“U.S. court sides with Philly cops fighting ban on political contributions”

News from PA:

A decision by a U.S. appeals court could give the Philadelphia police union increased political clout.

The U.S. Court of Appeals for the 3rd Circuit ruled Monday that the city’s ban on political contributions by police violates the First Amendment. Other city employees including firefighters, who successfully challenged a similar ban, are allowed to make contributions.

(h/t How Appealing).


A Weak Defense of the Perry Indictment

I have not seen any professors out there writing that the indictment is strong. The closest is Michael Dorf, who seems ambivalent. The comments by Hashim after the Dorf post point out the problems with treating the veto or the veto threat as a criminal violation.

Now a few readers have pointed me to “Why Rick Perry Will Be Convicted” by James Moore at HuffPo.

It does not seem very convincing to me, not on the question of whether a jury might convict, but on the question of whether the courts will let these charges go to a jury or overturn any jury convictions.

Moore’s main point appears to be that Perry may have had a political motivation—to stop the investigation of an ally–when he threatened to veto and vetoed funding for the Travis County D.A.’s office. That’s not news and had been reported before. Even assuming that is true, it does not look like that conduct fits under Count 1 of the indictment (for reasons Eugene has given). As for count 2, it looks like (1) the threatening of a veto may be protected conduct; (2) it may not be covered by the statute; and (3) prosecution for a veto threat under the statute may violate the First Amendment.


When Will New Fla Elections Be Held?

A longtime reader writes:

Since the existing congressional districts in central and northeast Florida are unconstitutional, how fast can Florida hold elections implementing new congressional redistricting maps?
County supervisors of election from the affected areas say they can hold a special election as soon as December 2014.

Secretary of State Ken Detzner says election officials need at least half a year longer, until May 2015. In other words, over nine months from now.

That wide gulf is certainly curious. And obviously, the longer the delay in implementing new maps, the longer Florida must conduct elections using unconstitutional districts.


“Just Politics: Just because politics can be ugly doesn’t make it a crime.”

I have written this new piece for Slate, with the subhead, “If you think the Perry indictment is ridiculous, watch Blagojevich get out of jail and McDonnell go free.”  It begins:

Over the weekend, liberal and conservative commentators achieved rare bipartisan consensus in condemning the indictment of Texas Gov. Rick Perry as “unbelievably ridiculous,” legally thin, and potentially unconstitutional. Perry is accused of threatening to veto and then actually vetoing funding for the Travis County district attorney’s office, unless it got rid of its district attorney, who—in an embarrassing incident—pleaded guilty to drunk driving and arguably got off too easily. It’s worth noting that the same outrage expressed over the Perry indictment did not accompany the conviction of former Illinois Gov. Rod Blagojevich for trying to sell Barack Obama’s Senate seat, or the trial of former Virginia Gov. Bob McDonnell and his wife for allegedly taking $165,000 in gifts from a businessman selling snake oil, who was looking to curry political influence with the governor. But a similar problem of drawing the line between illegal conduct and politics as usual may set them both free. And it suggests prosecutors are in a tough position when they see conduct that fails the smell test but might not be illegal.

This seems to be the season for investigations of governors. New Jersey’s Gov. Chris Christie has his “bridgegate.” The U.S. attorney is investigating New York Gov. Andrew Cuomo’s potential interference with the Moreland Commission—a commission he created himself to investigate corruption. State prosecutors in Wisconsin have been investigating Gov. Scott Walker’s involvement in potentially illegal coordination of campaign finances between his political campaign and outside groups. And then, of course, there are McDonnell, Perry, and Blagojevich, as well as Connecticut Gov. John Rowland, who went to jail for graft, and Alabama Gov. Don Siegelman, who went to jail for bribery and fought his conviction (unsuccessfully) all the way to the U.S. Supreme Court. At least the endless prosecutions appear to target both Democrats and Republicans.

But the problem facing prosecutors, in the Perry case and the others noted above, is this: State officials have tremendous power, and many of them abuse that power for personal benefit. But many state officials also engage in unseemly conduct and hardball politics that do not clearly cross the line of illegality. In those cases, as I’ve written in relation to former U.S. Sen. John Edwards, former House Majority Leader Tom DeLay, and now Rick Perry, we run the danger of the criminalization of ordinary politics. And a prosecutor’s desire to make a name for herself, the potential for partisan prosecutions, and the public’s desire to ferret out corruption that it believes to be rampant all push prosecutors into pursuing sometimes novel or dubious legal theories against high public officials. There is very little incentive in the other direction.


