Sandler Reiff Young & Lamb has been one of the go-to sources over the past few days as journalists have reported and analyzed the Supreme Court’s decision in McCutcheon v.FEC. Below are just some of the stories where attorneys at SRYL have provided their expertise:
David Mitrani told the Center for Public Integrity that since the Supreme Court ruled that aggregate contribution limits are unconsititutional, it is unlikely that similar aggregate limits in twelve states and the District of Columbia will continue to stand.
David Mitrani also helped MotherJones break down the aforementioned aggregate limits at the state level.
Neil Reiff told Campaigns and Elections that party committees are one of the big winners in the aftermath of McCutcheon: “If an individual wants to triple max each year to the three national committees, that is $194,400 for the two-year cycle, way more than the aggregate limit.”
Neil Reiff reminded Bloomberg that while someone could theoretically create a “Super-Joint Fundraising Committee,” in order to write one check that is distributed among dozens of candidates, they could likely still get more bang for their buck by contributing to a Super PAC.
Late yesterday, David Mitrani told Reuters that campaign officials in Maryland and Massachusetts had already stopped enforcing aggregate contribution limits, a little more than 24-hours after the McCutcheon decision was handed down.
Finally, Neil Reiff told the Wall Street Journal that while Democratic lawmakers generally prefer more restrictions on money in elections, party strategists will welcome the loss of federal aggregate contribution limits.
Neil Reiff was quoted in a story today in the Wall Street Journalabout the effects that the Supreme Court’s ruling in McCutcheon v. FEC might have on future court challenges to campaign finance laws. While the Court left in place limits on contributions to individual candidates and committees, the Court did not offer a robust endorsement of said limits.
Mr. Reiff pointed out that further loosening of campaign finance restrictions could create a catch-22 for Democrats. On one hand, fewer restrictions would allow Democrats to raise more money. On the other hand, Democrats generally favor tighter restrictions on money in elections.
Mr. Reiff told the Journal “There is always that tension.”
David Mitrani told Reuters today that the effects of the Supreme Court’s decision in McCutcheon v. FEC are already being felt at the state level, even a few days after the ruling. At issue in the case was aggregate contribution limits, which limited the total amount of money that individuals could give to all federal candidates ($48,600) and political committees ($74,600) per election cycle. While the Supreme Court left base limits intact, they struck down the aggregate limits on First Amendment grounds.
However, in addition to the federal government, twelve states plus the District of Columbia had similar aggregate contribution limits. Mr. Mitrani that campaign finance officials in Maryland and Massachusetts had already begun changing state regulations:
In Maryland, which has limited donations to party committees in state elections to $10,000 every four-year election cycle, state regulators already have told election lawyers that they will stop enforcing the limit, said David Mitrani, a lawyer who specializes in campaign finances cases.
Massachusetts officials also said they would stop enforcing the state’s limit on candidate donations, but are reviewing a limit on contributions to political parties.
Other states with such limits almost certainly will face lawsuits challenging the limits, Mitrani said.
Neil Reiff was quoted today in a story in Bloombergon the effect that the Supreme Court’s decision in McCutcheon v. FEC will have on campaign fundraising in the coming months and years. With aggregate contribution limit declared unconstitutional, it is possible that super-Joint Fundraising Committees could come into existence that support dozens of candidates. With a super-JFC, an individual could write one massive check that would then be distributed among many candidates.
However, Mr. Reiff tampered expectations of such a rise:
Whether the McCutcheon ruling will lead to “a groundswell of money in the system, I don’t know,” Neil Reiff, a Democratic campaign-finance lawyer with Sandler, Reiff, Young & Lamb, said in an interview. Writing a big check to a super-JFC is “still not as efficient as writing a check to a super-PAC, so I can’t necessarily compare this to the revolution of super-PACs in Citizens United. But obviously it’s something,” Reiff said.
