Ned Foley Stocking Stuffer

What do you give the election law nerd who has everything?

I’d suggest Ned Foley’s new book, Ballot Battles. I’ve read this in draft and I highly recommend it to anyone who wants to know how we’ve handled close and crucial elections throughout the Nation’s history.  It didn’t start (nor will it end) with Bush v. Gore.

Ned will be guest blogging soon about his great book. It is careful, scholarly, and entertaining.


Must-Read Nick Confessore on Money in Illinois Politics in the Citizens United Era

Deep dive in the New York Times on the rise of our emerging plutocracy and the lack of capacity of campaign finance laws to deal with it:

The families remaking Illinois are among a small group around the country who have channeled their extraordinary wealth into political power, taking advantage of regulatory, legal and cultural shifts that have carved new paths for infusing money into campaigns. Economic winners in an age of rising inequality, operating largely out of public view, they are reshaping government with fortunes so large as to defy the ordinary financial scale of politics. In the 2016 presidential race, a New York Times analysis found last month, just 158 families had provided nearly half of the early campaign money.

Many of those giving, like Mr. Griffin, come from the world of finance, an industry that has yielded more of the new political wealth than any other. The Florida-based leveraged-buyout pioneer John Childs, the private equity investor Sam Zell and Paul Singer, a prominent New York hedge fund manager, all helped elect Mr. Rauner, as did Richard Uihlein, a conservative businessman from the Chicago suburbs.

Most of them lean Republican; some are Democrats. But to a remarkable degree, their philosophies are becoming part of a widely adopted blueprint for public officials around the country: Critical of the power of unions, many are also determined to reduce spending and taxation, and are skeptical of government-led efforts to mitigate the growing gap between the rich and everyone else….

To bring about a revolution in the Illinois Capitol, in Springfield, Mr. Rauner and his allies have created what amounts to a new campaign economy, in which union money has long been the financial lifeblood of both parties. Contributing millions to his own campaign, Mr. Rauner triggered a state law that removes limits on campaign contributions when a wealthy candidate spends heavily on his or her own race.

The law, intended to limit the influence of the wealthy by providing a level playing field, had the opposite effect: Freed of the restraints, supporters of Mr. Rauner poured millions more into his campaign, breaking state records. About half of the $65 million he spent through last year’s election came from himself and nine other individuals, families or companies they control. Mr. Quinn, the incumbent, spent about $32 million, with many unions making mid-six-figure contributions.

Mr. Rauner’s biggest donor was Mr. Griffin, who gave $5.5 million and put his private plane at Mr. Rauner’s disposal. Mr. Rauner’s allies spent millions on political advocacy groups, research organizations and party committees. The Chicago Sun-Times reversed its no-endorsement policy to back Mr. Rauner, who was a part-owner of the paper before he ran for governor.
“He didn’t have to play by the same rules as other candidates,” said Bill Hyers, the chief strategist to Mr. Quinn. “He just kept on spending.”

Never before in modern Illinois politics had so few people provided so much of the money for campaigns. The size of the average contribution in last year’s general election almost tripled over those made in the previous governor’s race, according to a Times analysis of campaign records collected by Illinois Sunshine, a project of the Illinois Campaign for Political Reform….
Around the same time that Mr. Rauner began running for governor, a group of researchers based at Northwestern University published findings from the country’s first-ever representative survey of the richest one percent of Americans. The study, known as the Survey of Economically Successful Americans and the Common Good, canvassed a sample of the wealthy from the Chicago area. Those canvassed were granted anonymity to discuss their views candidly.

Their replies were striking. Where merely affluent Americans are more likely to identify as Democrats than as Republicans, the ultrawealthy overwhelmingly leaned right. They are far more likely to raise money for politicians and to have access to them; nearly half had personally contacted one of Illinois’s two United States senators.

Where the general public overwhelmingly supports a high minimum wage, the one percent are broadly opposed. A majority of Americans supported expanding safety-net and retirement programs, while most of the very wealthy opposed them. And while Americans are not enthusiastic about higher taxes generally, they feel strongly that the rich should pay more than they do, and more than everyone else pays.

“Probably the biggest single area of disconnect has to do with social welfare programs,” said Benjamin I. Page, a political scientist at Northwestern University and a co-author of the study. “The other big area has to do with paying for those programs, particularly taxes on high-income and wealthy people.”

