Law 940-009 Fall 2005

Mondays and Wednesday (Sept. 7 – Dec. 7) 4:35 – 5:55 p.m., 2211 Law

Political Law Campaign Finance, Ethics & Elections

INTRO. SEPTEMBER 7

Introduction to Political Law – Concepts and Terminology

Campaign Finance Guide Ch. 1 Brief History of Money & Politics Glossary (pp. 70-75)

Lowenstein/Hasen Ch. 14 Introductory Readings on Campaign Finance (excerpts) (pp. 717 – 725) (pp. 741-760)

WEEK 1 SEPTEMBER 12 & 14

The Regulators and The Regulated

Campaign Finance Guide Ch. 2 Political Actors and their Activities Ch. 5 The Federal Election Commission

“Campaign Finance and Bookkeeping Manual,” Wisconsin State Elections Board (April 2004) (excerpts) (SUPPLEMENT / PDF)

Shays v. FEC (“Shays I”), No. 04 -5352 (414 F.3d 76) (D.C. Cir.) (July 15, 2005, reissued Sept. 1, 2005) (excerpt) (slip op. pp. 1-8, 44-57) (SUPPLEMENT / PDF)

WEEK 2 SEPTEMBER 19 & 21

Bribery & Corruption

“Mr Clean Gets Dirty: The Demise of Public Ethics in Wisconsin,” Dennis L. Dresang, Public Integrity, Vol. 5, No. 4 (Fall 2003) (SUPPLEMENT / PDF)

Interested Clients Memorandum (April 27, 2001) (SUPPLEMENT / PDF) Fall 2005 Page 2

Lowenstein/Hasen Ch. 13 Bribery (pp. 663–715)

People v. Hochberg, 62 A.D.2d 239, 404 N.Y.S.2d 161 (App. Div. 1978)

People ex rel. Dickinson v. Van de Carr, 87 A.D. 386, 84 N.Y.S. 461 (App. Div. 1903)

State v. Agan, 384 S.E.2d 863 (Ga. 1989), cert. denied, 494 U.S. 1057 (1990)

McCormick v. United States, 500 U.S. 257 (1991)

United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999)

State v. Bowling, 427 P.2d 928 (Ariz. Ct. App. 1967)

WEEK 3 SEPTEMBER 26 & 28

Buckley and Its Progeny

Lowenstein / Hasen Ch. 15 The Buckley Framework (pp. 761–796)

Buckley v. Valeo, 424 U.S. 1, 12-59 (1976)

Ortiz, Daniel R., “The First Amendment and the Limits of Campaign Finance Reform,” The New Campaign Finance Sourcebook (April 2004) (excerpt) (pp. 1-16) (SUPPLEMENT / PDF)

Buckley v. Valeo, 424 U.S. 1, 12-59 (1976)

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)

FEC v. Mass. Citizens for Life, Inc. (MCFL), 479 U.S. 238 (1986)

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)

Colorado Republican Federal Campaign Committee v. FEC (Colorado I), 518 U.S. 604 (1996)

FEC v. Colorado Republican Federal Campaign Committee (Colorado II), 533 U.S. 431 (2001) Fall 2005 Page 3

WEEK 4 OCTOBER 3 & 5

New Deference Quartet

Lowenstein / Hasen Ch. 17 The New Deference (excerpt) (pp. 861–937)

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000)

McConnell v. Federal Election Commission, 540 U.S. 93 (2003)

FEC v. Colorado Republican Federal Campaign Committee (Colorado II), 533 U.S. 431 (2001) (SUPPLEMENT / PDF)

FEC v. Beaumont, 539 U.S. 146 (2003) (SUPPLEMENT / PDF)

Smith, Bradley A., “Campaign Finance Reform: Searching for Corruption in All the Wrong Places,” Cato Supreme Court Review, 2002-2003 (Sept. 2003) (SUPPLEMENT / PDF)

Breyer, Justice Stephen, “Our Democratic Constitution,” Harvard University Tanner Lectures On Human Values 2004-2005 (Nov. 17, 2004) (SUPPLEMENT / PDF)

WEEK 5 OCTOBER 10 & 12

Corporate Speech

Robert M. La Follette, “Message to State Legislature: The Corporation in Campaigns and Elections,” Journal of the Senate (Jan. 12, 1905) (excerpt) (SUPPLEMENT / PDF)

Robert M. La Follette, “Remarks to the State,” Journal of the Senate (Jan. 25, 1905) (excerpt) (SUPPLEMENT / PDF)

Lowenstein / Hasen Ch. 16 After Buckley: Who May Be Regulated, and for What Reasons? (pp. 797–859)

