Results tagged “Campaign Finance Law”

October 7, 2013

levinson.jpgBy Associate Clinical Professor Jessica Levinson

This piece appears in Pacific Standard.

Shaun McCutcheon wants to make political donations to federal candidates. Allow me to clarify; McCutcheon wants to make a LOT of political donations to federal candidates. The Republican National Committee, among others, wants him to be able to do so. So what's the problem?

Currently, McCutcheon can give $2,600 per election directly to a federal candidate, a total of $48,600 per election to all federal candidates, and $74,600 per election to federal political party committees and political action committees, or PACs, that give money to federal candidates. Put another away, McCutcheon (and other individuals) are subject to a $123,200 per election aggregate contribution limit with respect to candidates, political parties, and PACs. McCutcheon, a general contractor living in Alabama, would like to change that. The result is the latest and greatest campaign finance question to hit the high court since Citizens United.

In the early 1970s, in the wake of the Watergate scandals that lead to the resignation of President Nixon, Congress implemented the nation's first comprehensive campaign finance law. The law limited how much could be given to and spent by candidates, how much could be spent by independent groups and organizations, required that certain donations and expenditures be disclosed to the public, and created a system of public campaign financing for presidential candidates.

In 1976, in a decision that remains the bedrock of campaign finance law, Buckley v. Valeo, the U.S. Supreme Court essentially accepted half of Congress' attempt to regulate money in politics. The court upheld limits on contributions, disclosure provisions and the public financing program. However, the court struck down limits on spending by candidates and independent organizations. In the court's patchwork opinion it upheld the limits on the total amount of contributions that donors could give to candidates, political party, and other political committees, finding that those limits were a way to prevent the evasion of the direct limits on contributions from individuals to candidates. The court's analysis is less than satisfying on this point. In the almost 40 years since that decision much has changed regarding campaign finance laws. Money now flows relatively freely, and in some cases in undisclosed amounts, through our political system. But the aggregate limits on contributions have stood.

Now the Supreme Court appears poised to change that and the only question for McCutcheon is how big his likely win will be. In order to determine the size and scope of McCutcheon's potential victory, we need to look at the current state of the law.

Back in 1976 the court applied one test to determine if contribution limits were constitutional, and another, more stringent, test to determine if expenditure limits were constitutional. First off, justices found that limits on the ability to give political donations present only a marginal restriction on First Amendment rights. The test to determine whether those limits are constitutional requires two steps. First, the restriction must serve a sufficient governmental interest, such as preventing corruption or the appearance of corruption, in order to justify the burden on speech and associational rightsSecond, the law must be well tailored to serve that goal (specifically, according to the court the limits must be "closely drawn.")

But what about expenditure limits? The court also held that when it comes to limits on spending, the applicable test is more stringent because those limits present a severe, rather than merely a marginal, restriction on First Amendment rights. So in the case of spending limits the government must show that its interest in implementing the restriction is compelling (as opposed to sufficiently important) and that the restriction is narrowly tailored to serve that interest (as opposed to being closely drawn to serve that purpose).

These court-created tests, and the less-than-clear terms like "closely drawn" and "narrowly tailored," may sound like overly formal hair splitting. And it some ways they are. But whether and how we can limit the influence of money in our electoral and political systems hangs on that hair splitting. The court has long held that contribution limits can be upheld because they help to reduce corruption or the appearance of corruption. But what exactly is the court's definition of corruption? Well, it has varied with almost every new Supreme Court decision in this area of the law, including the now-famous 2010 Citizens United decision. One of the main reasons that McCutcheon's argument has legs is that ever since Citizens United the court has defined corruption very narrowly as quid pro quo, which is Latin for "this for that." A broader definition of corruption could include concepts like undue influence and preferential access. The narrower the definition of corruption, the less likely a court is to find that a restriction serves to prevent it. McCutcheon argues, in a nutshell, that the government lacks a sufficient interest when it comes to aggregate contribution limits because in a world of narrowly defined corruption, it's not there. And if that's the case, McCutcheon is arguing that the court was wrong in Buckley when it upheld the limit on aggregate contribution limits.

McCutcheon also argues that the court should apply the second test, the one that is more difficult to satisfy, to the aggregate contribution limits.

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August 16, 2013

Thumbnail image for Levitt2.jpgBy Associate Professor Justin Levitt

The following essay is part of a SCOTUSBlog online symposium on McCutcheon v. Federal Election Commission.

