Linda Greenhouse on McCutcheon


This time, five justices did actually manage to toss something out the window: the post-Watergate system of campaign finance regulation.

Only Justice Clarence Thomas, who refused to sign the four-justice plurality opinion by Chief Justice John G. Roberts Jr. because it didn’t go far enough, would have explicitly overturned the court’s foundational precedents in this area. The chief justice tried in his own opinion to persuade readers that while striking down the aggregate limits on contributions to federal candidates, parties and political committees, the court was actually leaving a meaningful regulatory edifice still standing — one that could remain standing, despite the expansive “money is speech” view of the First Amendment and the extremely cramped definition of corruption that the McCutcheon opinion embraced.

Maybe somewhere in the country there is someone sufficiently out of touch with political reality to be open to the chief justice’s persuasion. Not David Ransohoff, a nonpolitical doctor friend of mine who last week forwarded to me the story from The Times about the six-figure political contributions made by the doctors who are the country’s top Medicare billers. “While I was initially disturbed by this report,” my friend wrote in his wry email, “John Roberts reassured me that, because there was no clear quid pro quo, this was just ‘free speech, democracy in action.’ ”

I’ll leave it to the election-law experts to assess the practical impact of the decision. It has already set off a wave of deregulation at the state level, where aggregate contribution limits are under attack in those states that haven’t already announced that they will no longer enforce them. Clearly, the federal limits have been easy enough to evade, openly and legally through independent expenditures and new types of committees; for Sheldon Adelson, the right-wing casino mogul who spent nearly $100 million during the 2012 campaign season, the $123,200 direct contribution limit that the McCutcheon decision invalidated would have been little more than a rounding error.

My interest here is less the real-world impact than what the decision tells us about the Supreme Court and Chief Justice Roberts, who at this rate and at age 59 figures to be with us a good deal longer than campaign finance laws. Deregulating campaign finance is clearly part of his long-term project. In the course of his opinion, the chief justice made some moves that are worth highlighting for the way in which they illuminate both his method and his priorities.


“House Lawyers Defend ‘Speech or Debate’ Protections”

Legal Times:

A bipartisan group of congressional leaders filed court papers Tuesday defending the constitutional shield that protects members of Congress and their staff from being forced to provide information about legislative activities.

The Bipartisan Legal Advisory Group of the U.S. House of Representatives filed the amicus brief in the U.S. Court of Appeals for the Ninth Circuit, where former U.S. Rep. Rick Renzi, R-Ariz., is challenging his conviction on public corruption charges.


“Iowa Supreme Court splits over what kinds of criminals can vote”

Ryan Koopmans:

We didn’t have to wait long for the Supreme Court to decide its most important case of the term.  Last Tuesday, the justices heard arguments over whether a second OWI offense is an “infamous crime” under the Iowa Constitution.  Yesterday–one week after the oral argument–the Iowa Supreme Court ruled, by a 5-1 vote, that it’s not.

That might not seem that important.  It is.

For starters, it means that that Tony Bisignano can run for State Senate.  Article II, section 5 of the Iowa Constitution says that a person who’s been convicted of an “infamous crime” can’t be an “elector” (which means they can’t run for office), and one of Bisignano’s primary opponents (Ned Chiodo) argued that a second OWI (which Bisignano has been convicted of) is an infamous crime.  Five of the six sitting justices disagreed with that. (The seventh, Justice Appel, was recused.)

But the case is much bigger than one Senate race.  And that’s where it gets interesting.


“McCutcheon Attorney Files New Challenge To Contribution Limits for Traditional PACs”

Bloomberg BNA:

An attorney who helped launch the successful challenge to the cap on individual campaign contributions recently decided by the Supreme Court has filed a new lawsuit challenging limits on contributions by traditional political action committees (PACs) that contribute to candidates (Stop Reckless Economic Instability Caused By Democrats (Stop Reid) v. FEC, E.D. Va., No. 14-397, filed 4/14/14).

