Penn Law Review Special Issue on Campaign Finance

Introduction:

On the forty-year anniversary of Buckley v. Valeo, and in the midst of a presidential election campaign, the University of Pennsylvania Law Review Online is pleased to present this Special Issue on Campaign Finance, in collaboration with Demos.

ESSAYS IN THIS EDITION

DEBORAH HELLMAN & DAVID SCHULTZ

 

FRANK PASQUALE

 

DANIEL P. TOKAJI & RENATA E. B. STRAUSE

 

DEBORAH HELLMAN

 

TABATHA ABU EL‐HAJ

 

FRANITA TOLSON

 

SONJA R. WEST

 

DAVID SCHULTZ

 

STEPHEN E. GOTTLIEB

 

TERRY SMITH

 

CIARA TORRES‐SPELLISCY

 

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Fascinating New Poll on Voting Rights Finds Support for Proof of Citizenship, Preventing Fraud, But Partisan Divide

[Update: See the HuffPo story on the poll.]

Among the YouGov results:

Do you think people should or should not have to show proof of citizenship in order to register to vote?
They should have to show proof of citizenship . . . . . . . . . . . . . . . . . . . . . . . . . . .68%
They should not have to show proof of citizenship . . . . . . . . . . . . . . . . . . . . . . . 22%
Not sure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10%

Which of the following do you think is more important?
Making sure that no one is able to commit voter fraud . . . . . . . . . . . . . . . . . . . 53%
Making sure that no one who is eligible to vote is prevented from doing so 39%
Not sure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8%

On the “more important” question, here are the crosstabs by party:

Screen Shot 2016-05-26 at 1.23.37 PM

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“How California Is Solving Its Voting Rights Problem”

Spencer Woodman for VICE:

Similar battles over voting rights and election fairness have been taking place around California, where rapidly shifting demographics have threatened to upend traditional centers of power in recent decades. As growing minority populations fight for a place in local government, the drawing of voter districts has become a major battleground, determining who gets to have a say in important aspects of civic life. In the past few weeks alone, California’s voting rights disputes resulted in a federal voting rights suitagainst alleged districting discrimination in Kern County; a redrawing of districts in the coastal town of San Juan Capistrano, following a state voting rights suit; and legal action by Shenkman against an allegedly suppressive school district in the Los Angeles area.

“These things are happening all over the state,” said Richard Hasen, a professor of law and political science at the University of California, Irvine. “Inertia is a powerful force, and people who benefit from the status quo don’t want to change the status quo. Sometimes it takes a lawsuit to force more equitable forms of representation.”

Yet despite these districting tiffs, Hasen said, California actually represents a rare bright spot for many advocates in national elections policy. In recent years, as other states remained intent on erecting new barriers to the ballot box, California did pretty much the opposite, enacting a series of new laws that have put the state at the cutting edge of progressive voting policy.

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“Hearing for California primary lawsuit set for after voting”

AP:

A federal judge has set an Aug. 18 hearing date in a lawsuit filed by a Bernie Sanders supporter seeking to extend California’s voter registration deadline ahead of the primary election, meaning the plaintiffs likely won’t get a hearing before the state’s June 7 primary.

Attorney William Simpich argued in the filing that the process for unaffiliated voters to get a presidential primary ballot – particularly those seeking to cast ballots in the Democratic primary contest between Vermont Sen. Bernie Sanders and former Secretary of State Hillary Clinton – was too confusing and would leave many voters disenfranchised. He said at least two counties failed to notify some voters of their right to request a ballot to vote in the Democratic, Libertarian or American Independent Party contests.

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“Judge says voting rules won’t change for August election”

AP:

There will be no change to Wisconsin’s voting laws before the Aug. 9 primary, including the requirement that photo identification be shown at the polls, a federal judge hearing a challenge to more than a dozen election laws said Thursday.

U.S. District Judge James Peterson told attorneys at the beginning of the final day of testimony in the two-week trial that he will make a ruling by the end of July, which won’t leave enough time to enact any changes he may order before the primary where the field of candidates running for a host of state and federal races will be winnowed.

