“Trump camp concedes it’s low on money”

Washington Examiner:

The notice came when Paul Manafort, Trump’s senior advisor, met with a group of Senate Republican chiefs of staff for lunch last week, sources familiar with the meeting told the Washington Examiner. The admission suggests that Trump will be far more dependent on the GOP brass for money than he has led voters to believe, but it’s consistent with his reliance on the Republican National Committee to provide a ground game in battleground states.

“They know that they’re not going to have enough money to be on TV in June and probably most of July, until they actually accept the nomination and get RNC funds, so they plan to just use earned media to compete on the airwaves,” one GOP source familiar with Manafort’s comments told the Examiner.

That’s a far cry from Trump’s public insistence that he signed a fundraising agreement with the RNC in order to help the party, not himself.


New CA Anti-Citizens United Ballot Measure Slightly Differernt

As we await word from Gov. Brown as to whether he will sign to put this on the ballot, there’s a slight difference in language this time around:

Now the question to the voters reads, “Shall California’s elected officials use all of their constitutional authority, including, but not limited to, proposing and ratifying one or more amendments to the United States Constitution, to overturn Citizens United . . . .”


The 2014 version would have posed this more limited question to the voters: “Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United . . . .”

So this includes calling for a constitutional convention, although the CA legislature already did that a few years ago.

Thanks to David Ettinger for the close reading!


“Gov. Brown to decide whether California voters will sound off in November on money in politics”


Lawmakers gave final approval Friday to a November ballot measure asking voters about the growing role of undisclosed donors in political campaigns, a non-binding anti-Citizens United measure that now needs the signature of Gov. Jerry Brown….But Republicans took issue with what Sen. Joel Anderson (R-Alpine) described as nothing more than placing a “public opinion poll” on the ballot. And critics in 2014 accused legislative Democrats of trying to boost turnout among the party faithful.

See my earlier LA Times oped on why I might vote for this misguided ballot measure if it is on the ballot.


“The Obama Administration Is Using Racist Court Rulings to Deny Citizenship to 55,000 People”

Pema Levy for Mother Jones:

It’s the job of the Department of Justice to defend the laws of the United States to the best of its ability. But earlier this month, that job led the Obama administration’s top lawyers to take an awkward, even embarrassing position: embracing a racist, century-old precedent in order to deny birthright citizenship to people from the territory of American Samoa.

American Samoans are the only people born on US soil who are denied birthright citizenship. Five people from the island territory are suing the federal government, arguing that this deprivation violates the 14th Amendment’s guarantee of birthright citizenship to “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof.” Last year, the DC Circuit Court of Appeals ruled against the American Samoans. The plaintiffs are now appealing to the Supreme Court.

On the opposite side is the Obama administration, which urged the Supreme Court not to take the case in a brief earlier this month. In doing so, the government offered a full-throated endorsement of a set of Supreme Court rulings known as the Insular Cases, which are notorious today for espousing antiquated ideas about colonialism and white supremacy.


“Clinton’s Best Defense”

Eliza Newlin Carney:

Nevertheless, Clinton’s reliance on costly ad blitzes to defend herself against critics makes her vulnerable to further attacks. Her appeals to Wall Street donors andcoordination with such big money groups as Correct the Record reinforce her image as an untrustworthy professional politician and party insider.

Another, more successful approach—one that Clinton has largely ignored—would be for her to actually campaign on the political money reform platform that she rolled out in September. Clinton won kudos from watchdogs when she pledged to reverse the Supreme Court’s 2010 Citizens United v. FEC ruling, pull back the curtain on secret money in elections, and match low-dollar campaign contributions with public funds.

Clinton’s reform platform is similar to that of Bernie Sanders, but she’s done little to talk it up. When the campaign reform group Every Voice held focus groups in Cleveland earlier this year, says the group’s president David Donnelly, voters given Clinton’s political money platform without hearing who authored it invariably identified it as a Sanders plan. Moreover, Donnelly notes, once participants learned the plan was Clinton’s, they were more inclined to back her.


“Federal judge throws out suit against Doe prosecutors”

Patrick Marley for the Milwaukee Journal-Sentinel:

A federal judge on Thursday threw out a lawsuit a former aide to Gov. Scott Walker brought against prosecutors, and said that a wealth of evidence seized by investigators about Walker’s campaign and conservative groups could be kept by the court.

