Cuomo outspent Teachout by about 4500% in New York gubernatorial primary

New York includes fairly detailed expenditure disclosure requirements before an election, including a report as late as 11 days before a primary election. I looked at the direct expenditures by Andrew Cuomo since July 2013 and by challenger Zephyr Teachout. Schedule F lists expenditures for each, and Schedule L includes expenditure refunds.

By my calculations, Cuomo spent around $10,963,626.35, compared to Teachout's $243,418.51. That's good for a 45:1 ratio.

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There are several caveats. First, it does not include outside expenditures by other groups or by the Democratic Party, a point of contention in this election. Second, it does not include expenditures that occurred in the last 11 days or that will be paid after the election. Third, it is expenditures, not contributions--the candidates each collected more than these amounts. And fourth, Cuomo knew he was running for governor long ago and had a longer lead in spending for the re-election campaign, which probably distorts his spending significantly. Nevertheless, he spent more than $3 million in the last couple of months alone.

His performance puts him in the 10th percentile of votes received among gubernatorial candidates seeking re-election--suggesting that money can't buy everything.

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The Washington Post made a scary, misleading chart about McCutcheon

Campaign finance can be scary. Charts can communicate information in an easy-to-digest format.

So the Washington Post did a chart about campaign finance after McCutcheon v FEC (PDF), which found that federal biennial aggregate political contribution limits failed exacting scrutiny under the First Amendment and improperly abridged the freedom of speech.

The chart looks scary. (It's here.) According to OpenSecrets, 310 contributors (for contributions disclosed as of June 30, 2014) had exceeded the limit, which was previously at $123,000. It explains that an extra $11.6 million has been poured into elections this cycle, contributions that otherwise would have been prohibited prior to McCutcheon.

But the chart is misleading. Here's why.

First, it's important to note that the chart only includes data for these 310 contributors. That means there are thousands of other contributors left out who've been extremely active this cycle.

Second, it's only measuring those 310 contributors who exceeded the aggregate contribution limits. That, of course, is part of the point--it's meant to show the impact of McCutcheon.

But what's the articulated peril of McCutcheon? On the one hand, it's the concern that a few individuals are now capturing the political process with more money than they otherwise would have been able to contribute. That's limited in terms of influence--they can give no more to any individual candidate, but they can give the statutory maximum (per candidate) to every candidate.

But on the other hand, the concern is that these donors will have an outsized influence in the public debate--that their contributions, above and beyond the aggregate contribution limits, will have a corrosive effect on our public discourse. Political parties will be unusually beholden to these donors--even though the donors are capped per candidate, repeated donations to many candidates of a single party may have a more indirect corrupting effect.

So a better chart might be to look at these post-McCutcheon contributions, and compare them to all other contributions within the McCutcheon caps. The chart below uses the post-McCutcheon data from the Washington Post story, and uses the year-to-date contributions from others who comply with the pre-McCutcheon aggregate caps. It includes data from recent midterm elections, too.

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Citizens United in Affordable Care Act litigation, Part VII

Following up on Part VI, we now have the Supreme Court's opinion in Burwell v. Hobby Lobby (PDF).

At oral argument (PDF), no one mentioned the Court's decision in Citizens United. That's probably appropriate, because Hobby Lobby turns primarily on a statute (i.e., the Religious Freedom Restoration Act), not the First Amendment. Granted, that statute purported to incorporate (and modify) the Supreme Court's earlier First Amendment jurisprudence--but that wasn't what the justices seemed to focus on. But that's where the justices appeared to have some of the most difficulty: deciding what, exactly, that jurisprudence may have included. (And there is voluminous analysis across the Internet on this.)

Indeed, the only mention of Citizens United arose in a fleeting mention in Justice Ginsburg dissent:

Corporations, Justice Stevens more recently reminded, "have no consciences, no beliefs, no feelings, no thoughts, no desires." Citizens United v. Federal Election Comm'n.

For previous coverage see:

Part I

Part II

Part III

Part IV

Part V

Part VI

(By the way, an interesting note for timing purposes: the Tenth Circuit was the first federal appellate court to reach this issue, last June. Cert was granted, and the case was then scheduled for oral argument on March 25. This June, the Tenth Circuit is the first federal appellate court to reach the issue of the constitutionality of marriage amendments post-Windsor.)

