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Writing Reform Writing Reform A Guide to Drafting State & Local Campaign Finance Laws 2004 Revised Edition Deborah Goldberg, Editor BRENNAN CENTER FOR J USTI CE AT NYU SCHOOL OF LAW 8 1998, 2000, 2001, 2004. This publication is covered by the Creative Commons “Attribution-No Derivs- NonCommercial” license (see http://creativecommons.org). It may be reproduced in its entirety as long as the Brennan Center for Justice at NYU School of Law is credited, a link to the Center’s web page is provided, and no charge is imposed. The publication may not be reproduced in part or in altered form, or if a fee is charged, without the Center’s permission. Please let the Center know if you reprint: [email protected], 212-998-6730. ISBN 0-9654063-1-8 About the Brennan Center for Justice The Brennan Center for Justice at New York University School of Law unites thinkers and advocates in pursuit of a vision of inclusive and effective democracy. Our mission is to develop and implement an innovative, nonpartisan agenda of scholarship, public education, and legal action that promotes equality and human dignity, while safeguarding fundamental freedoms. The Center carries forward the legacy of the late Supreme Court Justice William J. Brennan, Jr. in areas he profoundly influenced, including strengthening democracy and ensuring fairness to the poor. The Center takes its cue not from Brennan opinions written for a past era, but from the singular Brennan spirit of asking the hard questions, transcending conventional wisdom, keeping faith in the power of open and honest discourse, and building unlikely coalitions around practical solutions. About the Democracy Program The Brennan Center=s Democracy Program draws its inspiration from Justice Brennan=s tireless effort to bridge the gap between our democracy in practice and the ideal. The Center launched the program by undertaking a particularly challenging issue: campaign finance reform. The Campaign Finance Reform Project strives to strike the proper balance between the need for candidates and political organizations to raise sufficient funds to communicate with voters effectively and other interests, such as ensuring that elected officials are not unduly influenced by donors and that elections embody the fundamental principle of political equality that underlies the Constitution. The Democracy Program also includes a Voter Choice Project, which focuses on increasing choice at the ballot box, a Fair Courts Project, which promotes efforts to preserve fair and impartial courts, a Voting & Representation Project, which promotes more inclusive participation in self-government, and a Free Expression Policy Project, which protects the open and robust debate necessary for democratic decision-making. About the Editor Deborah Goldberg is the Director of the Democracy Program at the Brennan Center. She oversees all of the Program’s scholarship, public education, and litigation. Campaign finance cases that she has litigated across the country include Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) (upholding low contribution limits against First Amendment challenge), in which she served as lead counsel for the intervenor. Ms. Goldberg graduated from Harvard Law School (1986), clerked for then-Judge Stephen G. Breyer of the U.S. Court of Appeals for the First Circuit and for Judge Constance Baker Motley of the U.S. District Court for the Southern District of New York, and then entered private practice. Before law school, she obtained a doctorate in philosophy from Johns Hopkins University (1980) and taught ethics and political philosophy for three years at Columbia University. ii Acknowledgments The Brennan Center would like to express its appreciation to the supporters of our work on the revised 2004 edition of this legislative drafting handbook, in particular, and the Center=s Campaign Finance Reform Project, in general: Carnegie Corporation of New York Deer Creek Foundation The Joyce Foundation Open Society Institute The Center=s Campaign Finance Reform Project staff collaborated in drafting the first edition of this book, and many people have contributed to the revisions this year. For the revised 2004 edition, Associate Counsel Adam Morse and former Associate Counsel J.J. Gass (now practicing law in the Netherlands) contributed final drafts of Chapters Four, Six, and Eight. Law student interns Simon Brandler, Kristin Glover, Jobina Jones, David Palmer, Michelle Stern, and Rick Simon conducted painstaking cite-checking of the text. Democracy Program Research Associate Sarah Samis and Program Associate Gareth White provided indispensable assistance in updating the Appendices. I am deeply appreciative of all of their work. But our largest debt of gratitude goes to the Program’s most dedicated volunteer lawyer ever, Emilia Sicilia, who identified