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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
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) NOW IN PAPER
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)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
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)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
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 Newspapers and Magazine Commentaries
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)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
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?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
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)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Category Archives: conflict of interest laws
The Birmingham News reports.
Must-read Tom Curry story for NBC News: “Scott Gessler isn’t a household name in national politics, but could become famous in a hurry, just as Florida Secretary of State Katherine Harris did during the 2000 presidential recount.”
For those interested in the subject, this opinion is likely to be very influential.
Politico: “President Barack Obama’s White House is taking a new approach to straddling the tricky legal line between governing and campaigning: the tandem press briefing. Starting last week, Obama for America traveling press secretary Jen Psaki joined White House Press Secretary Jay Carney when he was briefing reporters aboard Air Force One during Obama political trips. So far, there have been three such off-camera gaggles, as the press and White House call them. (Transcripts here, here and here.) The White House says the arrangement helps comply with a federal law known as the Hatch Act, which prohibits use of taxpayer resources for political purposes and bans staffers from using their official posts to advance the president’s reelection prospects. Obama aides say the tandem briefings help keep the hot side hot and the cold side cold, as it were, but not everyone is a fan of the practice.”
WaPo: “The House Ethics Committee has voted unanimously to launch a formal investigation into allegations that Rep. Shelley Berkley (D-Nev.) used her position to benefit the financial interests of her husband — a blow to her candidacy in one of the nation’s most competitive Senate contests.”
NYT: “Leaders of the House Ethics Committee said Wednesday that they would move ahead with a long-delayed inquiry into allegations of impropriety by Representative Maxine Waters after concluding that committee missteps had not denied Ms. Waters a fair hearing in the case.”
NYT: “Officials at the White House, the Chicago campaign headquarters and the Democratic National Committee declined to say how they decide which events are political and how much to reimburse the government. That secrecy has a tradition dating at least to the late 1970s.”
Extensive WaPo report quoting Cleta Mitchell, Joe Sandler and others.
Sunlight Foundation: “A few of us at Sunlight are excited to be going to the bill signing ceremony for the STOCK Act (S. 2038) in a few hours. While the ultimate form the bill took was weaker than what we hoped for, Sunlight has long supported the STOCK Act and the increased transparency it will create.”
A nonprofit ethics group here spent the last nine months examining every member of the House — for campaign spending, budget earmarks, office accounts and lobbying by any relatives — and found that the families of more than half of all the House lawmakers have received payments or otherwise benefited financially from their affiliation with a lawmaker in the two previous election cycles.
The 346-page report by Citizens for Responsibility and Ethics in Washington, or CREW, is an extraordinary compendium of creative accounting, self-interested budgeting and generous expense reimbursements. It highlights common practices that translate into tens of millions of dollars in payments to relatives or the lawmakers themselves.
Charles Geyh has posted this draft on SSRN. Here is the abstract:
Scholars have traditionally analyzed judicial impartiality piecemeal, in disconnected debates on discrete topics. As a consequence, current understandings of judicial impartiality are balkanized and muddled. This article seeks to reconceptualize judicial impartiality comprehensively, across contexts. In an era when “we are all legal realists now,” perfect impartiality — the complete absence of bias or prejudice — is at most an ideal, with “impartial enough” becoming, of necessity, the realistic goal. Understanding when imperfectly impartial is nonetheless impartial enough is aided by conceptualizing judicial impartiality in three distinct dimensions: A procedural dimension in which impartiality affords parties a fair hearing; a political dimension in which impartiality promotes public confidence in the courts; and an ethical dimension in which impartiality is a standard of good conduct core to a judge’s self-definition. The seeming contradictions that cut across contexts in which judicial impartiality problems arise, can for the most part be explained with reference to the dimensions those problems inhabit and the constraints under which regulation in those dimensions are subject. Thus, being impartial enough to assure parties a fair hearing in the procedural dimension may or may not be impartial enough to satisfy the public in the political dimension, which may or may not be impartial enough to ensure that judges are behaving honorably in the ethical dimension. Analyzing partiality problems through the lens of the dimensions they occupy not only resolves many of the imponderables that have long plagued the subject, but also reveals a distinct trend, in which impartiality is being transformed from a value traditionally regulated largely by judges and the legal establishment in the procedural and ethical dimensions, to one that is increasingly the province of the political dimension, where it is regulated by the public and its elected representatives. By situating impartiality at the crossroads of judicial procedure, ethics and politics, this article offers a new perspective, not just on judicial impartiality, but also on the role of the American judiciary in the administration of justice and the political process.
“Senate Accepts Weaker House STOCK Act, Drops Other Reforms: Statement of Meredith McGehee, Policy Director”
James Sample has posted this draft on SSRN (part of a symposium at the University of San Francisco Law Review). Here is the abstract:
Counter-historically, the highest profile judicial election campaigns of the first judicial elections cycle following the Supreme Court’s decision in Citizens United v. Federal Election Commission1 were retention and ballot measure, rather than contested elections. Retention elections, in which voters cast their ballots either in favor of returning the incumbent judge to office for another term or for her removal, were intended to balance the values of judicial impartiality and accountability to the public.