Attorney Dan Backer of DB Capitol Strategies filed the new case April 14 in federal district court in Alexandria, Va., on behalf of a PAC called Stop Reckless Economic Instability Caused By Democrats (STOP REID). The suit names the Federal Election Commission (FEC) as defendant.

Blogging, Listserv Technical Issues

Due to some problems at UCI yesterday and today, there have been issues with the blog as well as with the Election Law listserv and Legislation listserv.

The blog seems to be back.  As to the listservs, it appears that some listserv members who subscribe via email addresses from yahoo, comcast, aol, or hotmail may have had their accounts inadvertently suspended.  We are working on it.

Thanks for your patience.


Federalism and Election Law

Those interested in the intersection between election law and federalism might want to take a look at a new Feature in the Yale Law Journal, which I blog about here.  Entitled “Federalism as the New Nationalism,” it marks the emergence of a nationalist school of federalism.  A lot of the work in the Feature centers on the relationship between state and national politics and thus may be of interest to election-law junkies.


“Supreme Court Protester Sentenced to Time-Served”

Tony Mauro:

In a statement to the judge, Newkirk said he had spoken out at the Supreme Court and broken the law “in the tradition of civil disobedience” to draw attention to the court’s 2010 Citizens United ruling and the then-pending McCutcheon campaign finance case.

“Our democracy is greatly threatened” by the court’s decisions weakening restrictions on campaign money, Newkirk told McKenna. “The Supreme Court has played a shameful role.”

The sentencing concluded a morning marked by hallway negotiations in which the Supreme Court—represented by court legal counsel Ethan Torrey—played a significant behind-the-scenes role. Torrey was present in the courtroom, as was a Supreme Court police officer.

After the session was over, the officer handed Newkirk a “barring notice” alerting Newkirk that he is prohibited from setting foot on Supreme Court property for the next 12 months. Earlier, Newkirk’s lawyer, Jeffrey Light, told McKenna that Newkirk, a resident of Los Angeles, had “no intention to return to the Supreme Court to do this again.”


“IRS chief: New rule on the way for tax-exempt groups”

USA Today:

The Internal Revenue Service is prepared to rewrite a proposed rule regulating the political activities of non-profit groups to address complaints from the right and left that it goes too far, IRS Commissioner John Koskinen said Monday.

“In all likelihood we will re-propose a redefined rule and ask for more public comment,” Koskinen told USA TODAY’s Capital Download. It’s a process he predicts will take “until the end of the year and beyond” to complete. The proposed regulation of groups known as 501(c)(4)s drew a record 150,000 comments before the deadline in late February.


Larry Noble on the FEC Commissioner Breakdown

Blogging at CLC:

Truth be told, I wish there were a better position than the one Vice Chairwoman Ravel and Commissioner Weintraub have taken.  But at some point you have to say “enough is enough” and let everyone play by the same rules.  While I don’t think this will do anything to improve the current FEC, it may highlight the FEC’s complete breakdown as an effective enforcement agency.  In the end, Congress and the White House have to be held accountable for the fact that there will be no serious enforcement of the campaign finance laws until fundamental changes are made to the agency, including the appointment of commissioners who believe in the law and its enforcement.


“New Proposal: 15 Executive Actions to Overcome Government Dysfunction”

Press release: “Following the Obama administration’s vow to use strong executive action in the face of a paralyzed Congress, the Brennan Center for Justice at NYU School of Law released a new policy proposal today outlining 15 steps the administration can take to strengthen democracy, secure justice, and further the rule of law.”

Of the 15, it looks like these are the ones related to voting and elections:

  1. Direct federal agencies to find ways to increase voter participation nationwide.

  2. Direct federal agencies to accept designation as NVRA agencies.

  3. Enlist the private sector to assure free and fair elections.

  4. Appoint Republicans and Democrats to the Election Assistance and Federal Election Commissions.

  5. Sign an executive order requiring disclosure of political spending by entities awarded government contracts.

  6. Request that the Securities and Exchange Commission to issue regulations requiring disclosure of corporate political spending.