“Obviously I feel urgency in getting the decision out,” Peterson said, adding that he didn’t think it would be realistic to have it done before the end of July. He scheduled final arguments for June 30.

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“U.S. Supreme Court allows secret debate in John Doe filing”

Milwaukee Journal-Sentinel:

The U.S. Supreme Court for now is allowing arguments partly in secret in a case over whether the high court should hear a dispute over the shutdown of an investigation into Gov. Scott Walker’s campaign and conservative groups backing him.

In an order Monday, the court said the justices would accept filings made under seal and release copies to the public with parts redacted, a practice that would be similar to what happened in other state and federal courts.

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“New Report Examines Election Funding In California, Across The Nation”

Doug Chapin:

California Forward has a new report that looks at election funding models across the nation and makes recommendations about how those lessons might apply in the Golden State. From the release:

California should develop a new way to pay for elections administration that can control costs, improve voting systems and evolve the tension-filled relationship between state and county governments into a cooperative partnership, according to a new analysis by California Forward.

The analysis, titled “Investing in California’s Democracy: Building a Partnership for Performance,” calls for replacing the antiquated “mandate reimbursement” process with a state contribution for the costs associated with the election of state officials and statewide ballot measures. The analysis concluded that most states share directly in these costs, and provides options for doing so.

The analysis also identified a powerful opportunity to structure the state’s contribution as an incentive for counties to improve their operations and reinvest savings in new technologies that can reduce costs and improve the voter experience.

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“Ohio Governor Poised To Make Voters Pay To Keep Polls Open Late”

Think Progress:

Republican lawmakers in Ohio approved a bill late Wednesday night that would force residents toput up a cash bond when they petition a court extend voting hours during an election day emergency, such as a natural disaster. If Gov. John Kasich (R) signs the bill, Ohio could become the first state in the nation to make voters risk losing tens of thousands of dollars of their own money when making the case for keeping the polls open a few extra hours.

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“Pillar of Law Files Lawsuit for Convention Delegates’ Rights to Free Speech”

Release:

The Pillar of Law Institute filed a lawsuit in Wyoming federal court today, challenging a law that prohibits delegates to political party conventions from accepting books, travel stipends, and legal assistance from non-profits.

“For the upcoming Republican Convention, delegates could receive unlimited money from individual donors, but could not accept even books or a travel stipend from organizations like Pillar,” said Benjamin Barr, lead counsel in the case. “Federal election law actually bans the distribution of books to delegates because it deems them corrupting.  This is not just fundamentally unfair; it is also unconstitutional.”

The Pillar of Law Institute is a non-profit public interest law firm that focuses on free speech and campaign finance law. It would like to provide books to convention delegates that discuss delegates’ rights and free speech, but is prohibited from giving “anything of value” by the corporate ban. Pillar is joined in the lawsuit by two unnamed Republican delegates who would like to speak out about delegate autonomy at the convention and receive assistance against any legal threats that they might face.

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“McAuliffe lawyer: Virginia governor did nothing wrong.”

WaPo:

Federal authorities are investigating whether Gov. Terry McAuliffe (D) violated an obscure statute prohibiting U.S. citizens from lobbying the U.S. government on behalf of foreign governments, the governor’s lawyer said.

Attorney James W. Cooper said the Justice Department and the FBI will find no evidence of wrongdoing by McAuliffe, despite probing his personal finances dating back at least a decade before he became governor.

Federal investigators “for whatever reason” became interested in McAuliffe’s foreign sources of income from a period before he entered public office, Cooper told The Washington Post in a phone interview Wednesday. “And that is the predicate for continuing their investigation,” he said.

“All of this income is from the governor’s time as a private citizen and businessman, who did deals that were well publicized around the world. So the fact that he had foreign income was not remarkable,” Cooper said.

