“Lawsuit claims racial discrimination in Ferguson voting”


School board elections in Ferguson, Missouri use a racially discriminatory system that is helping to keep blacks “all but locked out of the political process,” a new federal lawsuit alleges.

The suit, filed Thursday morning by the American Civil Liberties Union in a federal district court in St. Louis, is the first effort to use the legal system to change the area’s political balance of power since unrest over the death of Michael Brown last summer focused attention on local blacks’ severe under-representation in government.


“CRomnibus Pays Off for Parties”

Ray LaRaja:

I certainly do not believe, like Fred Wertheimer, that this is the most corrupting legislation ever passed. Personally, I would have preferred raising the limits on parties to $100,000 or even $200,000 per year, with no proliferation of separate accounts. The new rules seem inefficient and invite gamesmanship. The parties will surely try to stretch the meaning of what counts as expenses for its building fund. Finally, I cannot claim that the new rules decrease the influence of big money. I can think of better ways to deal with that, such as public financing. But the changes do not make the system any worse and, as I note here, in some ways they might make politics a good deal better.


“The Uniquely Awful Role of Sheldon Adelson in the Israeli Election”

Must read Gershom Gorenberg:

When Adelson established Israel Hayom in 2007, he made an end-run around those [campaign finance] rules. It’s a full-sized paper, aimed at matching other national dailies. But it’s free. In Israel, the small advertising market can’t produce enough revenue to allow a profit-seeking publisher to forfeit income from readers. But Adelson has shown he’s very willing dip into his own pockets to promote his agenda.

Since the newspaper is privately owned, it need not make its balance sheet public. In a 2011 deposition in a suit against Adelson in Israeli court, a former business partner stated, “It is no secret that the free paper Israel Hayom loses $3 million a month, and cannot be profitable.” That number may have been contestable then, and may have changed since. But the principle that Israel Hayom isn’t built to make money appears true to this day.

In circulation terms, though, Israel Hayom has done very well. It is now the most-read newspaper on weekdays, leaving the once-dominant Yediot Aharonot to slide to second place. On Fridays, Yediot’s weekend edition is still ahead, but Israel Hayom is closing the gap. Newspapers around the world are struggling, and often failing, to stay afloat, with so many news sources available for free on the Internet. Adelson has doubled the jinx for Israeli newspapers: News is also handed out free on the street.

Owners of niche political publications have been known to accept reasonable losses as the price for personal prestige and promoting their perspectives. (Think The New Republic—until the current crisis.) But Israel Hayom isn’t a niche magazine. And it is not simply a conservative paper. It’s a Netanyahu paper, resented by the prime minister’s rivals on the right as much as it is by opponents on the left.



Cass Sunstein has posted this provocative draft on SSRN (forthcoming, University of Chicago Legal Forum).  Here is the abstract:

“Partyism” is a form of hostility and prejudice that operates across political lines. For example, some Republicans have an immediate aversive reaction to Democrats, and some Democrats have the same aversive reaction to Republicans, so much so that they would discriminate against them in hiring or promotion decisions, or in imposing punishment. If elected officials suffer from partyism – perhaps because their constituents do – they will devalue proposals from the opposing party and refuse to enter into agreements with its members, even if their independent assessment, freed from partyism, would be favorably disposed toward those proposals or agreements. In the United States, partyism has been rapidly growing, and it is quite pronounced – in some ways, more so than racism. It also has a series of adverse effects on governance itself, above all by making it difficult to enact desirable legislation and thus disrupting the system of separation of powers. Under circumstances of severe partyism, relatively broad delegations of authority to the executive branch, and a suitably receptive approach to the Chevron principle, have considerable appeal as ways of allowing significant social problems to be addressed. This conclusion bears on both domestic issues and foreign affairs.

I saw Cass present these data at the Chicago event. Fascinating, and highly recommended!


“Senate abruptly wraps up, capping least productive Congress in modern history”


The least-productive Congress in modern history drew to an abrupt close late Tuesday as the U.S. Senate extended dozens of expired tax breaks but failed to renew a federally backed terrorism insurance program supported by big businesses and major sports leagues.

Democrats controlling the Senate also secured agreements from Republicans to confirm at least six dozen of President Obama’s nominees to serve as federal judges, agency bosses and on myriad government boards, a last-minute coup for the White House since most of the picks faced tougher odds next year once Republicans take full control of Capitol Hill.