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)

FEC v. MCFL, 479 U.S. 238 (1986)

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) Fall 2005 Page 4

WEEK 6 OCTOBER 17 & 19

Electioneering Communication (Express Advocacy and Issue Advocacy)

Campaign Finance Guide Ch. 3 Regulation of Political Advertising (excerpt) (pp. 36-43)

Lowenstein / Hasen Ch. 17 Issue Advocacy (excerpt) (pp. 937-956)

McConnell v. Federal Election Commission, 540 U.S. 93 (2003)

Federal Election Commission v. Furgatch, 807 F.2d 857 (9th Cir.), cert. denied, 484 U.S. 850 (1987) (SUPPLEMENT / PDF)

Elections Board v. Wisconsin Manufacturers & Commerce, 227 Wis. 2d 650, 597 N.W.2d 721, cert. denied, 528 U.S. 969 (1999) (SUPPLEMENT / PDF)

Wisconsin Realtors Ass’n v. Ponto, 233 F. Supp. 2d 1078 (W.D. Wis. 2002) (SUPPLEMENT / PDF)

Wisconsin Right to Life v. FEC, Jurisdictional Statement to U.S. Supreme Court (U.S. May 23, 2005) (No. 04-1581) (SUPPLEMENT / PDF)

WEEK 7 OCTOBER 24 & 26

Coordination and Independent Political Activities

Federal Election Comm’n v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999) (excerpts) (SUPPLEMENT / PDF)

Wisconsin Coalition for Voter Participation, Inc. v. Wisconsin Elections Board, 231 Wis. 2d 670, 605 N.W.2d 654 (Ct. App. 1999) (SUPPLEMENT / PDF)

“Summary of Findings of Investigation of Complaint of Walt Kelly,” Wisconsin Department of Justice (March 22, 2000) (memorandum) (SUPPLEMENT / PDF)

Wisconsin Elections Board letter to Susan Armacost (June 21, 2000) (SUPPLEMENT / PDF)

Shays v. FEC (“Shays I”), Case No. 02 CV 01984 (U.S. App. D.C.) (July 15, 2005, reissued Sept. 1, 2005) (excerpt) (slip op. pp. 32-43) (SUPPLEMENT / PDF) Fall 2005 Page 5

WEEK 8 OCTOBER 31 & NOVEMBER 2

Political Broadcasting, the Media Exemption and the Internet

Campaign Finance Guide Ch. 3 Regulation of Political Advertising (excerpt) (pp. 44-47)

Political Broadcasting 2004, LaFollette Godfrey & Kahn (2004) (excerpts) (SUPPLEMENT / PDF)

McCain, John S., “Free Air Time: The Continuing Reform Battle,” 2 Election Law Journal 171 (2003) (SUPPLEMENT / PDF)

Potter, Trevor and Jowers, Kirk L., “Election Law and the Internet,” The New Campaign Finance Sourcebook (Feb. 2005) (SUPPLEMENT / PDF)

FEC’s Notice of Proposed Rulemaking 2005-10: Internet Communications (SUPPLEMENT / PDF)

Comments submitted by Campaign Legal Center / Democracy 21 / Center for Responsive Politics (June 3, 2005)

Comments submitted by Eschaton / DailyKos / The Blogging of the President (June 3, 2005)

WEEK 9 NOVEMBER 7 & 9

Campaign Finance “Reform” and Public Financing

Campaign Finance Guide Ch. 4 Public Funding of Presidential Elections (pp. 48 - 55)

Lowenstein / Hasen Ch. 18 Public Financing (pp. 957–988)

Daggett v. Commission on Governmental Ethics and Elections Practices, 205 F.3d 445 (1st Cir. 2000)

Lowenstein / Hasen Chapter 19 Campaign Finance Disclosure (pp. 989–1024)

Buckley v. Valeo, 424 U.S. 1, 60-84 (1976)

McIntyre v. Ohio Elections Commission, 514 U.S., 334 (1995) Fall 2005 Page 6

McConnell v. FEC, 540 U.S. 93 (2003)

Shays v. FEC (“Shays II”), Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion for Summary Judgment (D.D.C) (Apr. 29, 2005) (excerpt) (SUPPLEMENT / PDF)

Shays v. FEC (“Shays II”), Defendant FEC’s Memorandum in Support of the Commission’s Motion for Summary Judgment, and in Opposition to Plaintiffs’ Motion for Summary Judgment (D.D.C.) (June 7, 2005) (excerpt) (SUPPLEMENT / PDF)