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“Book Review: Dark Money and Plutocrats United”

Bill Maurer reviews my book and Jane Mayer’s book for The Federalist Society:

Nonetheless, Mayer’s Dark Money: The Hidden History of the Billionaires Behind the Radical Right and Hasen’s Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections—both published in the thick of the 2016 election—are aimed directly at the issue.[3] One of these books is a valuable contribution that addresses the history of campaign finance law, the constitutional issues involved in regulating political spending, and the difficulty of creating policies that allow all Americans a voice while protecting free speech. The other is not.

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“Two Myths About the Unruly American Primary System”

I published a longish essay with that title today in the Washington Post, at the excellent Monkey Cage blog.  Here are a few excerpts:

Many Americans will be surprised to learn that few democracies give primary elections a dominant role in selecting their parties’ nominees for the country’s highest office. In most systems, elected party members take a major role in choosing or filtering potential candidates. . . .

But starting in the 1970s, the United States stumbled — and I do mean stumbled — into a system that eliminated any meaningful role for party figures. Instead, unmediated popular participation, through caucuses and primary elections, came to control the way we choose presidential nominees.

That uniquely populist system, which we now take for granted, has culminated in our current, stunning moment. Two essentially freelance, independent political figures — Donald Trump and Bernie Sanders — will either represent, or come surprisingly close to representing, the nation’s two major parties in the 2016 election.

The piece then explores the history of the presidential nomination process to explain how we got to our current moment, with the aim of exposing two conventional but false stories about that history.

First, the system that we used for most of the 20th century, until the 1970s, was not the party-boss controlled system with little popular input that it’s often portrayed as being.  Instead, that system involved a mix of primary elections and institutional party input.  As I put it:

In this mixed system, the popular primaries and the party leaders checked and balanced each other’s influence. No committee designed the system in a single moment to create the “perfect” mix of popular and party roles; as often happens with democratic institutions, the system emerged from competing pressures over time.

Nonetheless, primaries kept the system from being too closed. “Outsiders” could challenge existing party hierarchy and orthodoxy and force the parties to remain responsive, at least up to a point. Meanwhile, the institutional party figures had incentives to put their weight behind candidates likely to hold the party’s factions together, run a competitive election, govern effectively and reflect the party’s general ideology.

Second, while it is widely known that this system was transformed almost overnight in the 1970s to our current primary-election dominated system, what is much less well known is that the post-1968 reforms were not designed to create such a populist system.  Instead, that system came about despite the effort of these reformers to preserve an important institutional role for the parties.  The piece describes some of the causes that nonetheless radically transformed our nomination process into the most highly populist one among the major, established democracies.  The piece concludes:

Despite its accidental birth, that’s the origin of the populist, primary-dominated system we have today — a system that has virtually eliminated any filtering or mediating role for the institutional party and made our current moment possible. As this “modern” system was taking shape, leading political scientists warned that it:

might lead to the appearance of extremist candidates and demagogues, who unrestrained by allegiance to any permanent party organization, would have little to lose by stirring up mass hatreds or making absurd promises.

As today’s New York Times story already notes, once the fall election is over — and depending on the outcome — there are likely to be major controversies between those who will seek to recapture more of a role for the institutional party in controlling who its nominees are and those who will seek to push the system along even more participatory and populist lines.

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“Virginia governor: Feds have found no wrongdoing”

AP:

Virginia Gov. Terry McAuliffe said Wednesday that federal investigators looking at donations to his 2013 campaign have told his attorney there’s no indication he did anything wrong.

The governor said on a WTOP radio program that his attorney reached out to federal prosecutors following reports that McAuliffe is a subject of a federal investigation.

“My lawyer reached out to the Justice Department, and asked if they’ve had any indication of any wrongdoing on my part, and the answer was no,” McAuliffe said.

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“Inquiry Highlights Terry McAuliffe’s Ties to Chinese Company”

NYT:

Four years ago, one of China’s largest agricultural importers sent representatives to the Democratic National Convention in Charlotte, N.C., hoping that meetings with elite party officials might yield business opportunities. The company, the Dandong Port Group, was particularly focused on the governors in attendance, according to an interview with Dandong’s general counsel broadcast by Chinese state television.

