The law of politics and the politics of law: election law, campaign finance, legislation, voting rights, initiatives, redistricting, and the Supreme Court nomination process
Rick Hasen's web log

On the Road Again

I'm heading up to Stanford to speak to the law review about my recent Democracy Canon article for them. Regular posts will reappear this evening or tomorrow morning.

Is CU a Harbinger of Things to Come at the Roberts Court?

Joan Biskupic explores.

"White House Isn't Done with Lobbyists"

Eliza's latest.

Damon Root on CU and Conservative Judicial Restraint

Here at Reason.

"Digital Technology and Cleaner Politics"

L. Gordon Crovitz has written this WSJ column.

"Understanding Citizens United: An Interview with Richard L. Hasen"

Here, at "The Politic."

The FEC Reacts to Citizens United

Those in the regulated community should not miss this very important statement by the FEC about the FEC's plans going forward in light of CU.

No Legislative Action on CU

I'm hoping this BNA report ($) is premature: "Republicans and Democrats may be headed for a standoff over proposals for new campaign finance rules in the wake of the Supreme Court's pivotal decision in Citizens United v. Federal Election Commission, comments by key election law attorneys indicated Feb. 4."

The NYT editorial board's legislative wish list is here.

"New Illinois undervote law not overly loved by voters and clerks"

That's the lead story in the new edition of Electionline Weekly.

"Setting the Record Straight on Universal Voter Registration"

Adam Fogel has this post at FairVote.

He's BAAAACK!

Thor Hearne reemerges.

What's the fuss? See here.

Two from the CLC Blog

See A Wake-Up Call on Campaign Finance Reform and White House Urged to Nominate FEC Commissioners Willing to Enforce the Law.

What Have U.S. Senators Said About CU?

A compendium.

Senate CU Hearing Testimony Now Posted

You can find it here.

I want to highlight Ned Foley's nuanced reading of CU, and the possibility of limiting certain corporations (such as government contractors) from engaging in campaign spending.

I'll need to think much more closely about this in coming days to form my own opinion on this important question. I think the foreign corporation issue, highlighted by Heather Gerken, is a somewhat easier constitutional question under CU.

Federalist Society Online Debate on CU

Here.

I Guess I'm Just Irresponsible

At least in the eyes of Justice Thomas.

"Lawmakers: Repower The DNC, RNC"

More CU fallout, as I predicted ("Justice Kennedy acknowledges that with the 'soft money' limits on political parties still in place, third-party groups (which tend to run more negative and irresponsible ads) will increase in strength relative to political parties. And that possibility raises the real chance Congress will repeal the 'soft money' limits, thereby increasing the risks of quid pro quo corruption.").

When did the DNC and RNC get "depowered"? Gary Jacobson's festschrift paper shows that the parties adapted quite nicely to the McCain-Feingold soft money limits--they were never depowered. How they react to CU is still up for debate.

Robbin Stewart on CU and Anti-avoidance

Here.

Ira Glasser on CU

Not to be missed.

Linda Greenhouse on CU: The Court's "Come Out of the Closet" and Had Its "First Taste of Wine"

Here.

The Anti-Extortion Rationale for Limiting Contributions to Independent Expenditure Committees

In the course of preparing for my oral argument in San Diego in the challenge to five of its contribution limitations, I had the chance to read closely the dissenting opinion of Judge Michael in the Fourth Circuit case, North Carolina Right to Life v. Leake.

I was struck by the following discussion there of a constitutional argument for limiting contributions to independent expenditure committees, coming out of testimony presented to the trial court, and think it could provide the basis for constructing a strong anti-extortion rationale for some of these limits. (The discussion begins on p. 93 of the slip opinion):

The campaign waged in North Carolina by the independent group Farmers for Fairness (Farmers) provides another example of the corruptive influence of independent expenditures. Farmers created advertisements directly opposing certain legislative candidates. Instead of simply running the advertisements during election time, Farmers scheduled meetings with legislators and screened the advertisements for them in private. Farmers then explained that, unless the legislators supported its positions, it would run the advertisements that attacked the candidates on positions unrelated to those advocated by Farmers. The majority interprets this activity as the "group feel[ing] passionately about an issue and discuss[ing] it." Ante at 30. This could not be further from reality. The record reveals that Farmers did not discuss its central issue, deregulation of the hog industry, in its advertisements. Instead, it threatened and coerced candidates to adopt its position, and, if the candidate refused, ran negative advertisements having no connection with the position it advocated. This activity is not "pure political speech," ante at 46; it is an attempt to use pooled money for behind-the-scenes coercion of elected officials. The majority also opines that inasmuch as Farmers discussed its intention to run the advertisements with the candidates, their activities were coordinated. Ante at 30-31. This is simply wrong. A threat cannot qualify as coordination because the targeted candidate would not be willingly cooperating if he or she chose to surrender to the demands of the Farmers group. If the candidate chose not to surrender, and Farmers then made good on its threat to broadcast negative advertisements, it is equally clear that the candidate would not have directed or otherwise cooperated with the airing of the advertisement. The Farmers example shows exactly how independent expenditures can create the same appearance of corruption and potential for actual corruption as do excessively large contributions. The only difference between these two methods (other than, after today's decision, that one may be regulated and the other may not) is that the independent expenditures made by Farmers had the potential to influence candidates through threats and reprisals, while excessively large direct contributions have the potential to influence candidates by rendering them beholden to the donor. In short, the method may differ, but the corrosive effect on the electoral process remains the same.

