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Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
The Voting Wars Website
NOW AVAILABLE from
Barnes and Noble
Remedies: Examples & Explanations (Aspen Publishers, 3d ed. 2012)
Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003)
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Excess of Democracy (Derek Muller)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Mischiefs of Faction
The Monkey Cage
More Soft Money Hard Law (Bob Bauer
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Commentaries and Op-Eds
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.
Forthcoming Publications, Recent Articles, and Working Papers
Political Dysfunction and Constitutional Change, 86 Drake Law Review (forthcoming 2013) (symposium) (draft available)
Is “Dependence Corruption” Distinct from a Political Equality Argument for Campaign Finance Reform? A Reply to Professor Lessig, 12 Election Law Journal (forthcoming 2013)
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, 74 Montana Law Review 53 (2013)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review 205 (2013)
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)
Category Archives: John Edwards
The Continuing Need for Supreme Court Clarification of the Line Between Campaign Contributions, Legitimate Political Activity, and Bribes
The well-known federal district judge, Myron Thompson, recently finished presiding over one of the largest and most important recent trials in which the Department of Justice’s Public Integrity Section sought to convict numerous state legislators and campaign contributors of federal bribery based on campaign contributions. Judge Thompson then issued yesterday a 33-page opinion, as Rick Hasen noted, in which he showed how complex and confusing current law is regarding the boundary between legitimate contributions and criminal bribes; after working through this maze, he then explained why he had decided the particular jury instructions he gave were his best effort to sort through this body of law. This extensive and thoughtful opinion is significant for two reasons.
First, Judge Thompson’s opinion concludes with this line, which reflects a plea from lower court judges (and many others) for Supreme Court intervention to clarify the law in this important area: “Ultimately, the Supreme Court needs to address this issue and provide guidance to lower courts, prosecutors, politicians, donors, and the general public.” Coming from a judge who has just presided over a major case involving these issues, that’s a powerful statement about the legal confusion that exists in an area of such significance to the democratic process. This statement makes it all the more disappointing that the Supreme Court, just a month ago, denied certiorari in the most significant recent case that raised exactly these issues: the criminal conviction of former Governor Siegelman, of Alabama. Indeed, if Judge Thompson’s opinion and plea for guidance from lower court judges had been issued while Siegelman’s petition had still been pending, one wonders whether this confirmation of the need for Supreme Court clarification would have been enough to tip the scales and push the Supreme Court to have taken the Siegelman case. (Full disclosure: I filed an amicus brief in support of Siegelman’s cert. petition).
Second, the case over which Judge Thompson presided has gotten far less national attention than it warrants. The case, known as McGregor, involves another dramatic failure of the Department of Justice, particularly the Public Integrity Section, to use federal criminal laws to prosecute what DOJ sees as political corruption. But in addition, the facts are particularly stunning. Here is just a quick sampler: the DOJ actions might well have tipped partisan control of one chamber of the Alabama legislature from one party to the other, even though all the defendants tried were acquitted; the DOJ intervened to help block a piece of pending legislation, because of the DOJ view that the legislation was tainted by bribery (even though the jury concluded otherwise); the District Court found, as a matter of fact, that the state Republican Party, for reasons the District Court characterized as “racist,” had used the DOJ to go after the Democratic Party; and yet the jury completely rejected DOJ’s case. The DOJ’s failed prosecutions of John Edwards and Ted Stevens have gotten far more national attention, but this massive and failed Alabama case illustrates the profound consequences to state and local politics that can result from DOJ criminal prosecution of legislative action at the murky boundary between legitimate campaign contributions and bribery. A brief summary of the facts in the McGregor case can be found in the reply brief Siegelman’s lawyer, Sam Heldman, filed in the Supreme Court, here; Heldman was also one of the lawyers for some defendants in McGregor.
Lyle Denniston writes for the National Constitution Center.
Very interesting Main Justice report.
This analysis will appear in the Los Angeles Times.
Political Wire considers.
Must-read Gerstein, who also notes: “NBC reported Friday morning that jurors split 8-4 for Edwards on the unresolved campaign finance charges and that only one juror favored convicting Edwards on a charge that he caused the filing of false reports with the Federal Election Commission.”
The Guardian (U.K.) reports.
The News and Observer reports.
Must-read Emily Bazelon on John Edwards.
So reports ABC News.
The jury has reached a verdict. Stand by.
So still, stand by.
Bizarre: “Something exceedingly strange is happening at the John Edwards trial: all four alternate jurors dressed in red shirts Friday. They each wore bright yellow the day before. Coincidence? Few here think so. he demeanor of the alternate jurors and their behavior has become the talk of the courthouse. The alternates enter the courtroom each day giggling among themselves. One of the alternates, an attractive young woman, has been spotted smiling at Edwards and flipping her hair in what seems to some to be a flirtatious manner. On Friday, she wore a revealing red top with a single strap and an exposed right shoulder.”
