Where the major political parties spent their legal dollars between 1Q2021 and 1Q2022?

I pulled the FEC data for the DCCC, DNC, DSCC, NRCC, NRSC, and RNC from January 1, 2021 to March 31, 2022 to see where the major political party arms spend their money. I looked at any expenditure labeled legal, law, or attorney. I deduped and merged entries for this 15-month period. To start, here’s where Democratic-affiliated outlets spent money, to any outlet receiving at least $25,000 in this period. (It excludes internal spending or transfers.)

PERKINS COIE	WA (DC)	$27,815,540
ELIAS LAW GROUP LLP	DC	$2,424,174
WILMER CUTLER PICKERING HALE AND DORR LLP	DC	$2,149,733
BROOKS PIERCE MCLENDON HUMPHREY & LEONARD LLP	NC	$1,043,825
KAPLAN HECKER FINK LLP	NY	$1,020,537
LATHAM & WATKINS LLP	PA	$645,175
DECHERT LLP	PA	$622,246
HEMENWAY & BARNES LLP	MA	$470,814
KREVOLIN HORST	GA	$385,765
DENTONS COHEN & GRIGSBY PC	PA	$382,242
BONDURANT MIXSON & ELMORE LLP	GA	$209,606
COVINGTON & BURLINGTON LLP	DC	$162,481
BALLARD SPAHR LLP	PA	$160,930
BALLARD SPAHR LLP	AZ	$160,930
CHERRY, BEKAERT & HOLLAND	VA	$150,333
MUNGER TOLLES OLSON LLP	CA	$143,955
MILLER CANFIELD PADDOCK AND STONE PLC	MI	$137,672
HIATT, JONATHAN	MD	$120,300
GREENBERG TRAURIG LLP	PA (NY)	$117,587
LAW OFFICE OF EVELYN GONG PLLC	NY	$116,910
LOCKRIDGE GRINDAL NAUEN PLLP	MN	$90,000
THE LAW OFFICE OF ADAM C BONIN	PA	$58,020
MELOY LAW FIRM	MT	$49,728
GUREWITZ, MARY ELLEN	MI	$40,800
HERRON, MICHAEL	NH	$39,025
SONNENFELDT, MICHAEL	NY	$36,500
FOX ONEILL SHANNON SC	WI	$35,656
STAFFORD ROSENBAUM LLP	WI	$34,822
CIVITECH	TX	$31,800
JACKSON LEWIS PC	KS	$29,500
JAMS INC	CA	$27,002
BRYAN D HOBEN ESQ	NY	$26,500
WOLF RIFKIN SHAPIRO SCHULMAN RABKIN LLP	NV	$26,410
JAMES & HOFFMAN	DC	$25,980

Firms with (a second state) in parentheses indicated that spending was labeled as being sent to another branch of that firm in that second state. Unfortunately, I cannot explain why identical amounts went to Ballard Spahr in two different states (there were not perfectly symmetrical transactions); I did not merge in case they are duplicates, but I left both there as a point of comparison.

Here are the firms on the Republican side. (Note more firms but smaller totals, and more spending that may not precisely align with “legal” expenditures but more media or press-related costs.)

Unfortunately, I had the same duplication problem with Wiley Rein and with King & Spalding.

