Disqualification Clause Debate

Extensive debate in Quinnipiac Law Review:

Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209 (2014), available at http://ssrn.com/abstract=2447970 
Mike Stern, Foreward, An Exchange on the Disqualification Clause, 33 Quinnipiac L. Rev. i (2014) (by invitation), available at http://tinyurl.com/ktftzqt 
Peter C. Hoffer, The Pleasures and Perils of Presentism: A Meditation on History and Law, 33 Quinnipiac L. Rev. 1 (2014) (invited response to Cassady), available at http://tinyurl.com/ktftzqt 
Brian C. Kalt, The Application of the Disqualification Clause to Congress: A Response to Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify, 33 Quinnipiac L. Rev. 7 (2014) (invited response), available at http://ssrn.com/abstract=2490963 
Buckner F. Melton, Jr., Let Me Be Blunt: In Blount, the Senate Never Said that Senators Aren’t Impeachable, 33 Quinnipiac L. Rev. 33 (2014) (invited response), available at http://ssrn.com/abstract=2509665
Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59-111 (2014) (invited response), available at http://ssrn.com/abstract=2484377 

“New Study Highlights Need for Expanded Voter Information in Judicial Races”

Court News Ohio:

The biggest reason Ohioans say they don’t vote for judges is because they don’t know enough about the candidates. These and other results from a survey of 1,000 registered Ohio voters were discussed today at the annual Associated Press Legislative Preview by Ohio Supreme Court Chief Justice Maureen O’Connor.

The survey, which was conducted in October last year by the Ray C. Bliss Institute of Applied Politics at the University of Akron, focused on the drop off in votes cast in judicial races.


“New Report Identifies Gaps in the American Electorate”


As the 2015-2016 election cycle gets underway, nonprofit voting rights group Project Vote has released a major new report that presents a comprehensive picture of disparities in the changing American electorate.

In Representational Bias in the 2012 Electorate, Project Vote’s Senior Policy Analyst, Dr. Vanessa Perez, analyses registration and voting rates for every presidential election in the 21st century. The report examines participation for different demographic groups—according to race and ethnicity, age, gender, income, education, and other factors—to determine the ways in which the American electorate is becoming more or less representative of the citizen population.


“Money Trail Revealed: Did Eric O’Keefe Pay James O’Keefe for Hatchet Job on GOP Senate President?”

PR Watch:

Now CMD has discovered that O’Keefe indeed received a five-figure check from a “far-right buddy” and another “Scotty boy,” Wisconsin Club for Growth’s Eric O’Keefe. This O’Keefe is an old friend of the Brothers Koch, a founder of a plethora of far-right organizations (including the Center for Competitive Politics, which fights clean elections laws), and a national leader in the effort to advance undisclosed dark money in elections. O’Keefe has steadfastly stood behind the extreme Walker agenda.


Hasen on Bauer on Hasen on President Obama on #SCOTUS on Foreign Campaign Spending

Is the following statement by President Obama false?


 “But five years ago, a Supreme Court ruling [Citizens United] allowed big companies – including foreign corporations – to spend unlimited amounts of money to influence our elections.”

I argued that it is false:


In fact, five years ago, in Citizens United the Court expressly refused to rule on whether a ban on foreign money in elections (individual, corporate, or otherwise) could be banned in elections. It left the foreign spending ban in place. So Citizens United did not allow “foreign corporations” to “spend unlimited amounts of money to influence our elections.”


Bob Bauer’s response urges that we use the reform community’s playbook (stretch corruption to mean “undue influence,” look for “loopholes” and what is “really going on”) to reach the conclusion that the statement is not false.  Bob’s reasoning in brief: Before Citizens United no corporations could spend money on certain election related activities. After Citizens Uniteddomestic corporations can, including U.S. subsidiaries of foreign corporations. Bob acknowledges that federal law bars foreign controllers from telling the U.S. subsidiaries if and how to participate in U.S. elections, but we all know what is, or could be, going on.

