“Justice Department ramps up scrutiny of candidates and independent groups”

WaPo:

The Justice Department is stepping up scrutiny of the increasingly cozy ties between candidates and their outside allies, a move that could jolt the freewheeling campaign-finance atmosphere ahead of the 2016 elections….Anthony Herman, another former FEC general counsel, said it appears that federal prosecutors “view themselves as filling a role — to the extent that they think the FEC is not on the job, they think part of their job is to fill that gap.”

Even so, pursuing coordination cases and securing convictions is not easy without inside information. The few known cases in which federal prosecutors have investigated illegal coordination were driven by tips they received while pursuing other alleged crimes.

“It is going to be very difficult to bring these kinds of cases and to ferret out instances of unlawful coordination,” said Herman, a senior counsel at Covington & Burling.

Nick Confessore: “WaPo piece on illegal coordination probes is basically a big Justice Department beg for whistleblowers. Hard to make these cases.”

 

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“GOP Lawmakers Seek to Jump-Start Long-Running IRS Investigation; Concerns raised at House hearing about possible IRS wrongdoing during congressional probe”

WSJ:

The new Republican-controlled Congress is trying to pump fresh life into a long-running probe of alleged targeting of conservative groups by the Internal Revenue Service.

Seeking to jump-start the stalled inquiry, GOP lawmakers raised concerns at a House hearing on Thursday night about possible IRS wrongdoing during the course of the probe.

The hearing by the Oversight and Government Reform Committee revealed few new details, however, and Democrats accused Republicans of airing the allegations prematurely, before all the evidence has been gathered….

Investigators from the IRS inspector general’s office also suggested some unnamed IRS officials might have withheld crucial information about the backup tapes. “There is potential criminal activity,” said deputy inspector general Timothy Camus, in response to a question by Rep. Jim Jordan (R., Ohio).

Mr. Camus and his boss, IRS inspector general J. Russell George, cautioned repeatedly that their investigation isn’t yet complete, and Mr. Camus acknowledged that suspicions of withholding evidence might prove unfounded.

 

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Coming Soon: Issacharoff’s “Fragile Democracies”

Now available for pre-order:

Fragile Democracies: Contested Power in the Era of Constitutional Courts (Cambridge Studies in Election Law and Democracy) Paperback – May 31, 2015

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Where have the federalists gone? Obamacare, King, and the Court

The Obamacare case, King v. Burwell, which the Court will hear next week, has deep importance not only for health care but also for law.  I have previously detailed why the case is textualism’s big test. Today, in Politico, I explain why the case is also fundamentally about state rights.  The question is whether the Court’s federalism doctrines–which, let’s not forget, the Court applied against the Government in the last Obamacare case–whether these federalism doctrines, like the Court’s  textualist rules, are sufficiently legitimate and objective such they will apply regardless of which side they happen to support, even in a case as politicized as this one.  After all, isn’t that the point of have a rule of law in the first place?

Here is an excerpt and a link.

The issue in King is whether the ACA penalizes states that opt out of setting up their own health insurance exchanges and, instead, let the federal government do it for them. The challengers have seized on four words in this 2,000-page law that, they contend, contain a dramatic consequence for the 34 states that have made this choice and allowed the federal government to step in: the loss of critical insurance subsidies that make health insurance affordable and sustain the insurance markets under the law. Without the subsidies—which are estimated at $25 billion across the 34 states—more than eight million Americans will likely lose their insurance. And, as a result, the insurance markets in those states will face near-certain collapse.

The challengers maintain that the case is simply about reading plain language. (I have detailed elsewhere why their hyper-literal reading of four words out of context is anything but plain and is not how the Supreme Court usually reads statutes.) But King is about a lot more than this. The case is about federalism—the role of states in our national democracy. The reason the challengers don’t want anyone to realize that is because the very text-oriented justices to whom they are appealing are the exact same justices who have consistently interpreted federal laws to protect states’ rights. And the challengers would read the ACA in the opposite way—as having devastating implications for the states.

The challengers’ interpretation turns Congress’s entire philosophy of states’ rights in the ACA upside down. Congress designed the exchanges to be state-deferential—to give the states a choice. But under the state-penalizing reading that challengers urge, the ACA—a statute that uses the phrase “state flexibility” five times—would be the most draconian modern statute ever enacted by the U.S. Congress that included a role for the states. What’s more, if interpreted as the challengers hope, the ACA would have been debated, enacted and implemented for two whole years under intense public scrutiny, including the scrutiny trained on it during the last major constitutional challenge in the Supreme Court in 2012, without anyone—no state, congressman or blogger—noticing these consequences or objecting to them.

