“Death by a Thousand Cuts: How the Supreme Court Has Effectively Killed Campaign Finance Regulation by Its Limited Recognition of Compelling State Interests”

Kevin Huguelet has posted this draft on SSRN (forthcoming University of Miami Law Review).  Here is the abstract:

This Article examines the current campaign finance jurisprudence in the United States, with a particular emphasis on the Court’s recognition of compelling state interests. Given the limited recognition of compelling state interests, this Article seeks to question the seemingly arbitrary rationale behind recognition and explore the implications of minimal acceptance of compelling state interests. Because the evolution of compelling state interest recognition has varied greatly, the Court’s recent insistence — that the state has merely one compelling interest — is troublesome. This Article provides a comprehensive review of the campaign finance jurisprudence, then reviews the decisions that created or argued for additional compelling state interests. Interests that were considered compelling prior to Citizens United, such as the anti-distortion interest, remain compelling and hold an important place in the US campaign finance landscape. This Article attempts to respond to the current Court’s trend and shed light on the history of compelling state interest recognition.

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Federal District Court Rejects Challenge to Federal Contribution Limits

Holmes v. FEC:

After full consideration of the entire record and all arguments, the Court finds that Plaintiffs’ challenge to FECA’s temporal per-election restrictions on individual contributions to federal candidates constitutes a veiled attack on the contribution limit set by Congress and upheld by the Supreme Court as a legitimate means to combat corruption. Because Plaintiffs’ claims rest on issues of settled law, the Court will deny Plaintiffs’ motion for certification and grant FEC’s motion for summary judgment.

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Jeb Bush Gets Audition for Koch Brothers Primary

Playbook:

EXCLUSIVE: Charles and David Koch are considering throwing their massive wealth and sophisticated organization into the Republican presidential primary for the first time, a potentially game-changing boost that could make even a second-tier candidate instantly viable. In another surprise, a top Koch aide revealed to Playbook that Jeb Bush will be given a chance to audition for the brothers’ support, despite initial skepticism about him at the top of the Kochs’ growing political behemoth.

Amazing non-candidate Bush has time for it with headlining at 47 fundraisers for his Super PAC.

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“Judge Blasts Prosecutors in Foreign Bribe Case”

The Recorder:

With harsh words for prosecutors, a federal judge in San Francisco dismissed a foreign bribery case on Friday, calling it the most “misguided prosecution” he’d seen in 50 years of criminal practice.

U.S. District Judge Charles Breyer, himself a former federal prosecutor, sparred with the government attorneys on the case, asking why the U.S. attorney’s office had pursued charges against three non-U.S. citizens whose alleged misdeeds took place entirely abroad.

“If you’re not addressing crime in the Northern District of California, you’re not doing your job,” Breyer said, according to a transcript of the April 17 hearing. Breyer said the prosecution “brings into serious question the manner in which decisions are made by the United States Attorney for the Northern District of California.”

 

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“Ex-Candidate O’Donnell Challenges Rules Barring Personal Use of Campaign Money”

Bloomberg BNA: “Federal Election Commission regulations prohibiting campaign money from being spent to pay a candidate’s rent are unconstitutional, attorneys for former Republican Senate candidate Christine O’Donnell has argued in a new federal court filing (FEC v. O’Donnell, , D. Del., No. 15-17, answer and counterclaim, 4/17/15).”

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All Star Line Up for UCI #SCOTUS Term in Review Event July 13

Wow this will be great, especially given the high profile cases this term:

5th Annual Supreme Court Term in Review

Monday, July 13, 2015, 12:00–1:30 P.M.
UCI Student Center, Pacific Ballroom (Map)

This exciting and entertaining program reviews the Supreme Court’s key cases decided in the October 2014 term, with an all-star panel of Supreme Court practitioners, journalists, and academics.

Panelists

The event will also be webcast, with viewers able to submit questions via Twitter, using the hash tag #ucilawscotus at the end of your question.

This event is approved for 1.5 hours of Minimum Continuing Legal Education Credit by the State Bar of California.
UC Irvine School of Law is a State Bar-approved MCLE provider.

Registration for this very popular event will open in late May. Please check back.

 

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“Nonprofit hopes $25,000 prize lures L.A. schools’ District 5 voters”

LAT:

A nonprofit voter group has a plan to turn around traditionally abysmal turnout for a key election to the Los Angeles Board of Education: It’s going to pay one lucky voter $25,000.

Those who cast ballots in the race for District 5 in the May 19 election will be entered in a drawing.

The idea is the brainchild of Southwest Voter Registration Education Project.

MORE from Air Talk.

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“Minority representation lacking in elected government offices, study finds”

Chicago Tribune:

In DuPage County, where 15 percent of the population is African-American and 16.5 percent of the population is Latino, the elected County Board is all-white.

In Zion, where 33 percent of the population is African-American and 23 percent is Latino, there are no racial minorities or women on the City Council.