“Empirically Measuring the Impact of Photo ID Over Time and Its Impact on Women”

Mike Pitts has posted this draft on SSRN (forthcoming, Indiana Law Review).  Here is the abstract:

This article is part of a series of studies related to the impact of Indiana’s photo identification law during the two presidential election cycles at which it has been implemented — 2008 and 2012. This article tracks the number of provisional ballots cast and not counted because of a lack of voter identification at Indiana’s 2012 general election. Importantly, this article also addresses an argument against photo identification laws that has became more prominent in recent years — the idea that photo identification laws disparately disfranchise female voters. This article addresses that argument by tracking the gender of those persons who cast provisional ballots due to a lack of valid photo identification — something that does not seem to have been previously done anywhere in the literature. While the research presented here allows for several conclusions, the most important of those conclusions are as follows. First, Indiana’s photo identification law has a relatively small (in relation to the total number of ballots cast) overall actual disfranchising impact on the electorate. Second, Indiana’s photo identification law’s actual disfranchising impact seems to be headed in a downward direction when one compares data from the 2012 general election to the 2008 general election. Third, Indiana’s photo identification law appears to have a disparate impact on women.

Mike’s work is careful and important.  I look forward to reading this!



“Election Spending 2014: Nine Toss-Up Senate Races”

Brennan Center:

With control of the Senate at play in the 2014 election, tight races have seen astronomical spending from outside groups. Even with almost three months left until Election Day, an analysis of outside spending in the nine most competitive Senate races found several trends. Like previous Brennan Center analyses, we observed inadequate transparency and single-candidate spenders providing opportunities to avoid contribution limits. We also discovered two key findings:

  1. These nine Senate races have seen $72 million worth of independent expenditures thus far. As a point of comparison, in the 2010 midterms, nonparty outside spending reached only $97 million — and that was for the whole election in all 37 Senate races. The highest levels of independent expenditures in our sample were seen in North Carolina, with $14 million, and Kentucky, with $12 million.

  2. The competitive Senate races also reveal a potential new trend — organizations that benefit a single candidate and hide their donors. These single-candidate, dark-money groups make it impossible to know whether candidate contributors are attempting to curry favor by also making large donations to candidate-specific spenders.


“Political Activity Limits and Tax Exemption: A Gordian’s Knot”

Roger Colinvaux has posted this draft on SSRN (forthcoming, Virginia Tax Review).  Here is the abstract:

The article considers the correct tax treatment of political activity by the tax system and discusses the problems that have arisen from political activity depending on whether the organization is a charity, a noncharitable exempt, or a political organization. The article then examines administrative and legislative options to the problems raised by political activity. Quantum-based solutions to the problem of political activity by noncharitable exempts do not provide a clear advantage over present law. Formally quantifying the “primarily” test would result in more certainty, but would also require that the Service be more, not less, involved in the regulation of political activity. If the policy goal is to curb political activity by noncharitable exempts, changing the test from “primarily” to something more restrictive like “substantially” or “exclusively” would be effective, but would create new categories of taxable nonprofits that are treated worse than political organizations for engaging in less political activity, which is irrational. Further, it is not clear, especially after the Citizens United decision, why as a matter of tax exemption the regulations decree that political activity may not further noncharitable exempt purposes. Before Citizens United, the political activity limits were not especially relevant, but at least helped to differentiate organization types. However, Citizens United largely rendered existing tax law limitations obsolete by making a new kind of multi-purpose organization possible. As a result, definitional political activity limits are no longer justified and should be eliminated, but only if the 527(f) tax on investment income remains vital and the differences in the disclosure regimes between political organizations and noncharitable exempts are erased. In addition, Congress should affirm that the gift tax does not apply with respect to political contributions, but also extend the income tax to transfers of appreciated property to noncharitable exempts. Further, Congress should acknowledge that the increase in political speech by noncharitable exempts will lead to abuse of charitable organizations, and take steps to prevent the laundering of independent expenditures through the charitable form. Congress also should recognize that Citizens United has led to a need to develop a new tax baseline for political activity conducted “for profit” or outside of section 527.


Rick Perry and the Criminalization of Politics

Texas Governor Rick Perry has been indicted for coercion and abuse of power in a potentially politically motivated prosecution for actions Perry possibly  took out of political motivation to shut down possible politically motivated prosecutions. Got that?

