Roll Call: “Darrell Issa has apologized to Oversight and Government Reform Committee ranking Democrat Elijah E. Cummings for cutting off his mic, but the chairman isn’t changing the course of his committee. The California Republican issued a 141-page report Tuesday on the involvement of Lois Lerner, the former director of IRS exempt organizations, in the targeting of prospective tax-exempt organizations.”
Washington Times: “Congress on Tuesday agreed to cancel its giveaway of taxpayer money to its own political conventions every four years, as the Senate cleared a bill to cut off funds. Senators approved the bill by unanimous consent early Tuesday, sending it straight to President Obama for his signature.”
Another fascinating piece today:
Two political science graduate students are now seeking to bring some precision to that discussion through the kind of randomized, controlled study used to test the impact of pharmaceuticals.
Joshua Kalla at Yale University and David Broockman at the University of California, Berkeley, are out today with the results of a novel field experiment that measured how campaign donations – even the prospect of them – alter the behavior of members of Congress and their staff….
It’s worth noting that all those who met with congressional offices were real CREDO members or political donors, none of whom knew they were part of an experiment.
The results: Only 2.4 percent of the offices made the member of Congress or chief of staff available when they believed those attending were just constituents, but 12.5 percent did when they were told the attendees were political donors.
Interesting Bob Bauer post on, among other things, yesterday’s NYT Herbalife story:
What is missing here is the campaign contribution, or the independent expenditure, or a hint that either is under consideration. This is because, as Pildes suggests, “corporations probably are probably able to attain influence more effectively through spending their money on lobbying specific issues, rather than generally trying to influence election outcomes.” Richard Pildes, How Consequential is Citizens United?, ELECTION LAW BLOG, November 9, 2011, http://electionlawblog.org/?p=25207. Campaign cash still makes its appearance, but not, in a leading role, except that it remains central in the vast majority of conversation, theorizing, writing and reporting about the role of money in politics and the future of reform. Lobbying, along with the related question of the standards of official conduct, lag well behind in these discussions: consider that the first major lobbing law reform came fully two decades after the enactment of the 1974 Watergate-era campaign financing reforms. Yet for interests with billions at stake and much to spend, lobbying and the other forms of paid advocacy and pressure are still the best bet.
Great event and lineup at Valpariso April 4 that unfortunately I have to miss.
Fascinating Shane Goldmacher report for National Journal:
The Federal Election Commission was deadlocked, and no one was surprised. Democrats had wanted to crack down; Republicans didn’t. No matter that it could have been among the most important campaign finance decisions in years. No matter that the agency’s general counsel had recommended action. Divided equally and hopelessly by ideology, the six commissioners were at a stalemate.
It was all perfectly ordinary for this dysfunctional agency. All except for footnote 111.
USA Today profiles conservative campaign finance lawyer Dan Backer.
Derek Muller’s blog post should not go unread.
Regulators frequently get entreaties from financiers urging action for their own financial gain, like the hedge fund executives who in 2010 tried to secretly push Obama administration officials to investigate for-profit colleges, again citing fraudulent industry practices, after betting that their stocks would decline.
But Mr. Ackman’s efforts illustrate how Washington is increasingly becoming a battleground of Wall Street’s financial titans, whose interest in influencing public policy is driven primarily by a desire for profit — part of an expanding practice in the nation’s capital, with corporations, law firms and lobbying practices establishing political intelligence units to gather news they can trade on.
So far, Mr. Ackman has persuaded four members of Congress, a New York State senator, a City Council member in Boston, the majority leader of the Nevada Senate and other elected officials in California to join the cause. Prominent consumer advocates in Washington, as well as leaders of well-respected Hispanic and African-American community groups who have been lobbied by Mr. Ackman’s team, have also written regulators demanding action.