Photographs purport to show objective facts. But whether they illuminate or distort our understanding of the world depends entirely on choices -- of lens, of frame -- that the photographer has made. Much of constitutional law is the same: the choice of lens and frame drives the Supreme Court's understanding of our rights and obligations. Without recognizing this truth, it is virtually impossible to understand the Court's campaign finance jurisprudence.

McCutcheon v. Federal Election Commission offers a dizzying fight over lens and frame. The briefs presented to the Court zoom from micro to macro and back, often within sentences of the same brief. The basic structure of the reason for the fight, at least, is clear. McCutcheon is about aggregate caps on contributions to federal candidates, party committees, and PACs that donate to candidates and parties. There are limits on what I can give to any individual federal candidate. And then there are limits on what I can give to all federal candidates, total. The same is true for parties and PACs. This case is about the totals.

From the flattest perspective, this case has already been decided. This case challenges aggregate limits. Buckley v. Valeo (1976), the progenitor of the modern campaign finance regime, upheld a system of aggregate limits. Easy. How to view aggregate limits

Much too easy. Buckley's 294 pages cover the entirety of the landmark Federal Election Campaign Act. It gave aggregate limits six sentences. Two of the six were devoted to describing the limits. One noted that the issue had "not been separately addressed at length by the parties." Three more disposed of the substance. This Court is unlikely to believe that its focus is confined by those three sentences. (Similarly, granting cert. to revisit these three sentences provides little reason to believe that the Court is interested in revisiting Buckley entirely.)

Another shallow lens simply looks to conventional wisdom, and the caricature of a relentlessly deregulatory Court. Citizens United looms, larger than life. Like Citizens United, the legislation challenged in McCutcheon also constrains campaign-related cash. And like Citizens United, the challenge has been brought in part by James Bopp, who has a remarkable record before the Court. Easy.

How to view aggregate limits

And also, too easy. Most of the Court's recent deregulatory decisions have involved expenditures: money that I spend to create and distribute a message, like a movie about Hillary Clinton. The Court has been far less eager to strike down restrictions on contributions: money that I give to a candidate to spend on her campaign as he or she pleases.

This distinction between expenditures and contributions creates an odd policy environment. But through Buckley's rights-based frame, it has its own - quite stable - logic.

Buckley, in essence, decided that my interest in speaking vigorously about politics is at the core of the First Amendment's protections. And no government interest presented in the case was sufficiently strong to override that right. In contrast, any speech interest in giving money to a candidate is derivative; any associative interest is easily promoted in other ways. And there is a real danger that politicians will do legislative favors for me if I agree to give them suitcases of cash.

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August 5, 2013

Thumbnail image for Levitt2.jpgBy Associate Professor Justin Levitt

This commentary was cross-posted to the Election Law Blog.

In the world of campaign finance, the constitutional distinction between contributions and expenditures has been one of the primary, comparatively stable, fault lines.  This has been true since at least since Buckley v. Valeo, the progenitor (and for some, original sin) of the modern campaign finance regime.  The Court has relatively consistently reviewed limits on most expenditures with greater scrutiny than limits on contributions. 

In the Supreme Court’s latest foray into campaign finance, the McCutcheon v. FEC case to be argued this fall, plaintiffs are arguing that the regulations in question blur the categories.  Those regulations impose aggregate limits on donations to federal candidates, parties, and PACs that give to candidates.  I may give no more than $5,200 to any individual federal candidate over a two-year campaign cycle.  In that same period, I may give no more than $48,600 to federal candidates, total.  McCutcheon is about the latter, total, limits.

The McCutcheon plaintiffs have argued that these aggregate limits are something of a hybrid, and ultimately more like expenditures than contributions.  Bob Bauer, here, also finds the distinction blurry, noting that the rules restrict “the total amount that a contributor can spend on contributions.”

I don’t get it.  There are certainly circumstances where the line between contributions and expenditures is fuzzy (and circumstances where the line has been confused even when it is clear).  But McCutcheon presents such a scenario only if we forget entirely why the constitutional distinction arose.

The paradigmatic expenditure is the sum that I spend to produce a political communication in my own voice.  If I want to make and place a 30-second TV spot supporting candidate John Smith, the money that I spend is an expenditure.  My ability to communicate my own political message (and to persuade others to adopt the same position) is at the core of the values that the First Amendment protects.  Thus, limits on that ability receive the most heightened scrutiny.

