Release for an event I’ll be speaking at Friday:
Loyola Law School, Los Angeles and Free Speech for People will host the symposium “Corporations, the Constitution, and Democracy” featuring a slate of prominent corporate, constitutional and election-law scholars and a keynote address by the Hon. Leo E. Strine, Jr., chief justice of the Delaware Supreme Court. The event will be held on Friday, Nov. 20 from 12-4:30 p.m. on Loyola’s downtown LA campus.
The panel “The Future of Corporate Constitutional Rights Litigation and Theory,” will feature Margaret M. Blair, Vanderbilt Law School; Erwin Cherminsky, UC Irvine School of Law; Sarah Haan, University of Idaho College of Law; James D. Nelson, University of Houston Law Center; Anne Tucker, Georgia State University College of Law; and Adam Winkler, UCLA School of Law. The panel “Democracy, Corporations and Money in Politics” will include Jeff Clements, Free Speech for People; Richard L. Hasen, UC Irvine School of Law; Michael S. Kang, Emory University School of Law; Jessica Levinson, Loyola Law School; Michele Sutter, Money Out Voters In; and Abby Wood, USC Gould School of Law.
Chief Justice Strine, a preeminent corporate law jurist, will deliver the keynote address, “Corporate Power Ratchet: The Courts’ Role in Eroding ‘We the People’s’ Ability to Constrain Our Corporate Creations.” Closing remarks will come from John Bonifaz, Free Speech for People, and Elizabeth Pollman, Loyola Law School. The afternoon will conclude with a reception.
Lucky Jerry Goldfeder students (they’re already lucky to have him as an instructor).
“Super PACs,” the outside groups that can raise unlimited funds but can’t coordinate with candidates they support, have unquestionably had an impact on the 2016 presidential race. But to what extent and in what ways is not yet clear.
Two leading election lawyers – Bob Bauer, a Democrat, and Ben Ginsberg, a Republican – will lead a research project with major universities and veterans of presidential politics to answer that question, along with others about campaign finance, one of the premier issues of the 2016 presidential race.
Their report, to be issued in 2017, will draw on deep analysis of spending data, including looking at how campaign financing affected the nominating contests in both parties. The idea is not to be prescriptive but instead diagnostic about the way the huge changes in the campaign finance system since 2010 have altered presidential polit
Here’s the full press release:
Political scientists from around the country have agreed to participate in a major research project to study the campaign finance system in the United States. The project, now underway, is expected to result in a public report to be issued in 2017.
The project is being organized by by Bob Bauer and Ben Ginsberg, formerly co-chairs of the Presidential Commission on Election Administration, and the PCEA’s former Senior Research Director, Stanford Law Professor Nate Persily. With the generous support and other assistance from the Hewlett Foundation, the Democracy Fund, and the Hoover Institution, the project will involve an independent and rigorous examination of how money in a rapidly changing campaign system is being raised and spent, drawing on careful data collection and quantitative analysis, with additional material drawn for qualitative assessment from information made available by campaigns, parties and other political organizations.
The report will not feature policy recommendations but will provide a descriptive account of campaign finance, including attention to political parties; independent and other non-party organizations; the changing media environment, such as the uses of digital communication and social media; disclosure of campaign funding and spending; and issues specific to the Presidential campaign process.
Since their collaboration on the PCEA, Bauer, Ginsberg and Persily have continued to work together on election administration issues through the Bipartisan Policy Center in Washington DC. Bauer also teaches political law and reform at New York University School of Law, which is providing the administrative support for this new project, and Ginsberg and Persily have taught this subject together at Stanford.
The latest from Connecticut.
Ingratiation and Access 101 will be held in the Kea Lani conference area and bar.
Among the key findings of the new CFI report: small donors are not (necessarily) more polarized than other individual donors. This has been a key question in the debate over small donor public financing. From the release:
Citizen Funding for Elections
What do we know?
What are the effects?
What are the options?
Download Full Report.
The Campaign Finance Institute today released a new report written by Michael J. Malbin – CFI’s executive director and a professor of political science at the University at Albany (SUNY). The report’s title is Citizen Funding for Elections: What do we know? What are the effects? What are the options?
The following description is excerpted from the executive summary:
Political campaigns have always been financed disproportionately by people with above average incomes…. But the balance has tilted almost beyond recognition since the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission…. As a result, a number of jurisdictions have been looking recently to rebalance the incentives through new (or updated) citizen funding programs or tax credits to enhance the role of small donors.
When looking at these new programs and proposals, it is striking how common impulses have led to a wide variety of policy ideas, and an even wider set of justifications and expectations about what the new programs are meant to accomplish. Some want to drive money out of politics; some to increase competition; some to bring a different type of politician into office; and some to enhance participation. In light of this policy ferment, this report seeks to lay out for policy makers what is known and not yet known about whether citizen funding and other incentive programs have accomplished or are likely to accomplish their stated goals.
To preview the conclusions:
- It is obvious – certainly in the new world of independent spending – that citizen funding programs do not and cannot squeeze private money out of politics.
- However, a properly designed program can increase the proportional importance of small donors to candidates and increase participation by an economically and demographically more representative cadre of campaign supporters. Candidates may choose to depend on large donors if they wish, but a well-structured program can make it possible for a candidate to choose otherwise. In the most effective programs, substantial percentages of the candidates make this choice and participate.
