEC. The group's brief contains this remarkable footnote: "The D.C. Circuit Court of Appeals, in a recent decision reviewing two FEC regulations, see 11 C.F.R. §§ 100.57, 106.6(c), (f), discussed whether limits on contributions to committees making independent expenditures are constitutionally permissible. EMILY’s List v. FEC, No. 08-5422, 2009 WL 2972412 (D.C. Cir.
Sept. 18, 2009). However, because EMILY’s List did not challenge the
constitutionality of the statutory contribution limits at 2 U.S.C. §§ 441a(a)(1)(C) and 441a(a)(3), but rather only the FEC regulations interpreting the statutory limits, the Court’s discussion was merely dictum, and therefore not binding."
Click here to read the entire post.
Monday, September 28, 2009
Brad Smith: Will EMILY's List be appealed?
Brad Smith considers whether the FEC will appeal the EMILY's List decision. He concludes the Commissions will not.
Click here to read the entire post.
Friday, September 25, 2009
The Hill: Court denies Massachusetts GOP effort to halt Paul Kirk's Senate appointment
The Hill reports "A Massachusetts court has rejected a request from the state Republican Party to put a temporary hold on Sen.-designate Paul Kirk’s (D-Mass.) swearing-in Friday, clearing the way for Democrats to have a 60th seat in the Senate." The lawsuit was filed yesterday, more details here.
Click here to read the entire post.
Thursday, September 24, 2009
National Law Journal: Prosecutors Find Allies in Campaign Contributions Case Against Attorney
The FEC and CREW have both filed amicus briefs in the government's appeal of the Pierce O'Donnell case. National Law Journal has the details.
Click here to read the entire post.
Thursday, September 24, 2009
FEC Chairman Walther's Statement on the EMILY's List Decision
Chairman Walther's statement is here. The FEC has not yet decided whether to appeal.
Click here to read the entire post.
Wednesday, September 23, 2009
CCP: 'Reformers' v. Reality after EMILY's List decision
The Center for Competitive Politics has this posting on the immediate reaction to the EMILY's List decision.
Click here to read the entire post.
Tuesday, September 22, 2009
Roll Call: FEC Weighs Appeal of Ruling on Nonprofit Groups
The FEC is considering an appeal in the EMILY's List case. Roll Call has an article here. The FEC issued this brief statement yesterday.
Click here to read the entire post.
Tuesday, September 22, 2009
National Law Journal: Judicial Campaign Speech Case May Be Destined for Supreme Court; Wisconsin justice faces sanctions for ad that may have gone too far
Can a judicial campaign ad "go too far" under state judicial ethics codes? The National Law Journal reports that this question may be heading for the Supreme Court. According to the report, "The challenger's ad in the 2008 race for a judgeship on the Wisconsin Supreme Court delivered the classic one-two punch:
Side-by-side, black-and-white head shots of two black men -- one, the first African-American to sit on the state high court; the other, a twice-convicted rapist. With eerie music in the background and the head shots fading in and out, the television narrator said, "Louis Butler worked to put criminals on the street. Like Reuben Mitchell, who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child."
The ad's sponsor, Michael Gableman, unseated Butler in the election. But now, more than a year later, he could lose his seat because of that ad.
Was the ad true or false? Did the First Amendment protect it?
A state court panel recently heard arguments on those questions from Gableman's lawyers and the Wisconsin Judicial Commission, which has charged the justice with lying and violating the so-called misrepresentations clause in the state's judicial code of ethics."
Click here to read the entire post.
Friday, September 18, 2009
D.C. Circuit Court of Appeals Remakes "527" Legal Landscape in EMILY's List v. FEC
The opinion is here. According to the Washington Post, "A federal appeals court overturned hard-fought campaign finance reform regulations in a ruling on Friday that will make it easier for independent political groups to raise and spend money to influence elections. . . . The group [EMILY's List] challenged several Federal Election Commission regulations, arguing that the rules violated its First Amendment rights by limiting its ability to spend and raise money to influence elections. Circuit judges Brett M. Kavanaugh and Karen LeCraft Henderson agreed that the regulations violate free speech rights. A third judge, Janice Rogers Brown, said the regulations were invalid for other reasons." (EMILY's List was represented in this case by Democrat election lawyer Bob Bauer, profiled here, who represented President Obama's 2008 presidential campaign, and now represents the DNC. In other words, this case was not brought by conservative opponents of campaign finance regulation.)
Click here to read the entire post.
Friday, September 18, 2009
Indiana Appeals Court Strikes Down Voter ID Law As Contrary to State Constitutional Requirements
The opinion is here.
Click here to read the entire post.
Wednesday, September 09, 2009
AP: Appeals court upholds lobbying disclosure law
AP reports "A federal appeals court on Tuesday upheld a 2007 law that requires trade associations to disclose their members who contribute to lobbying activities.
The National Association of Manufacturers said the law, which requires that the organization release the names of members that contribute more than $5,000 in a quarterly period for lobbying activities, violates their members' rights to privacy and freedom of association.
The Court of Appeals in Washington disagreed, saying there is nothing unconstitutional about the congressional effort 'to shine increasing light on the efforts of paid lobbyists to influence the public decision making process.'"
Click here to read the entire post.