Must-read CQ Weekly Cover story by Eliza Newlin Carney:
Unlike super PACs, which are not allowed to coordinate their activities with parties or candidates, a for-profit company need not keep politicians at arm’s length. And unlike politically active tax-exempt groups, which must publicly report their officers and grant recipients to the Internal Revenue Service, LLCs leave virtually no paper trail. With a little care they can avoid Federal Election Commission disclosures, public IRS filings and corporate taxes all at once — a dream come true, critics say, for publicity-shy big donors…..
But Kelner says numerous clients are approaching him with questions about how to organize themselves as for-profits, or as limited liability companies. They’re preparing for the possibility that the IRS will impose new political curbs on 501(c)(4) social-welfare groups, says Kelner. Even if the new IRS rules never take effect, conservative and tea party organizers, in particular, are convinced that the agency is on a partisan campaign to shut them down. IRS and administration officials say the agency’s mistakes in the tea party cases resulted from confusion and human error, not ill intent.
“There’s an increasing appetite to get out from under IRS scrutiny,” confirms Indiana election lawyer James Bopp Jr., who has led numerous constitutional challenges to campaign finance restrictions.
A wide majority of Iowans believe it’s more important to ensure ballot access for eligible voters than to guard against voting by those who are ineligible.
That result, captured in The Des Moines Register’s latest Iowa Poll, casts new light on a debate that has been raging in the state and across the nation for years over the appropriate balance between ballot access and security.
Seventy-one percent of poll respondents say it’s more important that every eligible, registered voter is able to vote, compared with 25 percent who say it’s more important that no ineligible person “slips through the cracks” to cast a vote.
Sunday night fun.
As part of our efforts to protect the right to vote across the country, LDF’s Political Participation Group wrote a letter to the Alabama Secretary of State, Jim Bennett, urging him to allow thousands of people to continue to vote under Alabama’s new voter photo identification (photo ID) law.
In the letter, Ryan Haygood and Deuel Ross ask the state to permit voters without photo ID — including as many as an estimated 31,000 African Americans under the age of thirty — to cast a regular ballot in-person on Election Day. Under the new Alabama law, a person without photo ID is still allowed to vote if two poll workers can “positively” identify, i.e. vouch for, him or her.
Marilou Johanek column in the Toledo Blade.
Cincinnati Enquirer: “But even with the Democratic involvement, Smith decided the people who gathered signatures for the candidates could be viewed as Libertarians, as required by law. He instead focused on two petition circulators’ failure to indicate who was paying them. That’s required by law, even though they were contractors, Smith said.”
This now goes to federal district court, and Ballot Access News links to the motion for preliminary injunction.
The author of a report cited repeatedly to justify cracking down on potential voter fraud says the Harper government is misrepresenting his report and ignoring his recommendations.
Indeed, Harry Neufeld says there’s not a shred of evidence that there have been more than “a handful” of cases of deliberate voter fraud in either federal or provincial elections.
“I never said there was voter fraud,” Neufeld said in an interview with The Canadian Press.
“Nor did the Supreme Court, who looked at this extremely carefully.”
Looks like the voting wars are contagious, even crossing borders.
Henry Noyes has written a new casebook for Carolina Academic Press.
I’ve seen the table of contents and it looks like great coverage.
Arizona’s Politics reports.
During a Thursday sitdown with reporters, Reid said that Adegbile, a respected civil rights lawyer who previously led the NAACP Legal Defense and Educational Fund, met privately with Reid and Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) for nearly an hour before the vote. The three of them went through the pros and cons of proceeding with what would likely be a loss. In the end, Adegbile said he wouldn’t withdraw his name, even though Republicans and even some Democrats were ready to block him over the fact that he once helped get convicted murderer Mumia Abu-Jabal off death row.
“He said, ‘I’m 47 years old. … I’ve spent all my life trying to do the right thing,’” Reid said. “‘I didn’t step into a courtroom for this man. I didn’t write a word for the briefs for this man. … I’ve done nothing wrong. I think if I’m going to be voted down, it’s a good time to start a discussion on civil rights in America.’”