A brief filed by Virginia and more than 20 other states attests that any clue of the dramatic penalty the challengers have read into the statute was entirely lacking. In the end, King is about whether an invented narrative that only emerged for purposes of this case should be permitted to work the greatest bait and switch on state governments in history.

Read more: http://www.politico.com/magazine/story/2015/02/king-v-burwell-states-rights-115550.html#ixzz3SxSbOrL4

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“New Charges for Group That Disrupted Supreme Court”

AP:

Prosecutors took a hard line Thursday with demonstrators who participated in a rare disruption inside the U.S. Supreme Court, adding additional charges against them and saying disrupting the high court is different from other protests in the nation’s capital.

The demonstrators, five women and two men, were arrested last month after standing in succession inside the court and shouting protests against the court’s 2010 Citizens Unitedcampaign finance ruling. Each person stood and spoke after the court’s justices took the bench but before oral arguments began on Jan. 21, the fifth anniversary of the court’s Citizens United decision. The decision freed corporations and labor unions to spend unlimited amounts on Congressional and presidential elections.

Pretty clear they are worried about further disruptions.

 

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Josh Douglas: “The Right to Vote Amendment is Worth At Least One Candle: A Reply to Heather Gerken”

The following is a guest post from Josh Douglas:

A new constitutional amendment affirmatively granting the right to vote could have a significant impact on protecting voting rights for all Americans.  Most significantly – and perhaps paradoxically – we are likely to see the biggest effects of a federal amendment where we least expect it: in state courts.

 

Professor Heather Gerken, in a characteristically eloquent and well-reasoned new article, claims that pursuing a new constitutional amendment enshrining the right to vote is “not worth the candle.”  The heart of Professor Gerken’s argument is that the benefits of a new right-to-vote amendment do not justify the costs involved, particularly as Supreme Court Justices and other federal judges are unlikely to alter the scope of voting rights analysis given the likelihood that, to pass, the amendment’s language would have to be too vague.

 

But a constitutional amendment granting the right to vote does not need federal judges, or even the U.S. Supreme Court, to have a big impact.  That is because many state courts follow federal law even when construing their own state constitutions.  So a new provision in the federal Constitution, even if couched in broad platitudes, will have corollary effects on state constitutional law.

 

The doctrinal implication of a federal right-to-vote amendment depends on a concept known as “lockstepping,” which I discussed in this article analyzing state constitutional protection for the right to vote.

 

Many rights are listed in both federal and state constitutions.  Yet even when state constitutional protection is textually broader than what is afforded under the U.S. Constitution, many state courts simply follow – or lockstep – their state constitutions to be in line with the federal constitution.  The right to vote is a perfect example of this phenomenon.  Every state constitution (besides Arizona’s) affirmatively confers the right to vote to the state’s citizens, a broader grant than the lack of an explicit right within the U.S. Constitution.  Yet many state courts lockstep their state-level protection so that it is the same as the U.S. Supreme Court’s more restrictive interpretation of the federal right to vote.

 

A U.S. constitutional amendment affirmatively granting the right to vote would have a trickle down effect on these state courts.  No longer would state judges be able to lockstep the state constitution’s grant of voting rights with the U.S. Supreme Court’s narrow jurisprudence.  Instead, a state court that chooses to lockstep would follow the analogous explicit right within the U.S. Constitution, making the protection in the state and federal constitutions coextensive – and broader than it is now.

 

Having an affirmative constitutional right to vote makes a difference in judicial decision making at the state level.  Courts that currently lockstep their state constitutions with federal law tend to rule more narrowly toward voting rights; state courts that independently construe their state constitutional right-to-vote provisions as broader than federal law tend to rule more expansively toward voting rights.  The hot-button issue of voter ID provides a great example.  In 2008, the U.S. Supreme Court upheld Indiana’s voter ID law under the Equal Protection Clause of the Fourteenth Amendment.  Litigants then turned to state courts around the country, challenging voter ID laws under the state constitutions’ more explicit and broader right-to-vote provisions.  Courts that properly construed their state constitutions as going beyond the federal constitution, such as in Pennsylvania and Arkansas, invalidated the voter ID laws.  But courts that lockstepped their state constitutional protection with federal law, such as in Georgia and Wisconsin, generally upheld the state’s laws.  If there were a right-to-vote provision in the U.S. Constitution, it is more likely that these courts would have lockstepped their state constitutions with that broader federal protection.