The paradigmatic contribution is the sum that I donate to a candidate, to spend on campaigning as she pleases.  She may use that money to create speech I agree with.  She may use that money to hire staff or buy chairs.  She may give that money away to another candidate, whom I don’t support at all.  If the recipient of my donation produces speech at all, it is derivative: I give to the candidate to further her speech (some of which I probably agree with).  And the gift is one way to demonstrate my wish to be associated with the candidate, but there are many, many ways to demonstrate that association effectively that do not involve giving money to the candidate herself.  That is, there are First Amendment values involved, but they are more attenuated.  Thus, limits on these contributions receive less rigorous scrutiny.

Note that the reason for different levels of scrutiny relies on the different values expressed, rather than the difference between giving money and spending money.  With the latter, it’s too easy to get lost.  Someone may give money to a video producer to spend on making a video (which is really just giving money to actors and camera operators and film editors and the like).  Someone may give money to a political group to spend on donations to candidates, or to spend on making videos themselves.  As Bauer points out, a candidate may give to his own campaign to spend on getting elected.  In any world with more than two people, there will be both giving and spending behind any transaction.

But that’s not what the constitutional distinction between expenditures and contributions is based on.  Instead, it’s about the First Amendment values expressed.  If I (alone or with others) spend money to advance my message, that’s an expenditure.  If I give money to someone else to advance their purposes, message-related or otherwise, that’s a contribution.

Giving to groups that are only producing ads (an “expenditure-only PAC”) shows that the distinction can become tricky.  The less I know what the PAC is actually doing, the more it looks like a contribution.  The more engaged I am in the message of the PAC, the more my gift to them looks like an expenditure -- my action, taken in connection with others, to express our collective message.  In the SpeechNow case, the D.C. Circuit found that it did not need to decide whether such gifts are contributions or expenditures for purposes of constitutional scrutiny; even contribution limits must be justified by some valid government interest, and the court found none.  The holding saved resolution of an admittedly tricky question.

Coordinated expenditures can also be tricky.  Formally, the expenditure is my speech.  But it would also be possible for me to serve as the empty funding vessel for a message of a candidate’s choosing, which is not so different from giving the candidate the money directly.  And it may be that the tricky distinctions are unnecessary to resolve here as well, in the mirror image of SpeechNow: even rigorous scrutiny of limits on coordinated expenditures may reveal valid regulatory interests that justify restrictions less defensible in a truly independent context.

So there are, to be sure, tricky cases in the land between contributions and expenditures.  McCutcheon, however, is not one of them.  Aggregate limits on “the total amount that a contributor can spend on contributions” are still limits on my ability to give money that lands in the hands of candidates or parties, to do with as they please.  I have no control over whether the money is used to produce a message I agree with, a message I disagree with, or a donation to a candidate that I firmly wish to be defeated.  The First Amendment values of my gifts are attenuated.  (And that’s true whether or not the government has a sufficiently valid regulatory interest.)

If contributions and expenditures are defined by giving and spending, the aggregate limits in McCutcheon might seem tricky.  But if we return to the reasons behind the constitutional distinction itself, at least that element of McCutcheon looks refreshingly straightforward.

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May 9, 2013

Jessica Levinson Summary Judgments Blog.jpgBy Associate Clinical Professor Jessica Levinson

This post originally appeared on KCET's website.

Is candidate centered campaign fundraising a thing of the past?

Greetings, and welcome to the Super PAC era. Thanks in part to the Supreme Court's 2010 decision in Citizens United, we now have new entities called "Super PACs," which are organizations that can raise and spend unlimited political funds.

Contributions given directly to candidates are unlimited, but again, contributions to outside groups such as Super PACs are not. Therefore, as many predicted, individuals and entities who wish to support candidates but have given up to the legal limit, now have a new outlet for their campaign donations. This pattern, however, is nothing new. Before there were Super PACs big donors gave to political parties or other outside organizations like independent expenditure groups.

Campaign fundraising by candidates is increasingly being marginalized and fundraising by independent groups including Super PACs is coming to the forefront. We are seeing this phenomenon play out real time in the Los Angeles mayoral race where the contribution limit to candidates is $1,300 both in the primary and the runoff elections. While fundraising by candidates is still outpacing fundraising by Super PACs in the mayoral race, at some point in the near future that could change. In this election both candidates have raised approximately $5.7 million and independent groups have raised roughly $4.7 million for Greuel and $1.3 million for Garcetti. That means about one-third of the money raised in the mayor campaign has been raised by outside organizations. Again, the lion's share has gone to groups supporting Greuel.