In Iowa, judicial retention elections-contests normally well beneath the radar even in Des Moines-became a national flashpoint for same sex marriage debates and, more to the point, for interest group spending in courts races. Also underscored by the Iowa judicial retention election was the prisoner’s dilemma faced by judges who are targeted by big dollar campaigns. Faced with that dilemma, the Iowa Chief Justice and two Associate Justices did “not want to contribute to the politicization of the judiciary,” and thus chose not to engage in fundraising.3 Realistically, that tactical decision, more than the Court’s unanimous 2009 decision in favor of same sex marriage, cost them their seats on the bench.
Conversely, Illinois Chief Justice Thomas Kilbride faced a wellfunded anti-retention effort-this one based on perceived anti-business rulings, but Kilbride aggressively raised more than $1 million from political parties, unions, and stakeholders before the bench, resulting in what the Chicago Tribune described as “a $3 million fight over a name most Illinoisans didn’t even see on the ballot.” Kilbride retained his seat.
This Article examines the dynamics driving these events, particularly in light of Citizens United’s potential to open the financial floodgates in state court races that, in their contested (as opposed to retention) iterations over the past decade alone, have already become soaked in campaign cash. For judicial retention elections nationally, the opposition to retention in the 2010 Iowa and Illinois elections represents a bell that will never be un-rung.
Finally, this Article draws a lesson pertaining to Retention 2.010 from another significant event that occurred on Election Day, 2010. Despite a concerted campaign that drew heavily on the prestige of Justice Sandra Day O’Connor, Nevada voters rejected a proposal to abandon contested elections, becoming the latest occasion in the last quarter century in which voters around the country have-without exception- chosen to maintain contested elections.
I look forward to reading this!
T.W. Farnamfor WaPo: ” Big donors considering whether to work the phones raising money for President Obama’s reelection campaign might consider the fate of his 2008 bundlers. Many of them, it turns out, won plum jobs in his administration. Obama campaigned on what he called ‘the most sweeping ethics reform in history’ and has frequently criticized the role of money in politics. That hasn’t stopped him from offering government jobs to some of his biggest bundlers, volunteer fundraisers who gather political contributions from other rich donors.”
Ben Pershing on lack of House ethics enforcement.
“Anti-Corruption Provisions Should be Restored to STOCK Act in Conference, Legal Center, Reformers Tell Majority Leader Reid”
See this press release.
In early February I flagged a cert. petition involving Former Alabama Governor Don Siegelman, saying I suspected and hoped the petition gets a lot of attention, because it raises important and recurring issues which have never been fully resolved about the relationship between the laws of bribery (and related offenses) and campaign contributions.
It has indeed gotten some heavyweight support, which not only increase the chances the Court would take they case. The briefs supporting cert. also illustrate why the Court should take the case. From my work in the Carrigan case (to be argued on remand in the Nevada Supreme Court on Monday), and from watching the John Edwards case, I have come to see the danger of prosecutorial discretion in the criminal election law area where vague statutes, First Amendment interests, and sometimes political calculation figure into prosecutorial decisions.
First I would highlight the amicus brief of Rick Pildes and Sam Issacharoff, which Rick mentioned briefly yesterday. The brief draws heavily on the work of Dan Lowenstein, whose careful, comprehensive and detailed treatment of the issue highlights the desperate need for Supreme Court clarity in this area. Rick and Sam’s brief shows how the dangers which Lowenstein highlighted have come to pass in the honest services area and related prosecutions, despite the Court’s recent Skilling opinion.
The other brief I would highlight is this brief from 100 former state attorneys general of both parties. A snippet:
Having served as chief legal officers and/or law enforcement officers, we do not urge any action that might remove a valuable law enforcement tool in the battle to rid government of corruption. At the same time, however, clear legal standards are required to protect individuals from politically-motivated prosecutions based on conduct that is ingrained in our campaign finance system and has always been considered legal. The conviction of public officials under a charge of “honest services”mail fraud, conspiracy to commit that offense, or bribery, based on an allegedly “corrupt” agreement without the showing of an “explicit” quid pro quo linkage between the official action and the campaign contribution, will have an impermissible chilling effect on how political campaigns are run throughout the country. This Court should take action now to clarify the standards under which this critical aspect of the democratic process may be subject to the criminal laws.
With this kind of support, I would be shocked, actually, if the Court turns down this case.
LA Times: “Los Angeles County Sheriff Lee Baca admitted Friday that he broke state law by making a political endorsement while in uniform. Baca’s acknowledgment of the violation came after inquiries from The Times about a campaign video on the website for Dist. Atty. hopeful Carmen Trutanich that shows Baca wearing his badge and his department-issued sheriff’s uniform.”
“It’s our system of checks and balances. They deposit checks—it increases their balances.”
Jon Stewart, on Congress’s insider trading controversy and the STOCK Act
AP: “The Office of Congressional Ethics is investigating the chairman of the House Financial Services Committee over possible violations of insider-trading laws, according to individuals familiar with the case. Rep. Spencer Bachus (R-Ala.), who holds one of the most influential positions in the House, has been a frequent trader on Capitol Hill, buying stock options while overseeing the nation’s banking and financial services industries.”
Meredith McGehee blogs.
The Hill: “An increasing number of House Republicans are getting wrapped up in allegations of ethics violations ahead of the November elections, handing Democrats easy campaign fodder and putting the GOP in an unexpected bind.”
See this press release.
“Gableman voted with law firm after receiving free legal services; He cast key vote in collective bargaining case”
The hits just keep on coming at the Wisconsin Supreme Court.