“Ecuador Family Wins Favors After Donations to Democrats”

Expect this fascinating NYT story to get some play:

The Obama administration overturned a ban preventing a wealthy, politically connected Ecuadorean woman from entering the United States after her family gave tens of thousands of dollars to Democratic campaigns, according to finance records and government officials.

The woman, Estefanía Isaías, had been barred from coming to the United States after being caught fraudulently obtaining visas for her maids. But the ban was lifted at the request of the State Department under former Secretary of State Hillary Rodham Clinton so that Ms. Isaías could work for an Obama fund-raiser with close ties to the administration.

It was one of several favorable decisions the Obama administration made in recent years involving the Isaías family, which the government of Ecuador accuses of buying protection from Washington and living comfortably in Miami off the profits of a looted bank in Ecuador.


Breaking: Senate Confirms 3 Commissioners to the Election Assistance Commission

After years of the United States Election Assistance Commission having NO commissioners, tonight in a flurry of activity the Senate confirmed the following three members of the EAC: Thomas Hicks, Matthew Masterson, and Christy McCormick.

These are two Republican-chosen commissioners and one Democrat. It takes three votes for any significant action on the commission. People in the know have high hopes for these three commissioners (a fourth nominee, Matthew Butler, has not yet had a chance for a hearing, after Myrna Perez withdrew). We will see.

I detail the dysfunction of the EAC in The Voting Wars, and as I recently remarked: “there was a time when a few courageous EAC commissioners could have made the Commission something to get above the partisan sniping. But they were shut down and that moment regrettably has passed.” The Republican House has voted to defund the agency, and there is great mistrust of the agency from some Republicans. Perhaps things will be better this time around. The agency has some important functions to fulfill, especially related to approval of voting technology and collection of election related data.

We can always hope.


“En Banc 9th Circ. Questions Initiative Secrecy”

Courthouse News Service reports on a lively oral argument in a case involving a purported right of initiative proponents to be anonymous. Emily Hogin offered this extensive analysis of the case in an ELB guest post.

I’ve been engaging (and sometimes tangling) with my worthy opponent Jim Bopp for many years.  But I’ve never heard him referred to as “The Big Bopper” before.


“State high court to take up Doe cases centered on Walker’s campaign”

Milwaukee Journal-Sentinel:

The state Supreme Court on Tuesday accepted three cases stemming from a long-running John Doe investigation of fundraising and spending by Gov. Scott Walker’s campaign and conservative groups backing him.

The court was unanimous in agreeing to take the cases, but Chief Justice Shirley Abrahamson and Justice David Prosser wrote separately to say they did not want to combine the cases.

I have never seen an appellate briefing order as complex as this one. Perhaps for this reason Justice Prosser and Chief Justice Abrahamson, usually at odds, were aligned in expressing doubts about consolidating five John Doe related cases for purposes of briefing and oral argument.


My Academic Articles 2011-2012

Moving these off the Sidebar as well.

Fixing Washington, 126 Harvard Law Review 550 (2012)

What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (2012)

Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, 27 Journal of Law and Politics 557 (2012)

Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review 191 (2012)

Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, 61 Emory Law Journal 779 (2012)

Teaching Bush v. Gore as History, 56 St. Louis University Law Review 665 (2012) (symposium on teaching election law)

The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, 10 Election Law Journal 325 (2011)

Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)

The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)

The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)

Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)

Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)

Articles 2004-2007
Articles from 2008-2010


My Opeds and Commentaries 2012-2013

I am moving them off the sidebar as I spruce things up around here. [links fixed]

Voter Suppression’s New Pretext, New York Times, Nov. 15, 2013

Making a Federal Case Out of It: How Democrats May Win the Virginia Attorney General’s Race, Slate, Nov. 11, 2013

Why Judge Posner Changed His Mind on Voter ID Laws, Daily Beast, October 23, 2013

The Next Citizens United?, Slate, Sept. 30, 2013

Why Was Tom DeLay’s Conviction Tossed?, Slate, Sept. 19, 2013

Supreme Error: North Carolina’s New Voter Suppression Law Shows Why the Voting Rights Act is Still Necessary, Slate, Aug. 19, 2013

Holder’s Texas-Sized Gambit: Will It Save the Voting Rights Act?, National Law Journal, Aug. 5, 2013

Will the GOP’s North Carolina End Run Backfire?, The Daily Beast, July 24, 2013

Court Due to Make a Second Trip Down the Aisle, Reuters Opinion, July 16, 2013

“Are the Liberal Justices Savvy or Suckers? They are playing to beat John Roberts at his long game, Slate, July 1, 2013