Illinois, Mr. Page added, is “a case study of the disconnect in action — between what average citizens want the government to do and what it does.”


“Donors gave a super PAC $6 million. Candidates actually got about $140,000.”


Before he entered the race for the White House, Ben Carson signed on to a campaign to raise money to fight Obamacare. When Juanita McMillon saw his name, she was eager to get out her checkbook.

“I think he is sincere, and I think he is honest, and I think he is exactly what we need,” said McMillon, 80, from the small town of De Kalb in northeast Texas. She gave $350.

Her money went to the American Legacy PAC, an organization with ties to former House Speaker Newt Gingrich. With Carson as the face of its Save Our Healthcare campaign, American Legacy raised close to $6 million in 2014 — and spent nearly all of it paying the consultants and firms that raised the money. Just 2% was donated to Republican candidates and committees, financial reports show.


BIG Campaign Finance News: La. GOP Soft Money Lawsuit Gets 3-Judge Court, Likely Ticket to SCOTUS

I know it is late on Friday, the day after Thanksgiving, but here’s some very big news. It sounds technical, but it really, really matters.

A federal district court has held that the Louisiana GOP, under the guidance of tenacious campaign finance lawyer Jim Bopp, has the right to have a challenge to McCain-Feingold’s soft money ban applied to state parties through a three-judge court. Getting there took some very clever drafting, as the court recognized:

Close observers of the campaign-finance arena may be experiencing twinges of déjà vu. Last year, these same plaintiffs, represented by the same counsel, were among those who mounted similar challenges to the soft-money ban before this Court. See Rufer v. FEC, 64 F. Supp. 3d 195 (D.D.C. 2014); RNC v. FEC (“RNC II”), No. 14-cv-00853 (D.D.C. Aug. 19, 2014). This Court declined to convene a three-judge court to hear those challenges. While the Court found that the plaintiffs had presented “substantial, non-frivolous” constitutional claims, it concluded they lacked standing to bring those claims before a three-judge court because their central alleged injury—being prevented from accepting unlimited contributions to fund “independent” election activity—could have been redressed only by invalidating the longstanding base party contribution limits in FECA. Rufer, 64 F. Supp. 3d at 198. BCRA three-judge courts, however, are empowered to decide only constitutional challenges to provisions of BCRA itself. Id. Having been deprived of a direct ticket to the Supreme Court, the Rufer and RNC II plaintiffs abandoned their appeal of the Court’s ruling, and at least some of them regrouped to fight another day.

That day has now come, and the Court is again presented with the same two questions: Are Plaintiffs’ constitutional claims substantial, and are their alleged injuries redressable by a BCRA three-judge court? The Court this time answers yes to both. As in Rufer and RNC II, Plaintiffs have presented substantial constitutional claims. While the Supreme Court has twice upheld BCRA’s soft-money ban, and recently affirmed that it is still intact, its ruling in McCutcheon created widespread uncertainty over the central question presented here: whether truly independent campaign expenditures by political parties—if there can be such a thing—pose the type of corruption risk that the Supreme Court has held is necessary to justify limiting federal election spending. Given this uncertainty, Plaintiffs’ claims cannot be fairly characterized as “frivolous,” “obviously without merit,” or “so foreclosed by” Supreme Court precedent that there is “no room for the inference that the question sought to be raised can be the subject of controversy.” Feinberg v. FDIC, 522 F.2d 1335, 1339 (D.C. Cir. 1975) (quoting Ex parte Poresky, 290 U.S. 30, 32 (1933)).

But unlike in the prior cases, the Court concludes that Plaintiffs here have standing to present their claims to a three-judge court. The core injury alleged by the Rufer and RNC II plaintiffs could not have been redressed without striking down FECA’s base limits, which a BCRA three-judge court may not do. Assiduously avoiding a frontal assault on the base limits, Plaintiffs here re-characterize their injury as simply being prevented from spending funds from state-party-committee accounts on federal election activity, without regard to the FECA base limits. Make no mistake, a ruling for Plaintiffs on the merits would render largely meaningless FECA’s limits on contributions to state- and local-party committees: Depending on the contribution limits in the relevant state, if any, an individual or corporation would be able to contribute sums in excess of the existing FECA-imposed federal limits to a state party, and the party could then deposit those funds in a state account and use them to engage in “independent” federal election activity on a scale that would be impossible under existing law. Plaintiffs have nevertheless established standing because, technically speaking, the relief they seek can be achieved by invalidating BCRA’s soft-money ban while leaving FECA’s base limits in place. Clever indeed, but not too clever by half as the FEC suggests. The Court will, accordingly, grant Plaintiffs’ motion to convene a three-judge district court to hear their claims as required by BCRA § 403.