New Harvard Law Review pieces on campaign finance and McCutcheon

The Harvard Law Review has recently published two pieces examining the effect of McCutcheon v. FEC (PDF).

The Practical Consequences of McCutcheon, by Robert K. Kelner, chair of the Eleciton and Political Law practice at Covington & Burling, concludes that little will change as a result of McCutcheon due to pragmatic difficulties organizing super joint fundraising committees and the few individuals who were previously limited by the biennial contribution limits.

And After McCutcheon, by Jonathan S. Berkon & Marc E. Elias, both at Perkins Coie, concludes that political parties will have slightly more power and control after McCutcheon, as party committees will be able to pursue additional contributions from key donors (an argument echoing a point raised by Rick Pildes immediately after the case).

I commend both pieces to you--brief, thoughtful pieces from practitioners with important points.

Scholarship highlight: Ganesh Sitaraman, Contracting Around Citizens United

The Columbia Law Review just published this Essay by Ganesh Sitaraman, Assistant Professor of Law, Vanderbilt Law School, available as a PDF. Here is the abstract:

The Supreme Court's decision in Citizens United v. FEC is widely considered a major roadblock for campaign finance reform, and particularly for limiting third party spending in federal elections. In response to the decision, commentators, scholars, and activists have outlined a wide range of legislative and regulatory proposals to limit the influence of third party spending, including constitutional amendments, public financing programs, and expanded disclosure rules. To date, however, they have not considered the possibility that third party spending can be restrained by self-enforcing private contract between the opposing campaigns. This Essay argues that private ordering, rather than public action, is an additional approach for limiting third party campaign spending. It explains the design of a contract between opposing campaigns that is self-enforcing and restricts third party spending; identifies the conditions under which such a contract is likely to be offered and accepted; shows how political dynamics push third parties and campaigns to adhere to the contract's spending restrictions; and discusses possible loopholes and challenges. While private ordering through a self-enforcing contract might seem like wishful thinking, precisely this kind of contract, "The People's Pledge," succeeded in keeping out third party spending on television, radio, and internet advertising in the most expensive Senate race in history, the 2012 Brown-Warren race in Massachusetts. Since then, this kind of contract has been adopted in two other federal congressional races and debated and offered in a wide range of other races. In the context of political gridlock in Congress, the emergence of a private ordering option to achieve campaign finance reform goals is significant. This Essay analyzes the conditions under which private ordering, rather than public law reform, can limit third party spending in elections. It draws on examples, particularly that of the original "People's Pledge," to illustrate the general parameters of these contracts, and it considers the implications of these contracts for election law and policy.

The irony of Ben & Jerry's opposition to Citizens United should not go unnoticed

A public radio station recently announced that Ben & Jerry have started a movement against Citizens United. (I obtained the story from Rick Hasen's Election Law Blog.) The irony should not go unnoticed.

First, their movement is a corporate movement speaking out against other corporations speaking. "The Stamp Stampede" is a project of "Power People Initiatives," a Vermont nonprofit corporation, funded by the "International Forum on Globalization," a California nonprofit corporation. These corporations are speaking out in support of a political movement against corporations who want to speak out on politics.

Second, there are arguably federal laws that make their project--stamping money with an advertisement of their Web address--illegal, most notably 18 U.S.C. § 475, which prohibits anyone from advertising on currency. But they have obtained a legal opinion from an attorney who assured them that the First Amendment could not extend to such "clearly protected political speech." If only there were other judicial opinions that struck down federal laws that burdened political speech that might be useful in addressing such a ban....

Citizens United in Affordable Care Act litigation, Part VI

Fresh off the heels of the fifth installment in this series,  the Seventh Circuit in Korte v. Sebelius has now weighed in on the ability of corporations to exercise religion and, as might have been expected, fractured and continued the divide among courts in the Third, Sixth, Tenth, and DC Circuits. This is, by far, the most extensive and thoughtful discussion of the issue, from both sides. I'll excerpt only fragments here (those most directly implicating Citizens United, and fragments that also heavily rely on Bellotti).

From the majority opinion:

For the sake of completeness, we note as well that nothing in the Court’s general jurisprudence of corporate constitutional rights suggests a nonprofit limitation on organizational free-exercise rights. Prior to Smith, and continuing to the present day, the Court has held that corporations may claim some but not all constitutional rights.