“If you really want to influence, let’s say, U.S.-China policy,” he said, “it’s almost worth it to have emphasis and influence on the state level.”

The meetings, arranged by a former South Carolina governor, marked a period of expansion in the United States for Dandong and its affiliated companies, involving negotiations with officials in Washington, Arkansas, South Carolina and Virginia. But now, the company’s widening influence is coming under scrutiny by federal prosecutors, who are examining the relationship between Dandong’s wealthy and connected chairman, Wang Wenliang, and Gov. Terry McAuliffe of Virginia, a Democrat who was elected in 2013.

A federal law enforcement official said the inquiry included $120,000 in contributions that a New Jersey construction firm controlled by Mr. Wang made to Mr. McAuliffe’s 2013 campaign and inaugural committee. That official and a second law enforcement official, both of whom asked for anonymity to discuss the matter, said it was a preliminary inquiry of Mr. McAuliffe’s campaign donations, and they provided no detail about the nature and scope of any potential violations being scrutinized.

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“Waukesha county clerk: Weekend voting gave ‘too much access’ to Milwaukee, Madison”

Yeesh! God forbid people of color and poor people living in Wisconsin cities have easy access to the ballot.

Ozaukee County as a whole is about 95 percent white and neighboring Waukesha County is about 94 percent white. With Washington County — 96 percent white — they make up the state’s deep-red “WOW counties.” The deeply conservative counties form an arc around Democratic Milwaukee County, which is 65 percent white.

Novack said she believes eliminating weekend voting “level(s) the playing field” between large urban areas and smaller suburban and rural communities that lack the resources to staff weekend hours.

“If there’s an office open 30 days versus an office that’s only open 10 work days, there are obviously voters that have a lot more access than someone else,” Novack said. “There has to come a point where it’s just giving over-access … to particular parts of the state.”

Asked whether she thought voters in Milwaukee and Madison — communities that previously used weekend voting — had too much access, Novack said, “too much access to the voters as far as opportunities.”

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“Civic Groups Ask Courts to Stop Unlawful Voter Purging Practice”

Demos:

Yesterday, a voting rights coalition asked the federal court to stop Ohio’s practice of removing properly registered voters from its voter registration list simply because they have not voted in recent elections.  The plaintiffs, who initiated the lawsuit in early April, are composed of civic groups and a longtime Ohioan who was disenfranchised by this process.

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“Sometimes ‘People’ = ‘Legislature'”

Seth Barrett Tillman:

This is a response to Professors Saikrishna Bangalore Prakash & John Yoo, People ≠ Legislature, 39 Harvard Journal of Law & Public Policy 341 (2016) (noted on this blog  here).

Professors Prakash and Yoo’s position is that “[a]s used in the Constitution, ‘Legislature’ refers to a multimember lawmaking body that is distinct from the people.” Prakash & Yoo, supra at 355. I have to admit, that my own intuition is consistent with their view. But I am not sure that my intuition counts for much. The Framers and ratifiers spoke to this issue, albeit unevenly, but what many wrote does not easily square with Prakash & Yoo’s position.

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“Rethinking Voter ID: Its Rationale and Impact”

Graeme Orr and Tracey Arklay have posted this draft on SSRN (forthcoming, Australian Journal of Political Science). Here is the abstract:

Voter ID is a contentious issue in electoral democracies worldwide. This article surveys arguments for and against voter ID in the Australian context, presenting data from the first election in the country to require it. The data demonstrate a differential impact on regional electorates and on electorates with concentrations of Indigenous voters. Whilst the law in question (from the State of Queensland) was moderate in its overall impact, confusion created by it may have suppressed turnout. The law has since been repealed, but voter ID now has the support of a conservative majority on the Commonwealth Parliament’s electoral matters committee. We conclude that voter ID is not a solution to eliminating fraud, but an additional bureaucratic layer upon the ritual of casting a ballot and a hurdle with unintended consequences.