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January 23, 2013

Jessica Levinson Summary Judgments Blog.jpgBy Associate Clinical Professor Jessica Levinson

Wondering if legislators ever go back to their offices and "just dance?" Don't think your elected officials have a "poker face?" Dubious as to whether your lawmakers were "born this way?" Curious as to whether, just like us, our lawmakers sometimes have a "bad romance?"

We may not know the answer to those questions, but we do know that State Senators Ricardo Lara and Ron Calderon were at Staples Center this past weekend to take in a Lady Gage concert. Is this official business?

Well, it's officially a fundraising event for them. Lara is running for re-election to the Senate and Calderon is running for state controller next year. The two democratic senators were slated to hold a joint campaign fundraiser at the concert. Contributors who gave $3,900 were rewarded with a ticket to the concert and a night in a nearby hotel.

Lara and Calderon's joint fundraiser at Lady Gaga's concert likely says less about their devotion (or lack thereof) to the performer than it does about their desire to raise large campaign donations at popular venues. In our current system, in which campaign contributions to candidates are limited, but expenditures by candidate campaigns are not, the third for campaign funds is all but unquenchable. Put another way, once candidates get on the fundraising treadmill, it is difficult to see when and how they will ever get off that treadmill.


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October 30, 2012

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By Associate Clinical Professor Jessica Levinson

Californians will soon go to the polls to weigh in on no less than eleven ballot initiatives. These initiatives could change the law on everything from the death penalty to the labeling of food.


I have previously written here about the pitfalls of the initiative process. This mechanism of direct democracy, designed to guard against the power special interests held over our elected officials, is now similarly controlled by special interests. Money is the driving factor behind which proposals qualify for the ballot.

Large sums are spent not only to pay signature gatherers to get proposals placed on the ballot but also to support or oppose those measures once they qualify for the ballot. One need only to open the mailbox or certain websites, or turn on the television or radio, to see the enormous amounts of money being spent to attempt to sway voters on these eleven initiatives.

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September 20, 2012

Jessica Levinson Summary Judgments Blog.jpgBy Associate Clinical Professor Jessica Levinson

On November 6, California voters will be faced with 11 ballot measures. Ten are initiatives, one is a referendum (what's the difference?), and none of these were legislatively initiated. One of these initiatives is Proposition 32, which is deceptively being peddled as a good government reform. It is not.

Prop 32 would prohibit unions from using funds deducted from payroll for political purposes. The prohibition also applies to corporations and government contractors. Among other things, it would also prohibit unions and corporations from giving campaign contributions directly to candidates or the committees that candidates control.

While it may seem even-handed, it will have a much, much greater impact on unions, dramatically reducing their power, than corporations. Corporations have many other avenues to raise political funds. Money is, after all, power, particularly in political campaigns in California.

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June 21, 2012

Jessica Levinson Summary Judgments Blog.jpg By Visiting Associate Clinical Professor Jessica Levinson

This op-ed originally appeared on Politico.

As election 2012 progresses, there's continuing hubbub about the Supreme Court's 2010 Citizens United decision, which paved the way for super PACs. Proponents of campaign-finance laws see the ruling as opening the floodgates for unlimited, often undisclosed, money to overwhelm our political system. Opponents view it as a victory of free speech over government regulation.

Where does the truth lie? While super PACs may be "speaking" up a storm, it's now difficult to hear anyone else. That can't be good in a representative democracy, which has long prided itself on protecting free speech.

A quick tour through the campaign-finance law landscape demonstrates there is much to be concerned about -- unless you're a wealthy donor or well-funded corporation.

Read the complete story here.

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May 30, 2012

Jessica Levinson Summary Judgments Blog.jpgBy Visiting Associate Clinical Professor Jessica Levinson

This op-ed originally appeared in the May 30, 2012 edition of the Daily Journal.

Much of the backlash around the Supreme Court's much-maligned 2010 decision in Citizens United v. FEC focuses on the battle cry that "corporations are not people." Well, as with all things, corporate personhood is a complex area of the law that boils down to sometimes they are, and sometimes they aren't. The substance of the Citizens United decision essentially comes down to two conclusions, both of which I believe are ill conceived.