Why are the stakes so high?  I explained it in August in The McCain-Feingold Law May Doom Itself, National Law Journal, Aug. 16, 2015:

Tucked within the Bipartisan Cam­paign Reform Act (the formal name for “McCain-Feingold”) is a provision requiring that certain constitutional challenges to the law be heard by a three-judge court, with direct appeal to the U.S. Supreme Court. This special jurisdictional provision makes it much more likely that within the next few years the Supreme Court will strike limits on the amounts people and entities can contribute to the political parties in so-called party soft money.

If the court does so, it would be knocking down the second of McCain-Feingold’s two pillars. The court knocked down the first pillar—the limits on corporate and union spending—in the 2010 case Citizens United v. Federal Election Commission.

It may seem hard to believe that procedural rules for court challenges could make a difference as to the fate of campaign financing in the United States, but it matters. When a case comes up to the Supreme Court through the normal process of federal district court or state court decision followed by appellate court review, the losing side files a petition for writ of certiorari.

A Supreme Court decision to deny certiorari has no precedential value; no one can cite a certiorari denial as proof the Supreme Court believes the lower court got it right.

But in a rare set of cases (these days confined to certain campaign finance, redistricting and voting-rights cases) pursuant to federal statute are heard initially by a three-judge federal district court with direct appeal to the Supreme Court. In these cases, a court decision to affirm a three-judge court or to dismiss the appeal does count as a decision that the lower court got right, even if not necessarily for its reasoning. This fact makes it much more likely that the Supreme Court will hear such cases.

Justices have said the ­jurisdictional provision matters.

Since I wrote this oped, Chief Justice Roberts at the oral argument in Shapiro v. McManus has confirmed his feeling of the obligation to take three-judge court cases:

 CHIEF JUSTICE ROBERTS:  I mean, the other alternative is it’s a three-­judge district court, and then we have to take it on the merits.  I mean, that’s a serious problem because there are a lot of cases that come up in three-judge district courts that would be the kind of case –­­ I speak for myself, anyway– ­­ that we might deny cert in, to let the issue percolate.  And now with the three­-judge district court, no, we have to decide it on the merits…


As I concluded in my August oped:

The Roberts Court has proved itself quite deregulatory in campaign-finance cases. It has struck down or narrowed severely every campaign-finance limit it has ever considered. Further, in the 2014 McCutcheon case, Roberts suggested a soft money ban is unconstitutional.

But the court has also proven itself willing to not hear every campaign-finance case to come its way. Twice, for example, it turned down certiorari petitions testing whether the ban on direct campaign contributions by corporations violates the First Amendment. In 2010, over the dissents of justices Anthony Kennedy, Antonin Scalia and Clarence Thomas, it turned down a certiorari petition in yet another case Republicans brought to challenge the soft-money rules

If the Republican Party of Louisiana is able to convince the courts this time that the three-judge court is the appropriate route to hear its soft-money challenge, then there’s a good chance the court will not only take the case, but will strike down what remains of McCain-Feingold.

Read more:


Some Evidence Justice Kennedy’s Order Could Affect Voting in Hawaii Election

In my earlier post on Justice Kennedy’s order today, I noted the potential for a kind of Heisenberg observer effect:

Here too, the argument for not announcing the results must be one concerned about the legitimacy of the election: announcing the results, only to have the election declared illegal later, could potentially undermine the voters’ faith in the process.

But how many people now won’t vote, hearing that the election may not be valid?  Doesn’t Justice Kennedy’s order itself affect the legitimacy, and potentially the outcome, of the election?

This AP report on Justice Kennedy’s order seems to confirm that supporters of this voting are worried it will affect voting itself:

Nai Aupuni, the nonprofit organization guiding the election process, is encouraging voters to continue casting votes, said Bill Meheula, an attorney representing the group.

“Reorganizing a government is not easy and it takes the courage and will of the candidates to take the first step to unify Hawaiians,” he said in a statement. “Help them by voting now.”