In fact, in 39 jurisdictions in the state, the number of women and racial minorities serving in elected positions doesn’t statistically reflect the population served, a new study released by the Chicago Lawyers’ Committee shows.

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#SCOTUS Remands North Carolina Racial Gerrymandering Case for Reconsideration

This order is unsurprising. Democrats and minority plaintiffs challenged a North Carolina redistricting plan as an unconstitutional racial gerrymander. The North Carolina Supreme Court rejected the challenge. Today the Supreme Court told North Carolina to take another look in light of the Court’s recent decision raising similar issues in Alabama Legislative Black Caucus v. Alabama.  As I noted in my SCOTUSBlog analysis of the Alabama opinion:

What is the significance of today’s Alabama ruling? It seems likely on remand that at least some of Alabama’s districts will be found to be racial gerrymanders. This means that some of these districts will have to be redrawn to “unpack” some minority voters from these districts. But do not be surprised if Alabama preempts the lawsuit by drawing new districts which are less racially conscious but still constitute a partisan gerrymander which helps the Republicans have greater control over the Alabama legislative districts. As I have noted, lurking in the background of this case is the “race or party” problem: with most Democrats in Alabama being African Americans and most Republicans being white, how does one determine whether a predominant factor in gerrymandering is race or party?

On that score, the case may have somewhat broader implications even if not the earthshattering ones promised by Justice Scalia. Although Republican states which pack minority voters into districts can no longer claim to do so to comply with Section 5 of the Voting Rights Act (thanks to the Shelby County case), they still may claim to do so to comply with Section 2 of the Act. Indeed, as Professor Justin Levitt has shown, minority packing and reliance on the Voting Rights Act have become a familiar tool for Republican legislatures looking to gain advantage by packing likely Democratic voters into a smaller number of districts. Many Democrats and minority voters have challenged such plans as unconstitutional racial gerrymanders.

Today’s decision gives these challengers a new tool, making it harder for states to use compliance with the Voting Rights Act as a pretext to secure partisan advantage. All in all, this may help stop some egregious gerrymanders, but there will still be plenty of ways for states to draw district lines for partisan advantage without running afoul of the Voting Rights Act. And depending upon how the Court decides the Arizona redistricting case later this Term, states may have even a freer hand to draw lines for nakedly political purposes.

I will have more on the significance of the Alabama ruling soon.

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Good Draw of Judges for Challengers in Texas Voter ID Appeal in 5th Circuit

Via Michael Li, here is the order.

Chief Judge Carl Stewart (a Clinton appointee profiled here), Catharina Haynes (a GWB appointee) and federal district court judge Nannette Brown (sitting by designation), an Obama appointee.

The 5th Circuit is among the most conservative courts in the nation. The idea that a panel would have two Democratic appointees must be heartening to the challengers in this case.  However, remember that Texas can try to take the case to the full 5th Circuit en banc if it loses, and given DOJ’s involvement and the high stakes here, this case is very likely to end up eventually before the Supreme Court.

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Quote of the Day

“I’ve told my six-year-old daughter, ‘Running for office is real simple: you just surgically disconnect your shame sensor.’ Because you spend every day asking people for money. You walk up and say, ‘How are you doing, sir? Can I have money? Great to see you, lovely shirt, please give me money.’ That’s what running for office is like.”

–Sen. Ted Cruz.

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“New Book, ‘Clinton Cash,’ Questions Foreign Donations to Foundation”

NYT:

“Clinton Cash: The Untold Story of How and Why Foreign Governments and Businesses Helped Make Bill and Hillary Rich,” by Peter Schweizer — a 186-page investigation of donations made to the Clinton Foundation by foreign entities — is proving the most anticipated and feared book of a presidential cycle still in its infancy…

But “Clinton Cash” is potentially more unsettling, both because of its focused reporting and because major news organizations including The Times, The Washington Post and Fox News have exclusive agreements with the author  to pursue the story lines found in the book.

Members of the Senate Foreign Relations Committee, which includes Mr. Paul and Senator Marco Rubio of Florida, have been briefed on the book’s findings, and its contents have already made their way into several of the Republican presidential candidates’ campaigns.

 

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“Wayne Williams a contrast to former SOS”

Colorado Statesman:

Three months after being sworn in, Secretary of State Wayne Williams has mostly stayed out of the news, and that’s the way he likes it.

It’s a marked contrast from Williams’s predecessor, fellow Republican Scott Gessler, an election law attorney who embraced the nickname “honey badger,” a varmint known for the relentlessness of its attack. Where Gessler seemingly courted controversy — and was the target of one complaint after another from Democrats — Williams is taking a more conciliatory approach, working closely with county clerks across the state and stressing his office’s mission providing services to voters, businesses and nonprofit groups.