Meanwhile Andy Borowitz weighs in on Edwards’ missed career opportunity.
But don’t expect a verdict before Memorial Day.
The New York Times offers this news analysis as we await the John Edwards verdict. The article discusses a point, which I make more fully in this Slate piece, tying the Edwards prosecution to those of Tom DeLay and Don Siegelman. (The Siegelman cert petition will be before the Supreme Court very soon.)
I have suggested that Edwards will have strong grounds for appeal if he is convicted, based upon the jury instructions, the exclusion of testimony from former FEC commissioners, as well as a potential misunderstanding by the judge of the operative law.
Meanwhile, the NYT reports on the boredom of waiting for a verdict.
“This case is so far off the rails, it literally makes me angry.”
–Ken Gross, quoted in a Bloomberg BNA article, “Prosecution of Edwards Highlights Gaps
Between DOJ, FEC on Campaign Finance Law.”
The latest from the trial. From the second hand reports I’ve heard from the trial, this appears to be a sound strategy. Very little of the prosecution case focused on whether Edwards had the specific intent to violate campaign finance laws. While I had expected the prosecution to have a relatively easy time of it before a jury given how slimy Edwards is, I would now put some money on an acquittal.
And as I’ve said, even if there is a conviction, Edwards will have strong legal grounds on appeal.
Politico: “Defense lawyers for former Sen. John Edwards contend that the Justice Department set aside one of its standing policies in campaign finance cases in order to seek Edwards’s indictment on the charges he’s currently on trial for in federal court here. In a court filing late Tuesday, Edwards’s defense team submitted a letter the head of the Justice Department’s Election Crimes Branch wrote in 2009 stating that Justice only prosecutes federal campaign finance violations in cases that clearly run afoul of standards established by the Federal Election Commission.”
As I’ve written, there are serious risks when prosecutors can use unclear laws to go after politicians for criminal violations.
The latest: “Two witnesses with a wealth of knowledge about campaign finance laws testified in the John Edwards trial Monday that the $900,000 at the heart of the case went to personal expenses for the candidate – and therefore should not be subject to public reporting or campaign finance caps. The jury heard from one of the witnesses – a former Edwards campaign treasurer. But the other, a former Federal Election Commission chairman, testified outside the presence of the jury. The judge limited what he can say if he’s called to the stand later in front of jurors…Judge Catherine Eagles dealt the defense a blow Monday when she severely restricted what Scott Thomas, a former Federal Election Commission chairman, could talk about if he faces the jury. Thomas, who put in 37 years with the government agency that oversees campaign finance compliance and the issues related to it, took the stand Monday after the judge sent the jury home for the day. In a legal proceeding that must take place outside the jury’s presence, Thomas offered a glimpse of what he might say if called to testify. ‘These are intensely personal by their very nature,’ Thomas said of the $900,000 in payments used to support Hunter when she was pregnant with Edwards’ child, who is now 4.”
AP: “- A federal judge refused to throw out campaign corruption charges against John Edwards on Friday, meaning the former presidential hopeful will have to present his case to a jury.”
Important Scott Horton piece at Harper‘s:
The DOJ’s public-integrity prosecutions have careened in recent years from one humiliation to the next, with little thought for the damage the department is doing to the law or to its own reputation. First came the prosecutions of Alaska Senator Ted Stevens and Alabama Governor Don Siegelman, both cases in which the department secured convictions through false evidence, as prosecutors suppressed exculpatory materials that established the innocence of the defendants. Then came the $40 million Alabama bingo prosecution, touted by Assistant Attorney General Lanny Breuer as a demonstration of the department’s commitment to stopping bribery in the legislative process. That case ended with acquittals across the board, after the evidence demonstrated not corruption, but the duping of the DOJ by political hacks with racist motives—as the judge himself pointed out….
The DOJ’s political prosecutions demonstrate its exceptional vulnerability to political manipulation, its absence of professional independence, and its consistent failure to exhibit mature, detached judgment. The Edwards case perfectly encapsulates these qualities, and leads to an inescapable conclusion: that the upper echelon of the Justice Department, whether under Democratic or Republican administrations, is filled with political hacks eager to pad their résumés before launching their political careers.
I discussed the danger of political prosecutions, including in the Edwards case, in this recent Slate piece.
Josh Gerstein reports from the Edwards trial.
Allen Dickerson writes at Campaigns & Elections.
The National Journal reports.