 

Further, as I recount in a new article, state courts resolve tons of election law cases, dealing with voter ID, felon disenfranchisement, and the voting process, among others.  By and large, when state courts lockstep their state constitutions with federal law, they provide less protection to the right to vote.  Although lockstepping in this setting is itself problematic (for reasons I discuss in my article), a federal right-to-vote amendment would mitigate that concern.  Even if federal courts might be slow to adapt, state courts that currently lockstep would have to recognize this change in federal law and adjust accordingly.

 

A constitutional amendment granting the right to vote would thus have an impact that goes well beyond the federal judiciary.  It could affect hundreds or thousands of cases at the state level – which is, after all, where the majority of election litigation occurs.  This is a meaningful change that is worth the effort: in addition to its many other virtues – such as signaling the importance of voting rights and energizing people to care about this issue – a constitutional amendment can have a significant substantive effect on state court protection of the right to vote.

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Today’s #SCOTUS Yates Ruling Tells Us Nothing About Obamacare Challenge: Analysis

Over at the CAC, Brianne Gorod sees good things for the government’s position in King v. Burwell based on today’s ruling in the Yates (fish) case at the Supreme Court:

With the Supreme Court scheduled to hear oral argument inKing v. Burwell next week, those looking for clues as to what the Court will decide later this year when it rules inKing need look no further than a very different case the Court decided today.  In Yates v. United States, the Court held, in a fractured 4-1-4 decision, that a provision of the Sarbanes-Oxley Act that bars the destruction of “tangible object[s]” does not apply to the destruction of fish (specifically, red grouper).  In their opinions in Yates, the plurality and the dissent didn’t agree about much, but there’s one thing they did agree on, and that principle is key to why the government should win in King: when you’re interpreting a law, context matters.

In King, the Court has been asked to decide whether the tax credits that put the “affordable” in the Affordable Care Act are available to all Americans who meet the income criteria, or only to those who purchase their insurance on state-run Exchanges.  When one looks at the whole statute in King, the answer is clear: tax credits are available to all Americans who qualify based on income, regardless of whether they purchase insurance on a state-run or a federally-facilitated Exchange.  The argument made by the law’s challengers rests on a facile reading of four words—“established by the State”—that appear in the formula for calculating the amount of the tax credit (not eligibility for it), as well as the argument that one need not look any further than those four words when trying to understand what the statute means.  Today’s opinion in Yates makes clear how wrong those arguments are.

I disagree, and think that Yates tells us nothing in how the Court will rule in the Obamacare challenge.  I say this for two reasons.

First, the general principles of statutory interpretation discussed by the Court (with the exception of the question of reliance on legislative history) are accepted, on at least a superficial level, by all nine Justices. Consider, for example, the rule that courts should read statutes in context. Here is what Justice Kagan in dissent says on this point: “That is not necessarily the end of the matter; I agree with the plurality (really, who does not?) that context matters in interpreting statutes.” “Really, who does not?” indicates the problem.  There are enough different rules of statutory interpretation that can push or pull in a case like Yates or King that stating the general principle does not bind any Justice to decide a case one way or another.

Second, most cases in most courts, including most cases at the Supreme Court, involve issues where precedent (and sometimes accepted means of interpretation) are a very good predictor of how a court will rule. That is, in many cases, judges (and Justices) do their best to apply close precedent to issues before the Court. (It is less true that means of interpretation are seen as precedential, but that’s not my main point). But in a small class of cases with a very strong ideological valence, you can throw the usual rules of interpretation out the window. The Justices are much more likely in these cases to be (subconsciously?) swayed by their ideological commitments, world view, and consideration of the consequences of a ruling than by application of earlier precedent.

I would not be surprised in the King case if both the majority and dissent cite Yates to support their side’s argument. But if anyone really thinks any Justice’s vote in King v. Burwell will depend upon what the Court did in Yates, I’d be very, very surprised.

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“Chicago voters overwhelmingly endorse campaign finance reform”

Al Jazeera:

Chicago voters endorsed by a wide margin Tuesday a plan to institute public campaign financing and limit outside contributions. The ballot measure, though non-binding, begins a process that will now move to city and state government, where legislation would be drafted.