WILEY REIN LLP	MD	$2,681,866
WILEY REIN LLP	NJ	$2,681,866
JONES DAY	DC	$2,146,453
CONSOVOY MCCARTHY	VA	$1,858,158
HOLTZMAN VOGEL JOSEFIAK PLLC	VA	$1,744,962
SHUTTS & BOWEN LLP	FL	$1,550,270
KASOWITZ BENSON TORRES LLP	NY	$1,262,500
ON MESSAGE INC	VA	$1,251,610
MCGUIRE WOODS LLP	VA	$799,938
DHILLON LAW GROUP INC	CA	$699,618
NECHELESLAW LLP	NY	$676,039
BUTZEL LONG ATTORNEY'S AND COUNSELORS	MI	$506,095
BELL MCANDREWS & HILTACHK LLP	CA	$433,952
VAN DER VEEN HARTSHORN AND LEVIN	PA	$349,864
FISCHETTI & MALGIERI LLP	NY	$333,945
CONSTITUTIONAL LITIGATION & ADVOCACY GROUP PC	DC	$300,000
NEWMEYER & DILLION LLP	CA	$225,286
BLANK ROME	PA	$209,030
HALL BOOK SMITH	GA	$190,249
MICHAEL BEST & FRIEDRICH LLP	WI	$179,573
BAKER & HOSTETLER LLP	OH	$150,000
RASKIN & RASKIN PA	FL	$150,000
DIGENOVA & TOENSING LLP	DC	$141,146
GOLDSTEIN LAW PARTNERS LLC	PA	$140,823
DEROHANNESIAN & DEROHANNESIAN	NY	$137,526
DILLON MCCANDLESS KING COULTER & GRAHAM LLP	PA	$136,749
KLEINBARD LLC	PA	$126,129
CROSBY OTTENHOFF GROUP	DC	$110,000
SNELL & WILMER LLP	AZ	$107,411
SKADDEN ARPS SLATE MEAGHER & FLOM	NY	$106,233
JOHN CIAMPOLI ESQ.	NY	$95,388
LAW OFFICE OF LINDA A. KERNSLLC	PA	$88,647
ROBINSON GRAY STEPP & LAFFITTE LLC	SC	$83,805
KING & SPALDING LLP	DC	$81,649
KING & SPALDING LLP	GA	$81,649
TAYLOR ENGLISH DUMA LLP	GA	$81,421
IMPERIUM PUBLIC STRATEGIES	TN	$80,000
SPARTAN PUBLIC AFFAIRS LLC	VA	$80,000
LODGE, JOHN III	TX	$79,831
CLARK HILL PLC	PA	$75,000
KINCAID, ADAM	VA	$75,000
STATECRAFT PLLC	AZ	$71,785
BRICKER & ECKLER LLP	OH	$70,770
THE NATIONAL REPUBLICAN REDISTRICTING TRUST	VA	$70,000
ALAN R OSTERGREN PC	IA	$68,025
LANDSLIDE STRATEGIES	VA	$65,000
BULEY, JEFFREY	NY	$63,136
BRADLEY ARANT BOULT CUMMINGS LLP	AL	$60,614
BELIN MCCORMICK	IA	$57,988
VAN DE BOGART LAW P.A.	FL	$51,481
MARQUIS AURBACH ATTORNEYS AT LAW	NV	$50,357
PHELPS	TX	$48,297
SHANAHAN LAW GROUP PLLC	NC	$47,927
PORTER WRIGHT MORRIS & ARTHUR LLP	OH	$38,871
LITTEN & SIPE LLP	VA	$36,554
CROSS XAMINE INVESTIGATION INC	MI	$36,195
DAVIDSON, DONNA GARCIA	TX	$35,000
KEVIN CLINE LAW PLLC	NC	$34,158
2652 GROUP LLC	VA	$34,082
OGLETREE DEAKINS NASH SMOAK & STEWART P.C.	SC	$31,593
HUCKABY DAVIS LISKER	VA	$31,500
DANIEL K HAGOOD PC	TX	$30,098
BROWN, MICHAEL	DC	$30,000
CUTOLO BARROS LLC	NJ	$30,000
MR&A LLC	PA	$29,193
AMERICA RISING LLC	VA	$27,709

Ranking the most liberal and conservative law firms among the top 140, 2021 edition

One of my most popular posts remains “Ranking the most liberal and conservative law firms.” That post is from 2013, and an update is long overdue.

At the outset, “ranking” a firm or calling it “conservative” or “liberal” is imperfect, I know, but I picked a title eight years ago and I’m sticking with it…. Better to call it, “which law firms contribute the most to Democrats or Republicans.” But I am updating the methodology, and I look forward to doing some even more interesting things with the data in the short term.

First, I looked at 140 law firms. I broke them out into two groups. The first are the AmLaw 100. The second are a group of 40 firms that fit the NLJ500 or Legal 500 plaintiffs’ firms. (Two firms appear in both lists, Paul Weiss and Quinn Emanuel.)

