“Dark Money and an I.R.S. Blindfold”

NYT editorial:

It is plainly illegal for foreigners to contribute to American political campaigns. But reform groups are warning that the ban would be gravely undermined by a little-noticed bill advanced Thursday by Republicans on the House Ways and Means Committee.

It would alter the current tax code provision that, while permitting the identity of donors to 501(c) “social welfare” groups to be kept firmly secret from the public, requires that the donors be privately identified to Internal Revenue Service officials responsible for enforcing the law. Politically oriented groups claiming dubious exemptions as “social welfare” nonprofits have proliferated in recent elections, allowing donors — including publicity-shy campaign backers — to work from the shadows.


Ninth Circuit Grants Rehearing En Banc in Case Involving Tuscon City Council “Hybrid” Election System


The panel decision featured an opinion by Judge Kozinski and a dissent by Judge Tallman. Judge Kozinski explained the hybrid system in the panel decision:

In some American cities, council seats are filled at large, with the entire city voting for each seat in the primary and general elections. In other cities, council members are nominated and elected by the residents of particular districts. Tucson splits the difference: Since 1930, the city has used a “hybrid system” that combines ward-based primaries with atlarge general elections. The first step in the hybrid system is a partisan primary. Each ward holds its own primary limited to residents of that ward. The winners of the ward primaries advance to the general election, where they compete against the other candidates nominated from that ward. In the general election, all Tucson residents can vote for one council member from each ward that held a primary during the same election cycle. See Charter ch. XVI, § 9. Thus, a resident of Ward 1 can’t vote in the Ward 2 primary, but can vote for one of the Ward 2 candidates in the general election. The parties agree that, 6 PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON once elected, council members represent the entire city, not just the ward from which they were nominated. See City of Tucson v. State, 273 P.3d 624, 631 (Ariz. 2012) (“Tucson council members, although nominated by ward, represent the entire city, just as do council members elected at large in other cities.”); see also Dallas Cty. v. Reese, 421 U.S. 477, 480 (1975) (“[E]lected officials represent all of those who elect them . . . .”); Fortson v. Dorsey, 379 U.S. 433, 438 (1965) (similar). Council seats are filled in staggered elections, with three council members elected every other year. Once elected, a council member serves a four-year term. See Charter ch. XVI, §§ 3–4. The council members from Wards 1, 2 and 4 will be elected in 2015, and the council members from Wards 3, 5 and 6 will be elected in 2017. Because only half of the council seats are up for election in any given year, only half of Tucsonans can vote in a primary in each election cycle. And approximately 83 percent of the electorate that votes for any given council seat in the general election has no say in selecting the nominees competing for that seat.



“How Majority Rule Might Have Stopped Donald Trump”

Eric Maskin and Amartya Sen in NYT Sunday Review:

The Marquis de Condorcet, the great 18th-century political theorist and mathematician, proposed a system for electing candidates who truly command majority support. In this system, a voter has the opportunity torank candidates. For example, her ballot might rank John Kasich, Ted Cruz and Mr. Trump in that order, meaning that she likes Mr. Kasich best, but if he doesn’t win, she would go for Mr. Cruz. She could, alternatively, choose to vote just for Mr. Kasich, which would amount to ranking Mr. Trump and Mr. Cruz in a tie for second. The winner would then be the candidate who, according to the rankings, would defeat each opponent individually in a head-to-head matchup — a real majority winner. (For simplicity, we have described a winner-take-all case; Condorcet’s prescription would also be applicable in primaries where delegates are assigned proportionally.)


Get Ready for the End to Self-Funding Trump (and the Loss of His Too-Rich-to-Be-Bought Message)

Greg Sargent:

This means Trump will be facing some tough dilemmas very, very soon. The question isn’t just whether Trump himself will take contributions (which, as Manafort says above, hasn’t been decided yet). Another question is whether Trump will signal tacit — or even overt — assent for Super PACs allied with the Republican Party to raise and spend huge money on his behalf.