and analyzed all of the campaign finance cases decided since the book’s last revision in 2001, analyzed where they should be discussed in the test, drafted initial revisions of Chapters 4-6, and assisted with cite-checking. As ever, any errors that remain are entirely mine. C Deborah Goldberg, Editor iii CONTENTS OUTLINE OF CONTENTS ............................................................................................................ vi FOREWORD ................................................................................................................................F-1 PART ONE: PRINCIPLES OF GENERAL CONCERN CHAPTER ONE: THE CONSTITUTIONAL FRAMEWORK: BUCKLEY V. VALEO ................I-1 CHAPTER TWO: DRAFTING LAWS TO SURVIVE CHALLENGE........................................ II-1 PART TWO: DRAFTING SPECIFIC CAMPAIGN FINANCE REFORMS CHAPTER THREE: THE FINANCING OF CANDIDATES= CAMPAIGNS ........................... III-1 CHAPTER FOUR: THE FINANCING OF POLITICAL ORGANIZATIONS...........................IV-1 CHAPTER FIVE: LIMITS ON CANDIDATE SPENDING......................................................... V-1 CHAPTER SIX: LIMITS ON INDEPENDENT EXPENDITURES.............................................VI-1 CHAPTER SEVEN: CAMPAIGN ADVERTISING AND ISSUE ADVOCACY.........................VII-1 CHAPTER EIGHT: REPORTING AND DISCLAIMER RULES ........................................... VIII-1 EPILOGUE: A NOTE ON LOCAL LEGISLATION...................................................................E-1 APPENDICES APPENDIX A: CHAPTER-BY-CHAPTER TABLE OF CITED CASES ............................................. A-1 APPENDIX B: LAY PERSON=S GUIDE TO FEDERAL CIRCUITS..................................................B-1 APPENDIX C: LIST OF CITED ARTICLES AND BOOKS ...............................................................C-1 APPENDIX D: SELECTED LIST OF NATIONAL ORGANIZATIONS OFFERING RESOURCES FOR CAMPAIGN FINANCE REFORMERS......................................... D-1 v OUTLINE OF CONTENTS FOREWORD (Purpose, Format, Warning) ................................................................................F-1 PART ONE: PRINCIPLES OF GENERAL CONCERN CHAPTER ONE: THE CONSTITUTIONAL FRAMEWORK: BUCKLEY V. VALEO ................I-1 I. Contribution and Expenditure Limitations ...........................................................I-2 A. General Principles...........................................................................................I-2 B. Contribution Limitations.................................................................................I-4 1. The $1,000 Limit on Contributions to Candidates .......................I-4 2. Other Contribution Limitations ....................................................I-5 C. Expenditure Limitations .................................................................................I-6 1. The $1,000 Limitation on Independent Expenditures ..................I-6 2. Other Expenditure Limitations .....................................................I-8 II. Reporting and Disclaimer Requirements..............................................................I-8 III. Public Financing of Presidential Election Campaigns........................................I-10 BUCKLEY REAFFIRMED: NIXON V. SHRINK MISSOURI GOVERNMENT PAC ...................I-12 GIANT LOOPHOLES SUCCESSFULLY CLOSED: MCCONNELL V. FEC……………...….I-15 I. Soft Money………………………………………………………………...……I-16 II. Express Advocacy, Issue Advocacy, and Electioneering Communications…….I- 18 III. Other Holdings in McConnell..............................................................................I-20 A. Coordination .................................................................................................I-20 B. Miscellaneous................................................................................................I-21 CHAPTER TWO: DRAFTING LAWS TO SURVIVE CHALLENGE .................................................. II-1 vi I. Legislative Findings............................................................................................ II-1 II. Statutory Purposes .............................................................................................. II-3 III. Clarity and Precision........................................................................................... II-5 IV. Scope................................................................................................................... II-6 V. Enforcement........................................................................................................ II-6 VI. Red Flags ............................................................................................................ II-7 VII. Severability Clauses...........................................................................................
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