That means two courts — the federal judiciary and the Wisconsin Supreme Court — could possess copies of the records about the inner workings of Walker’s campaign and conservative groups active in 2011 and 2012 recall elections. The material would remain under seal and out of the hands of the public, at least for now.

Milwaukee County District Attorney John Chisholm launched two probes related to Walker under the John Doe law that at the time allowed prosecutors to operate in secret and compel targets and witnesses to turn over their records.

I read the opinion. While respectful, the federal district court judge pretty strongly indicates skepticism with the decisions and behavior of the Wisconsin Supreme Court.


ACLU Calls OH SOS Husted’s Statement About Golden Week Litigation “Appalling”


“Ohio Secretary of State Jon Husted’s statement that the ACLU supported the elimination of Golden Week could not be further from the truth,” said ACLU of Ohio Senior Policy Director Mike Brickner. “The ACLU has always strongly opposed the elimination of Golden Week, particularly because its elimination would discriminate against African Americans. Our organization testified against cuts to Golden Week in the legislature and filed a lawsuit to restore it.”

“After protracted litigation, we entered into a settlement resulting in evening and weekend early voting hours for all Ohio counties, and the parties agreed that the settlement reflected no parties’ views about the merits of the case.  Secretary Husted’s insinuation that we have actually supported the racially discriminatory elimination of Golden Week all along is appalling.  We oppose all forms of voting discrimination, no matter what forms they may take.”

You can find Husted’s appalling statement here. (The ACLU definitely is right on this one.)


“Voting rights group: March primary signals problems for NC voters”

News and Observer:

Democracy North Carolina, a voting-rights advocacy organization, recorded the experiences of more than 1,400 North Carolina residents whose votes in the March primary election did not count and shared them with a federal appeals court on Thursday.

Bob Hall, the organization’s director, told reporters he thought the anecdotes and data from thousands of voters bolster the arguments of the NAACP and others challenging the state’s new voter ID law.


“Trump is borrowing the GOP brand. He’ll resist bending to party leaders”

Dan Balz in WaPo:

It’s been called a hostile takeover of the Republican Party, but there’s little that has happened since Donald Trump became the GOP’s presumptive nominee to suggest he wants anything to do with the party. He’s borrowing the brand for his own purposes.

In all ways, Trump continues to show that he is the anti-conventions candidate. That’s especially the case with any notions of him becoming the leader of a political party. Trump is a singular politician unlike any who has risen as fast and as far as he has in modern times. In the same way that he has demonstrated no consistency in his views on issues over time, there is nothing to suggest that he has much regard for the responsibilities and opportunities that come with being the leader of a party.


“They Tilt Right, but Top Chief Executives Don’t Give to Trump”


The C-suite leans right.

Republican candidates have drawn overwhelming support from the highest-paid chief executives in the country this election cycle, according to an analysis by the Center for Responsive Politicsconducted for The New York Times.

That may not be so surprising, given the Republicans’ reputation as the party of business. But none of the people on this year’s highest-paid list contributed to the campaign of Donald J. Trump, a fellow businessman and the presumptive Republican presidential nominee.

Their unwillingness to support Mr. Trump, at least so far, is a further indication that the party’s new standard-bearer is struggling to connect with some of its most influential constituents.


Penn Law Review Special Issue on Campaign Finance


On the forty-year anniversary of Buckley v. Valeo, and in the midst of a presidential election campaign, the University of Pennsylvania Law Review Online is pleased to present this Special Issue on Campaign Finance, in collaboration with Demos.

























Fascinating New Poll on Voting Rights Finds Support for Proof of Citizenship, Preventing Fraud, But Partisan Divide

[Update: See the HuffPo story on the poll.]

Among the YouGov results:

Do you think people should or should not have to show proof of citizenship in order to register to vote?
They should have to show proof of citizenship . . . . . . . . . . . . . . . . . . . . . . . . . . .68%
They should not have to show proof of citizenship . . . . . . . . . . . . . . . . . . . . . . . 22%
Not sure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10%

Which of the following do you think is more important?
Making sure that no one is able to commit voter fraud . . . . . . . . . . . . . . . . . . . 53%
Making sure that no one who is eligible to vote is prevented from doing so 39%
Not sure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8%

On the “more important” question, here are the crosstabs by party:

Screen Shot 2016-05-26 at 1.23.37 PM


“How California Is Solving Its Voting Rights Problem”

Spencer Woodman for VICE:

Similar battles over voting rights and election fairness have been taking place around California, where rapidly shifting demographics have threatened to upend traditional centers of power in recent decades. As growing minority populations fight for a place in local government, the drawing of voter districts has become a major battleground, determining who gets to have a say in important aspects of civic life. In the past few weeks alone, California’s voting rights disputes resulted in a federal voting rights suitagainst alleged districting discrimination in Kern County; a redrawing of districts in the coastal town of San Juan Capistrano, following a state voting rights suit; and legal action by Shenkman against an allegedly suppressive school district in the Los Angeles area.