Vermont Republican State Committee v. Sorrell, Petition for Writ of Certiorari to U.S. Supreme Court (U.S. May 12, 2005) (No. 04-1530) (SUPPLEMENT / PDF)

WEEK 10 NOVEMBER 14 & 16

Internal Revenue Code and Tax Exempt Organizations

“Characteristics of and Reporting Requirements for Select Tax-Exempt Organizations,” Congressional Research Service (Mar. 8, 2001) (SUPPLEMENT / PDF)

“The New Stealth PACs: Tracking 501(c) Non-Profit Groups Active in Elections,” Public Citizen’s Congress Watch (Sept. 2004) (excerpt) (SUPPLEMENT / PDF)

Kingsley, Elizabeth & Pomeranz, John, “A Crash at the Crossroads: Tax and Campaign Finance Laws Collide in Regulation of Political Activities of Tax-Exempt Organizations,” 31 Wm. Mitchell L. Rev. 55 (2004) (SUPPLEMENT / PDF)

Foley, Edward B. & Tobin, Donald, “The New Loophole? 527’s, Political Committees and McCain-Feingold,” BNA Money & Politics Report (Jan. 7, 2005) (SUPPLEMENT / PDF)

WEEK 11 NOVEMBER 21

Judicial Elections

Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (SUPPLEMENT / PDF)

Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005) (SUPPLEMENT / PDF)

Randall v. Sorrell, Brief Amici Curiae of Current and Former State Court Justices and Judges (U.S. June 15, 2005) (No. 04-1528) (SUPPLEMENT / PDF) Fall 2005 Page 7

Abrahamson, Hon. Shirley, “Making judicial independence a campaign issue,” Wisconsin Lawyer (Feb. 2005) (SUPPLEMENT / PDF)

WEEK 12 NOVEMBER 28 & 30

Third Parties / Independent Candidates / Debates

Lowenstein / Hasen Ch. 10 Third Parties and Independent Candidates (pp. 533–579)

Munro v. Socialist Workers Party, 479 U.S. 189 (1986)

Buckley v. Valeo, 424 U.S. 1, 85-109 (1976)

Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997)

Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998)

Becker v. Federal Election Commission, 230 F.3d 381 (1st Cir. 2000), cert. denied, 532 U.S. 1007 (2001) (SUPPLEMENT / PDF)

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005) (SUPPLEMENT / PDF)

WEEK 13 DECEMBER 5 & 7

Ethics & Lobbying Regulation

Wisconsin Ethics Board: Overview (2005) (pamphlet) (SUPPLEMENT / PDF)

“Ethics Code Requirements,” Wisconsin Legislator Briefing Book 2005-06 (SUPPLEMENT / PDF)

A Brief History of Wisconsin’s Lobbying Law (2003) (pamphlet) (SUPPLEMENT / PDF)

“Lobbying Law Requirements,” Wisconsin Legislator Briefing Book 2005-06 (SUPPLEMENT / PDF)

2005 Wisconsin Senate Bill 1 (except) (SUPPLEMENT / PDF)

“The Lobbying Disclosure Act of 1995: A Brief Description,” Congressional Research Service (January 4, 1996) (SUPPLEMENT / PDF) Fall 2005 Page 8

Resources

Federal Election Campaign Laws, Compiled by the Federal Election Commission (Sept. 2004)

11 Code of Federal Regulations: Federal Elections (Jan. 1, 2005)

Wisconsin Statutes

- Ch. 5 – 12 (Election and Campaign Finance Provisions) - Ch. 13, Subch. III (§ 13.61 – § 13.75) (Regulation of Lobbying) - Ch. 19, Subch. III (§ 19.41 – § 19.59) (Code of Ethics for Public Officials and Employees)

Wisconsin Administrative Code

ElBd – State Elections Board

Eth – State Ethics Board

Internet Sites

Federal Election Commission: www.fec.gov

State Elections Board: elections.state.wi.us

State Ethics Board: ethics.state.wi.us

Lobbying, PACs, and Campaign Finance: 50 State Handbook, State Capital Law Firm Group (2005 Ed.).

See also Campaign Finance Legal Guide’s list of “Resources: Where to go for more information on campaign finance” at pp. 64-67. Fall 2005 Page 9

Instructors

Mike Wittenwyler is the lead attorney in Godfrey & Kahn’s Political Law Group. Each day, he advises businesses, trade associations and other organizations in their interactions with government.

Mike works with clients on campaign finance, election law, ethics and lobbying regulation, and the tax regulation of political activities. He also performs legislative planning, analysis and drafting for business and industry groups. His work on administrative and regulatory matters includes responding to agency investigations and enforcement actions as well as the review of and challenge to agency actions. He frequently participates in litigation on these matters, often on behalf of coalitions of individuals, businesses and trade associations. In 2003 and again in 2005, Mike was voted a "top lawyer" in Election/Campaign Finance/Political law in a survey of other attorneys conducted by Madison Magazine.