First, the thin majority found that speaker-based identity restrictions are impermissible. Put another way, if the government cannot prevent individuals from spending money on independent expenditures, then neither can it prevent corporations from doing so. For a variety of reasons, which I have detailed in a recent law review article, I believe that in the campaign finance arena corporations should not, in fact, be treated as identical to individuals. While corporations are certainly made up of people, they are artificial entities created with numerous state-created benefits.

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April 26, 2012

Jessica Levinson Summary Judgments Blog.jpgBy Visiting Associate Clinical Professor Jessica Levinson

If you are reading this post, then you, like me, may get most of your political information online. You may also have a number of favorite political bloggers. You may appreciate their voice, perspective, point of view, or just find them entertaining. Most of my favorite bloggers have a particular perspective, and it is rarely hidden. I neither expect nor crave blogs devoid of opinion.

You, like me, may know a little background on your preferred bloggers. It helps me to evaluate how much weight or credibility I will give to a certain argument to know, as we say, where the author is coming from. What I likely don't know, however, is whether that blogger is paid by a political campaign. Ann Ravel, Chairwoman of the Fair Political Practices Commission, the state's political watchdog agency, would like to change that.

If Ravel's proposal becomes law then California would become the first state to provide such information to the public.

The freedom of the expression is one of the most important, if not the most important, right enumerated in the United States Constitution. With very few exceptions, people should be able to say whatever they want, and the public should be able to listen to whomever they want. The same is true, with equal or greater force, for members of the press, whose function is to provide information to the public. A government that censors political speech by some speakers would and should be repugnant to our sensibilities.

However, this proposal does not limit the amount of information the people can disseminate or the public could receive. Rather it would just tell us something about who is speaking, thus providing the public with more information.

Currently campaigns must disclose payments to bloggers, but bloggers need not disclose payments received from campaigns. That may soon change. The details and legality of this plan must be worked out, but it is certainly worthy of serious discussion.

Here is a disclosure of my own. I know Chairwoman Ravel and have great respect for her. Therefore when she makes a proposal I give it weight. It seems the public should be entitled to make a similar judgment about their political bloggers by knowing who is helping to fund their speech.

Jessica A. Levinson is a visiting associate clinical professor at Loyola Law School. She studies governance issues, including campaign finance, ethics, ballot initiatives, redistricting, term limits, and state budgets.

[This post also appeared on]


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April 11, 2012

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By Associate Visiting Clinical Professor Jessica Levinson

This op-ed originally appeared in the April 4, 2012 edition of the Daily Journal.

We the Corporations?

While the Republican presidential nominee and the ultimate victors of contests throughout the nation may be unknown, one thing is clear: the 2012 election will break campaign fundraising records. This is the first presidential election since the Supreme Court's fateful decision in Citizens United v. FEC. Since that decision, there has been a proliferation of campaign spending, most notably by so-called "Super PAC" organizations. These are independent-expenditure only political committees. Republican-backed Super PACs have already raised $81 million to date this election cycle. (Interestingly, only 17 individuals account for contributing nearly half of that amount to Super PACs.) Because of regulations promulgated under the internal revenue service, contributions by certain non-profit organizations to these Super PACs can remain undisclosed, and therefore hidden from public view.

So how did we get to this place of largely anonymous, largely unlimited campaign spending? The Court's decision in Citizens United, while surprisingly incremental in some ways, opened the doors for the record-breaking spending we are now seeing. In Citizens United, the Court essentially came to two conclusions. First, the Court said that speaker-based identity restrictions are impermissible. This means that if a restriction cannot be validly imposed on an individual, then it similarly cannot be imposed on a corporation. Second, the Court found that independent expenditures are not corrupting. So go ahead and spend $100 million in support of your favorite candidate (or against that candidate's opponent). As long as your expenditure is "independent" it cannot corrupt, according to our nation's highest court.

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February 16, 2012

Jessica Levinson Summary Judgments Blog.jpg By Associate Visiting Clinical Professor Jessica A. Levinson

This op-ed originally appeared in the Los Angeles The Daily Journal.

This month marks the two-year anniversary of the U.S. Supreme Court's much maligned decision in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (Jan. 21, 2010). In that case, a bare majority of the Court found that for purposes of spending money in the political marketplace, corporations must be treated as identical to people. The Court also ruled that expenditures made independent of candidate campaigns - no matter how large those expenditures are - cannot be corrupted.