That’s the lead story in this week’s Electionline Weekly.
By all indications Sen.Ted Cruz is a brilliant lawyer. So I take his mischaracterizing of the Supreme Court’s Shelby County case as being disingenuous and not simply misguided. Sen. Cruz writes:
It is disturbing that new efforts are being made in the House and Senate to resurrect voting rules that were recently deemed unconstitutional by the Supreme Court. We should protect the civil rights of every American, and other sections of the Voting Rights Act already provide strong protections against racially discriminatory voting practices. The Supreme Court held that circumstances have changed dramatically in the last 50 years, and the old justifications for preclearance are no longer constitutionally applicable. We should respect the Supreme Court’s judgment.
But the Supreme Court’s judgment in Shelby County was not that preclearance is “no longer constitutionally applicable.” It was that the old preclearance regime was based on an outdated formula when it needs to be tied to “current conditions.” Indeed, Chief Justice Roberts writing for the Court majority invited Congress to come up with a new coverage formula:
We issue no holding on § 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley, 502 U.S., at 500-501, 112 S.Ct. 820. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.
Now there are reasons to believe that the majority’s suggestion of a new coverage formula was disingenuous. But let’s not pretend, as Sen. Cruz does, that the Court has foreclosed a new coverage formula.
Josh Douglas has posted this draft on SSRN (forthcoming Wash. U. Law Review). Here is the abstract:
Current Supreme Court doctrine defers too readily to states’ voting systems. In the process, the Court has removed Congress from the elections business. The Court has done so not explicitly but through two judicial maneuvers, one substantive and the other procedural, that place tremendous trust in states: lowering the bar for the state interest prong of the constitutional analysis, and forbidding facial challenges to state rules on election administration. The Court has credited any state assertion of “election integrity,” even if that is not the actual impetus for the law under review. It also will reject a facial challenge to a state voting rule, thereby leaving the law in place until a plaintiff has gathered actual evidence of the law’s impact on particular voters. The Court has not treated Congress the same, demonstrating its willingness to invalidate a federal voting rule on its face even when Congress has asserted a more detailed rationale for the law. This Article uncovers this approach to constitutional challenges to voting regulations. It also explains why this current jurisprudence is both wrong and dangerous. It is wrong because the U.S. Constitution gives the federal government significant scope to promulgate election regulations, and states are subordinate to Congress under our constitutional structure. It is dangerous because the current deferential approach emboldens states to pass partisan-based laws with an eye toward affecting elections, and all a state needs to say to justify a new law is that it is seeking to ensure “election integrity.” The Court should reverse this current jurisprudence by requiring states to provide a more detailed justification for an election law and by allowing broader use of facial challenges to invalidate state voting laws, when necessary, before they are implemented. Voting, as a fundamental right, deserves robust protection from the courts. Scrutinizing state election laws more closely will help to achieve this worthy goal.
Number of Pages in PDF File: 50
But it was the votes of seven Democratic senators to reject Mr. Adegbile that doomed the nomination despite what White House officials described as a sustained closed-door effort by Mr. Obama and his top aides to save it. The president personally appealed to Senate Democrats at a recent caucus meeting and made several calls to Democratic senators in the last week, officials said. Vice President Joseph R. Biden Jr. and Denis R. McDonough, the White House chief of staff, continued making calls Tuesday night and Wednesday morning.
White House officials said they believed until Wednesday morning that the nomination would succeed, a vote count that proved disastrously wrong. Top aides to Mr. Obama were “furious” at the Democratic senators who voted against Mr. Adegbile, one senior official said.
Senior congressional Democrats were incredulous about the White House’s surprise. Senator Harry Reid of Nevada, the majority leader, called Mr. McDonough at 10 p.m. Tuesday to inform him the votes were not there. He made the same call Wednesday morning, also informing the attorney general. The White House pressed forward anyway.
HuffPo reports. I have no doubt about that.
Report on Stetson conference.