These examples are certainly not exhaustive. The record contains hundreds of pages of testimony and reports supporting the judgment of the North Carolina legislature that independent expenditure political committees are sufficiently harmful to the electoral process to justify the $4000 contribution limit.11 All of these examples show that North Carolina has an important interest in limiting the corruption or appearance of corruption that can stem from large contributions to independent committees with significant informal ties to coordinated committees, political parties, and candidates. The evidence shows that independent expenditures can have a large "potential impact on a candidate's election," and are of great "value to the candidate," even if the committee does not take any direction from a candidate. See McConnell, 540 U.S. at 152.

The Reaction of Michigan (home of Austin) to CU

See these FAQs.

"Democrats Revisit Campaign Plans in Wake of Ruling"

NPR reports. More here on the Senate hearing on CU (with Steve Hoersting's name spelled wrong by NPR).

The Impact of CU on Indian Tribes

Indian Country Today reports.

"Anti-Abortion PAC Gets Heavy Fine"

That's currently the top item at CQ MoneyLine.

Adam Winkler on CU and Corporate Speech

Here.

The End of NAMUDNO

Literally (see item 16 for dissolving the district).

"Former FEC Chairman Warns of Fallout From Supreme Court Ruling"

Roll Call reports on the testimony of Bob Lenhard: "A former Federal Election Commission chairman warned Members on Wednesday that a recent Supreme Court decision could eviscerate the Republican National Committee, the Democratic Congressional Campaign Committee and other party-led organizations."

Gerken on Justice Kennedy's Emerging Views on Race

Here.

The Latest CU

The Edwards/Conyers proposed constitutional amendment

Vermont gubernatorial candidate Matt Dunne

Lanny Davis

David Schultz

"Ritter And Legislature To Ask Supreme Court For Guidance On Citizens United"

News from Colorado.

"Voter Suppression in 2010: It Begins Again"

Tova Wang blogs.

Imagine That Dept.

Seeing the uproar over the Court's decision in Citizens United, imagine the public reaction if the Court had done what a majority appeared to want to do in NAMUDNO---striking down a key portion of the Voting Rights Act.

Indeed, had the Court done so in the voting rights case, one wonders if they would have had the stomach to act so boldly in CU.
Maybe the Chief Justice had a sense of the public concern over the CU opinion, and that's why he decided not to write the majority opinion.

UPDATE: Morgan Kousser made similar remarks at the Lowenstein festschrift. When the webcast archive is available, I'll post a link.

Justice Thomas Speaks on CU

Adam Liptak has the details.

Interesting Development in Ninth Circuit Appeal of Arizona Matching Funds Case

On January 20, I linked to the federal district court opinion holding that the matching funds provision of Arizona's public financing law likely violated the First Amendment under the reasoning of the Supreme Court's opinion in Davis v. FEC. (For more on the legal argument, see this article by one of my Loyola of Los Angeles Law Review advisees, Emily Schuman.).

When the district court issued its order granting a preliminary injunction barring the matching funds provision of the law pending a final determination on the merits, its stayed its order for 10 days for the state to seek a further stay from the Ninth Circuit. Today a motion's panel of the Ninth Circuit issued this order extending the stay pending a further order from a (presumably different) Ninth Circuit merits panel to hear the appeal. It also expedited the appeal for consideration in April.

What is interesting about the order is that there was a six page dissent to it by one of the three Ninth Circuit judges, Judge Bea. Judge Bea takes the position that the challengers to the law are likely to succeed on the merits, under Davis. Judge Bea also cites to some dicta in Citizens United, making this perhaps the first case to cite to Citizens United. Judge Bea's order is worth a read; the state has to be hoping Judge Bea won't be on the merits panel.

"Murray Hill Incorporated is Running for Congress"

People keep sending this to me, so it is about time for me to link.

MORE: How to Date A Corporation.

Razor Thin Primaries for Illinois Governor, for Both Parties

See here.

Alex DeMots on What to Do About CU

Here, at the Center for American Progress.