“The Kremlin’s Candidate”

Absolute must-read by Michael Crowley in Politico magazine. Wow is Ed Schultz a sellout. And very, very troubling about Trump.

This is why I never do interviews with RT or Al Jazeera.  (Years ago, before I knew what RT was, I did a radio show (I believe Craig Holman was on too) where it was clear that the intention was to make the United States simply look as bad as possible.) No need to help government mouthpieces masquerading as journalists.


“Prosecutors ask U.S. Supreme Court to overturn Doe decision”

Milwaukee Journal-Sentinel:

Milwaukee County District Attorney John Chisholm on Thursday asked the U.S. Supreme Court to overturn a decision by Wisconsin’s high court to shut down an investigation of Gov. Scott Walker’s campaign and conservative groups backing him.

Chisholm and other prosecutors argue Wisconsin Supreme Court Justices David Prosser and Michael Gableman should not have been allowed to hear the case because their campaigns benefited from work by some of the groups being investigated.

They also want the U.S. Supreme Court to review whether the Wisconsin court got it right when it ruled candidates have free speech rights to work closely with advocacy groups during their campaigns, according to sources.

If anyone has a copy of the cert. petition, please pass it along.


“GAB Director Calls Walker’s Comments On Voter ID Law ‘Disingenuous'”

Wisconsin Public Radio:

“The fact is, the state had to spend a whole lot of time and money defending the (voter ID) law, and we continue to do so today,” Walker said. “If people were really serious about that, they wouldn’t have allowed the state to use all that money to fight courts and to use that in promoting the system.”

Kevin Kennedy, the board’s director, disputes Walker’s statement. In an interview on Wisconsin Public Radio’s “Central Time,” he said that state residents, particularly students, would benefit from an outreach campaign.

“That’s really a very disingenuous comment,” said Kennedy. “I mean, this was a very politically charged decision in the Legislature. Not everyone supports it. And people were challenging the right. That’s like apples and oranges.”


“John Boehner just confirmed everything liberals suspected about the Republican Party”

Ezra Klein:

But don’t laugh it off. John Boehner was the Speaker of the House as recently as a single year ago. He is, himself, a conservative Republican. And he is saying, flatly, that the Republican Party has been captured by morons, goofballs, and “Lucifer.” He is saying that the party has moved so far to the right that Ronald Reagan wouldn’t recognize it.

Boehner is validating one of the most persistent and controversial critiques of the modern Republican Party. And he has the authority to do so….

In 2012, the congressional scholars Thomas Mann and Norm Ornstein wrote a column for the Washington Post diagnosing what they saw to be the central problem in modern American politics.


“Hispanic voter registration spikes”

The Hill:

Registration among Hispanic voters is skyrocketing in a presidential election cycle dominated byDonald Trump and loud GOP cries to close the border.

Arturo Vargas, executive director of the National Association of Elected and Appointed Officials, projects 13.1 million Hispanics will vote nationwide in 2016, compared to 11.2 million in 2012 and 9.7 million in 2008.

Many of those new Hispanic voters are also expected to vote against Trump if he is the Republican nominee, something that appears much more likely after the front-runner’s sweeping primary victories Tuesday in five East Coast states.


“NRCC launches probe on hidden camera in ’60 Minutes’ piece”


The National Republican Congressional Committee has launched an internal probe to find out who snuck a hidden camera into its headquarters for a “60 Minutes” piece, according to sources with knowledge of the investigation.

The “60 Minutes” piece, which aired Sunday, had hidden-camera footage of the NRCC’s private headquarters, including shots of rooms from which members make fundraising calls. The piece, anchored by Norah O’Donnell, was about Rep. David Jolly’s (R-Fla.) STOP Act, which would prohibit lawmakers from personally soliciting political contributions. The bill has just six cosponsors, and is extremely unlikely to ever get a vote in the House.