Many of the matters Mike works on are controversial, high-profile and involve the courtroom of public opinion. In these situations, Mike often takes a leading role in developing and coordinating a crisis management team assembled to deal with the problem at hand. He is skilled at explaining legal issues in compelling but accessible language and frequently interacts with the media. In connection with the 2004 presidential election, Mike worked with NBC/MSNBC News on its election night coverage of events in the Midwest.

As part of his work on political law matters, Mike provides consulting services to a variety of organizations in connection with their government affairs activities. Working with lobbyists and lobbying organizations (but not as a lobbyist himself), Mike helps organizations improve their public policy programs through audits and reviews of an organization’s legislative and political effectiveness. He is often consulted on structural and staffing changes by organizations and has participated in the recruitment and hiring of several government relations professionals.

Mike is a principal in Capitol Opinion, LLC, a non-partisan survey research firm, and NL Enterprises LLC, a newly-formed media tracking and analysis company.

Mike often speaks before seminars organized by businesses and trade associations and teaches "Political Law: Elections, Campaign Finance and Lobbying" at the University of Wisconsin Law School. He is a member of the Council on Governmental Ethics Law, American Association of Political Consultants as well as the American Bar Association’s Administrative Law and Regulatory Practice Section.

Mike has direct experience with political campaigns and media relations and, prior to law school, worked as a congressional aide in Washington, D.C. Before joining the firm, he served as campaign manager and spokesperson for U.S. Senator Russ Feingold’s (D-WI) successful 1998 re-election.

In 1995, Mike graduated with distinction from the University of Wisconsin-Madison with a bachelor’s degree in political science and earned his law degree from the University of Wisconsin in 1998. Fall 2005 Page 10

David Anstaett is an associate at Heller Ehrman, LLP. He has a long-standing interest in campaign finance and election law. Prior to law school, David was a lobbyist for the League of Women Voters of the United States in Washington, D.C., where he worked to help secure passage of the Bipartisan Campaign Reform Act (“BCRA”), popularly known as the McCain-Feingold law. He is currently a member of a pro bono team of lawyers representing Christopher Shays (R-CT) and Martin Meehan (D-MA), BCRA’s House co-sponsors, in two lawsuits against the Federal Election Commission in federal court in Washington. Each suit seeks to force the Commission to effectively implement and enforce federal campaign finance laws. David has also done pro bono election law work for the Lawyers’ Committee for Civil Rights Under Law.

Before joining Heller Ehrman, David served as a law clerk for Chief Judge Barbara Crabb of the U.S. District Court, Western District of Wisconsin from 2001 - 2003. From 2003-2004, he lived in Berlin, Germany as a fellow of the Robert Bosch Foundation and worked at the German parliament with the lawyers charged with overseeing that country’s campaign finance laws. In Spring 2005, David was appointed by Chief Justice Abrahamson to serve a two-year term on the Wisconsin State Elections Board.

David received his bachelor’s degree in political science from the University of Kansas in 1992. He received his J.D., summa cum laude, from the University of Wisconsin Law School in 2001. Fall 2005 Page 11

Contact Information

Mike Wittenwyler Dave Anstaett ([email protected]) ([email protected])

LaFollette Godfrey & Kahn Heller Ehrman, LLP 1 East Main, Suite 500 1 East Main, Suite 201 Madison, WI 53703 Madison, WI 53703 608-284-2616 (direct) 608-663-5408 (direct) 608-257-0609 (fax) 608-663-7499 (fax)

Class

The three-credit seminar will meet on Monday and Wednesday afternoons from 4:35 to 5:55 in room 2211 Law.

Text

Lowenstein, Daniel H. and Hasen, Richard L., Election Law, 3d. ed. (Carolina Academic Press)

The Campaign Finance Guide, Campaign Finance Legal Center (2004)

The two required texts will be supplemented by several additional readings, available on paper as well as PDF. There also are likely to be several handouts during the semester of recent/developing events.

Exam

The grade for the class will be based on a three-hour final examination (closed book). The exam is scheduled for Thursday, December 15, 2005 at 8:30 a.m in Room 3260. The pass/fail option will not be available.

Review Sessions

Review sessions will be held prior to the final exam. Times and locations to be announced.

Paper

A fourth credit is available for students who submit a 15-20 page paper by December 23, 2005. All topics must be submitted and approved by the instructors by Wednesday, October 24, 2005.

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