“Prospects for Election Reform in the Digital Age One Year After the Presidential Commission on Election Administration”


The Center for New York City Law, the Institute for Information Law and Policy, and the Impact Center for Public Interest Law Present:

A Panel Discussion Featuring:

Robert Bauer, Partner, Perkins Coie LLP; former Co-Chair of the Presidential Commission on Election Administration; and former White House Counsel to President Obama

David Becker, Director, Election Initiatives, Pew Charitable Trusts

Michael Ryan, ’95, Executive Director, New York City Board of Elections

Moderator: Anthony W. Crowell, Dean and President of New York Law School

Wednesday, January 28, 2015
6:00 p.m. – 7:30 p.m.
Light supper and refreshments will be served

185 West Broadway
(between Worth and Leonard Streets)
Second Floor Events Center

Sponsor: Davidoff Hutcher & Citron, LLP


“Evaluating Reform Argument as False, True, Barely Either, or Something Else”


Rick Hasen has twice posted in the last several days a sharp criticism of the President’s fifth anniversary statement about Citizens United. He objects to the assertion that Citizens United opened up the avenue for unlimited foreign corporate spending in the United States. Rick says this is false, citing in support of that positionPolitFact’s prior rating of that statement as “mostly false,” which that fact-checking enterprise arrived at after originally rating the statement as “barely true.” And a review of PolitiFact’s analysis reveals that a statement merits criticism as “mostly false” if it is an ”overstatement.”

Readers will probably think very little is at stake in tracing the chain of reasoning from false to mostly false to barely true, or somewhat true, or whatever, and trying to sort out what fine differences distinguish one of these ratings from the others. But because Rick stakes out a strong position—that the statement is simply “false” —he should have a high degree of confidence that it is a black-and-white matter subject to no disagreement.

I hope to respond to Bob later this week.


“How a political opinion cost a D.C. activist $2,000″

Eric Wang in WaPo:

Civic-minded citizens of the District: Think twice the next time you write a blog entry, post on Facebook or Twitter or attend a meeting or rally to support or oppose a ballot initiative. You could be required to register and report with the city or else pay a large fine. The Office of Campaign Finance(OCF) at the D.C. Board of Elections dropped this end-of-the-year bombshell in an enforcement proceeding arising from November’s election, in which District residents voted to legalize marijuana.


“Justice Scalia’s Sarcasm”

An Arizona judge pens a NYT Letter to the Editor:

Re “Scalia Lands at Top of Sarcasm Index of Justices. Shocking,” by Adam Liptak (Sidebar column, Jan. 20):

My nearly 40-year experience as a litigator and an Arizona Superior Court judge informs me that judicial sarcasm in the courtroom leveled at litigants and lawyers, who are in no position to fight back, is an unseemly exercise in intellectual bullying of the worst and most dangerous kind.

Justice Antonin Scalia is a prominent example of this breed of anger-repressed and arrogant judicial officers whose conduct is partly to blame for erosion of public respect and trust in the judicial branch of government.



“Buying a Nominee: The secret fundraising scheme forming for this contest will make super PACs look quaint.”

Shane Goldmacher for NJ:

The coming presidential contest is ushering in an epochal shift: the arrival of candidate-specific nonprofits, personalized vehicles for a politician’s supporters to raise and spend unlimited cash—completely clandestinely. It is poised to yield a campaign season more dominated by secret money than any election since Watergate, according to more than two dozen campaign strategists, election lawyers, donors, and worried watchdogs.


“Legal dispute from 2008 gubernatorial campaign lives on”

The Olympian:

The legal fight is so old that the governor whose re-election was at the heart of the case has left office, the defendant is no longer the campaign heavyweight it once was, and the lead plaintiff is dead.

But the case lives on after a decision Thursday by the state Supreme Court.

The 8-to-1 ruling sends the case of Utter v. Building Industry Association of Washington back to a King County court for more proceedings.

The case involves Republican Dino Rossi’s 2008 rematch with Gov. Chris Gregoire, which Democrat Gregoire won. Two retired Supreme Court justices, Faith Ireland and the late Robert Utter, accused the builders’ association of wrongdoing in its campaigning for Rossi.

After a state investigation, an arm of BIAW paid hundreds of thousands of dollars in a 2010 settlement.

An appeals court found the investigation precluded the lawsuit from going forward, but the state Supreme Court reversed that decision. State law allows for citizens to sue when state attorneys don’t, the high court said.