  7. Request that the Federal Communications Commission to require more thorough disclaimers of outside spending on political advertisements.


“TurboTax Maker Linked to ‘Grassroots’ Campaign Against Free, Simple Tax Filing”

Must-read ProPublica:

Over the last year, a rabbi, a state NAACP official, a small town mayor and other community leaders wrote op-eds and letters to Congress with remarkably similar language on a remarkably obscure topic.

Each railed against a long-standing proposal that would give taxpayers the option to use pre-filled tax returns. They warned that the program would be a conflict of interest for the IRS and would especially hurt low-income people, who wouldn’t have the resources to fight inaccurate returns. Rabbi Elliot Dorff wrote in a Jewish Journal op-ed that he “shudder[s] at the impact this program will have on the most vulnerable people in American society.”

“It’s alarming and offensive” that the IRS would target the “the most vulnerable Americans,” two other letters said. The concept, known as return-free filing, is a government “experiment” that would mean higher taxes for the poor, two op-eds argued.

The letters and op-eds don’t mention that, as ProPublica laid out last year, return-free filing might allow tens of millions of Americans to file their taxes for free and in minutes. Or that, under proposals authored by several federal lawmakers, it would be voluntary, using information the government already receives from banks and employers and that taxpayers could adjust. Or that the concept has been endorsed by Presidents Obama and Reagan and is already a reality in some parts of Europe.

So, where did the letters and op-eds come from? Here’s one clue:

Rabbi Dorff says he was approached by a former student, Emily Pflaster, who sent him details and asked him to write an op-ed alerting the Jewish community to the threat.

What Pflaster did not tell him is that she works for a PR and lobbying firm with connections to Intuit, the maker of best-selling tax software TurboTax.

“I wish she would have told me that,” Dorff told ProPublica.


” Top-two primary might be bad for small-party candidates”

LA Times:

When California voters decided to change the way the state’s primary elections work, the move was cast as an effort to moderate a state Capitol gripped by polarization.

If the top two vote-getters in a primary faced off against one another in November regardless of their party affiliation, the reasoning went, hard-nosed politicians who typically put party purity above all else would be forced to court less partisan voters. That could mean more centrists elected to office, more political compromise and better governance.

But with the approach of only the second election since the enactment of the “jungle” primary — the first featuring candidates for statewide office — some argue that the change has had a decidedly undemocratic effect, muzzling the voices of small-party candidates.


“Obama on Voter Suppression: The Right Speech in the Wrong Place”

Andrew Cohen:

He’s got to engage with the woman who says blithely: “If I need to show ID to get cold medicine why shouldn’t I have to show an ID to vote?” He’s got to engage with the man who cries that “voter fraud” is rampant but cannot cite proof that this is so. There is an excellent case to be made against voter suppression, and the president has consistently shown that he knows how to make it, but it has to be directed at the right audience and it has to be made over and over and over again until it seeps through.

John Kennedy stood up to the Protestant ministers in September 1960 and talked about how his Catholic faith would (and would not) affect his work as president. A few years later, Lyndon Johnson stood up to his fellow southern Democrats and told them there would be civil-rights legislation. Barack Obama needs to do something like that for voter suppression.

It could be on Fox News. It could be from the Oval Office. It could be in the form of a “town meeting” on voting rights. It could be in the form of a debate with any one of a dozen Republican senators who wear their backing voter suppression as a badge of honor. It doesn’t matter. If Obama is as serious on the topic as he appears to be, what matters now is that he show the courage to go into hostile venues and work to change hearts and minds until the myths about voter fraud dissipate and the truth about voter suppression emerges.

MORE from Ta-Nehisi Coates.


Updated/Final Versions of Some of My Articles on Campaign Finance, Voting Rights

I’ve posted an updated version, including a short discussion of McCutcheon, of Super PAC Contributions, Corruption, and the Proxy War over Coordination, forthcoming in the Duke Journal of Constitutional Law & Public Policy.