Breaking: Justice Kennedy Enjoins Counting of Ballots in Hawaii Election

Justice Kennedy, in his capacity as Circuit Justice for the Ninth Circuit, has enjoined the counting of ballots in an upcoming election in which only those with Native Hawaiian ancestry may vote. (Via Adam Liptak).

I had blogged on Tuesday about this case, linking to Lyle Denniston’s analysis of the case and the  emergency application in the case.

What does Justice Kennedy’s action mean? I think it means there’s a fairly good chance this issue eventually ends up on the merits at the Supreme Court, where the Court’s earlier decision in Rice v. Cayetano renders this election procedure potentially a violation of the Fifteenth Amendment’s prohibition on racial criteria for voting.

Also interesting is the remedy: allow the election but don’t allow the counting of the ballots. The applicants did not ask to stop the election, which is set for November 30, but to enjoin the counting of votes. That’s the remedy that Justice Kennedy ordered:

IT IS ORDERED that the respondents are enjoined from counting the ballots cast in, and certifying the winners of, the election described in the application, pending further order of the undersigned or of the Court.

This reminds me of the dispute between Justices Scalia and Stevens [corrected] in the Bush v. Gore stay order over whether to halt the counting of certain ballots in the state of Florida (which had been ordered by the Florida Supreme Court) while the U.S. Supreme Court continued the case. Justice Scalia said that allowing the count to go forward, only to potentially have those results reversed by the Supreme Court, would cast a cloud of illegitimacy over George Bush’s election (“The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.”). Justice Stevens, in contrast, said that stopping the counting (and essentially allowing the clock to run out) cast a cloud over the legitimacy of the election (“Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election”).

Here too, the argument for not announcing the results must be one concerned about the legitimacy of the election: announcing the results, only to have the election declared illegal later, could potentially undermine the voters’ faith in the process.

But how many people now won’t vote, hearing that the election may not be valid?  Doesn’t Justice Kennedy’s order itself affect the legitimacy, and potentially the outcome, of the election?

OK, now back to your Black Friday shopping.

UPDATE: It has been pointed out to me that this could be in the nature of an administrative stay, pending further order of the Court while the Court is on a holiday schedule. Nonetheless, the point about the order potentially affecting the election itself still stands.


“Other viewpoint: Tossed ballots show need to update law”

Editorial from the Akron Beacon Journal:

There was disturbing news from the Summit County Board of Elections last week. The absentee ballots of 861 voters who mailed their selections to the board were disqualified, even though they had done nothing wrong. What their ballots lacked was a postmark, or at least the kind required by Ohio law.

The disqualified ballots from the Nov. 3 election represent 9 percent of the mailed-in absentee ballots in the county. No one familiar with Ohio’s role in presidential elections could ignore easily the thought that such a disqualification rate next year — multiplied across this battleground state — could throw the national results into controversy and lawsuits.


“Tighter Lid on Records Threatens to Weaken Government Watchdogs”

What happened to the Obama administration’s commitment to be the most transparent Administration?  Not looking good.  NYT:

The continuing Honduran inquiry is one of at least 20 investigations across the government that have been slowed, stymied or sometimes closed because of a long-simmering dispute between the Obama administration and its own watchdogs over the shrinking access of inspectors general to confidential records, according to records and interviews.

The impasse has hampered investigations into an array of programs and abuse reports — from allegations of sexual assaults in the Peace Corps to the F.B.I.’s terrorism powers, officials said. And it has threatened to roll back more than three decades of policy giving the watchdogs unfettered access to “all records” in their investigations.

“The bottom line is that we’re no longer independent,” Michael E. Horowitz, the Justice Department inspector general, said in an interview.

The restrictions reflect a broader effort by the Obama administration to prevent unauthorized disclosures of sensitive information — at the expense, some watchdogs insist, of government oversight.

Justice Department lawyers concluded in a legal opinion this summer that some protected records, like grand jury transcripts, wiretap intercepts and financial credit reports, could be kept off limits to government investigators. The administration insists there is no intention of curtailing investigations, but both Democrats and Republicans in Congress have expressed alarm and are promising to restore full access to the watchdogs.



“The 2016 ballot wars begin”


Barring a major organizational misfire, there’s little doubt that the top-tier Republicans with big money operations – Jeb Bush, Marco Rubio, Ben Carson, Ted Cruz and Donald Trump – will be on the ballot nationwide. But for everyone else – including Chris Christie, John Kasich and Rand Paul, whose campaigns say they are on track to be on the ballot everywhere – ballot access is an expensive challenge.