For example, long before Citizens United reinvigorated the political-speech rights of corporations, see Citizens United v. FEC (2010), the Court confirmed that corporations have free-speech rights, see, e.g., . . . First Nat’l Bank of Bos. v. Bellotti (1978); N.Y. Times Co. v. Sullivan (1964). Prior to Smith the Court held that the Fourth Amendment protected corporations from unreasonable searches and seizures. Corporations qualify as persons for at least some purposes under the Due Process and Equal Protection Clauseso f the Fourteenth Amendment. On the other hand, prior to Smith the Court excluded corporations from the Fifth Amendment privilege against self-incrimination, and the emerging right of privacy.

These cases do not yield a unifying theory of corporate constitutional rights, but Bellotti contains some language that might be read to suggest a general decisional approach: “Certain ‘purely personal’ guarantees, such as the privilege against compulsory self-incrimination, are unavailable to corporations and other organizations because the ‘historic function’ of the particular guarantee has been limited to the protection of individuals.” And this: “Whether or not a particular guarantee is ‘purely personal’ or is unavailable to corporations for some other reason depends upon the nature, history, and purpose of the particular constitutional provision.” Id. But the Court has never elaborated.

Ultimately, we don’t need to parse the cases on corporate constitutional rights too finely. We are confronted here with a question of statutory interpretation. Our task is to determine whether prior to Smith it was established that a closely held, for-profit corporation could not assert a free-exercise claim. It was not so established. We conclude that K & L Contractors and Grote Industries are “persons” within the meaning of RFRA.

And from the dissenting opinion: 

Perhaps the best argument in favor of according free exercise rights to corporations is that the right to free speech already has been recognized as among those rights that corporations enjoy. Citizens United (coll. cases); Bellotti (coll. cases). But beyond the fact that the free exercise clause, like the free speech clause, resides in the First Amendment, I find little, if anything, in the speech cases that speaks to the nature of religion and why corporations, as a matter of history and logic, should be able to assert free exercise rights. Corporations, because they have property, financial, and political interests, of course have a free speech interest in protecting and promoting those interests and in pursuing their agendas, be their stated goals charitable, religious, political, or profit-making. Beyond those parochial interests, Bellotti (which struck down a law prohibiting a corporation from making expenditures to influence the outcome of any public referendum other than one which directly affected the property, business, or activities of the corporation), stressed the core First Amendment interest in a robust dialogue on issues of public concern, an interest which extends beyond a particular speaker’s wish to express his views to include the public’s right to hear his views and those of others. The Court added that “[t]he inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its sources, whether corporation, association, union, or individual.” Decisions recognizing the speech rights of corporations thus rest “not only on the role of the First Amendment in fostering individual self-expression but also on its role in affording the public access todiscussion, debate, and the dissemination of information and ideas.”

Religion, by contrast, is a personal undertaking. Certainly there is a collective societal interest in protecting religious liberty, and religion can and has influenced the public sphere in positive ways. But religious faith is, by its nature, an intensely individual experience, and for the reasons that follow, I believe it likely is one of those “purely personal” constitutional rights that the Supreme Court will not extend to corporations—certainly not to secular, for-profit corporations.

…

A corporation is a legal construct which does not have the sentience and conscience to entertain such ultimate questions. “In the words of Chief Justice Marshall, a corporation is ‘an artificial being, invisible, intangible, and existing only in contemplation of law.’” It is a creature of man, not of God. It “believes,” if it can be said to believe anything, only what the people who found, own, and/or manage the corporation believe. Citizens United (Stevens, J., concurring in part & dissenting in part) (“It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.”).

Indeed, it strikes me as potentially demeaning to religious faith to say that a corporation should be said to possess the same right to free exercise of religion that a human being enjoys in this country. Inextricably bound as it is with a person’s sense of himself, his origins, the world, and what life is, religious belief (including the lack of such belief) is a defining trait of humankind; and this is one reason why we view it as a core component of individual freedom: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Planned Parenthood of Se. Pennsylvania v. Casey (1992). To say, as the court does today, that the right to exercise one’s religious faith may be asserted on the same terms by a legal construct—an incorporated currency exchange, accounting firm, or automobile repair shop, for example—as by a human being, is, to my mind at least, irreconcilable with the very essence of religious faith and, for that matter, humankind.

There is much more discussed in the opinions, so read them at length. 

Citizens United in Affordable Care Act litigation, Part V

Following up on Part IV,  the D.C. Circuit today (PDF) in Gilardi v. U.S. Dep't of Health and Human Servs. took on the issue of whether for-profit corporations can exercise religious beliefs.