- Interestingly, these results probably do not occur because small donors react spontaneously and directly to matching funds or tax credits. Instead, the research suggests (but is not yet conclusive) that the incentives work by affecting candidates (or political parties and other intermediary actors). The small donors are worth more (both financially and as volunteers), so the candidates and others are willing to spend more time and resources to mobilize them.
- Whether increasing small donors will favor political polarization will depend on a program’s details, but small donors generally are not more polarized than other individual donors.
- Citizen funding may also affect other aspects of a candidate’s behavior – from deciding to run, to how they conduct campaigns. However, the research here is not fully settled.
- The findings are similarly mixed with respect to electoral competition. Public money seems to help when competition is defined one way (focusing on whether races are uncontested or whether candidates run), but not if defined differently (with a focus on the margins of victory in competitive races, or the defeat of incumbents).
- Research on the post-election effects in government finds more of an impact on agenda-setting than on end-stage roll call votes.
- Policy-makers need to be aware that answers often depend upon the precise questions asked.
- Finally, and very importantly from a policy-maker’s perspective, the research shows clearly that a program’s fine-grained details can make a huge difference in outcomes. For supporters of citizen funding or tax incentives, this means that passing a program with a good-sounding label will not be enough to accomplish their goals. Neither will it be enough to focus only on what their supporters think they can “sell”. Selling may be a necessary condition for accomplishing goals, but not a sufficient condition. The politics of persuasion is not policy analysis. A program that works will be based on the best available evidence – including the best practices for implementation after a bill becomes law.
The report concludes with the following:
Incentive programs do not accomplish everything their supporters have enthusiastically claimed for them. But what they accomplish can be quite significant…. Today’s incentives produce today’s politics. Changing the incentives could change tomorrow’s.
Sign of weakness for the O’Malley campaign.
For a successful campaign, the opportunity costs now of opting into public financing given how it restricts spending are just too high:
The last major candidate to adhere to such strict spending limits was John Edwards, the former U.S. senator and vice presidential nominee who opted into the matching program in the fall of 2007.
His campaign manager, Joe Trippi, now likens a publicly financed candidate to a terminally ill person on life support. If O’Malley goes through with his plan to accept matching funds, “that is effectively the end of his campaign,” said Trippi. “No campaign that is serious can win taking that money.”
“It is a brutally tough decision to make,” he said. “They know this — it’s akin to a doctor sitting down a patient and telling them they are terminally ill, informing them that they have days to live and there is nothing that can be done to save them, but there is something that can be done to give them another few months of life.”
And given the choice, “who wouldn’t pick extending the inevitable?” said Trippi.
Michael Beckel in Politico.
I address this question in the opening of my upcoming book, Plutocrats United.
Two Georgia women have filed a class action lawsuit alleging a massive data breach by Secretary of State Brian Kemp involving the Social Security numbers and other private information of more than six million voters statewide.
The suit, filed Tuesday in Fulton County Superior Court, alleges Kemp’s office released the information including personal identifying information to the media, political parties and other paying subscribers who legally buy voter information from the state.
Floyd Abrams has passed along his prepared speech given as part of the annual Raymond Pryke First Amendment Lecture at UC Irvine School of Law. I blogged earlier (and linked to video) of the event here. Floyd’s speech begins:
This week is the 40th anniversary of the oral argument in the Supreme Court of Buckley v. Valeo and next year the 40th anniversary of the decision in that case will be—depending on one’s view of the case– regretted or celebrated. I’m a celebrant, so welcome to the party!
Buckley was a case that dealt with and addressed a number of difficult topics—limitations on the funding of issue advertisements, potential distinctions between the funding of those ads by making contributions directly to candidates and spending money independently on ads directly advocating the election of individuals, money spent on one’s own behalf—I could go on. Today, I’m going to focus on the most controversial (or, if you’re of that view, notorious) part of the Buckley case That is its holding that held unconstitutional under the First Amendment, congressionally dictated limits on independent expenditures seeking to persuade people how to vote in the elections.
Margaret Zhang has written this student case note for the U Pa L. Rev.
I reach similar conclusions in my pre-Susan B. Anthony analysis, A Constitutional Right to Lie in Campaigns and Elections?, 74Montana Law Review 53 (2013).
AP reports. If anyone has the cert. petition please pass it along and I will post.
Update: Here is the cert petition. Here are the questions presented:
1. Whether, in a case involving solicitation of campaign contributions, Evans v. United States, 504 U.S. 255 (1992), modified the holding of McCormick v. United States, 500 U.S. 257, 273 (1991), that an “explicit promise or undertaking” by a public official to perform or not to perform an official act is required to prove extortion under color of official right (and by extension bribery and honest services fraud), and, if so, what is the standard for distinguishing lawful attempts to obtain campaign contributions from criminal violations. 2. Whether the lower court, based on confusion about the first question presented, erred in barring a valid good faith defense to the specific intent crimes of extortion under color of official right, bribery and honest services fraud.
If the Court takes the Gov. McDonnell case (and there’s a good chance it does, given its earlier unusual bail ruling), does it hold the Blago case pending that disposition? That certainly could happen.
Sam Power at The Monkey Cage.