“Shelby challenger John Martin accuses fellow rival Jonathan McConnell of urging him to drop out, reimbursing him if he did”

One of the candidates looking to unseat U.S. Sen. Richard Shelby, R-Ala., in the Republican primary is claiming fellow GOP challenger Jonathan McConnell urged him to drop out of the race and promise to reimburse his expenses if he did so.

John Martin, a Dothan former Army Ranger who filed to run in the March 1 primary, posted the allegations earlier this month to Facebook, describing the offer as “illegal.”

Alabama Political Reporter:

US Senate candidate John Martin has charged opponent Jonathan McConnell of offering him money to drop out of the Republican primary. If true, this would not be the first time McConnell has been accused with violating campaign rules.

The Auburn Plainsman in 2003 reported McConnell violated several campaign rules in his bid for Auburn student body president, including attempting to gather students’ student ID numbers and pins to cast votes for his campaign.

In 2003, SGA Sen. Michael Joffrion accused McConnell of violating seven campaign rules. The Auburn E-Board determined, “Of the seven violation categories outlined in Joffrion’s contention, E-Board found there was enough evidence to support six of the allegations,” wrote student reporter Brooklyn Noel.


“GOP rider would boost party spending”

Politico on news that will ruin Fred Wertheimer’s Thanksgiving:

Senate Republicans plan to insert a provision into a must-pass government funding bill that would vastly expand the amount of cash that political parties could spend on candidates, multiple sources tell POLITICO.
The provision, which sources say is one of a few campaign-finance related riders being discussed in closed-door negotiations over a $1.15-trillion omnibus spending package, would eliminate caps on the amount of cash that parties may spend in coordination with their candidates.

Pushed by Senate Majority Leader Mitch McConnell, a longtime foe of campaign finance restrictions, the coordination rider represents the latest threat to the increasingly rickety set of rules created to restrict the political fundraising and spent in elections.
Campaign finance watchdogs argue that it would allow wealthy donors to curry even more influence with members of Congress. And they cried foul over the possibility that the provision could be slipped into the omnibus spending bill that Congress is working to pass before a Dec. 11 deadline to avoid a government shutdown.



Happy Thanksgiving!

I am thankful for family, friends, and colleagues, and you, my readers–with your great tips, suggestions, and ever vigilant reading and willingness to tell me when I’ve gotten something wrong.

Blogging will be light until Monday.

Enjoy the break!


“Libre, Backed by Koch Brothers, Aims to Raise G.O.P. Standing With Hispanics”


The approach — a free Thanksgiving turkey in exchange for some personal information — captures the mission of Libre, a multimillion-dollar effort financed by the conservative billionaire Koch brothers and devoted to winning over Hispanics, with the message that economic freedom and smaller-government principles will yield opportunity and prosperity.


“Evenwel and Minority Representation”

David Gans:

Next month, the Supreme Court will consider Sue Evenwel’s bid to change the way state and local governments draw election districts.  Demanding that state and local governments across the nation change the way they draw legislative lines, Evenwel argues that it is unconstitutional for states to draw districts based on total population, creating districts of substantially equal numbers of people.  Evenwel’s arguments—which fly in the face of our Constitution’s promise of equal representation for all—would undermine minority representation both in Texas, the state Evenwel is suing, and throughout the nation.  Recent events in Yakima, Washington, provide a good example.

The town of Yakima—an agricultural community 140 miles east of Seattle—is forty percent Hispanic, but, until this year, had never elected a person of Hispanic origin to the town’s city council.  This year, a federal district court held that Yakima’s at-large system of elections for city council violated the Voting Rights Act by denying Hispanic voters an equal opportunity to elect their candidate of choice, and ordered the town to draw single-member districts composed of substantially equal population.   Earlier this month, in elections held under these court-ordered boundaries, three Hispanic candidates won election to office, ending the exclusion of Hispanics from elected office.

But the town of Yakima is now using every avenue to undo these historic gains, claiming—as Evenwel does—that the Constitution does not permit state and local governments to draw districts composed of substantially equal numbers of people if those districts do not contain approximately the same number of eligible voters.   Yakima argues that the Hispanic voters’ claim under the Voting Rights Act should be dismissed because creating single-member districts in order to make it possible for the Hispanic community to elect its candidate of choice would result in “severe malapportionment of eligible voters.” Represented by defense counsel in the Voting Rights Act litigation, Yakima has even gone  so far as to file an amicus brief in the Supreme Court supporting Evenwel’s attack on the principle of equal representation for equal numbers of people.