Second, unlike my 2013 ranking (where I looked at contributions to Barack Obama’s or Mitt Romney’s presidential campaigns), I expanded the window. This time, I focused on contributions to the Joe Biden campaign (including “victory fund) and the Donald Trump campaign (including “victory fund” and “Make America Great Again Committee”); the major party organizations (DCCC, DSCC, DNC, NRCC, NRSC, and RNC); and two major aggregators of campaign contributions, ActBlue (Democratic) and WinRed (Republican). There’s a little asymmetry here—Trump had four years of campaigning to Biden’s shorter window, ActBlue is more established than WinRed, etc.—but I think it evens out. These accounted for about 1/3 of all campaign contributions. (Future research will look at more.) I looked at the 2017-2020 period, a four-year window.

Third, I did not look at just attorney contributions, but I looked at any contributions from those employed by these firms. (See update below.) There are often different titles for attorneys (partner, counsel, summer associate, etc.) that are self-reported and are tougher to capture. And I thought it would be useful to include all contributions, even from consultants, paralegals, administrative assistants, and others employed by the firm for a broader portrait of the firm. Again, a judgment call here. I also looked for common misspellings, abbreviations, or alternative names for the firm (e.g., separating out the two Steptoe & Johnsons, etc.) to capture the most contributions.

So, that said, I’m sure there are errors in the data, but it’s a fairly good snapshot.

All told, I captured about $61 million in contributions to Democratic-affiliated groups compared to about $11 million for Republican-affiliated groups in 2017-2020, nearly a 6-to-1 ratio. (See update below.)

Below is a visualization of the AmLaw100 law firms. (By “percentage of contributions,” I mean by dollar figures, not individual instances.)

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Many firms had fewer than 10% of contributions go to major Republican outlets. A handful had at least 25%, and just three crossed 50%. Even among those the figures are deceptive. At White & Case, for instance, there was a single $500,000 contribution to the Trump Victory Fund, more than half of all Republican contributions in this four-year time period.

The 40 plaintiffs’ firms results are below (asterisks denote the second listing):

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Nine of these firms had $0 in contributions to major Republican outlets in this four-year period; another 6 had less than $100. And while some firms’ contributions were relatively modest (Bernstein, for instance, logged less than $1000 in total giving to these outlets, another deceptive way of looking at this data), others had contributions in the high six figures. Two firms, however, skewed toward Republicans.

Among the ten firms that gave the most money in raw dollars to Democratic outlets (see update below):

Paul Weiss $2,084,171

Latham $1,877,357

Kirkland $1,820,246

Covington $1,794,277

Sullivan & Cromwell $1,579,112

Wilmer $1,424,903

Sidley $1,416,481

Morgan Lewis $1,352,160

Skadden $1,310,634

Boies Schiller $1,080,094

And among the ten firms that gave the most money in raw dollars to Republican outlets (note, of course, duplicates among the largest law firms, and the caveat for White & Case!):

White & Case $966,401

Kirkland $822,685

Proskauer $697,230

Gibson Dunn $468,283

McGuireWoods $383,280

Paul Weiss $353,148

Akin Gump $343,102

Womble Bond $330,725

Holland & Knight $297,266

Kasowitz Benson $291,990

Below is a table with all 138 firms (excluding the pair of duplicate listings), sorted by percentage of contributions to Democratic outlets. As I mentioned, there’s more to come in the months ahead—this is my first cut at many ways of slicing this data.