The Chief Justice’s Long Game, New York Times, June 25, 2013

What’s Taking the Supreme Court So Long?, Daily Beast, June 21, 2013

The Supreme Court Gives States New Weapons in the Voting Wars, Daily Beast, June 17, 2013

It’s About the Disclosure, Stupid: The larger failing behind the terrible IRS treatment of Tea Party groups, Slate, May 14, 2013

Same-Sex Marriage: Court on the Couch, Reuters Opinion, Mar. 26, 2013

The Voting Wars Within: Is the Justice Department Too Biased to Enforce the Voting Rights Act?, Slate, Mar. 18, 2013

Who Controls Voting Rights?, Reuters Opinion, Feb. 26, 2013

After Scalia: Don’t Give Up on Campaign Finance Reform, However Hopeless It Seems Now, Slate, Feb. 21, 2013

If the Court Strikes Down Section 5 of the Voting Rights Act, Reuters Opinion, Jan. 30, 2013

Democrats, Don’t Freak Out! Why Fear that Republicans Will Gerrymander the Electoral College are Overblown, Slate, Jan. 25, 2013

Big Money Lost, But Don’t Be Relieved, CNN Opinion, Nov. 9, 2012

A Better Way to Vote: Nationalize Oversight and Control, NY Times, “Room for Debate” blog, Nov. 9, 2012

Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012

Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012

How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012

Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court’s Conservatives, Slate, Oct. 26, 2012

Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012

Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012

Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012

Wrong Number: The Crucial Ohio Voting Battle You Haven’t Heard About, Slate, Oct. 1, 2012

Litigating the Vote, National Law Journal, Aug. 27, 2012

Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012

Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012

A Detente Before the Election, New York Times, August 5, 2012

Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012

Has SCOTUS OK’d Campaign Dirty Tricks?, Politico, July 10, 2012

End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012

Citizens: Speech, No Consequences, Politico, May 31, 2012

Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012

Unleash the Hounds: Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012

Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012

Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012

The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012

A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012

Of Super PACs and Corruption, Politico, March 22, 2012

Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012

“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012

Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012

Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012

Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012

The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012

This Case is a Trojan Horse, New York Times “Room for Debate” blog, Jan. 6, 2012 (forum on Bluman v. FEC)

Read more opeds from 2006-2009, and these from 2010-2011.


“CRS Report Details Perks for Outgoing Members of Congress”

Roll Call:

Even though lawmakers who will not be returning to Congress in January might feel downtrodden, they can find solace in the fact that they retain some congressional perks.

Those perks, ranging from floor access to permanent identification cards, were outlined in the Congressional Research Service’s Dec. 5 report titled “Selected Privileges and Courtesies Extended to Former Members of Congress.” CRS American National Government specialist R. Eric Peterson wrote in the report, “Some [privileges] are derived from law and chamber rules, but others are courtesies that have been extended as a matter of custom.”


Pa. Supreme Court Sides with Cozen O’Connor in Campaign Finance Dispute

Unanimous opinion (with some recusals):

The primary issue in this appeal is whether a law firm’s post-election forgiveness of a political campaign committee’s unpaid legal fees, which were incurred due to the
firm’s representation of a candidate in a ballot challenge, is subject to the contribution limitations established in the Philadelphia Campaign Finance Law, Philadelphia Code Chapter 20-1000, et seq. (“Code”), as applicable in 2007. The Commonwealth Court held that the post-election forgiveness of debt would constitute a “contribution” to the candidate’s political campaign under Section 1001(6) of the Code, and, thus, was subject to the $10,000 per year contribution limitation set forth in Section 1001(2). For the reasons set forth herein, we hold that the law firm’s forgiveness of debt would not constitute a contribution to the candidate’s political campaign as the debt at issue was [J-40-2014] – 2 not incurred “for use in . . . influencing the election of the candidate.” Id. § 1001(6). Accordingly, we reverse the order of the Commonwealth Court.


“Denying Deference: Civil Rights and Judicial Resistance to Administrative Constitutionalism”

Bertrall Ross has posted this draft on SSRN (University of Chicago Legal Forum).  Here is the abstract:

What determines the level of deference the Supreme Court gives to agency interpretations of statutes? One explanation is that deference choices accord with what I term the “deference dichotomy.” When agency interpretations are in a legislative rule adopted through notice-and-comment procedures and have the “force of law,” the Court applies a heightened deference framework. But when agency interpretations are in interpretive or other non-legislative rules adopted through less formalized procedures, the Court gives minimal or no deference. Although scholars have advocated that approach for decades and the Court has now adopted it as formal doctrine, the Court’s actual choice of deference framework follows a less predictable pattern. Some scholars have suggested ideology as an alternative explanation, but empirical studies across administrative law domains have come to conflicting conclusions about its effect on deference choices. Other scholars have argued that the complexity of the statute and judicial views about the agency influence deference choices, but these studies have not been generalized across agencies and statutes.