“These things are happening all over the state,” said Richard Hasen, a professor of law and political science at the University of California, Irvine. “Inertia is a powerful force, and people who benefit from the status quo don’t want to change the status quo. Sometimes it takes a lawsuit to force more equitable forms of representation.”

Yet despite these districting tiffs, Hasen said, California actually represents a rare bright spot for many advocates in national elections policy. In recent years, as other states remained intent on erecting new barriers to the ballot box, California did pretty much the opposite, enacting a series of new laws that have put the state at the cutting edge of progressive voting policy.


“Hearing for California primary lawsuit set for after voting”


A federal judge has set an Aug. 18 hearing date in a lawsuit filed by a Bernie Sanders supporter seeking to extend California’s voter registration deadline ahead of the primary election, meaning the plaintiffs likely won’t get a hearing before the state’s June 7 primary.

Attorney William Simpich argued in the filing that the process for unaffiliated voters to get a presidential primary ballot – particularly those seeking to cast ballots in the Democratic primary contest between Vermont Sen. Bernie Sanders and former Secretary of State Hillary Clinton – was too confusing and would leave many voters disenfranchised. He said at least two counties failed to notify some voters of their right to request a ballot to vote in the Democratic, Libertarian or American Independent Party contests.


“Judge says voting rules won’t change for August election”


There will be no change to Wisconsin’s voting laws before the Aug. 9 primary, including the requirement that photo identification be shown at the polls, a federal judge hearing a challenge to more than a dozen election laws said Thursday.

U.S. District Judge James Peterson told attorneys at the beginning of the final day of testimony in the two-week trial that he will make a ruling by the end of July, which won’t leave enough time to enact any changes he may order before the primary where the field of candidates running for a host of state and federal races will be winnowed.

“Obviously I feel urgency in getting the decision out,” Peterson said, adding that he didn’t think it would be realistic to have it done before the end of July. He scheduled final arguments for June 30.


“U.S. Supreme Court allows secret debate in John Doe filing”

Milwaukee Journal-Sentinel:

The U.S. Supreme Court for now is allowing arguments partly in secret in a case over whether the high court should hear a dispute over the shutdown of an investigation into Gov. Scott Walker’s campaign and conservative groups backing him.

In an order Monday, the court said the justices would accept filings made under seal and release copies to the public with parts redacted, a practice that would be similar to what happened in other state and federal courts.


“New Report Examines Election Funding In California, Across The Nation”

Doug Chapin:

California Forward has a new report that looks at election funding models across the nation and makes recommendations about how those lessons might apply in the Golden State. From the release:

California should develop a new way to pay for elections administration that can control costs, improve voting systems and evolve the tension-filled relationship between state and county governments into a cooperative partnership, according to a new analysis by California Forward.

The analysis, titled “Investing in California’s Democracy: Building a Partnership for Performance,” calls for replacing the antiquated “mandate reimbursement” process with a state contribution for the costs associated with the election of state officials and statewide ballot measures. The analysis concluded that most states share directly in these costs, and provides options for doing so.

The analysis also identified a powerful opportunity to structure the state’s contribution as an incentive for counties to improve their operations and reinvest savings in new technologies that can reduce costs and improve the voter experience.


“Ohio Governor Poised To Make Voters Pay To Keep Polls Open Late”

Think Progress:

Republican lawmakers in Ohio approved a bill late Wednesday night that would force residents toput up a cash bond when they petition a court extend voting hours during an election day emergency, such as a natural disaster. If Gov. John Kasich (R) signs the bill, Ohio could become the first state in the nation to make voters risk losing tens of thousands of dollars of their own money when making the case for keeping the polls open a few extra hours.


“Pillar of Law Files Lawsuit for Convention Delegates’ Rights to Free Speech”


The Pillar of Law Institute filed a lawsuit in Wyoming federal court today, challenging a law that prohibits delegates to political party conventions from accepting books, travel stipends, and legal assistance from non-profits.