Firm	D	R	D%
Berger Montague	$563,692	$0	100.0%
Grant & Eisenhoffer	$379,781	$0	100.0%
Kaplan Fox	$77,572	$0	100.0%
Hagens Berman	$71,775	$0	100.0%
Hausfeld	$35,142	$0	100.0%
Berman Tabacco	$21,182	$0	100.0%
Joseph Saveri Law	$6,284	$0	100.0%
MoginRubin LLP	$5,231	$0	100.0%
Bernstein Liebhard	$635	$0	100.0%
Lief Cabraser	$764,357	$30	100.0%
Herman, Herman	$284,946	$15	100.0%
Bernstein Litowitz	$205,015	$15	100.0%
Simons Hanley Conroy	$424,296	$50	100.0%
Baron & Budd	$472,147	$95	100.0%
Kessler Topaz	$200,699	$55	100.0%
Cohen Milstein	$294,106	$135	100.0%
Susman Godfrey	$489,486	$500	99.9%
Seeger Weiss	$131,268	$230	99.8%
Boies Schiller	$1,080,094	$2,045	99.8%
Burg Simpson Eldredge	$103,696	$262	99.7%
Fenwick	$849,559	$2,970	99.7%
Seledny & Gay	$68,150	$305	99.6%
Levin Papantonio	$32,177	$151	99.5%
Beasley, Allen, Crow	$123,253	$585	99.5%
Zelle	$28,104	$162	99.4%
Labaton Sucharow	$82,877	$546	99.3%
Kramer Levin	$384,389	$2,845	99.3%
O'Melveny	$948,486	$8,382	99.1%
Perkins Coie	$964,601	$10,769	98.9%
Dicello Levitt	$8,632	$100	98.9%
Morgan & Morgan	$290,895	$3,555	98.8%
Shearman & Stearling	$332,843	$5,047	98.5%
Pomerantz	$19,756	$300	98.5%
Weitz Luxenberg	$139,621	$2,245	98.4%
Schulte Roth	$361,008	$6,081	98.3%
Debevoise	$688,869	$11,802	98.3%
Covington	$1,794,277	$33,529	98.2%
Robbins Geller	$220,058	$4,157	98.1%
Reed Smith	$536,807	$10,284	98.1%
Cleary Gottlieb	$715,532	$15,909	97.8%
Jenner & Block	$456,977	$11,051	97.6%
Crowell & Moring	$448,249	$10,893	97.6%
Arnold & Porter	$1,010,582	$27,555	97.3%
Morrison & Foerster	$686,565	$20,164	97.1%
Gibbs Bruns	$34,679	$1,200	96.7%
Goodwin Procter	$633,974	$22,821	96.5%
McDermott	$645,730	$24,701	96.3%
Fried Frank	$343,140	$13,632	96.2%
Motley Rice	$204,325	$8,147	96.2%
Orrick	$512,834	$21,077	96.1%
Wachtell	$781,376	$33,328	95.9%
Squire Patton	$452,120	$19,432	95.9%
Milbank	$226,005	$9,768	95.9%
Ballard Spahr	$466,882	$20,190	95.9%
Napoli Shkolnik	$14,702	$706	95.4%
Willkie	$382,835	$19,520	95.1%
Robins Kaplan	$119,526	$6,498	94.8%
Cooley	$666,688	$36,707	94.8%
Skadden	$1,310,634	$80,853	94.2%
Jackson Lewis	$168,690	$11,035	93.9%
Morgan Lewis	$1,352,160	$88,704	93.8%
Wilson Sonsini	$419,257	$28,105	93.7%
Mintz Levin	$161,211	$10,974	93.6%
Davis Wright	$400,839	$27,564	93.6%
Latham	$1,877,357	$135,776	93.3%
Wilmer	$1,424,903	$104,317	93.2%
MoloLamken	$22,682	$1,687	93.1%
Weil	$304,943	$22,734	93.1%
Loeb & Loeb	$253,448	$19,305	92.9%
Venable	$515,986	$40,034	92.8%