Asked whether the city of Chicago and the state of Illinois should “reduce the influence of special interest money in elections by financing campaigns using small contributions from individuals and a limited amount of public money,” voters signaled yes by a 58-point margin, 79 percent to 21 percent.

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“Senators Are Announcing Retirements Earlier. Fund-Raising Plays a Big Role.”

NYT’s “The Upshot:”

If you’re a United States senator thinking about retiring before the November 2016 elections, the clock is ticking.

Since 1991, more than 80 percent of senators who have announced their retirements already did so by January of their election years. From 1920 through 1990, just 46 percent of retiring senators did the same, according to a new paper by David Karol, a professor of government and politics at the University of Maryland.

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Podcast with Michael Morley on Arizona Redistricting Case

Northwestern University Law Review Online is pleased to announce its publication of a podcast with Professor Michael Morley discussing his recent essay, The Intratextual Independent “Legislature” and the Elections Clause
 
In the essay, Professor Michael Morley assesses the Constitution’s Elections Clause and how the Supreme Court might interpret the clause in Arizona State Legislature v. Arizona Independent Redistricting Commission (set for oral argument on March 2). The case will decide whether an Arizona voter initiative vesting congressional redistricting authority in an independent commission rather than the state legislature violates the Constitution’s Elections Clause. Morley employs “intratextualism” to interpret the Elections Clause, carefully assessing the use of “legislature” in other parts of the United States Constitution and founding-era state constitutions. This analysis leads Morley to conclude that the Arizona’s voter initiative is unconstitutional, because it completely removes the state legislature’s congressional redistricting authority.
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“Unlimited and Undisclosed: The Religious Right’s Crusade to Deregulate Political Spending”

New Common Cause report:

Common Cause’s new report, “Unlimited and Undisclosed: The Religious Right’s Crusade to Deregulate Political Spending,” focuses on how one particular interest group has waged war on important campaign finance laws in order to allow more big money in our political system.

The new report explores:

  • How religious right, anti-marriage equality, and anti-abortion organizations have served as plaintiffs in over 70 lawsuits challenging campaign finance laws over the last twenty years at the state, local, and federal level.
  • How James Bopp, a prominent conservative attorney, uses Republican and religious right organizations as a vehicle to derail campaign finance laws, including in high profile cases such as Citizens United and McCutcheon, which have contributed to the flood of money in our elections.
  • The political spending of religious right groups to support Republican candidates over the last two decades, and how it has increased since the Citizens United.
  • The work of religious right groups against disclosure laws that would require big political spenders such as the National Organization for Marriage and the National Right to Life Committee to disclose their donors who give for the purpose of influencing elections.

>READ THE REPORT<

Unlimited and Undisclosed: The Religious Right’s Crusade to Deregulate Political Spending

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#SCOTUS Decides One of Its Most Important Noscitur a Sociis/Ejusdem Generis Cases Ever

Today the Court divides 5-4 on whether “records and documents” are similar to “fish and crocodiles” in some meaningful way. It’s a party for statutory interpretation geeks.

Really interesting to watch Justice Kagan write a super-snarky dissent (is the the second most sarcastic Justice in waiting?—and against Justice Ginsburg no less!), for herself and Justices Kennedy, Scalia and Thomas. She even gets in her legislative history without committing to it for those like Scalia who reject its use: “And legislative history, for those who care about it, puts extra icing on a cake already frosted.”

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“Executive Discretion and the Rule of Law: A Positive Analysis of Presidential Signing Statements”

Dan Rodriguez, Edward Stiglitz, and Barry Weingast have posted this draft on SSRN.  Here is the abstract:

Executive discretion over policy outcomes is an inevitable feature of our political system. However, our commitment to separation of powers constrains this discretion; for example, through congressional instructions embedded in statutes and enforced by courts. In interpreting statutes, courts often look to extrinsic evidence of legislative intent, as embodied in sources of legislative history, to resolve ambiguities and to implement legislative intent. Such practices constrain executive discretion and can potentially thwart presidential ambition.