“Vermont Governor Signs Bipartisan Automatic Voter Registration Bill”

Brennan Center release:

Today, Vermont Gov. Peter Shumlin (D) signed into law a bill to automatically and securely register eligible citizens to vote when they obtain or renew a driver’s license from the DMV, unless they opt out of registration.

Vermont’s law comes as automatic voter registration is taking off across the country. The state is the fourth in the nation to enact this reform, and the second (after West Virginia) to pass it with strong bipartisan support.

Nationally, 28 states plus the District of Columbia have considered measures this year to automatically register citizens. Oregon and California passed automatic registration in 2015, and since Oregon put its new system in place in January, registration rates have alreadyquadrupled.


“Bringing dark money out of the shadows: DarkMoney.org”

Center for Responsive Politics:

Today we’re officially launching our newly redesigned Dark Money section,DarkMoney.org, tracking the activities of politically active nonprofits that don’t disclose their wealthy corporate and individual donors to the voters they seek to influence. This is the first phase of our Knight News Challenge project, Inside the 990 Treasure Trove, aimed at providing the public, journalists and policymakers access to data on dark money groups and clear information about how these groups operate.


WI Justice Accused of Choking Other Justice to Retire; Scott Walker to Get Another Appointment to Troubled Court

Milwaukee Journal-Sentinel:

Wisconsin Supreme Court Justice David Prosser announced Wednesday that he’s retiring on July 31 after nearly 18 years on the high court — including some of its most turbulent — and four decades in public life.

The retirement hands GOP Gov. Scott Walker a second opportunity to appoint a new justice and put his imprint on the state’s high court with a jurist who could then stand for election in 2020. Prosser was a member of the court’s conservative, 5-2 majority and Walker’s appointment wouldn’t necessarily change that dynamic.

Prosser, 73, leaves behind a court where controversy has become as common for justices as it is for other elected officials. His clashes with liberal justices extended to charged language and, in 2011, a physical altercation.


Harvard Journal of Law and Public Policy Election Law Symposium Now Available


Volume 39 – Issue 2

Election Law: Rights, Remedies, and Recent Cases

333 Foreword Charles Fried
341 People ≠ Legislature Saikrishna Bangalore Prakash & John Yoo
371 Perpetuating “One Person, One Vote” Errors Derek T. Muller
397 Image is Everything: Politics, Umpiring, and the Judicial Myth Michael R. Dimino, Sr.
415 The Federalist Safeguards of Politics Anthony Johnstone
487 De Facto Class Actions? Plaintiff- and Defendant-Orientated Injunctions in Voting Rights, Election Law, and Other Constitutional Cases Michael T. Morley

“Reform Groups Urge Members to Vote Against Bill to Eliminate IRS Contribution Disclosure for Non-profit Groups”


In a letter sent today, reform groups urged members of the House Ways and Means Committee to vote against Rep. Peter Roskam’s bill to eliminate the current requirement for 501(c) groups to make non-public disclosure of their donors to the IRS. The bill is scheduled to be marked up by the committee on Thursday.


“Roberts Singles Out Former White House Counsel for ‘Extraordinary’ Brief'”

Marcia Coyle for NLJ:

Chief Justice John Roberts Jr. on Wednesday singled out an amicus brief, filed by Democratic and Republican former White House counsel, in support of former Virginia Gov. Robert McDonnell. “I think it’s extraordinary that those people agree on anything. But to agree on something as sensitive as this and to be willing to put their names on something that says this—this cannot be prosecuted conduct. I think is extraordinary,” Roberts said.
 You can find the brief here.