In this Article, I employ a distinct approach, examining Supreme Court deference choices across multiple agencies administering multiple statutes in a single substantive field. I find that in the civil rights field, the Supreme Court’s deference choices appear to have been motivated by a factor that has gone unnoticed in the literature thus far — judicial resistance to “administrative constitutionalism.” To the extent that civil rights agencies resolve statutory questions central to ongoing constitutional controversies in the Supreme Court, such as the meaning of “discrimination,” they are practicing administrative constitutionalism — resolving interpretive questions that rest on constitutional values. When civil rights agencies have engaged with constitutional meaning in this way, the Court has refused to apply heightened deference to the agency’s interpretation of the statute even when precedent or the deference dichotomy suggests that it should.

I argue that this judicial resistance to administrative constitutionalism implicates important questions about authority over constitutional meaning. When the Court denies heightened deference to administrative constructions of statutes implicating ongoing constitutional controversies, it is preserving its exclusive power to determine constitutional meaning. Such resistance places the Court in the role of defining the substance of civil rights statutes insofar as they implicate the Constitution, and thus supplements the Court’s often-remarked practice of curbing legislative constitutionalism.


Must-Buy: Bruce Cain’s “Democracy More or Less”

The book is out today, and you can’t be in the election law field without reading it.  Here are the blurbs, including my own:

“Everyone talks about the dysfunction of American politics, but very few people have practical or thought-through ideas on what to do about it. Bruce Cain has studied this topic extensively as a scholar and has first-hand experience in the cauldron of California’s ongoing experiments in structural reform. In this book he explains the conceptual weakness in today’s most popular reform proposals and offers a convincing alternative. I hope this book informs media, academic and public discussions of a way out of our political morass.”
James Fallows, National Correspondent, The Atlantic

“Bruce Cain has written a remarkable, deeply insightful book about the American experience with political reform. His survey is wide-ranging, distinguishing throughout a populist vision of tight citizen control of government from a pluralist call to protect the role of interest groups, parties and other intermediaries in building coalitions and encouraging workable compromise. Campaign finance, redistricting, election administration, transparency and conflict-of interest regulation are among the topics that receive careful attention, and Cain offers both keen criticism of policy failure and a fresh path forward. Scholars and policy-makers will be turning to this book for years to come.”
Bob Bauer, New York University School of Law and Co-Chair of the Presidential Commission on Election Administration

Democracy More or Less is a crowning achievement from one of the leading thinkers on election law and politics. Bruce Cain’s must-read account of the failures of political reform efforts in the US should be carefully studied by everyone who believes in easy solutions to the problem of money in politics, redistricting, polarization and representation. Cain’s proposed solutions merit our attention and serious consideration.”
Rick Hasen, School of Law, University of California, Irvine

“In this wide-ranging study Cain argues that reforms often fail because they reflect a misguided attempt to increase popular democracy. In his view the latter is like homeopathic medicine, taken in small amounts it may be helpful, but in larger amounts it is harmful.”
Morris Fiorina, Senior Fellow at the Hoover Institution

“This is a book all sides of the political reform debate should read. Its fresh thinking and insightful analysis will probably fully please no side, but it will help all sides better understand the scope of the issues and what others are thinking.”
Benjamin L. Ginsberg, Attorney, Jones Day

“Finally, a book on American democracy that challenges romantic, populist ‘reform’ naiveté and insists that serious and productive reform must instead take into account the way political power is actually constructed, mobilized and channeled – particularly through organizations, including political parties, that inevitably and desirably exist between the isolated citizen and effective political participation. Deceptively short and accessible, this book raises profound and necessary challenges to more conventional ways of thinking about the nature and fate of democracy in America.”
Rick Pildes, New York University School of Law


“Why we still need to worry about money in politics”

Lee Drutman for the Monkey Cage:

Over at the New York Times, Binyamin Appelbaum is the latest columnist to downplay the role of money in politics. His new column, “Who Wants to Buy a Politician?” has the same basic conclusion as David Brooks’s October column “Money Matters Less”:  Money in politics isn’t buying much of anything. But this conclusion isn’t warranted. We do still need to worry about money in politics. Here’s what Appelbaum gets wrong, and why it matters.