“On Same-Sex Marriage, the Supreme Court Will Have to Tackle the Question of Rights”

Garrett Epps:

Since the Supreme Court’s order Friday agreeing to hear four same-sex marriage cases, some professors and reporters have raised a troubling possibility: Could the Court have “stacked the deck” against full marriage equality by the way it phrased the “questions presented” by the cases? These are framed in terms of the states’ powers rather than of individual rights. These court watchers have suggested that they may point to a “compromise” that would mean less than full marriage equality—that is, a holding that states must recognize marriages performed by other states but may continue to refuse to marry same-sex coulples themselves….“Recognition” and “celebration” go together like a horse and carriage. I don’t see a way to split them that would allow the Court—or its key justice—to escape this term’s rendezvous with destiny.


“Club for Growth asks U.S. Supreme Court to halt John Doe probe”

Milwaukee Journal Sentinel:

A conservative group and one of its directors appealed to the nation’s highest court Wednesday as they sought to end for good a stalled secret probe into Gov. Scott Walker’s campaign and allied groups.

In the appeal to the U.S. Supreme Court, the Wisconsin Club for Growth and its director, Eric O’Keefe, sought to overturn a September decision by the 7th Circuit U.S. Court of Appeals in Chicago, which threw out the conservatives’ lawsuit and told them to pursue their claims through ongoing cases in state court.

A state judge has already put the probe on hold while the matter is being considered by the Wisconsin Supreme Court, which took separate preliminary actions on several related cases Wednesday.


“Sheldon Silver, Speaker of New York Assembly, Is Arrested in Corruption Case”

Big news in NY:

The powerful speaker of the New York State Assembly, Sheldon Silver, was arrested on federal corruption charges on Thursday and accused of using the power of his office to solicit millions in bribes and kickbacks, according to court documents.

The arrest of Mr. Silver, a Democrat from the Lower East Side of Manhattan who has served as speaker for more than two decades, sent shock waves through the political establishment and upending the new legislative session.

Mr. Silver surrendered to Federal Bureau of Investigation agents early Thursday morning in Lower Manhattan, law enforcement officials said.

Mr. Silver, before entering 26 Federal Plaza, said, “I hope I’ll be vindicated.”


More on Foreign Money, Citizens United, and President Obama’s Statement

I’ve gotten some pushback on my claim that part of President Obama’s statement regarding the 5th anniversary of Citizens United was false. The arguments state that foreign money in fact may be coming into our elections, either in the form of undisclosed “dark money” going to 501(c) or other groups, or through American subsidiaries of foreign corporations, which are allowed to spend corporate funds, so long as the decision is made only by the American subsidiary.

Both of those facts do not alter my view that what the President said is false.  Take a look at the key aspect of the statement:

 “But five years ago, a Supreme Court ruling allowed big companies – including foreign corporations – to spend unlimited amounts of money to influence our elections.”

In fact, five years ago, in Citizens United the Court expressly refused to rule on whether a ban on foreign money in elections (individual, corporate, or otherwise) could be banned in elections. It left the foreign spending ban in place. So Citizens United did not allow “foreign corporations” to “spend unlimited amounts of money to influence our elections.”

A few years later, in the Bluman case, the Supreme Court affirmed without opinion a lower court ruling upholding the ban on foreign money (including foreign corporate money) in our elections.

So the Supreme Court in Bluman did not allow “foreign corporations” to “spend unlimited amounts of money to influence our elections.”

The Court in Citizens United also upheld pretty broad disclosure rules for independent spending and other election-related spending.

So to the extent that “dark money” rules are allowing foreign money in, that’s on Congress (or the FEC or the IRS) for that, or it is based on lack of enforcement. And presumably, under Bluman, Congress could ban foreign spending by American subsidiaries of corporations.  Congress could also ensure that foreign individuals do not set up sham domestic corporations to engage in election spending.  All of that is on the political branches, not the Supreme Court.

There’s a reason Politifact rated President Obama’s earlier statement about Citizens United allowing foreign money into American elections “mostly false:” because it is.

Because it is.

I find myself in the odd position of defending the Supreme Court in Citizens United, a case I find profoundly wrong. But there is enough to criticize about the case without resorting to hyperbole or worse.


“Dave Helling: The ballot has become another partisan battleground”

Kansas City Star:

Last fall, the courts repeatedly shot down Kobach’s attempt to keep Democrat Chad Taylor on the U.S. Senate ballot. (“The law is very clear,” Kobach said at the time. Apparently, not clear enough.)

He pushed through a voter ID law. He tried to limit some registrants to casting ballots only in federal races. He now wants the right to prosecute voter fraud.

Does anyone think Kobach took those steps to make voting easier? No.

Don’t let Democrats off the hook. Already some in Kansas are saying straight-ticket voting is bad for democracy, the exact opposite of what Missouri Democrats said in 2006 when they fought to protect the practice. Partisan Democrats wanted to keep Taylor off the ballot.

If Kansas is truly interested in voter convenience, it could combine straight-ticket voting with same-day registration, like Iowa. More mail-in elections would be good, too.

Voting should be convenient, accurate, widely available — and fair. It should not be a place for partisan games.