“For the upcoming Republican Convention, delegates could receive unlimited money from individual donors, but could not accept even books or a travel stipend from organizations like Pillar,” said Benjamin Barr, lead counsel in the case. “Federal election law actually bans the distribution of books to delegates because it deems them corrupting.  This is not just fundamentally unfair; it is also unconstitutional.”

The Pillar of Law Institute is a non-profit public interest law firm that focuses on free speech and campaign finance law. It would like to provide books to convention delegates that discuss delegates’ rights and free speech, but is prohibited from giving “anything of value” by the corporate ban. Pillar is joined in the lawsuit by two unnamed Republican delegates who would like to speak out about delegate autonomy at the convention and receive assistance against any legal threats that they might face.


“McAuliffe lawyer: Virginia governor did nothing wrong.”


Federal authorities are investigating whether Gov. Terry McAuliffe (D) violated an obscure statute prohibiting U.S. citizens from lobbying the U.S. government on behalf of foreign governments, the governor’s lawyer said.

Attorney James W. Cooper said the Justice Department and the FBI will find no evidence of wrongdoing by McAuliffe, despite probing his personal finances dating back at least a decade before he became governor.

Federal investigators “for whatever reason” became interested in McAuliffe’s foreign sources of income from a period before he entered public office, Cooper told The Washington Post in a phone interview Wednesday. “And that is the predicate for continuing their investigation,” he said.

“All of this income is from the governor’s time as a private citizen and businessman, who did deals that were well publicized around the world. So the fact that he had foreign income was not remarkable,” Cooper said.


“Book Review: Dark Money and Plutocrats United”

Bill Maurer reviews my book and Jane Mayer’s book for The Federalist Society:

Nonetheless, Mayer’s Dark Money: The Hidden History of the Billionaires Behind the Radical Right and Hasen’s Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections—both published in the thick of the 2016 election—are aimed directly at the issue.[3] One of these books is a valuable contribution that addresses the history of campaign finance law, the constitutional issues involved in regulating political spending, and the difficulty of creating policies that allow all Americans a voice while protecting free speech. The other is not.


“Two Myths About the Unruly American Primary System”

I published a longish essay with that title today in the Washington Post, at the excellent Monkey Cage blog.  Here are a few excerpts:

Many Americans will be surprised to learn that few democracies give primary elections a dominant role in selecting their parties’ nominees for the country’s highest office. In most systems, elected party members take a major role in choosing or filtering potential candidates. . . .

But starting in the 1970s, the United States stumbled — and I do mean stumbled — into a system that eliminated any meaningful role for party figures. Instead, unmediated popular participation, through caucuses and primary elections, came to control the way we choose presidential nominees.

That uniquely populist system, which we now take for granted, has culminated in our current, stunning moment. Two essentially freelance, independent political figures — Donald Trump and Bernie Sanders — will either represent, or come surprisingly close to representing, the nation’s two major parties in the 2016 election.

The piece then explores the history of the presidential nomination process to explain how we got to our current moment, with the aim of exposing two conventional but false stories about that history.

First, the system that we used for most of the 20th century, until the 1970s, was not the party-boss controlled system with little popular input that it’s often portrayed as being.  Instead, that system involved a mix of primary elections and institutional party input.  As I put it:

In this mixed system, the popular primaries and the party leaders checked and balanced each other’s influence. No committee designed the system in a single moment to create the “perfect” mix of popular and party roles; as often happens with democratic institutions, the system emerged from competing pressures over time.

Nonetheless, primaries kept the system from being too closed. “Outsiders” could challenge existing party hierarchy and orthodoxy and force the parties to remain responsive, at least up to a point. Meanwhile, the institutional party figures had incentives to put their weight behind candidates likely to hold the party’s factions together, run a competitive election, govern effectively and reflect the party’s general ideology.

Second, while it is widely known that this system was transformed almost overnight in the 1970s to our current primary-election dominated system, what is much less well known is that the post-1968 reforms were not designed to create such a populist system.  Instead, that system came about despite the effort of these reformers to preserve an important institutional role for the parties.  The piece describes some of the causes that nonetheless radically transformed our nomination process into the most highly populist one among the major, established democracies.  The piece concludes:

Despite its accidental birth, that’s the origin of the populist, primary-dominated system we have today — a system that has virtually eliminated any filtering or mediating role for the institutional party and made our current moment possible. As this “modern” system was taking shape, leading political scientists warned that it:

might lead to the appearance of extremist candidates and demagogues, who unrestrained by allegiance to any permanent party organization, would have little to lose by stirring up mass hatreds or making absurd promises.