I have posted the final version of Three Wrong Progressive Approaches (and One Right One) to Campaign Finance Reform, 8 Harvard Law & Policy Review 21 (2014)

I have posted the final version of Shelby County and the Illusion of Minimalism, 22 William and Mary Bill of Rights J. 713 (2014)


About that WSJ Article on VRA Section 3 and Travis Crum…

Reader Paul Wiley writes:

The Wall Street Journal’s profile of Travis Crum and his influential Note about the VRA’s Section 3 sheds light on one of the Justice Department’s most important tools in the ongoing voting rights battles. But it also gets a few things wrong, either explicitly or by implication.

For one, the article says that using Section 3 would “expand the reach of the federal government over states’ voting laws beyond the handful of states—primarily in the South—that have traditionally been subject to the Voting Rights Act.” It may seem nitpicky, but every state has always been subject to the Voting Rights Act. Section 5 pre-clearance—the kind the Court gutted in Shelby County—was traditionally applied in Southern states, true. But the VRA is more than just Section 5. And Section 3 has already been applied outside the “traditional” footprint of Section 5 pre-clearance: counties in Nebraska, South Dakota, California, and even the entire state of New Mexico have been under Section 3 pre-clearance orders.
As another matter, Bert Rein’s comments in the article mischaracterize Section 3. Mr. Rein, who argued Shelby County’s appeal to the Supreme Court, seems to criticize Section 3 by saying “it’s better to give [a challenged jurisdiction] a day in court than assume by legislation their past history makes them a bad actor.” But Section 3 DOES give the challenged jurisdiction its day in court. Instead of imposing pre-clearance by statutory or administrative formula—as Section 5 did via the now-defunct coverage formula of Section 4(b)—Section 3 is only imposed as an equitable remedy, either after a trial or by a consent decree entered into by the litigants. If the day in court is the preferred way of balancing the franchise with state sovereignty, as Mr. Rein seems to be suggesting, then Section 3 fits the bill.

“Democrats Support Voting Rights. Republicans Should Too”

Ari Berman:

It’s also unfortunate that many in the media continue to report on voting rights like it’s a left versus right issue, as if supporting a fundamental democratic right suddenly makes one a flaming liberal. Jamie Fuller of the Washington Post called voting rights “the Democrats’ most important project in 2014.” Michael Shear of the New York Times dubbed Obama’s speech an effort “to rally his political base.”

The right to vote used to be regarded as a moral issue, not a partisan one. As LBJ said when he introduced the VRA before Congress: “It is wrong—deadly wrong—to deny any of your fellow Americans the right to vote in this country.”


The Court and Institutional Realism: McCutcheon

The majority in McCutcheon invokes the fact that other institutions — namely, Congress and/or the FEC — have the power to fill any regulatory gaps that might emerge from the Court’s striking down the aggregate contribution limits. Some critics of the decision excoriate the Court for invoking the power of Congress or the FEC to act, based on what I call the “institutionally realist” view that it is unlikely that either a polarized Congress or gridlocked FEC will do anything.  Indeed, Rick Hasen accuses the Chief Justice of a tactical use of “faux” “political naivete” in invoking the powers of Congress or the FEC; according to Rick, here, the “Chief Justice understands exactly what is going on politically,” knows nothing will happen, and is therefore deceptively hiding the truth about McCutcheon’s effects.  Put another way, we can ask:  should McCutcheon – and cases like it — be decided differently based on the Court’s judgments of “political realism” about how the political branches and regulatory agencies are likely to respond?

McCutcheon is thus a perfect example of what I have recently come to realize is one of the most profound and pervasive issues in all of constitutional and public law, a problem that we have not yet fully recognized or appreciated.  It’s the problem of what I call “institutional formalism versus institutional realism” in how the Court does or should review the actions of other institutions of government:  in deciding cases, should the Court take into account its own view of how other institutions are “realistically” likely to act or should the Court’s decisions rely only on the formal legal powers other institutions have, without regard to how they are likely to exercise (or fail to exercise) those powers?  In my view, this problem runs throughout public law and is inescapable.  There is no clear or consistent answer to it, either in doctrine or the way commentators write about the Court.  In reaction to any one case, like McCutcheon, one’s views about how “realist” or “formalist” the Court should be tend to be dominated by how one feels about the particular outcome.  But only when we see how pervasive this issue is across different areas of constitutional law, does the depth and complexity of this “realist/formalist” tension become fully apparent.