I’m sorry. I love Bob, but this reasoning will not fly. The president said that Citizens united “allowed . .. foreign corporations . . . to spend unlimited amounts of money to influence our elections.” The Court did no such thing.  If the court permitted a “loophole” to open in which foreign corporations could illegally direct their U.S. subsidies to do this activity, that is not the same as the Court allowing foreign corporations to spend unlimited sums in elections. The Court acted with the knowledge that this is illegal—and Bob’s resort to the reform community’s loose argument playbook is quite ironic (given where Bob usually is on these issues.)

Look, foreign money could well be coming into our elections, illegally, especially through 501(c) groups which do not disclose publicly their donors.  But that could have been happening before Citizens United too. The fix for this must come from Congress or the IRS or the FEC (though I have no hope that it will).

Let’s blame the Supreme Court for its horrible jurisprudence in Citizens United without falsely accusing the Court of doing something it did not do.


“Cap Set On Donations To San Diego County Candidates”


The San Diego County Board of Supervisors voted 4-1 Tuesday to tentatively approve caps on the amount of money political parties can donate to candidates for county offices.

Pending a second vote, the limits would be $25,000 for supervisors races by district and $50,000 for countywide offices.

When a federal judge struck down San Diego’s $1,000 cap on political contributions some years ago for being too restrictive, the county did away with its own limit, which was the same amount.

The city responded in 2013 by capping political contributions for district races at $10,000 and $20,000 for citywide campaigns.

Supervisor Ron Roberts proposed similar individual election limits — $10,000 for supervisors candidates since they’re elected by district, and $20,000 for countywide races like sheriff, district attorney, treasurer-tax collector and assessor/recorder/clerk — but later upped the amounts to $25,000 for supervisor races by district and $50,000 for countywide offices….

Roberts said city officials performed “a very thorough analysis” of the issues and reached an “appropriate balance” between free speech and preventing people from breaking the rules.

Thad Kousser and I provided testimony to the City Council in San Diego to help create the record to support the constitutionality of the City’s contribution limits.



“Case Against Former Governor Perry to Proceed”

Texas Tribune:

A judge on Tuesday rejected former Gov.Rick Perry’s attempt to throw out a two-count indictment against him, saying it’s too early in the case to challenge the constitutionality of the charges.

Perry’s attorneys immediately filed notice that they will appeal the 21-page ruling, which was issued Tuesday afternoon by Bert Richardson, a Republican; the appeals process could take months. The appeal will be considered by the Texas Third Court of Appeals. All five justices elected to that court are Republican; a sixth justice, who has not yet run in a partisan race, was appointed by Perry before he left office.

Perry Appeal Of Motion To Quash

PDF (136.1 KB) download

Order Denying Defendant’s First Motion

PDF (2.1 MB) download



“3 former California governors back independent redistricting”

Melanie Mason for the LAT on a Ted Olson brief:

Three former California governors are wading in to an Arizona elections case before the Supreme Court that could have major implications on how California draws its congressional and legislative districts.

Former Govs. George Deukmejian, Pete Wilson and Arnold Schwarzenegger, along with the California Chamber of Commerce, GOP mega-donor Charles T. Munger Jr. and entrepreneur Bill Mundell, submitted a brief late Friday stating their support for an independent commission that crafts a state’s districts, rather than restricting the task to state legislatures.


“Koch-backed network aims to spend nearly $1 billion on 2016 elections”

Huge (and hugely troubling). WaPo:

A network of conservative advocacy groups backed by Charles and David Koch aims to spend a staggering $889 million in advance of the next White House election, part of an expansive strategy to build on its 2014 victories that may involve jumping into the Republican primaries.

The massive financial goal was revealed to donors during an annual winter meeting here hosted by Freedom Partners, the tax-exempt business lobby that serves as the hub of the Koch-backed political operation, according to an attendee. The amount is more than double the $407 million that 17 allied groups in the network raised during the 2012 campaign.

The figure comes close to the $1 billion that each of the two parties’ presidential nominees are expected to spend in 2016, and cements the network’s role as one of the country’s most potent political forces.


The Kochs and their advisers have already built a robust political operation that includes a data and analytics firm, a state-focused issue-advocacy group and affinity groups aimed at young voters and Hispanics.