As today’s New York Times story already notes, once the fall election is over — and depending on the outcome — there are likely to be major controversies between those who will seek to recapture more of a role for the institutional party in controlling who its nominees are and those who will seek to push the system along even more participatory and populist lines.


“Virginia governor: Feds have found no wrongdoing”


Virginia Gov. Terry McAuliffe said Wednesday that federal investigators looking at donations to his 2013 campaign have told his attorney there’s no indication he did anything wrong.

The governor said on a WTOP radio program that his attorney reached out to federal prosecutors following reports that McAuliffe is a subject of a federal investigation.

“My lawyer reached out to the Justice Department, and asked if they’ve had any indication of any wrongdoing on my part, and the answer was no,” McAuliffe said.


“Inquiry Highlights Terry McAuliffe’s Ties to Chinese Company”


Four years ago, one of China’s largest agricultural importers sent representatives to the Democratic National Convention in Charlotte, N.C., hoping that meetings with elite party officials might yield business opportunities. The company, the Dandong Port Group, was particularly focused on the governors in attendance, according to an interview with Dandong’s general counsel broadcast by Chinese state television.

“If you really want to influence, let’s say, U.S.-China policy,” he said, “it’s almost worth it to have emphasis and influence on the state level.”

The meetings, arranged by a former South Carolina governor, marked a period of expansion in the United States for Dandong and its affiliated companies, involving negotiations with officials in Washington, Arkansas, South Carolina and Virginia. But now, the company’s widening influence is coming under scrutiny by federal prosecutors, who are examining the relationship between Dandong’s wealthy and connected chairman, Wang Wenliang, and Gov. Terry McAuliffe of Virginia, a Democrat who was elected in 2013.

A federal law enforcement official said the inquiry included $120,000 in contributions that a New Jersey construction firm controlled by Mr. Wang made to Mr. McAuliffe’s 2013 campaign and inaugural committee. That official and a second law enforcement official, both of whom asked for anonymity to discuss the matter, said it was a preliminary inquiry of Mr. McAuliffe’s campaign donations, and they provided no detail about the nature and scope of any potential violations being scrutinized.


“Waukesha county clerk: Weekend voting gave ‘too much access’ to Milwaukee, Madison”

Yeesh! God forbid people of color and poor people living in Wisconsin cities have easy access to the ballot.

Ozaukee County as a whole is about 95 percent white and neighboring Waukesha County is about 94 percent white. With Washington County — 96 percent white — they make up the state’s deep-red “WOW counties.” The deeply conservative counties form an arc around Democratic Milwaukee County, which is 65 percent white.

Novack said she believes eliminating weekend voting “level(s) the playing field” between large urban areas and smaller suburban and rural communities that lack the resources to staff weekend hours.

“If there’s an office open 30 days versus an office that’s only open 10 work days, there are obviously voters that have a lot more access than someone else,” Novack said. “There has to come a point where it’s just giving over-access … to particular parts of the state.”

Asked whether she thought voters in Milwaukee and Madison — communities that previously used weekend voting — had too much access, Novack said, “too much access to the voters as far as opportunities.”


“Civic Groups Ask Courts to Stop Unlawful Voter Purging Practice”


Yesterday, a voting rights coalition asked the federal court to stop Ohio’s practice of removing properly registered voters from its voter registration list simply because they have not voted in recent elections.  The plaintiffs, who initiated the lawsuit in early April, are composed of civic groups and a longtime Ohioan who was disenfranchised by this process.


“Sometimes ‘People’ = ‘Legislature'”

Seth Barrett Tillman:

This is a response to Professors Saikrishna Bangalore Prakash & John Yoo, People ≠ Legislature, 39 Harvard Journal of Law & Public Policy 341 (2016) (noted on this blog  here).

Professors Prakash and Yoo’s position is that “[a]s used in the Constitution, ‘Legislature’ refers to a multimember lawmaking body that is distinct from the people.” Prakash & Yoo, supra at 355. I have to admit, that my own intuition is consistent with their view. But I am not sure that my intuition counts for much. The Framers and ratifiers spoke to this issue, albeit unevenly, but what many wrote does not easily square with Prakash & Yoo’s position.