I have recently written about this in Institutional Formalism And Realism in Constitutional and Public Law, forthcoming in The Supreme Court view, here.  Here is the abstract:

Constitutional and public law often entail judicial review of the actions of public institutions. In engaging in this review, courts can adopt a stance of either “institutional formalism” or “institutional realism” regarding how the institution in question functions. After defining those terms, this article argues that the tension between institutionally formalist and realist approaches is a pervasive one, even if obscured or latent, throughout the constitutional and public law of institutions. We cannot understand these bodies of law fully without recognizing this fact. Many scholars in discrete areas of law can be understood as grappling with this tension in some form. But we have not appreciated how profound this institutional issue is, nor how it transcends specific areas of law to stand as one of public law’s general, defining problems.

This formalist/realist institutional tension structures public-law doctrine and debates regarding judicial oversight of virtually all the institutions of governance. As this article demonstrates, that is so for judicial review of the actions of Congress, the President, federal administrative agencies, state legislatures, and state courts. After developing this framework, the article applies it to the Supreme Court’s Shelby County decision, in which the Court struck down part of the Voting Rights Act, and shows that the case hinges on how formalist or realist the Court ought to be regarding Congress.

The general struggle in how the law should conceive public institutions can be seen as the modern successor to the early 20th century tension between formalist and realist approaches to the substantive content of legal concepts, categories, and doctrines. Now, the tension between institutional formalism and realism re-raises the question of how much pragmatism – this time, at the level of institutions and processes – is compatible with certain conceptions of the rule of law. Focusing more directly on this tension illuminates public law and its controversies but cannot suggest that any final resolution is available. Yet to understand public law fully requires appreciating the powerful role this tension quietly plays.


“Scrutinizing Federal Electoral Qualifications”

Derek Muller has posted this draft on SSRN (forthcoming Indiana Law Journal). Here is the abstract:

Candidates for federal office must meet several constitutional qualifications. Sometimes, whether a candidate meets those qualifications is a matter of dispute. Courts and litigants often assume that a state has the power to include or exclude candidates from the ballot on the basis of the state’s own scrutiny of candidates’ qualifications. Courts and litigants also often assume that the matter is not left to the states but to Congress or another political actor. But those contradictory assumptions have never been examined, until now.

This Article compiles the mandates of the Constitution, the precedents of Congress, the practices of states administering the ballot, and scraps of judicial precedents in litigated cases. It concludes that states have no role in evaluating the qualifications of congressional candidates — the matter is reserved to the people, and to Congress. It then concludes that while states do have the power to scrutinize qualifications for presidential candidates, they are not obligated to do so under the Constitution. If state legislatures choose to exercise that power, it comes at the risk of ceding reviewing power to election officials, partisan litigants, and the judiciary. The Article then offers a framework for future litigation that protects the guarantees of the Constitution, the rights of the voters, and the authorities of the sovereigns.

Looking forward to reading this!



“Candidate Shriver wants overhaul of L.A. County campaign finance laws”

LA Times:

Bobby Shriver, the first Los Angeles County supervisorial contender in 18 years to opt out of voluntary campaign spending limits, is calling for a major overhaul of county election laws, including lifting fundraising restrictions on candidates who use personal wealth to help pay for their campaigns.

Last month, the Santa Monica lawyer and nonprofit director contributed $300,000 of his own money to his effort to succeed longtime west county Supervisor Zev Yaroslavsky. Shriver, a member of the Kennedy political family, criticized a $1.4-million voluntary spending limit in the June 3 primary as inadequate to get his message out to 2 million constituents.