From the opinion of Judge Brown (and this portion was joined by Judge Edwards):  

Citing Citizens United v. FEC, the Freshway companies argue that corporations—religious or otherwise—are entitled to the full array of First Amendment protections, including the right to free exercise.  They are not the only proponents of this position. See Hobby Lobby; see also Conestoga Wood. There is an appeal to this simple reasoning; after all, the free-exercise and free-speech rights are enshrined in the same constitutional provision, separated only by a semicolon.

Perhaps Appellants’ constitutional arithmetic, Citizens United plus the Free Exercise Clause equals a corporate free-exercise right, will ultimately prevail.  But we must be mindful that Citizens United represents the culmination of decades of Supreme Court jurisprudence recognizing that all corporations speak. See Conestoga Wood. When it comes to the free exercise of religion, however, the Court has only indicated that people and churches worship. As for secular corporations, the Court has been all but silent.

Consider Bellotti—the progenitor of Citizens United. When the Bellotti Court declared “political speech does not lose First Amendment protection ‘simply because its source is a corporation,’” Citizens United (quoting Bellotti), it reviewed many cases in which the Court invalidated a state law because it “infringe[d on] protected speech by corporate bodies.” Bellotti. In other words, Bellotti crystallized a robust body of caselaw giving rise to the constitutional right of corporate political speech, which the Citizens United Court could rely on as a firm foundation.

No such corpus juris exists to suggest a free-exercise right for secular corporations. Thus, we read the “nature, history, and purpose” of the Free Exercise Clause as militating against the discernment of such a right.  When it comes to corporate entities, only religious organizations are accorded the protections of the Clause.  And we decline to give credence to the notion that the for-profit/non-profit distinction is dispositive, as that, too, is absent from the Clause’s history.  Fortunately, we need not opine here on what a “religious organization” is, as the Freshway companies have conceded they do not meet that criterion.

Judge Randolph did not join this part of Judge Brown's analysis:

I do not join parts III and IV of Judge Brown’s opinion because I do not believe we need to reach the potentially far-reaching corporate free-exercise question. Other courts in contraceptive-mandate cases have “decline[d] to address the unresolved question of whether for-profit corporations can exercise religion.” The same approach may be used without deciding the rights of the Freshway Corporations because the government could enforce the mandate against the corporations only by compelling the Gilardis to act. Since “it is not necessary to decide more, it is necessary not to decide more.” PDK Labs. Inc. v. U.S. Drug Enforcement Admin. (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment).

We should be particularly hesitant to pass unnecessarily on such a complex issue. If secular for-profit corporations can never exercise religion, what of profitable activities of organized religions? If only religious for-profit organizations have a free-exercise right, how does one distinguish between religious and non-religious organizations? Why limit the free-exercise right to religious organizations when many business corporations adhere to religious dogma? See Mark L. Rienzi, God and the Profits: Is There Religious Liberty for Money-Makers?, 21 Geo. Mason L. Rev. (manuscript at 11-24) (forthcoming fall 2013). If non-religious organizations do not have free-exercise rights, why do non-religious natural persons (athiests, for example) possess them? If a corporate free-exercise right is recognized, in any form, there are equally challenging secondary questions. How should the beliefs of a religious corporation be determined? Can publicly traded corporations be religious? If so, do they take on the religions of their shareholders as a matter of course? If a religious corporation is sold, does it retain its religious identity? These questions, challenging in themselves, would confront us in different permutations across the diverse entity forms and organizational structures of the American business landscape.

UPDATE: I have generally avoidd citing second-hand commentary about these decisions, but this column by Emily Bazelon and Dahlia Lithwick contains several misleading (either by lack of understand, obfuscation, or some combination) claims about the role of Citizens United in the court's decision. The relevant text of the court's actual holding is cited above.

Citizens United in Affordable Care Act litigation, Part IV

Fresh off the heels of yesterday's Part III, here comes Part IV.  A petition for writ of certiorari (PDF) has been filed with the Supreme Court appealing the Third Circuit's decision in an Affordable Care Act case regarding a business alleging a right to religious liberty. The petition invokes Citizens United twice, noting that "other areas of First Amendment law, including the free speech doctrine, recognize that 'First Amendment protection extends to corporations,'" "'for-profit and non-profit.'" (p. 10 & 25)