Wednesday, February 17, 2016
Definitive paper on free speech in state campaign spending law cases
by Larry Geller
Jamestown, NY attorney Randy Elf has written what promises to be the definitive paper addressing how federal and state courts have interpreted the First Amendment to regulate free speech in political-committee or similar situations. His article, The Constitutionality of State Law Triggering Political Committee(-Like) Burdens and the Current Circuit Splits, has just been accepted for publication in the Regent University Law Review, Volume 29, 2016-17.
We “lay readers” (that is, those of us who disobeyed our mother’s admonition to become lawyers) have been given a gift: all the citations are in footnotes, and the text of the paper is easily readable by anyone who wants to come up to speed on this complex issue.
It turns out, as the abstract describes, that the First, Second, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh circuits have addressed state law differently. Attorney Elf has had the rare opportunity to brief judges convincingly in related cases. While most of us might follow a case by attending hearings in federal court, the cases are won (or lost) by what we don’t see or hear in the courtoom—the briefs prepared by both sides that educate the judge on even the most difficult of cases. If expertly prepared, the briefs carry the weight of the argument.
Hawaii’s cases are cited in the paper. The case that was originally heard by Judge J. Michael Seabright in Hawaii District Court was Yamada Et Al. v. Kuramoto Et Al, also referred to as the A-1 A-Electrician case (1:10-cv-00497-JMS-LEK).
I was able to attend hearings at the District Court level and then at the 9th Circuit hearing held at the UH law school.
The value of sound briefing was evident from the beginning. From an earlier Disappeared News article:
The heart of the hearing took place at about 11:00 a.m. in a spirited back-and-forth between Judge Seabright and [plaintiff] attorney [Randy] Elf. It was clear that Seabright had studied related cases from other circuits as well as Citizens United, the Supreme Court case that blew the lid off of corporate campaign contributions. During the discussion Elf demonstrated a command of the core issues that was impressive, and which helped Seabright to clarify his own understanding.
You can be the judge
Essentially, Elf and Judge Seabright worked out the details of the eventual order in a rapid-fire discussion that left the state attorney (and the rest of us) on the sidelines. I wished I had paid more attention to the filed briefings.
Now anyone interested in these cases can be “briefed” as though they were a judge deciding one of these state cases. Elf’s exemplary scholarship should satisfy those attorneys and students who need to come up to speed on these cases, and his structuring of the text makes it accessible to journalists and to the rest of us who skipped law school (sorry, mom).
It is difficult to snip from this paper, but to encourage non-attorneys to have a look, I’d like to quote a short passage (from p. 3) that takes the reader back before there was even a First Amendment. I’ve had to leave off the bulk of that discussion, but I do want to show how accessible the paper is. Footnotes have been skipped.
Political‐speech laws regulate speech at the heart
of republican – i.e., a democratically elected representative
– government. Thus, it is useful to back up and recall the
underlying principles. First principles do not begin with the First Amendment. Even before the First Amendment come the separation of powers, and the limited and enumerated powers of government. Even before these principles comes “the struggle of … people to (a) establish themselves as sovereign and (b) curb the power of government officials to prevent the people from criticizing official actions.” Centuries of history, including Western history, are replete with ill‐begotten efforts to ban, otherwise limit, or regulate political speech. This is not a new problem: Moses confronted it when he said, “Let my people go,” and Pharaoh was none too pleased.
Yet unlike in America’s mother country, where government power flows from the Crown, the framers established government with the consent of the governed, and government has only those powers that the governed surrendered to it in the first place.