Some Thoughts on Today’s Oral Argument in Gov. McDonnell Case: It’s Not If the Governor Wins on Appeal, But How, That Matters

The Supreme Court has posted the transcript of today’s oral argument in the Gov. McDonnell case.  Bob Barnes (who is all over this story) says the Justices were “highly skeptical” of McDonnell’s conviction. I agree that a reversal seems likely.  But the key question is whether the Court is going to say anything, building off of Citizens United, allowing politicians to sell access to them for an explict price. My guess is that the Court thankfully will not do so, in part to have a unanimous opinion. The concern instead is with vague or overbroad laws applied against politicians by sometimes overzealous and politicized prosecutors which allows for the criminalization of politics, a concern I’ve expressed about prosecutions of Rick Perry, Tom DeLay, John Edwards, and Don Seligman.

Justice Breyer, one of the more liberal Justices, explains his two fundamental problems with criminalizing conduct in which an elected official asks another government official to take a meeting with someone who has supported the elected official or taken the elected official to lunch on pages 31-33 of the transcript. The first problem is vagueness–what is allowed and what is not; the second problem, which Justice Breyer refers to as a “separation of powers” argument, is that overzealous prosecutors can decide what every federal, state, or local official can do in terms of arranging meetings. Breyer calls this a “virtually uncontrollable” and “dangerous” power.

This is the key exchange. If you’ve lost Justice Breyer here, you’ve likely lost the case.

Justice Kagan later expresses concern at the very least with the jury instructions and how the case was handled, suggesting the possibility of a remand with proper instructions (but I don’t think that’s likely.)

Michael Drebeen, the government’s excellent lawyer (making his 100th Supreme Court argument, for which he was commended at the end of the argument) had a tremendous amount of trouble with hypotheticals raised by the Chief Justice and Justice Breyer. The exchange seemed to indicate the point that the statute is vague and gives lots of discretion to prosecutors as to which cases to bring (especially against state and local officials, who do not have the more detailed federal ethics rules to follow).

The best point for the government’s position came in the rebuttal time, when McDonnell’s lawyer Noel Francisco faced a tough set of questions from Justice Ginsburg (whom he inadvertently referred to as Justice O’Connor, leading to a slightly embarrassing exchange). Justice Ginsburg asked (at page 59), essentially: if your position is right on what an official meeting is, why can’t a government official say, you want to have a meeting, pay me a thousand dollars? In part Francisco’s answer was that if it someone is paid to arrange a meeting but there’s no indication it is to influence the outcome of a government decision, it cannot be bribery. But he also noted, at least for federal officials, there are other statutes that could apply here, such as laws prohibiting government employees from taking payments for the performance of your official duties.

There seems little question that McDonnell will win on this appeal, and the interesting question will be what the Court says about the sale of access and Citizens United. It is possible to write an opinion for McDonnell without saying it is permissible to sell access, or at least that the sale of access is not a criminal violation. The fact that even Justices Breyer and Kagan expressed considerable skepticism explains why Gov. McDonnell got his rare relief of staying out of jail pending the Supreme Court’s resolution of this case.

As I read the transcript, I could not help thinking of Justice Scalia’s absence. This is a case he would have loved to discuss, and I imagine that he would have given Mr. Drebeen an even harder time than he got in this argument (with no doubt as many “(Laughter)” references as Justice Breyer got referring to fancy bottles of wine and french meals).

[This post has been updated.]


“Report on de Blasio Election Spending Is Full of Details and Holes”

Jim Dwyer for the NYT:

te Board of Elections, said the de Blasio team had committed “willful and flagrant” violations of the laws by using those committees. She sent it on to the Manhattan district attorney.

Her document is remarkably assiduous in places, and filled with flagrant, or at least gaping, holes in others.

For instance, Ms. Sugarman managed not to notice that the State Democratic Committee received $766,000 in 12 days in October 2014, much of it from organizations and people linked to Mr. de Blasio, and promptly spent it on a number of the same vendors and on behalf of the same candidates, according to reports filed with the elections board. Not a word appears in her report about the money that passed through that committee. As it happens, that committee is effectively controlled by the governor, Andrew M. Cuomo, who nominated her for her job.

Why was the state committee left out of such a meticulous report?