In recent years, the President has sought to expand his discretion through signing statements, statements that purport to have status in the interpretation of statutory meaning. Such efforts raise significant questions of executive power, with negative implications for the rule of law. Drawing on positive political theory, we develop a simple separation of powers model that studies the various ways in which courts might treat signing statements. We show how different treatment by courts raise different implications for the rule of law and the separation of powers. Major changes follow when courts grant these statements legal status, significantly enhancing the president’s power while limiting that of Congress. Our models also show that, in a wide range of cases, Congress prefers the status quo – that is, no legislation – to legislation followed by a presidential signing statement. These statements thus exacerbate gridlock. We conclude that courts should not in general endow signing statements with any legal status beyond that afforded to a presidential statement made in a memo or campaign speech.

 

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“EAC Commissioners Select New Officers & Accredit Voting System Test Lab”

Press release:

Members of the U.S. Election Assistance Commission (EAC) met Tuesday. This meeting marked the first time the Commission was able to meet with a quorum of Commissioners in four years. The Commission addressed a variety of pressing issues at the meeting. These issues included the accreditation of a new voting system test laboratory; consideration of possible updates to the standards used to test voting systems; and updates to the EAC’s voting system testing program manuals. Additionally, Commissioner Christy McCormick was selected to chair the Commission and Commissioner Thomas Hicks was selected as vice-chair.

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WI Voter ID Opponents File #SCOTUS Reply to Get Court to Take Case

You can read the short reply here. The reply makes a good and important timing point:

This case is the only vehicle that guarantees the Court an opportunity to address the constitutional and statutory questions surrounding restrictive voter ID laws before the 2016 presidential election. Wisconsin admits that this case is “procedurally far ahead of the cases from Texas and North Carolina.” Opp. 10. In Texas, Fifth Circuit briefing will continue through mid-March, followed by oral argument, a panel decision, and possibly a petition for rehearing. Id. North Carolina is even farther behind; trial is not scheduled to begin until July. Opp. 12. There is no guarantee that this Court could consider either case before the end of the October 2015 Term.

Postponing consideration of these issues also would tangibly harm hundreds of thousands of Wisconsinites and millions of other Americans. On issues of profound national importance affecting large numbers of citizens in multiple states, this Court need not wait for issues to percolate, especially when, as here, lower court decisions already reflect significant disagreement. See, e.g., King v. Burwell, 135 S. Ct. 475 (2014); Lawrence v. Texas, 539 U.S. 558 (2003). Wisconsin is wrong that the Texas case—which is still being briefed in the Fifth Circuit—is a “superior candidate for review.” Opp. 10. It is irrelevant that Texas has enforced its law “since November 2013.” Id. Whenever possible, courts should resolve challenges to discriminatory election laws before states enforce those laws in elections. Reynolds v. Sims, 377 U.S. 533, 585 (1964). Moreover, the record already reflects Act 23’s “impact, if any, on voter turnout.” Opp. 11. Wisconsin’s own expert agreed at trial that Act 23 “is likely to suppress voter turnout in the State of Wisconsin.” Trial Tr. 1477. This conclusion is confirmed by Plaintiffs’ expert, numerous studies concerning other states’ voter ID laws, and a recent report by the Government Accountability Office. Pet. 26.

Certworthiness does not depend on which state’s voter ID law is “stricter.” Opp. 11. In some ways, Texas’s voter ID law, SB 14, is stricter than Act 23: Wisconsin accepts two forms of photo ID that Texas rejects. See id. But in other key ways, Act 23 is the stricter law: in Texas, “those over 65 or disabled can vote by mail” without photo ID. Veasey v. Perry, No. 13-cv-193, 2014 WL 5090258, at *34 (S.D. Tex. Oct. 9, 2014). Anyway, Act 23 is a prototypical restrictive voter ID law that provides a perfect vehicle to guide lower courts’ review of similar laws. ColorofChange.org Amicus Br. 6–9.

tThe Texas district court’s finding of an “official discriminatory purpose” for SB 14 (Opp. 11) cuts in favor of granting the present petition. One would hope that judicial findings of intentional racial discrimination by a state legislature will be rare. This case, by contrast, presents the more common and recurring question whether Act 23 violates Section 2 based on the discriminatory impact on African-American and Latino voters. Even if this Court granted review of Texas’s case, a decision striking down SB 14 as intentionally discriminatory would not necessarilyresolve the critically important questions in this case and prevalent in much of the country.

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“Trend 1: The rise of majority-minority and near-majority-minority states”

States of Change

The Demographic Evolution of the American Electorate, 1974–2060

 

The demographics of the United States are projected to become much more diverse in the coming decades and will have significant effects on the nation’s voting electorate in all 50 states.

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