As this example illustrates, Evenwel’s far-reaching arguments, if accepted by the Court, would  not only wreak havoc with our democracy, requiring states to change the way they draw district lines, but it would also make it harder to draw election boundaries that ensure that racial minorities have an equal chance to elect representatives of their choice.  Evenwel’s argument would undermine the protections afforded by the Voting Rights Act and take political power away from urban population centers where racial minorities overwhelmingly live, giving it to whiter, more rural areas.  This is no accident.    Ed Blum—the mastermind behind Evenwel’s case—wants to stop states from creating majority-minority districts that help ensure equal political opportunities for all regardless of race.  Denying equal representation to unnaturalized immigrants, children, and others who lack the franchise won’t alone accomplish Blum’s goal, but it would make it harder to draw election boundaries that ensure that minorities have a fair chance at the polls. Among the losers—if Blum succeeds in eliminating the guarantee of equal representation for equal numbers of people—will be racial minorities in places like Yakima, who will, once again, find it harder to have their voices heard.


“Fee-Fight Fallout From Voting Rights Decision Reaches High Court”

Marcia Coyle:

Fallout from the U.S. Supreme Court’s 2013 blockbuster voting rights decision has reached the justices in two multimillion-dollar battles over attorney fees.

If the high court agrees to step into either fight, the justices could be drawn into a debate over who qualifies as a “prevailing party” under the fee provision in the Voting Rights Act that’s designed to encourage private enforcement of the voting guarantees in the Constitution.



“Campaign for Accountability Statement on Sheldon Adelson”


On November 3, 2015, the Campaign for Accountability (“CfA”) announced that it had asked the Senate Committee on Homeland Security and Governmental Affairs and the Federal Election Commission to investigate Sheldon Adelson and the Las Vegas Sands Corporation to determine the extent of their connection to organized crime in China and whether funds tied to Chinese organized crime may be reaching American campaign committees.


Race and Election Law Case May Come Quickly to #SCOTUS

Lyle Denniston @SCOTUSBlog:

A group of Hawiians, some of whom won’t be able to vote in a special election on November 30 that is a prelude to recognizing a new Indian-like tribe including many residents, asked the Supreme Court to temporarily stop the completion of that election until their challenge can be decided.  In an application filed Thursday night, the challengers argued that the election is based along strict racial lines, and is thus unconstitutional under the Fifteenth Amendment.

The election — favored by the state and endorsed by the federal Department of the Interior — will be limited to a voter roll made up of people who can qualify as “native Hawaiians.”  The election will choose delegates to a convention to write a constitution for what would be a new government entity, similar to a traditional Indian tribe. The aim is to give those who qualify a right of “self-determination.”

The challengers did not ask the Justices to stop the actual balloting a week from Monday, but did request that the Court temporarily bar counting and formal certification of the result.   So far, their plea for temporary relief has been denied by a federal trial judge and by the U.S. Court of Appeals for the Ninth Circuit.   The Interior Department entered the case in the Ninth Circuit to oppose any interruption of the election process.   It intends, the department said in court filings, to start a process that would recognize a “native Hawaiian” community in Hawaii as a self-governing, sovereign entity, like an Indian tribe.


“State, Utah GOP appear headed to court over election law — again”


A federal judge Monday permanently barred the state from forcing political parties to hold open primary elections and dismissed all other claims in the Utah Republican Party’s lawsuit.

As U.S. District Judge David Nuffer closed the case, the Utah GOP and the state continued to wrangle over the meaning of part of the law, setting the stage for another court battle, possibly before the Utah Supreme Court.

Meantime, Gov. Gary Herbert told the Republican State Central Committee over the weekend that he wishes he would have vetoed the controversial new election law and let voters decide the issue as proposed by the Count My Vote initiative.


“The Citizen United President?”

Robert Weisman oped in USA Today:

Will Barack Obama be remembered for standing by helplessly as Citizens United eroded the very foundations of our electoral democracy?

That may be an unfortunate part of his legacy if he fails to take action soon to do something — anything — about the billions of dollars in corporate and super-rich money flooding over the electoral terrain.