DLA Piper	$1,023,423	$80,517	92.7%
Fragomen	$147,320	$11,746	92.6%
Cahill	$260,935	$24,916	91.3%
Ropes & Gray	$524,768	$51,262	91.1%
Bryan Cave	$466,366	$48,313	90.6%
Kilpatrick Townsend	$188,884	$19,787	90.5%
Simpson Thacher	$531,328	$55,795	90.5%
Faegre Drinker	$165,891	$17,446	90.5%
Troutman Pepper	$411,574	$43,744	90.4%
Cozen O'Connor	$450,877	$50,052	90.0%
Blank Rome	$419,866	$47,306	89.9%
Haynes and Boone	$187,019	$21,364	89.7%
Paul Hastings	$651,679	$80,412	89.0%
Seyfarth	$316,918	$41,631	88.4%
Steptoe	$444,029	$58,651	88.3%
Sidley	$1,416,481	$188,789	88.2%
Sullivan & Cromwell	$1,579,112	$213,897	88.1%
Dorsey	$236,890	$32,327	88.0%
Quinn Emanuel	$706,382	$104,250	87.1%
Hogan Lovells	$720,025	$110,101	86.7%
Nixon Peabody	$279,456	$42,747	86.7%
Norton Rose	$240,355	$36,880	86.7%
Paul Weiss	$2,084,171	$353,148	85.5%
McKool Smith	$95,052	$16,652	85.1%
Nelson Mullins	$317,407	$57,335	84.7%
Cadwalader	$147,453	$26,716	84.7%
Olgetree Deakins	$156,117	$29,215	84.2%
Greenberg Traurig	$774,034	$144,995	84.2%
Baker McKenzie	$278,722	$57,845	82.8%
Polsinelli	$194,899	$40,510	82.8%
Jones Day	$825,506	$180,284	82.1%
King & Spalding	$831,622	$182,858	82.0%
Duane Morris	$351,147	$81,164	81.2%
Littler	$283,479	$66,001	81.1%
Fox Rothschild	$207,568	$48,615	81.0%
Davis Polk	$580,987	$144,977	80.0%
Katten	$235,807	$59,367	79.9%
Mayer Brown	$584,028	$149,546	79.6%
Sheppard Mullin	$292,187	$76,171	79.3%
Locke Lord	$131,402	$37,901	77.6%
Lewis Brisbois	$149,093	$44,052	77.2%
Cravath	$347,924	$103,555	77.1%
Pillsbury	$321,200	$99,733	76.3%
Akin Gump	$1,064,087	$343,102	75.6%
Dechert	$359,039	$118,551	75.2%
Baker Botts	$203,823	$67,908	75.0%
Akerman	$336,528	$116,927	74.2%
Husch Blackwell	$169,494	$60,715	73.6%
Foley & Lardner	$224,329	$82,964	73.0%
Winston & Strawn	$575,472	$242,797	70.3%
Kirkland	$1,820,246	$822,685	68.9%
Vinson & Elkins	$213,491	$97,663	68.6%
Alston & Bird	$22,338	$10,362	68.3%
Baker Donelson	$169,876	$80,649	67.8%
Gibson Dunn	$933,762	$468,283	66.6%
Baker & Hostetler	$187,262	$105,942	63.9%
Gordon Rees	$89,923	$51,160	63.7%
Holland & Knight	$467,830	$297,266	61.1%
K&L Gates	$387,345	$254,137	60.4%
Fish	$122,748	$85,136	59.0%
Womble Bond	$408,260	$330,725	55.2%
Hunton Andrews	$170,952	$143,421	54.4%
Barnes & Thornburg	$219,289	$189,661	53.6%
McGuireWoods	$295,863	$383,280	43.6%
Proskauer	$417,600	$697,230	37.5%
White & Case	$493,656	$966,401	33.8%
Kasowitz Benson	$129,835	$291,990	30.8%
The Lanier Law Firm	$51,399	$269,337	16.0%