“I don’t comment on confidential memos,” Ms. Sugarman said.

If we are going to criminalize politics, why spare one committee from the opprobrium heaped on others?


“Exclusive: Half of Americans think presidential nominating system ‘rigged’ – poll”


More than half of American voters believe that the system U.S. political parties use to pick their candidates for the White House is “rigged” and more than two-thirds want to see the process changed, according to a Reuters/Ipsos poll.

The results echo complaints from Republican front-runner Donald Trump and Democratic challenger Bernie Sanders that the system is stacked against them in favor of candidates with close ties to their parties – a critique that has triggered a nationwide debate over whether the process is fair.


“Lobbyists are People Too, and They Should Be Free to Contribute to California Legislative Races”

Brian Russ has posted this draft on SSRN. Here is the abstract:

The question is straightforward: does California’s ban on campaign contributions from lobbyists violate the First Amendment? The answer is not straightforward. The purpose of this Comment is to assess the validity of California’s ban against the changes to campaign finance law since Chief Justice John Roberts’s appointment to the Court. The Chief Judge has authored several decisions that diverted the course of campaign finance law through constitutional interpretations that will likely overwhelm California’s justifications for the ban.

In 2000, California enacted Government Code § 85702, thereby barring lobbyists from making contributions to an elected state officer or candidate for state office if the lobbyist is registered to lobby the officer’s government agency. In 2001, the only time the question was litigated, the District Court for the Eastern District of California found the ban to be constitutional on First Amendment grounds. The decision was not appealed and remains the only case law on the ban. At the end of California’s 2015 legislative session, the state had nearly 1,800 registered lobbyists.

Questioning the vitality of the ban is important because unrestricted political speech is an indispensable element of democratic self-governance. If the ban were challenged today, the outcome may be markedly different. Since Chief Justice John Roberts joined the Supreme Court in 2005, campaign finance limitations have been dramatically struck down as unconstitutional. California’s ban was enacted near the end of the Rehnquist Court, where decisions like Austin and McConnell averred a broad threat of corporate influence in elections to uphold restrictions on the political speech of corporations. However, the Roberts Court overturned parts of Austin and McConnell in Citizens United and McCutcheon, downplaying the threat of potential corruption caused by corporate monies in elections. If litigated today, California’s ban on lobbyist campaign contributions would likely be held unconstitutional as an overbroad restriction that neither respects lobbyists’ personal political interests nor responds to threats of actual or perceived corruption.


“Judge extends voting hours at 4 Baltimore sites after complaint from Rep. Donna Edwards”


Four polling places in Baltimore are staying open an extra hour, until 9 p.m., due to delays in opening, a judge ruled Tuesday evening.

The Senate campaign of Rep. Donna Edwards filed an emergency complaint against the Board of Elections in the city of Baltimore, asking for a two-hour extension of voting across the city. Instead, Circuit Court Judge Althea Handy extended voting in four precincts where opening delays exceeded 45 minutes.


“Is Citizens United a Get-Out-of-Jail-Free Card for Bob McDonnell? The U.S. Supreme Court Will Decide”

Brendan Fischer:

It is a common refrain that cases like Citizens United allow for “legalized bribery.”

But few argue that the U.S. Supreme Court has literally legalized pay–to-play politics; such descriptions are usually shorthand for the systemic ways that big money in elections has tilted the political system toward the donor class.

Former Virginia Governor Bob McDonnell, however, is hoping that Citizens United did, in fact, legalize bribery.


“Rep. Corrine Brown appeals to U.S. Supreme Court”

News Service of Florida:

On Monday, the 12-term congresswoman appealed to the nation’s highest court in an effort to unwind a plan to rotate her district from a north-south orientation that includes her power bases of Jacksonville and Orlando to an east-west seat that stretches from Jacksonville to Gadsden County, carving up Tallahassee along the way.

Given how weak Brown’s claim was, I expect this one to be a summary affirmance of the lower court.