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“Court upholds former California senator’s voter fraud conviction”

SacBee:

A Los Angeles County appeals court on Tuesday upheld former state Sen. Rod Wright’s conviction on charges of perjury and voter fraud.

In 2014, a jury found Wright guilty of eight felonies for registering to vote at a home he owned in Inglewood, even though he actually lived several miles away in the upscale neighborhood of Baldwin Hills, just outside the district where he ran for office in 2008.

You can find the unpublished unanimous opinion of the California Court of Appeal at this link.
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“The Revival of the Three-Fifths Clause in a Rhode Island Prison Gerrymandering Case”

Derek the Muller:

A federal district court handed down a memorandum and order for summary judgment in Davidson v. City of Cranston, a case concerning “prison gerrymandering” in Rhode Island. The court concluded that the city improperly drew districts that included all of the incarcerated individuals in a prison into a single district, distorting representation and voting strength in other districts.

One might have concluded that the Supreme Court’s recent decision in Evenwel v. Abbott mandated this case come out the other way. There, the Court permitted Texas to use total population in drawing its districts, even if it included non-citizens (i.e., non-voters) in its population base. Had the case come out the other way and some voter- or citizen-based measure been required for drawing districts, prison gerrymandering may well have ended.

As Adam Liptak and others noted, a win for Texas in Evenwel would deeply undermine constitutional arguments against prison gerrymandering. After all, prisoners are people ineligible, just like non-citizens or children. They’re drawn into districts with the rest of the total population. Instead, one must come up with a political theory for excluding this set of non-voters from redistricting, but not other sets of non-voters.

In a recently-published article in the Harvard Journal of Law & Public Policy, Perpetuating “One Person, One Vote” Errors, I highlight the deep problems that arise when courts attempt to insert ever more-detailed theories of political representation into the constitutional doctrine of “one person, one vote.” Mercifully, I remarked, the decision in Evenwel leaves some discretion to the states (and cities) in redistricting.

But the decision in Davidson takes away some of this discretion. And it does so using bizarre support from the Three-Fifths Clause. It even suggests prisoners are less worthy of representation than slaves.

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“CBS2 Investigation Uncovers Votes Being Cast From Grave Year After Year”

This story from CBS2’s David Goldstein is sure to make a lot of waves in CA.

CBS2 compared millions of voting records from the California Secretary of State’s office with death records from the Social Security Administration and found hundreds of so-called dead voters.

Specifically, 265 in Southern California and a vast majority of them, 215, in Los Angeles County alone.

The numbers come from state records that show votes were cast in that person’s name after they died. In some cases, Goldstein discovered that they voted year after year.

Across all counties, Goldstein uncovered 32 dead voters who cast ballots in eight elections apiece, including a woman who died in 1988. Records show she somehow voted in 2014, 26 years after she passed away.

It remains unclear how the dead voters voted but 86 were registered Republicans, 146 were Democrats, including Cenkner.

I’d like to know more information on how many of these are from absentee ballots (the story mentions one that day) and how many are at polling places, where sometimes what looks like fraud is administrative error, such as people signing on the wrong lines. Let’s wait and see what the inevitable investigations show before we jump to conclusions that this is a major problem in CA.  But at the very least, the state needs to do a MUCH better job removing deceased voters from the rolls.

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“Federal court questions whether Texas voter ID law can offer accommodations”

WaPo:

With the U.S. Supreme Court watching, judges on a federal appeals court here Tuesday questioned whether accommodations could be made to protect minority voters and still save Texas’s strictest-in-the-nation voter ID law in time for the presidential contest in November.

There did not seem to be much support for striking down the law or blocking its use among the 15 judges of the U.S. Court of Appeals for the 5th Circuit who heard oral arguments Tuesday morning.

But several questioned why Texas did not have more fallback provisions — as other states do — for voters who lacked the kinds of identification that the state requires.

On this idea of “softening” harsh voter id laws judicially, see my Softening Voter ID Laws Through Litigation: Is it Enough?, Wisconsin Law Review Forward (forthcoming 2016) (draft available).

 

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