The result of the Citizens United decision is that corporations can spend unlimited sums in elections. We have already seen the consequences in the Supreme Court's handiwork with the advent of Super PAC spending in Iowa and New Hampshire. This is surely only the beginning.

Since the Supreme Court's January 2010 decision, many have been scrambling to find new ways to limit the influence of money in politics. One largely unexplored way to limit the negative consequences of money in electoral campaigns is to institute temporal restrictions on campaign contributions. I recently published a law review article, entitled "Timing Is Everything: A New Model for Countering Corruption Without Silencing Speech in Elections," in which I advocate for the imposition of limits on when money may be given and spent during campaigns.

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January 31, 2012

Jessica Levinson Summary Judgments Blog.jpgBy Professor Jessica Levinson

When people pose questions like, "Do you want to save our democracy? Our environment? Our schools?" I either answer "no" or keep walking. It is signature gathering time in California, and most of us have experienced that awkward moment when we are approached by an energetic, and often aggressive, petition gatherer. Inevitably the signature gatherer poses the type of question that would seem unimaginable to answer in the negative. And yet, I do, if I respond at all. Why?

The more I think about and study the initiative process, the more I feel committed to the idea that I will not sign petitions for ballot measures. I say this with full awareness of the fact that I am and have been a strong proponent of the independent redistricting commission, which was created by a ballot initiative. I have struggled with the idea that perhaps initiatives should only affect governmental processes such as redistricting, term limits and campaign finance laws. The problem with that approach has played out thanks to our term limit law.

So do not get me wrong, I think at least a portion of these proposed ballot initiatives would support worthwhile ideas or causes, I just do not think they should be made into the law through the initiative process. (The problem, of course, is that some of these ideas may never be enacted via the legislative process as this is a representative democracy, and frankly, that is what happens). In addition, many -- far too many -- of these proposed ballot initiatives sound like great ideas until one actually reads the text of the proposed law.

[Click here to continue reading Levinson's commentary on]

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January 25, 2012

Jessica Levinson Summary Judgments Blog.jpgBy Professor Jessica Levinson

Dear Citizens United,

Happy birthday. I won't wish you many happy returns of the day. I both hope there aren't many more birthdays, and if there are, I trust they won't be happy ones, at least not for democracy.

But congratulations, you've made it, against all odds. You started as a relatively narrow little case, asking only whether a non-profit corporation could use general treasury funds to create and promote a hit piece against then-presidential candidate Hilary Clinton. You, Citizens United, merely asked the Supreme Court to find the now-vanishing McCain-Feingold law could not be validly applied to you.

But then a funny thing happened on the way to that narrow decision, the Supreme Court decided to ask its own question. The Court apparently was not particularly concerned with centuries of tradition which dictates that they resolve the questions asked by the parties, as opposed to asking themselves a question they wish to answer.

So the Supreme Court sent you back, and asked for more information on whether McCain-Feingold could validly be applied to any corporation. You'll forgive my lack of surprise when I discovered that the Court decided to answer its own question in the affirmative. As so many of us know by now, the Court ruled that for purposes of campaign finance restrictions corporations must be treated as identical to people. If a restriction cannot be placed on a person, then it cannot be applied to a corporation. The Court also held that expenditures -- no matter how large -- made independently of candidates have no potential for corrupting candidates. I'll pause here for laughter.

[Click here to continue reading Levinson's commentary on the Huffington Post.]

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August 8, 2011


This op-ed was originally published by KCET.

By Visiting Associate Clinical Professor Jessica A. Levinson

Doing absolutely nothing to help their already dismal public approval ratings, the state Assembly has refused requests--submitted under the Legislative Open Records Act--to release records of legislators' 2010 and 2011 budgets (money given to rank and file legislators by the leadership) and expenditures. Now The Sacramento Bee and Los Angeles Times are suing to obtain those records.

The newspapers argue that the budget and spending records document public resources used for public business, and should be released based on a constitutional right to access information about government activities.

The Assembly Rules Committee, on the other hand, claims that it need not release those documents because the records fall under exceptions to the Legislative Open Records Act for "correspondence of and to individual members of the Legislature and their staff," and "preliminary drafts, notes or legislative memoranda." An Assembly administrator has argued that the records of lawmakers' current budgets and spending could contain confidential personnel information. Basically, the Assembly Rules Committee claims that those documents, which detail use of public funds by public officials, are privileged.

