Who is Mr. McCutcheon and how is his case different from Citizens United?

Must post first.

Please review this video on McCutcheon v FEC.

Then, check this out and this link Symposium: McCutcheon and the future of campaign finance regulation from SCOTUSblog.com.

Required response:

Who is Mr. McCutcheon and how is his case different from Citizens United? Why are some people freaking out? Why are some people happy?

Additional information:

  1. Citizens United Explained: https://www.brennancenter.org/our-work/research-reports/citizens-united-explained
  2. Citizens United v. Federal Election Commission: https://www.oyez.org/cases/2008/08-205

Respond: Commercial Speech In a Nutshell

Must post first.

Remember that Commercial Speech means a whole range of things from advertising to any expression communicated to the general public, certain customers or even to vendors or suppliers for business purposes.

Try to understand the seminal cases in these areas–most of which, interestingly, begin with regulation of outdoor advertising (billboards, liquor and cigarette ads). Now think where this could end up… we could teach a whole course on this topic, and here we indeed see regulation of the intersection of media and commerce. It’s important–especially if you want to be a communications professional: public relations, corporate messaging, advertising (www.adweek.com), even consumer protection (false & misleading, puffed up advertising, advertising and enforcement of warranties), etc.

There is another intersection. As you now know from this week’s study, Political Speech realm has given us Citizens United and McCutcheonCitizens United and explosion of SuperPACs and “Dark Money” anonymous nonprofits (which are in reality, despite the hype, at the heart of the current IRS brouhaha in the Obama Administration, has created state legislators and members of Congress very with narrow interests based on the finance of their campaigns by business interests. That’s not a political statement– its a fact. Accordingly, you are already seeing the impact in their opposing judicial nominees from state court to the SCOTUS, who support regulation of commercial speech, particularly in consumer protection, advertising, etc. They are trying to repeal laws in those areas, or “defund” agencies such as the FCC, FTC, Consumer Products Safety Commission and the Consumer Finance Protection Agency, or even the FDIC, U.S. Dept. of Agriculture, FDA and Comptroller of the Currency (for national banks). In other words, any agency which may have a say in what corporations, businesses, banks say to the public, through the mass media. Thus the entire area of law here is now in flux, evolving. It used to be fairly quiet!

Required response:

Here is a hard and tricky question…is this commercial speech–in reverse? Check it out: North Carolina’s controversial new fracking bill has been signed by governor. Many republican legislators and governor McCrory himself have ties to the industry and received massive campaign contributions from PAC’s and individual gas companies. If you talk negatively about fracking and in the process reveal things the industry wants secret, far beyond the usual trade secret protection, you could go to jail. It’s clear from the legislative history of the bill that the gas industry wanted to stop anti-fracking scientists and environmentalists from introducing data on ground water pollution etc. Do citizens or media outlets publishing stories contrary to this law have a palpable First Amendment claim?

The general legal standard for regulation of commercial speech is still, typically, pretty easy in terms of latitude by judges. In other words, a a law Congress, a state legislature or a city council passes, or even an administrative regulation, just has to be rationally related to an important or reasonable governmental interest. That’s much lower than the strict or mid level scrutiny we’ve already studied, right? Well, it’s pretty clear the SCOTUS may mess with that standard…depending on what the majority is trying to accomplish. Regs and law regulating business practices as they relate to communication, advertising, etc. beyond the very weird scope of the Hobby Lobby case might definitive rise to mid-level scrutiny(perhaps even strict scrutiny—as Justices Antonin Scalia and his sidekick Clarence Thomas see it).

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