UPDATE 11/8: Some have asked about whether it makes sense to include all contributors, regardless of job title, into this framework. As I mentioned, attorneys use a variety of titles, and others are ambiguous (e.g., “consultant”). I ran tests at a few of the larger law firms, and I looked at only those who unambiguously identified themselves in some attorney capacity. At these firms, they are 97.5% to 98% of the dollars given. It does not strike me that at many firms—if any—it would materially change the allocation if I did another refinement to include only those who unambiguously identified themselves in some attorney capacity.

UPDATE 11/11: Due to a data entry error, some Perkins Coie contributions were double-counted, which led to an inflated count. The data has been corrected.

My 2013 blog post that consistently gets the most hits: "Ranking the most liberal and conservative law firms"

It’s not even close. On a given week where I don’t blog, it’s usually the top hit on my site. Even when I do blog, it’s still usually the top. It’s at or near the top of my year-end report, year in and year out.

It’s a post from 2013, “Ranking the most liberal and conservative law firms.”

I used to be way more into rankings on this blog (they’re clickbait-y, and it was a weakness in my early blogging days, I confess). This was an effort (with some help!) to look at campaign finance data, who contributed to the Obama and Romney campaigns in 2012, and figure out which firms, based on employee contributions to the candidates, were the most “conservative” or “liberal.” Plenty of open questions about how to use it, of course!

I didn’t update after 2016 because, well, maybe things were different in 2016. And maybe they’ll be different again in 2020. Maybe I should update. After all, seven years is a long time! But people keep coming back to it.

It’s also noteworthy that the bulk of the hits to this page come in as searches for some version of “conservative law firm,” and almost never as “liberal law firm.” It appears there’s some Google appetite among prospective law firm associates to identify the conservative ones.

This piece by Bonica, Chilton, and Sen in 2016 offers a more robust look at the political leanings of American lawyers—also a useful resource.

I don’t know if I’ll do something like this again, or if I did how I might change the reporting or methodology used. But it’s wild to me that after seven years it remains one of this site’s most popular posts. Then again, rankings do tend to hold as clickbait….

Weaponizing the ballot: voters sue to keep candidate off ballot for unpaid campaign finance fines

Richard Winger over at Ballot Access News has the details about a lawsuit filed in federal court challenging a candidate’s appearance on the ballot. Brenda Jones, a former member of Congress, is challenging incumbent Rashida Tlaib in the Democratic Party primary in a congressional district in Michigan. Plaintiffs in this lawsuit claim Ms. Jones falsely attested that she had no unpaid campaign finance fines, when she apparently did.

In Weaponizing the Ballot, I emphasize that even fairly light restrictions on a candidate’s ballot access that do not pertain to the “manner” of holding an election—that is, procedural rules pertaining to an election—would run afoul of the Constitution’s enumerated qualifications for federal office and exceed a state’s power under the Elections Clause. The claim holds here, in my view—the lawsuit should fail, and Ms. Jones (whose name already appears on the ballot—plaintiffs ask that votes cast for her not be counted) should be able to seek office unencumbered by the Michigan statute.

My experience with non-public office microtargeted election campaigns on social media

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“Microtargeting” has become a hot and trendy topic in the world of political advertising—and controversial. (Consider one defense of the practice, and how major Internet companies have approached the matter.) In short, the practice appeals to prospective voters in a particular demographic, often with highly specific traits, and advertises narrowly to that demographic to sway voters in the most appealing way.

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As a resident of the greater Los Angeles region for most of the last decade, I’ve become a new kind of prospective voter: the television and film award voter.

Of course, I’m not such a voter. I am not a part of the Academy, the Hollywood Foreign Press Association, or any other media-related voting group.

But one can’t drive far out of LAX in awards season without seeing billboards advertising shows or movies with the label “For Your Consideration.” That’s polite code for, “please vote for this film for an award.”

It also means I received a number of ads—sometimes Twitter, sometimes Facebook—asking for my vote.

Thanks to greater advertising transparency from Facebook and Twitter, I can see why I’m targeted. And, to be fair, the demographics aren’t terribly precise—at least, as revealed by these companies. Here’s one ad asking for my vote because I’m over the age of 35 in the greater Los Angeles region. A recent Facebook ad was targeted to me as a Malibu resident over the age of 35 who’d recently seen the film advertised (known to Facebook because my spouse tagged me in a status update as we watched it).

Voting isn’t just for public office! It’s for the pope, for corporate boards, for the Baseball Hall of Fame, and for the Oscars. And, of course, we should expect influences to occur for any election, even those not for a public office.

No, Gorsuch didn't "misstate" Citizen United's holding

With all due respect to Rick Hasen, I don't think Judge Neil Gorsuch "misstated" the holding of Citizens United v. FEC. Here are a couple of statements that arose during questioning:

Q: In Citizens United Justice Kennedy indicated the restrictions on campaign donations can only be justified by concerns about quid pro quo corruption. Now President Trump has said that the reason he made campaign donations was so that when he needs something from them they're there for me. His campaign contribution favors. Shouldn't Congress not the courts make the determination about the potential for corruption? Especially if we're talking about quid pro quos.