Read the complete post at

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August 4, 2011

This op-ed was originally published by KCET.levinson.jpg

By Visiting Associate Clinical Professor Jessica A. Levinson

Mayor Antonio Villaraigosa was recently hit with almost $42,000 in fines based on improper acceptance of free tickets to 34 events, including concerts, and cultural affairs and sporting events.

What is a mayor to do?

In Villaraigosa's case, create three separate legal defense funds for three separate investigations - one related to the L.A. Ethics Commission's inquiry, another related to a District Attorney examination, and a third related to the California Fair Political Practices Commission probe. The law allows office holders to create legal defense funds when they face charges or investigations stemming from their jobs as public officials.

Read the complete post at

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July 1, 2011

This op-ed was originally published by the levinson.jpg Daily Journal.

By Visiting Associate Clinical Professor Jessica A. Levinson

This week, the U.S. Supreme Court took away the power of lawmakers on all levels of government to craft public campaign financing programs that best meet their needs. In Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (aka McComish v. Bennett), Chief Justice John G. Roberts Jr., writing for a 5-4 majority, struck down the constitutionality of so-called "rescue" or "trigger" funds provisions. The case focused on Arizona's public campaign financing law, but has implications for jurisdictions throughout the nation.

Rescue provisions provide publicly financed candidates with additional taxpayer funds in the event that their privately financed opponents or independent expenditure groups spend over a threshold amount of money. One purpose of these provisions is to allow publicly financed candidates to remain competitive when they are faced with relatively high spending privately financed opponents, or independent expenditure groups that spend money against privately financed candidates or in favor of their opponents.

The Court's only analysis of public campaign financing programs came in its seminal 1976 decision in Buckley v. Valeo. The Buckley Court upheld the public campaign financing program at issue - which provided taxpayer funds for party nominating conventions, and primary and general election presidential candidate campaigns - finding that public financing can serve many important governmental purposes.

The Buckley Court famously found that the voluntary presidential public campaign financing program was "a congressional effort, not to abridge, restrict, or censor, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people." Therefore, public financing programs were seen to promote First Amendment values. In her dissent, Justice Elena Kagan, writing for the four-member minority, similarly echoed that finding, stating, "Arizona's matching funds provision does not restrict, but instead subsidizes, speech." The Buckley Court further held that in enacting voluntary public campaign financing for presidential campaigns, Congress acted to "reduce the deleterious influence of large contributions on our political process, to facilitate communication by candidates with the electorate, and to free candidates from the rigors of fundraising."

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November 28, 2010

Rick Hasen By Professor Rick Hasen

It is with great pleasure that I kick off the "11 on '11" series at Summary Judgments, the new Loyola Law School, Los Angeles faculty blog. The series asks us to identify what is likely to be the most significant legal development in our field in 2011. In the field of campaign finance, the big story is likely to be the continued demise in public financing of campaigns, a development caused by both court rulings and legislative inertia.

As early as tomorrow morning, I expect the United States Supreme Court to agree to hear McComish v. Bennett, a case challenging the matching funds provision of Arizona's public financing law. Under the law, a candidate for state office who agrees to take public financing in lieu of private funds to finance a campaign receives extra public financing when the candidate faces a wealthy opponent who spends large sums in the election or by large independent expenditures against the candidate accepting public financing. As I explained in a June post at the Election Law Blog, I expect the Court to not only take this case, but to reverse the Ninth Circuit and strike down the Arizona public financing system. (To be clear, that's not a result I favor: the Ninth Circuit's opinion in the case, and Judge Kleinfeld's concurrence, offer strong reasons to reach a contrary decision in this case and uphold the Arizona regime).

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October 26, 2010

Hasen.jpg By Professor Rick Hasen

If you're a fan of The Exorcist and Carrie, if you like sex and violence and ominous music, you've come to the right place. Because we have gathered some of the most spine-chilling Halloween footage you will ever see--all produced in an effort to influence state judicial elections.

Thirty-eight states hold some form of election for their state supreme court justices, and the elections are getting ever nastier and more expensive. Whereas the spending on these races was once infinitesimal and the advertising--to the extent it existed--minimal and usually mild, that's all changing. The reasons are complicated. Judges have been targets in the culture wars, and their elections have attracted the attention of a polarized electorate. But the money behind the campaigns often comes from business, trial lawyers, and labor interests, whose bottom lines are routinely affected by state court rulings.

Read the full piece, "Evil Men in Black Robes: Slate's judicial eleciton campaign ad spooktacular!" at

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