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Election Law

The Criminalization of Politics - Event Audio/Video

Criminal Law & Procedure Practice Group
Todd P. Graves, Edward T. Kang, John C. Richter, John G. Malcolm December 15, 2014

What actions are political and what actions are criminal? Where should prosecutors and courts draw the lines? How should we decide what actions should be evaluated at the ballot box and what actions should be evaluated in a court of law? This panel will discuss the recent use of criminal law to pursue public officials and political activity. A presentation of former high level Justice Department attorneys will look to recent prosecutions, such as those of Bob McDonnell and John Edwards, to evaluate whether our criminal law is wading too deeply into political activity. Relying on their expertise, the panelists will address a number of federal crimes, like Honest Services Fraud, used to pursue politicians, and discuss whether it is wise to put politics on trial, or whether the voters should decide.

The Criminal Law & Procedure Practice Group hosted this event on December 11, 2014, at the National Press Club in Washington, DC.

Featuring:

  • Mr. Todd P. Graves, Graves Garrett LLC
  • Mr. Edward T. Kang, Partner, Alston & Bird LLP
  • Mr. John C. Richter, Partner, King & Spalding
  • Moderator: Mr. John G. Malcolm, Chairman, Federalist Society Criminal Law & Procedure Practice Group Executive Committee, and Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

National Press Club
Washington, DC

Susan B. Anthony List v. Driehaus - Post-Argument SCOTUScast

SCOTUScast 4-29-14 featuring John Malcolm
John G. Malcolm April 29, 2014

John MalcolmOn April 22, 2014, the Supreme Court heard oral argument in Susan B. Anthony List v. Driehaus. The question in this case is twofold. First, whether, to challenge a speech-suppressive law, a person whose speech is prohibited must prove that authorities would definitely and successfully prosecute him, as the Sixth Circuit holds, or whether the court should presume that a credible threat of prosecution exists absent the law falling into disuse or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold. The second question is whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws prohibiting “false” political speech are not subject to pre-enforcement First Amendment review as long as the speaker maintains that his speech is true, even if others who enforce the law disagree.

To discuss the case, we have John G. Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation.

Is “False” Political Speech Protected? - Susan B. Anthony List v. Driehaus - Podcast

Criminal Law & Procedure and Free Speech & Election Law Practice Groups Podcast
John G. Malcolm April 23, 2014

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On Tuesday, April 22, 2014, the Supreme Court heard oral arguments in Susan B. Anthony List v. Driehaus. The Court will answer the following questions: (1) Whether, to challenge a speech-suppressive law, a party whose speech is arguably proscribed must prove that authorities would certainly and successfully prosecute him, as the Sixth Circuit holds, or should the court presume that a credible threat of prosecution exists absent desuetude or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold; and (2) whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree. Our expert attended the oral arguments and offered his impressions to a call-in audience.

Featuring:

  • John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

[Listen now!]??

The First Amendment and Campaign Finance: Assessing the Recently-Decided McCutcheon v. FEC Case - Podcast

Free Speech & Election Law Practice Group Podcast
Bradley A. Smith April 09, 2014

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Stating that “There is no right more basic in our democracy than the right to participate in electing our political leaders,” on April 2, 2014, the U.S. Supreme Court struck down the federal biennial limit on contributions to non-candidate committees. News coverage of the decision explains that it effects only a small handful of donors, but characterizes it as important nevertheless. How sweeping is the decision, and how important might it prove to be in coming elections? Is the Court now positioned to continue to favor the First Amendment over the Bipartisan Campaign Reform Act?

Featuring:

  • Prof. Bradley A. Smith, 2013-14 Judge John T. Copenhaver Visiting Endowed Chair of Law, West Virginia University College of Law and Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law, Capital University Law School and former Chairman, Federal Election Commission

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McCutcheon v. FEC - Post-Decision SCOTUScast

SCOTUScast 4-7-14 featuring Derek Muller
Derek Muller April 07, 2014

Derek MullerOn April 2, 2014, the Supreme Court issued its decision in McCutcheon v. Federal Election Commission. This case involves constitutional challenges to federal election laws that limit, over the course of a two-year election cycle, the total amount a person may contribute to so-called “non-candidate committees,” such as political parties and political action committees. Petitioner McCutcheon contends that these limits are based on no “constitutionally cognizable interest” and therefore violate the First Amendment on their face, or alternatively, as applied to contributions to national party committees. In addition, McCutcheon contends, the limits are numerically so low as to be constitutionally invalid on that basis as well, both on their face and as applied. Finally, McCutcheon argues that federally imposed limits on contributions to candidate committees likewise violate the First Amendment for lack of a “constitutionally cognizable interest.”

In an opinion delivered by Chief Justice Roberts, the Court held by a vote of 5-4 that the aggregate limits violate the First Amendment, as they do little to prevent quid pro quo corruption or the appearance thereof, yet seriously restrict participation in the democratic process. Justices Scalia, Kennedy, and Alito joined the Chief’s opinion. Justice Thomas wrote an opinion concurring in the judgment. Justice Breyer wrote a dissenting opinion, joined by Justices Ginsburg, Kagan, and Sotomayor. The decision of the United States District Court for the District of Columbia was reversed and remanded.

To discuss the case, we have Derek Muller, an Associate Professor of Law at the Pepperdine University School of Law.