A: Senator, I think there is lots of room for legislation in this area that the Court has left. The Court indicate that if proof of corruption can be demonstrated that a different result may obtain [sic] on expenditure limits.

. . .

I think Citizens United made clear the quid pro quo corruption remains a vital concern and is subject for potential legislation and I think there is ample room for this body to legislate even in light of Citizens United. Whether it has to do with contribution limits, whether it has to do with expenditures limits, or whether it has to do with disclosure.

One basic problem is that Senator Patrick Leahy's question is almost incomprehensible. Recall that Citizens United was not about "campaign donations," (i.e., contributions to political campaigns), or even about contributions at all, but about independent expenditures. The quotations from Trump are a non sequitur.

So Judge Gorsuch attempts to return the discussion, and here it's apparent it's about campaign finance quite broadly Is there "lots of room for legislation," including that some "expenditure limits" may be upheld if there is "proof of corruption"?

I would argue yes on at least three fronts.

The first is expenditure limits (speaking about expenditure limits generally) have been upheld by courts, notably in Bluman v. FEC, which affirmed a ban on political expenditures by foreign nationals. (This is the reason why Justice Samuel Alito mouthed "not true" at the State of Union when President Barack Obama stated that Citizens United would "open the floodgates" for "foreign corporations to spend without limit in our elections.") As Mr. Leahy's question was broadly construed, Judge Gorsuch's answer is, I think, appropriately broadly construed.

Second, even narrower, I think it's still the case after Citizens United that some such expenditures could be restricted. For instance, if Congress demonstrates that the expenditures aren't truly "independent" but coordinated, they can squarely be regulated (consistently with Buckley v. Valeo). That is, there's still room to demonstrate that some expenditures aren't truly "independent."

Third, and still narrower, I think there's still room after Citizens United, with the appropriate record, to regulate truly independent expenditures. According to the majority in Citizens United:

The McConnell record was "over 100,000 pages" long, yet it "does not have any direct examples of votes being exchanged for . . . expenditures." This confirms Buckley's reasoning that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate.

So now begins a construction of what this Court's holding means. Here there's language suggesting a lack of evidence demonstrating corruption justifying regulation. Does it mean that Congress is forever prohibited in this area? Professor Hasen argues yes, citing American Traditional Partnership v. Bullock, that the Court "would NOT consider evidence of corruption to justify a spending limit."

But that's not what Bullock holds--at least, in my reading of the case. Bullock states, "Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case." Which expressly leaves open the possibility of meaningful distinguishing of the case! So the possibility remains open for regulation even after Citizens United.

There are three extremely important caveats to my line of reasoning.

The first is the unrealistic possibility that Congress would even legislate to regulate independent expenditures in the near future. But, of course, Judge Gorsuch is speaking to the possibility of legislation concerning expenditures.

The second is the unrealistic likelihood that the Court would ever view any record as "meaningful[ly] distinguishing" Citizens United, or offering sufficient evidence to suggest that quid pro quo corruption does exist concerning independent expenditures. But that unrealistic possibility of the acceptance of the Court is not expressly foreclosed by Citizens United's language--that is, Citizens United does not hold, as a matter of First Amendment doctrine, that independent expenditures can never be regulated. While some kinds of expenditures may well be regulated post-Citizens United, I imagine there's a matter of dispute about what kind of record would suffice for particular types of expenditures.

The third is that I probably am inclined to agree with a truncated, alternative take Professor Hasen offers, which is that Judge Gorsuch is "trying to soften [the] harshness" of Citizens United with his phrasing. And part of this is whether the real question posed is Citizens United in particular--independent expenditures from domestic corporations--or campaign finance quite generally. I think, to return to the beginning, the confusion of Mr. Leahy's question and the breadth of Judge Gorsuch's answer suggest that, charitably read, this answer is wholly appropriate. For those who are very specifically interested in the narrow issue of Citizens United, Judge Gorsuch's answer is a rather generous interpretation of the ability of Congress to regulate in this area, but, I think, still accurate. And for those who are interested in the more general campaign finance universe as Mr. Leahy's question suggests, it's wholly accurate and entirely defensible.