“Bipartisan Support for Limits on Campaign Spending”

More from that Pew study I linked to yesterday:

Opinions on campaign finance and its effects on the political system are widely shared; majorities across demographic and partisan groups say there should be limits on campaign spending, that money’s impact on politics has increased and that the high cost of campaigns is driving away good candidates.Concern about money's influence on politics crosses partisan lines

Partisan differences on all three measures are modest. Republicans and Republican-leaning independents (72%) are less likely than Democrats and Democratic-leaning independents (84%) to say that there should be limits on campaign spending. However, support for spending limits is high even among conservative Republicans and leaners –roughly two-thirds (68%) think there should be limits on how much individuals and organizations can spend.

Democrats and leaners are somewhat more likely to say that the high cost of campaigns today discourages good candidates: 68% say this compared with 62% of Republicans and leaners.Widespread belief that new laws would curb role of money in politics

While most Americans believe that new laws would be effective in reducing the role of money in politics, there are educational and partisan differences in how widely these views are held.

Fully three-quarters of those with post-graduate degrees say new laws would be effective in this regard, compared with 57% of those with no more than a high school education.

More Democrats and leaners (71%) than Republicans and leaners (58%) say that new laws would be effective in limiting the influence of money in politics. Nonetheless, majorities across all educational and partisan categories say that new laws could be written that would effectively reduce the role of money in politics.


ABA Journal Names Election Law Blog to Its Blawg 100 Hall of Fame

Here is the announcement and here is the full Blawg Hall of Fame. The Journal writes:

Election Law Blog

HALL OF FAME: Brief and exceedingly timely posts by law professor Rick Hasen of the University of California at Irvine provide exhaustive coverage of the election law issues of the day. This is a good one to bookmark as an election year approaches.

Thanks for the honor and recognition!


“CREW Files Criminal Complaint Against Rubio Finance Chair, DC Power Players”


Key associates of the notorious dark money group the Commission on Hope, Growth and Opportunity (CHGO) may have violated federal law by making false statements to the government, obstructing an investigation and pocketing more than $1 million originally meant for broadcasting television ads, Citizens for Responsibility and Ethics in Washington (CREW) alleged today in a complaint to the United States Attorney’s Office.

During an FEC investigation sparked by CREW’s complaint that CHGO violated the law by failing to register as a political committee or report the millions of dollars it spent on television ads in 2010, the organization’s key players downplayed their involvement. A lawyer for Wayne Berman, now the national finance chairman for Sen. Marco Rubio’s presidential campaign, told the FEC’s investigators that Berman “only offered informal and infrequent fundraising advice strictly on a volunteer basis” and did no consulting work for CHGO. Former RNC executive director and current senior political strategist for the US Chamber of Commerce Scott Reed told the investigators “that he could not recall being involved in the formation of CHGO and could not recall having any contact with anyone involved with CHGO after its formation.”

CHGO’s General Counsel William Canfield, now General Counsel for the Carly for America super PAC, declared to the IRS under the penalty of perjury that CHGO spent no money related to fundraising that year, and told the FEC “that his role at CHGO was limited to legal compliance.”  However, others involved in CHGO, including Michael Mihalke, the principal at the vendor that produced CHGO’s ads, painted a very different picture of Reed, Canfield and Berman’s level of involvement in the enterprise.  Strikingly, Mihalke told investigators that under orders from Reed, $1.1 million dollars that had been paid to Mihalke’s group but that had not been spent was to be split between Berman, Reed and Mihalke and classified as a “fundraising commission.”

“There is no reasonable explanation for how people who claim to have such limited involvement with an organization that had no fundraising expenses could be paid more than $1 million for fundraising work,” CREW Executive Director Noah Bookbinder said. “It appears that these operatives deliberately misled the government about their role in CHGO to throw investigators off the trail of the organization’s violations of campaign finance law. If they were telling the truth about their roles to the FEC, how did they end up with all that money?”

Despite misleading testimony and missing documents, the FEC’s investigators nonetheless found that far more than half CHGO’s spending—as much as 85%—was on campaign activity and that it should have reported millions of dollars in political spending.  But the three Republican FEC commissioners still said nothing could be done because the statute of limitations had run out and CHGO had gone out of business during the FEC’s lengthy investigation, preventing anyone from being held accountable for CHGO’s legal violations. Today CREW also filed a lawsuit against the FEC to force them to reopen and reexamine the case.