"Consensus Textualism: States as Statutory Interpretation Laboratories"

Abbe Gluck has posted this draft on SSRN (forthcoming, Yale Law Journal). Here is the abstract:

This Article undertakes the first close study of statutory interpretation in several state courts of last resort, and illustrates that many central ideas in mainstream (federal) statutory interpretation, heretofore theorized only in the abstract, are actually in play in a number of states. It would doubtless surprise most academics and many judges to learn that, while academics have spent the past decade speculating about the "death of textualism," or the utility of congressionally legislated rules of interpretation, or the capacity of judges on multimember courts to agree on a single set of interpretive rules, many state courts have been engaging in real-world experiments in precisely these areas. Several state courts have articulated single, governing interpretive regimes for all statutory questions. Methodological stare decisis - the practice of giving precedential effect to judicial statements about methodology - which is generally absent from federal statutory interpretation, appears to be a common feature of some states' statutory caselaw. Every state legislature in the nation has enacted certain rules of interpretation, which some state courts are, in an unexpected twist, flouting. And, far from textualism being "dead," what emerges from the state cases is a surprisingly strong theory of what I label "modified textualism" that, while sharing textualism's core components, has broader potential appeal.

These state developments offer a powerful counter-paradigm to that of the U.S. Supreme Court, where persistent interpretive divides and a refusal to treat methodological statements as precedential have made interpretive consensus seem impossible. Indeed, methodology seems to be an entirely different animal in these state courts. In these states, it is possible for one judge to bind another judge's methodological choice. And in fact, federal judges, too, readily assent to this conception of methodology in other areas of law, like contract interpretation. Yet these principles have failed to translate to the federal statutory interpretation context, without much explanation of why statutory interpretation should be any different. Contrary to long-held assumptions, these state examples illustrate that ex ante-defined methodological frameworks are possible; that they appear to have beneficial rule-of-law, coordination, and expressive effects; and that the "modified textualist" theory advanced by the Article - the interpretive theory around which the state courts reach their consensus - may enhance the prospects of achieving methodological consensus in even more courts.

"EAC Releases Report on State Spending of Federal Funds in 2008 to Improve Election Administration"

See this press release.

More CU

Nan Aron

David Schenck (on judicial elections)

Interview with Floyd Abrams

"Senate goes back to the drawing board on campaign finance"

The Christian Science Monitor offers this report.

White House Position on CU and Foreign Corporate Contributions

Via ABC News comes this must-read item from Norm Eisen at the White House blog. Check out this White House fact sheet as well.

Howard has more CU links, and Brad Smith writes about CU, shareholders' rights, and foreign corporations.

What Does Sen. Feingold Want in Response to CU?

Roll Call: "A new definition of 'coordination,' a prohibition of election spending by government contractors and recipients of bailout funds, a tightening of the provision in existing law concerning contributions and expenditures by foreign corporations."

Priceless Editorial on Citizens United

Don't miss this.

A Third CU Congressional Hearing

Tomorrow at the House Judiciary Committee.

Dept. of Next Shoe Dropping

BNA offers RNC Challenge of Limits on 'Soft Money'; Could Be Decided Soon by Three-Judge Court ($).

"Poll Workers, Election Administration, and the Problem of Implicit Bias"

Antony Page and Mike Pitts have posted this article on SSRN (Michigan Journal of Race & Law). Here is the abstract:

Racial bias in election administration - more specifically, in the interaction between pollworkers and voters at a voting booth on election day - may be implicit, or unconscious. Indeed, the operation of a polling place may present an “optimal” setting for unconscious racial bias to occur. Pollworkers sometimes have legal discretion to decide whether or not a prospective voter gets to cast a ballot, and they operate in an environment where they may have to make quick decisions, based on little information, with few concrete incentives for accuracy, and with little opportunity to learn from their errors. Even where the letter of the law does not explicitly allow for a pollworker to exercise discretion, there is a strong possibility that unconscious bias could play a role in pollworker decision-making. Whether a poll workers' discretion is de jure or de facto, the result may be race-based discrimination between prospective voters. This article addresses how unconscious bias may play a role in the interaction between pollworkers and prospective voters and discusses some ways in which the potential for unconscious bias to operate in America's polling places may be mitigated.

"Hypocrisy in Citizens United chatter"

David Bossie of Citizens United has written this Politico oped.

"Bullying Complaint in California Primary"

This story is quite bizarre. You can read the actual email and complaint here. It does raise an interesting issues about inducing a candidate to withdraw from a race, something Dan Lowenstein has written about. But whoever is giving Poizner political advice is certainly having some regrets today.

"Judge Orders More Testing of Voting Machines"

NJ.com reports. More here.

"Too Big to Fail? Reforming California's Constitution for the 21st Century"

This terrific event will take place Feb. 16 and 17 at USC.

More CU

The Senate Committee on Rules and Administration will hold this hearing tomorrow on CU.

The House Administration Committee will hold this hearing on Wednesday.

More from:

Polling on CU by "Vision Critical"

Governing Works

I May Not Have Secretary Rokita to Kick Around Anymore

See here.

Rush and Askin on CU

Mark Rush

Frank Askin