Joe Sandler spoke at the American Constitution Society’s panel, “Citizens United v FEC: The Decision, Its Implications, and the Road Ahead.” In his opening statement, Mr. Sandler spoke primarily about the constraints still in place on political committees, especially with regard to express advocacy. He also emphasized that the role of political parties will not be miniized, because of their ability to coordinate.
The full panel was moderated by William P. Marshall, Visiting Professor of Law, George Washington University Law School and also included:
William Rand Kenan, Jr. of UNC Chapel Hill School of Law Jan W. Baran, Partner, Wiley Rein LLP Laurence E. Gold, Of Counsel, Lichtman, Trister & Ross, PLLC; Associate General Counsel, AFL-CIO James S. Portnoy, Chief Counsel, Corporate & Government Affairs at Kraft Foods Monica Youn, Counsel, Brennan Center for Justice, NYU School of Law.
Mr. Sandler spoke to USA Today in the wake of the long-awaited Supreme Court ruling in the matter of Citizens United vs. FEC about the implications that the decision would have in terms of partisan advantage. Mr. Sandler told Fredreka Schouten and Joan Biskupic that “the ruling created no partisan advantage because it frees Democrat-allied unions to tap their treasuries.” Read the full article here.
Mr. Sandler also told Newser, “They’re going to be getting hammered much closer to Election Day on the air. That will make it tougher to cast tough votes,” about the potential for a proliferation of negative campaign ads aimed to coerce legislators into voting for or against a certain issue.
Sandler told Hotline reporter Reid Wilson that if, as expected, the decision opens the floodgates to more issue ads, the new ads will likely put even more pressure on incumbents seeking re-election. Said Sandler, “You will see more sharp-edged, candidate-specific ads on the air closer to the election. That could make it more difficult for incumbents to take tough votes in an election year.” Read the full article here.
Joe Sandler participated in a panel on the future of campaign finance reform at the American Bar Association’s 2010 Administrative Law Conference. The panel, entitled “The 2010 Elections and the Future of Campaign Finance Reform,” addressed the impact of recent court decisions and FEC developments on the 2010 election cycle. The full conference agenda can be viewed here.
Joseph Sandler filed comments yesterday with the Federal Elections Commission in response to a draft advisory opinion posted on the Commission’s website that would override restrictions on political “robocalls” of more than a dozen states. In so doing, it would grant a request by the political action committee of a conservative group called the American Future Fund.
Writes Kenneth P. Doyle in the BNA Money & Politics Report, “A new comment letter filed Jan. 8 by prominent Democratic and Republican election lawyers, supported the American Future Fund’s position on the advisory opinion. The comments were submitted on behalf of the American Association of Political Consultants in a nine-page letter signed by William McGinley and Joseph Sandler. McGinley of the firm Patton Boggs, represents Republican candidates and political committees, while Sandler of the firm Sandler Reiff & Young, represents Democrats.
Their letter urged the FEC commissioners to reject the conclusions of its initial draft advisory opinion and to issue an opinion “holding that state laws effectively prohibiting the use of pre-recorded telephone calls in federal elections—including those state laws requiring that prior consent be obtained by a live operator—are preempted” by federal campaign finance laws.”
The Federal Elections Commission is set to decide this matter on January 14 in a meeting of the commissioners.
Mr. Sandler will participate in a panel on “The Future of Voter Protection,” with Hannah Fried, the Director of the DNC’s voter protection program. To view the conference agenda, click here.
Joe Sandler and Liz Howard filed an Amicus Brief in the Doe v. Reed case on behalf of several direct democracy scholars and the Ballot Initiative Strategy Center. This case involves the constitutionality of public disclosure the persons who sign petitions for ballot initiatives and referenda.
Application of the “exacting scrutiny” standard is not appropriate in this case. Even assuming that the mere act of signing a referendum or initiative petition is “core political speech,” Petitioners have not shown that public disclosure of the names of signers in any way burdens that speech. Such disclosure does not “compel” any speech beyond the mere fact that a voter has signed the petition. Disclosure does not infringe “privacy of identity, association and belief,” as Petitioners suggest, because there is no reasonable expectation or assumption of privacy or secrecy: any voter who signs a petition knows that her signature, name and address, and the fact that she is signing, is being put on paper in the hands of a stranger, in a public place, in front of others, and will be submitted to a government agency. Further, public disclosure of petitions is widespread and routine in states that allow ballot initiatives and referenda. Nor does disclosure create any risk of intimidation or harassment of signers. Of the approximately 600,000 voters who signed referendum petitions in the State of Washington in the last decade, Petitioners have failed to identify a single individual who claims to have been harassed or intimidated as a result of mere disclosure of her signature. More than a million names of signers of petitions for referenda and initiatives opposing gay marriage have been posted on the internet. Yet there is no evidence that any of these signers, has faced any threat of retaliation or harassment by reason of that disclosure.
Even if public disclosure of petition signatures is to be subjected to “exacting scrutiny,” the State’s disclosure of the signatures under the Public Records Act serves sufficiently important governmental interests to find such disclosure constitutional. First, fraud is a widespread, significant problem in signature gathering for ballot measures. Public disclosure has in fact proven essential and indispensable in exposing such fraud in a number of states.
Second, it has been commonplace for signature-gatherers to mislead and trick voters into signing referenda and initiative petitions those voters would not have signed had they been informed of the actual content of the ballot measures. Numerous voters have discovered such deception, and have been able to remove their names or disassociate themselves from the measure, only because their signatures were disclosed publicly. In fact, there is no way that a voter duped into signing a petition can exercise that right in the absence of public disclosure.
Third, public disclosure serves an important interest in informing voters about ballot measures. Scholarship indicates that “information brokers” such as the media and interest groups can analyze and disseminate information about who is signing petitions and how they are being collected in a way that can provide “cues” to voters, to enable those voters to make more reasoned and informed decisions about whether to support a ballot measure.
In “Beware the Fortunetellers” Mr. Sandler and Mr. Reiff discuss the fallout of last week’s Supreme Court ruling on Citizens United v. FEC. The authors argue that although the ruling will have vast implications for the future of campaign finance, that future is not as written in stone as many pundits would have the general public believe.
The DNC, represented by Joseph Sandler of Sandler, Reiff & Young, prevails in an historic appellate case over the party’s decision to unseat Florida’s delegates. The Washington Post, 5/28/2008. Mr. Sandler also appeared on CNN to discuss the ruling. Full text here.
Joseph Sandler, Neil Reiff, and James Lamb were once again named in Washingtonian Magazine’s listing of Washington’s Best Lawyers (the top 1%) in the political law category (under the heading “On the Campaign Trail”). Sandler Reiff & Young is one of only two law firms to have three lawyers on the list in this category.