David Mitrani was quoted today in a story in Mother Jones about the far-reaching impact of McCutcheon v. FEC. He told the magazine that although the case dealt only with federal aggregate contributions, it will ultimately apply at the state and local level as well.
“The McCutcheon opinion is right from the Supreme Court and what the Supreme Court said is state aggregate limits on top of the federal limit are unconstitutional today, unconstitutional yesterday, unconstitutional 20 years ago,” said Mr. Mitrani. And in the case of states with low aggregate contribution limits, Mr. Mitrani added that “There are going to be pretty big changes in how money flows into those states.”
The article further detailed the aggregate limits that exist in the twelve states (plus the District of Columbia) who have such limits.
David Mitrani told WAMU that in the wake of yesterday’s Supreme Court decision in McCutcheon v. FEC, it is unlikely that similar limits at the state level will stand.
“[The ruling] certainly calls into question the laws, and it’s unlikely that given [Chief Justice John] Roberts’ opinion these laws would survive,” said Mr. Mitrani. ‘It’s unlikely that these aggregate limits by themselves will survive.”
In addition to the FEC, twelve states and the District of Columbia have similar aggregate contribution limits that capped how much donors could give to candidates such as gubernatorial candidates, state legislators, and judges at the state level.
Yesterday’s decision by the Court nullified the federal aggregate limit that individuals could give to all candidates and committees. Previously, donors could only give $48,600 to all federal candidates, and $74,600 to all PACs and party committees. With these limits nullified, donors are only restricted by base limits: $2,600 per election per federal candidate, $32,400 per year per national party committee, $5,000 per year per PAC, and $10,000 per year to the federal accounts of state and local party committees.
Neil Reiff was quoted in Campaigns & Elections magazine’s write-up on today’s McCutcheon v.FEC Supreme Court decision, striking down federal aggregate contribution limits. He told Campaigns & Elections that the “real winners will be national party committees. It’s been the national committees who are able to find and cultivate these larger donors. If an individual wants to triple max each year to the three national committees, that is $194,400 for the two-year cycle, way more than the aggregate limit.”
Under the old rules, an individual could only donate an aggregate of $74,600 per 2-year election cycle to all PAC and party committees, with a maximum contribution limit of $32,400 to any individual party committee. In addition, an individual could only donate an aggregate of $48,600 per cycle to all federal candidates, with a maximum contribution limit of $2,600 per candidate per election. Today’s decision strikes down the aggregate limits while preserving the contribution limits to individual candidates, PACs, and party committees.
David Mitrani was quoted in an article by the Center for Public Integrity today about today’s decision in McCutcheon v. FEC. The Court cited the First Amendment to strike down the aggregate limit that individuals could give to candidates and parties. Mr. Mitrani told the CPI that the decision doesn’t just affect federal contributions, but state law as well. Twelve different states plus the District of Columbia impose some form of aggregate limit on contributions. Since the Supreme Court struck down the federal aggregate limit, similar limits at the state level “are unlikely to survive under the logic of the McCutcheon opinion.”
In front of a capacity crowd, Jeff Wice spoke Monday morning at the National Conference of State Legislatures on a panel regarding voting rights. Titled “Shelby County v. Holder: The Future of the Voting Rights Act,” Mr. Wice discussed the Supreme Court’s 2013 decision and how it affects state legislators and activists going forward. Prior to the ruling, legislatures in many southern states required pre-clearance from the federal Department of Justice in order to make any changes to voting procedures. However, the Court struck down this requirement, and many of the affected states are poised to begin changing their voting laws.
Despite many state legislators and activists alike taking an interest in the subject, he told Politico after the panel that “It’s a quiet before the storm period, and it’s hard to tell when the storm is going to hit. No one expects Congress to act, and there’s also a wait–and–see approach to see how far think tanks and legal defense organizations go to bring lawsuits to expand [VRA] challenges.”
Read the full article from Politico, with a more complete write-up of the panel, 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.