Sunday, August 30, 2009
More on the Connecticut Public Funding Decision
The Hartford Courant has this article ("Federal Judge Throws Out Connecticut's Landmark Campaign Finance Law") on the recent decision striking down Connecticut's public funding program. From the Courant: "Connecticut election officials reacted with sharp criticism and promised an all-out legal fight Friday after a federal judge threw out the state's landmark campaign finance law, saying it puts minor party office seekers at an unconstitutional disadvantage when they challenge traditionally better-financed major party candidates."
Click here to read the entire post.
Friday, August 28, 2009
Federal Court Strikes Down Connecticut's Public Financing Program
The federal district court in Connecticut has stuck down the state's public financing program on the grounds that it discriminates against minor party candidates. The full opinion in Green Party of Connecticut v. Garfiled (D.Conn. Aug. 27, 2009) is available here. The state has indicated it will appeal the decision.
Click here to read the entire post.
Tuesday, August 25, 2009
SpeechNow.org Continues Pursuit of Right to Form "Independent Expenditure" Political Committee Not Subject to Limits
SpeechNow.org is taking its case to the D.C. Circuit Court of Appeals. The organization seeks the right to make independent expenditures on behalf of a group of individuals, without those individuals' contributions to the group being subject to the $5,000 per year contribution limits.
Click here to read the entire post.
Friday, August 07, 2009
Candidate Defamation Lawsuit Concludes
The Las Vegas Sun reports "State Sen. Mike Schneider today agreed to pay $150,000 in damages to settle a defamation lawsuit brought by his 2004 election challenger, Danny Tarkanian.
In a verdict late Friday night, a Clark County District Court jury awarded Tarkanian, son of former UNLV basketball coach Jerry Tarkanian, $50,000 in damages. Schneider has agreed not to appeal the verdict."
Click here to read the entire post.
Thursday, August 06, 2009
Fourth Circuit Upholds Denial of Preliminary Injunction Requested By The Real Truth About Obama, Inc.
The Fourth Circuit has upheld a district court determination to deny a preliminary injunction motion sought by the plaintiff in The Real Truth About Obama, Inc. v. FEC. The Real Truth About Obama, Inc. is a 527 organization that wished to distribute certain communications about Obama's positions on abortion issues prior to the 2008 election. The group is challenging several FEC regulations used to determine when a 527 organization is a "political committee" subject to FEC rules and restrictions.
Click here to read the entire post.
Friday, July 31, 2009
9th Circuit Reaffirms Longstanding Rule that Attorney General May Independently Investigate and Prosecute Campaign Finance Violations, No FEC Referral Required
From Marcus v. Holder (9th Cir. July 30, 2009): "We hold again today, as we did in United States v. International Union of Operating Engineers, Local 701, 638 F.2d 1161 (9th Cir. 1979), that the Attorney General need not obtain the permission of the FEC before investigating or prosecuting possible violations of federal election laws."
Click here to read the entire post.
Tuesday, June 30, 2009
O'Donnell Case Update
AP reports "A federal judge has dismissed the last campaign finance charge against Los Angeles attorney Pierce O'Donnell, who faced three felony counts of campaign finance irregularities. Judge S. James Otero signed an order prepared by both prosecutors and defense attorneys Monday. The order allows prosecutors to charge O'Donnell again, pending an appeal to the 9th Circuit Court of Appeals."
Click here to read the entire post.
Wednesday, May 27, 2009
Federal Court Strikes Down Florida Electioneering Communications Law
The Center for Competitive Politics has this report ("Free speech victory in Florida"), noting a federal district court's invalidation of Florida's electioneering communications law, which was drafted far broader than its federal counterpart. Florida's law covered all types of media, rather than just broadcast communications.
Click here to read the entire post.
Monday, May 18, 2009
National Journal: Campaign Finance Rules May Take A Beating; A Series Of Court Cases Nibbling At Decades Of Legislation Could Add Up To A Full-Scale Dismantling
National Journal's Eliza Carney has this piece on pending campaign finance litigation. Yet again, she has turned so-called "reform organization" press releases into her own op-ed. From Carney's piece: "Emboldened by the court's tilt to the right under Chief Justice John Roberts, conservatives who champion the First Amendment have mounted more than 20 challenges to election laws in both federal and state court recently, according to a recent analysis by the Campaign Legal Center." The entire premise of Carney's piece is lifted directly from the Campaign Legal Center's blog.
Click here to read the entire post.
Wednesday, March 18, 2009
AP: Judge says Wis. campaign finance laws go too far
The AP reports "U.S. District Judge J.P. Stadtmueller ruled that two state laws requiring disclosures by groups advocating for or against a state or local referendum went too far in restricting free speech."
Click here to read the entire post.
Thursday, February 26, 2009
9th Circuit Rules For Church In Disclosure Case
The 9th Circuit ruled yesterday that Montana's "incidental political committee" regulations could not be constititionally applied to a church that made de minimis in-kind contributions to a ballot initiative effort.
Click here to read the entire post.
Tuesday, January 20, 2009
New Jersey Supreme Court Upholds Pay-To-Play Law
The Supreme Court of New Jersey upheld a 2005 law prohibiting the state from awarding contracts valued over $17,500 to any business that contributed more than $300 in the previous 18 months to the Governor or a candidate for Governor, or to any state or local political party committee.
Click here to read the entire post.
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