“It is inexcusable that no one has been punished for what even the FEC’s investigators believe to be a clear violation of the law,” Bookbinder said. “Laws only work if they are enforced; we are asking the court to remind the FEC it must do its job.”


77% of Public Supports Spending Limits in Elections, According to Pew Report

Here is the study.  The public believes money’s influence is growing.

Q.112F1 Thinking about spending on political campaigns and issues, which comes closer to your view

Aug 27-
Sep 13,
20 Individuals and organizations should be able to spend as much money as they want [OR]
77 There should be limits on the amount of money individuals and organizations can spend
3 Don’t know/Refused (VOL.)

Q.113F1 Which comes closer to your view on the influence of money on politics and elected

Aug 27-
Sep 13,
76 Money has a greater influence on politics and elected officials today than in the past
22 Money’s influence on politics and elected officials today is little different than it’s
been in the past
2 Don’t know/Refused (VOL.)




“Employer Political Coercion: A Growing Threat”

American Prospect:

A common piece of advice for new hires is to avoid talking about politics, sex, and religion in the workplace. But it may be increasingly difficult for workers to keep their politics to themselves. Thanks to the Supreme Court’s decision in Citizens United, employers now have broad legal rights to campaign for political candidates inside their firms as well as in the public arena. And thanks to new technology, they have the means to track their employees’ political opinions and activities.

Managers and supervisors can now legally require their workers to participate in politics as a condition of employment. For instance, in most states, managers have the legal right to mandate worker attendance at a political rally for a favored candidate—and fire or punish workers who decline to participate. Consider the following examples from recent years of employers engaging their workers in politics:…


“North Carolina’s Shell Game of Electoral Apartheid: How the Board of Elections Shoved Black Voters Away From the Ballot Box in 2014”


Between the 2012 and 2014 elections the total number of Early Voting sites operated by North Carolina county boards of elections, statewide, increased modestly: from 363 to 366. But that same period witnessed substantial changes in those sites’ locations. According to Voting Information Project data, 114 sites operating in November 2012 were no longer open in November 2014, replaced by 117 different sites. The impact on the average voter (across all races) was fairly insignificant: an increase from about 3.5 miles in 2012 to 3.6 miles in 2014 — a difference of only about 300 feet (roughly one city block).

But a look at the aggregate impacts by race reveals a startlingly different picture (Figure 1, below). While the averagewhite voter’s distance to his or her nearest Early Voting site increased by just 26 feet in 2014, the average black voter’s distance increased by a quarter of a mile. Summing that up over the members of each race, that’s an aggregate increase in distance-to-poll of just 21,000 miles for white voters (71% of the electorate), but more than 350,000 miles for black voters (22% of the electorate). That latter distance is the equivalent of a trip from the Earth to the Moon, and half way home again.


“At End of Sheldon Silver’s Corruption Trial, the ‘Law Guys’ Take Over”


As the public corruption trial of State Assemblyman Sheldon Silver heads to closing arguments on Monday, the clash in the courtroom has been handled largely by well-staffed government and defense legal teams, each with a wealth of experience in handling corruption cases.

But on Thursday, two unfamiliar lawyers took the stage to try to shape the instructions that the judge will give to the jury before deliberations.

In a case in which no witness testified directly to knowledge of an illegal quid pro quo, how Judge Valerie E. Caproni tells jurors to interpret the evidence as it relates to the law could sway deliberations — a fact certainly not lost on the government or the defense.

The two lawyers had largely disappeared during Mr. Silver’s three-week trial in Federal District Court in Manhattan; James M. McDonald sat quietly at the end of the prosecution table, while Robert K. Kry, a defense lawyer, did not even show up in court.

But it was clear late on Thursday, with the parties and the judge seated around a conference table and the jury not present, that Mr. McDonald and Mr. Kry had critical roles as legal specialists in the case — “the law guys,” as several experts put it — a role the public rarely hears about.

The law guys must master the legal aspects of the case, and be steeped in precedents and in issues that might become the focus of an appeal or need to be responded to in court at a moment’s notice. This is of particular importance in public corruption cases, where the rules changed about five years ago, after the Supreme Court imposed the requirement in honest services fraud cases that the government prove a quid pro quo. Four of the seven counts against Mr. Silver, a Democrat from the Lower East Side of Manhattan who had been the longtime Assembly speaker, involved alleged honest services fraud.