I haven’t studied Texas law or the indictment closely enough yet (read Ross Ramsey’s column for the basics), but Eugene Volokh, who is very careful with these things, makes a good case that this indictment will not fly because the law potentially violates the First Amendment (by being unconstitutionally vague, unconstitutionally overbroad, or both).

Perry joins the list of other politicians prosecuted under controversial or dubious theories, including Tom DeLay, John Edwards, Scott Walker, Don Siegelman, and Ted Stevens. Some go to jail; some don’t. Some get convicted by juries; some don’t.  Some have their prosecutions overturned on appeal; some don’t.

The common thread here is the criminalization of politics. As I wrote about DeLay:

Some liberals are no doubt disappointed to hear that a Texas appellate court today, on a 2-1 vote, reversed the conviction of former U.S. House Majority Leader Tom DeLay. They shouldn’t be. There were good reasons to think that DeLay’s prosecution in Texas for violations of state campaign finance law, like the federal prosecutions of former presidential candidate John Edwards and former Alabama Gov. Don Siegelman, involved politically motivated charges brought by overzealous prosecutors.

And I wrote about Edwards:

We don’t know whether these prosecutions were politically motivated or not, and of course each of these defendants has every incentive to make such claims. But the point is that when judges allow prosecutors to rely on novel legal theories in these sorts of cases, they open up the possibility of politically motivated prosecutions. Better to leave the criminal cases to clear violations of the law, such asRep. Randy “Duke” Cunningham’s yacht bribe or Rep. William Jefferson’s $10,000 stash hidden in his freezer. If prosecutors can’t produce clear-cut charges, politicians and their campaigns should only face the potential for civil liability.

Second, even if prosecutors are well-meaning and looking out solely for the public interest, there’s a fundamental unfairness in subjecting politicians to criminal liability for uncertain violations of campaign finance law. The threat of criminal liability can ruin a political career. Look at the overreaching by federal prosecutors in the trial of Ted Stevens; the Justice Department’s attorneys were so hungry to get the Republican senator from Alaska, they withheld key exculpatory evidence from the defense.

Thanks to expansive federal law, the threat of criminal liability hangs over all elected officials, federal, state, and local. As professors Rick Pildes and Sam Issacharoff explain in their amicus brief in the Siegelman case, “Federal anticorruption criminal prosecutions of state and local political officials have skyrocketed since the early 1980s. Before 1980, there were never more than 200 such prosecutions in a single year, but since 1985, there have been more than 900 prosecutions in a peak year and an average of more than 600.”

We don’t know yet whether Rick Perry violated the law and whether the law he is accused of violating is constitutional. But don’t be too quick to equate an indictment with actual wrongdoing by the governor, regardless of your political orientation.


“Senator Brian Schatz Wins Close-Fought Democratic Primary in Hawaii”

NYT: “Mr. Schatz secured the victory over his challenger, Representative Colleen Hanabusa, by fewer than 1,800 votes — less than 1 percent of the total cast — after two precincts here on the east coast of the Big Island held a delayed vote on Friday. Their polling places had been closed during the Aug. 9 primary election because of damage from Tropical Storm Iselle.”


“How Ferguson exposes the racial bias in local elections”

Brian Schaffner, Wouter Van Erve and Ray LaRaja:

The conflict in Ferguson, Mo., has captured the nation’s attention and once again put race front and center in American politics. This piece, for instance, notes that while Ferguson is 67 percent black, five of the six council members and the mayor are all white. Why this disparity? There are two culprits: the timing of municipal elections and the nature of the ballot in these elections.


“Shelby County v. Holder and the gutting of federal preclearance of election law changes”

Dick Engstrom has written this article in Politics, Groups, and Identities.  Here is the abstract:

The preclearance provision of Section 5 of the Voting Rights Act was rendered ineffective by the United States Supreme Court in 2013 in Shelby County, AL v. Holder. This provision required federal review of changes in the election policies and practices of state and local governments with particularly bad histories of racial discrimination in their electoral processes. This essay identifies the crucial prophylactic role the provision played in preventing the implementation of vote denial and vote dilution practices in southern states. It provides an overview of the various reauthorizations of the provision, with particular attention to the latest in 2006, and a critical review of the Supreme Court’s response to it. Special attention is devoted to the social science evidence relied upon by Congress in that reauthorization and by the Court in its response to it.