In today's WSJ: "Libertarians and Greens Can Win--Even If They Lose"

In today's Wall Street Journal, I have an opinion piece entitled, "Libertarians and Greens Can Win--Even If They Lose." It begins:

Gary Johnson and Jill Stein have a difficult task—though this election year it might be easier than most. The trick for third parties in American politics is convincing voters that they aren’t “wasting” ballots by supporting the Libertarian or Green Party candidate, since neither will make it to the White House.

But the unpopularity of Donald Trump and Hillary Clinton has provided the Libertarians and Greens with a new argument: Political parties that meet defined benchmarks on Election Day are given certain advantages under state and federal law. If Mr. Johnson and Ms. Stein manage to secure 5% of the popular vote—plausible given current polling—their parties will reap significant benefits.

"The Case for More Money in Politics"

I have a new piece at the Library of Law & Liberty, which responds to the following prompt:

Should a democracy, in the name of combating political corruption, and in the name of equal participation in politics, regulate the formation of political opinions—or should it be guided by the principle of the free formation of opinion that emerges spontaneously in society?

And I frame the issue as follows:

The phrase “campaign-finance reform” assumes a premise: that the way American political campaigns are run needs reform. Specifically, it assumes that the problems in our political discourse are principally ones about who pays for campaigns. These problems are alluded to, in breathless tones, as “money in politics,” or “dark money,” or, most glibly, “Citizens United.”

Consider, though, that there isn’t a problem with “money in politics” unless there is something bad that “money in politics” does. Rather than assuming a premise of reform, we ought to step back and consider whether or not campaign finance needs reforming. As we evaluate competing justifications for reform, we should be mindful, as citizens of a nation built upon regular and meaningful elections, that these be regulated to do the least damage to our constitutionally guaranteed rights, that is, to the open exchange of political views. As we will see, this priority is largely lacking in today’s reforms, whether existing or proposed.

Can foreign governments fund Hillary Clinton's presidential campaign?

The Wall Street Journal recently reported that foreign governments have increasingly been funding the Clinton Foundation since the organization, a non-profit operated by members of the Clinton family, recently began again accepting contributions from those governments. The Journal notes, "Recent donors include the United Arab Emirates, Saudi Arabia, Oman, Australia, Germany and a Canadian government agency promoting the Keystone XL pipeline."

As Hillary Clinton faces a prospective presidential campaign ahead, could these foreign governments fund her campaign?

The answer is no--foreign nationals may only give money to the Clintons' non-profit for its activities.

Despite raising half a billion dollars from foreign nationals, including foreign governments, in the last two decades, the Clintons cannot use money from foreign nationals to fund a federal election. The ban on foreign campaign contributions and expenditures stretches back nearly fifty years.

Some may remember President Barack Obama's State of the Union address in 2010, in which he criticized the Supreme Court's decision in Citizens United v. FEC (PDF) for a decision, he claimed, that "will open the floodgates for special interests– including foreign corporations – to spend without limit in our elections." Justice Samuel Alito visibly disagreed, PolitiFact found the claim "mostly false," and, shortly thereafter, the Supreme Court summarily affirmed the ban.

Foreign governments, then, may contribute to non-profits in the United States, like the Clinton Foundation. But they cannot contribute money to politicians or political action committees. And because the Clinton Foundation is organized as a 501(c)(3), the Foundation cannot engage in political campaigning. (There are political activities that foreign governments and non-profits can engage in, but they much narrower than activities related to specific candidates: they are usually tied to specific issues, like a ballot measure, or to non-partisan or general "awareness" activities.)

The only issue, then, is not a legal risk, but merely one of appearance--that a prospective presidential candidate is simultaneously heading a non-profit that is accepting contributions from foreign governments. And whether one views that as a real or potential conflict of interest or ethical dilemma is, I suppose, a matter of perspective.