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NYT Editorial Relies on Morgan Kousser Voting Rights Data to Criticize #SCOTUS

Editorial:

The chief justice’s destructive cure for this was to throw out the formulaCongress devised in 1965 that required all or parts of 16 states with long histories of overt racial discrimination in voting, most in the South, to get approval from the federal government for any proposed change to their voting laws. This process, known as preclearance, stopped hundreds of discriminatory new laws from taking effect, and deterred lawmakers from introducing countless more.

But Chief Justice Roberts, writing for a 5-4 majority, invalidated the formula because “today’s statistics tell an entirely different story.”

Well, do they? A comprehensive new study by a historian of the Voting Rights Act provides a fresh trove of empirical evidence to refute that assertion. The study by J. Morgan Kousser, a professor of history and social science at the California Institute of Technology, examines more than 4,100 voting-rights cases, Justice Department inquiries, settlements and changes to laws in response to the threat of lawsuits around the country where the final result favored minority voters.

It found that from 1957 until 2013, more than 90 percent of these legal “events” occurred in jurisdictions that were required to preclear their voting changes. The study also provides evidence that the number of successful voting-rights suits has gone down in recent years, not because there is less discrimination, but because several Supreme Court decisions have made them harder to win.

 

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“America’s lobbying addiction”

Philip Wallach review:

Lee Drutman’s new book, The Business of America is Lobbying, is mandatory reading for two groups of people: masochists and those of us who care about the future of self-government in America. After reading Drutman’s depressing book, it is tempting to think that the second group is a subset of the first, but he manages to muster some notes of optimism, and so must the rest of us.

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California Court Upholds Conviction of Person for Twitter Incitement [Corrected] Against Ex-Wife #NCIS Actresss

People v. Shivers (Appellate Division of LA Superior Court):

 

The circumstantial evidence was sufficient to permit a reasonable trier of fact to conclude defendant acted with intent to incite or produce unlawful action by a third party who read his messages. Defendant electronically distributed messages about Perrette using Twitter, which, as shown by the evidence at trial, is a public social networking website on the Internet where users can write and respond to short messages. Twitter constituted an “electronic communication device” within the meaning of the prohibited communications statute. (See Pen. Code, § 653.2, subd. (b) [including Internet web pages and websites within the definition of “electronic communication device”].) The evidence showed a person‟s tweets posted on Twitter can be read by the public and spread to the websites of other Twitter users by being retweeted, so that a single tweet may be repeated and disseminated throughout numerous web pages accessible to the public.

Defendant posted messages on Twitter such that persons searching for Perrette‟s name could find his tweets. Also, by using a hashtag for the show (“#NCIS”) and the location (“#Cahuenga”), third parties searching on Twitter would also come across defendant‟s tweets. Several of the tweets were made in response to persons who had read defendant‟s tweets, and other tweets had been retweeted by third parties, indicating to defendant that third parties were accessing the information he posted and his tweets were being disseminated. The tweets leading up to the ones posted on July 4 and July 8, 2012, falsely indicated that defendant had a restraining order against Perrette and that she was stalking him and making death threats against him. The July 4 and July 8, 2012 tweets referenced the area of Cahuenga where Perrette lived. These tweets also referred to Perrette as defendant‟s “stalker,” and requested that readers “call LAPD!!!” and “report her to LAPD immediately!” if they saw her following him in the area. It can be inferred defendant knew that persons who encountered Perrette after reading his tweets could have been motivated to report her to the police for what they believed was her stalking him, or to otherwise harass her. (See Pen. Code, § 653.2, subd. (c)(1) [defining “harassment” as “conduct directed at a specific person that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing the person”].) Given the nature of Twitter and the provocative contents of defendant‟s tweets, a reasonable trier of fact could conclude defendant posted his tweets with the specific intent to incite or produce unwanted physical contact, injury, or harassment at the hands of a third party.

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“The South Carolina Way of Incumbency Protection”

Ashley Landess WSJ oped:

Yet now lawmakers are proposing a new definition of “electioneering communication” that would include virtually any statement referencing a candidate for office made within 60 days of a general election or within 30 days of a primary. The language is broad enough to cover, conceivably, the monthly newsletters of think tanks or other watchdogs.

The bill appears to make exceptions, but they are vague and thus open to interpretation. For example, a flyer stating two county council candidates’ positions on the issues would be deemed electioneering if it “may be received” by 2,500 households. But who’s to say in how many something like this “may be received”? Under this language regulators would have the power to force watchdog groups to open their records to prove they’re not electioneering.

A group found to be electioneering would have to publicly disclose its financial supporters. No organization wants its donors subject to such invasions of privacy, which could expose them to public harassment or retaliation by powerful officials. In a state where a few politicians exercise enormous powers over all three branches of state government, that could mean real trouble for real people. If this bill is passed, many will find themselves suddenly worried about crossing some arbitrary line. They may decide it’s easier to simply keep quiet.

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