News from New Mexico:
Secretary of State Dianna Duran was charged Friday in state District Court with fraud, embezzlement, money laundering and other crimes related to allegedly converting thousands of dollars in campaign contributions to her personal use in 2013 and 2014.
At the same time, it appears she was frequenting casinos across the state and withdrawing hundreds of thousands of dollars at them from accounts in her name.
Democratic Attorney General Hector Balderas alleged 64 violations in a criminal complaint and information that said Duran shifted money between campaign and personal accounts and withdrew sums at eight casinos.
Duran is a Republican in her second term; she was elected in 2010 and re-elected last year. The secretary of state, who oversees elections and campaign finance, has the role of state government ethics regulator.
The complaint says Duran violated “the ethical principles of public service” by converting intended campaign contributions to her own use.
Duran’s lawyer, Erlinda Johnson, issued a statement saying “we have identified some serious potential violations of law by the New Mexico Attorney General’s Office, in conducting the investigation
You can read the petition for en banc review here. The effect of this filing is to stay the mandate and to put the remand of the case on hold, at least for now. It is not clear if the 5th Circuit will take this en banc (it is not clear if the votes are there), but my guess is that if it does not that Texas is likely to ask the Supreme Court to review the case, and I think such review would be fairly likely to resolve issues about the proper scope of Voting Rights Act section 2 in vote denial cases.
Here is Texas’s explanation for why it believes en banc review is proper:
En banc review is necessary to maintain the uniformity of the Court’s decisions and to consider questions of exceptional importance. In holding that SB14 violates Voting Rights Act §2 based on disparate rates of ID possession, socioeconomic disparities, and historical discrimination—without any evidence of depressed political participation by minority voters—the panel’s decision conflicts with this Court’s decision in League of United Latin American Citizens, Council No. 4434 v. Clements, 999 F.2d 831 (5th Cir. 1993) (en banc), the Seventh Circuit’s decision in Frank v. Walker, 768 F.3d 744 (7th Cir. 2014), and the Ninth Circuit’s decision in Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) (en banc). The panel’s expansive interpretation of §2 presents two questions of exceptional importance: first, whether the text of §2 imposes liability without proof that the challenged voting qualification causes any inequality in voting opportunities on account of race; and second, if it does, whether the statute exceeds Congress’s power to enforce the Fifteenth Amendment.
The panel’s decision creates two additional conflicts. By characterizing the policy behind SB14 as “tenuous” because in-person voter fraud is “rare,” the panel’s decision conflicts with Crawford v. Marion County Election Board, 553 U.S. 181 (2008), and Voting for America, Inc. v. Steen, 732 F.3d 382 (5th Cir. 2013). And by vacating the district court’s finding that SB14 was enacted with a racially discriminatory purpose, but remanding for further consideration even after a complete trial and suggesting that the district court could reopen the evidence, the panel’s decision conflicts with this Court’s decisions in Meche v. Doucet, 777 F.3d 237, 246-47 (5th Cir. 2015), and Aransas Project v. Shaw, 775 F.3d 641, 658 (5th Cir. 2014), cert. denied, 135 S. Ct. 2859 (2015).
Bizarre story out of Missouri:
A mistake by representatives of the Business Loop 70 Community Improvement District means a sales tax increase the district needs to thrive will require approval by a single University of Missouri student.
On Feb. 28, Jen Henderson, 23, became the sole registered voter living within the community improvement district, or CID, meaning she is the only person who would vote on a half-cent sales tax increase for the district.
The Columbia City Council established the district on a 5-2 vote in April in response to a petition from a group of property owners in the CID boundaries. The “qualified voters” in a CID are capable of levying various taxes or assessments within the boundaries of the district to fund improvement projects. Under state law, decisions to impose sales taxes in a CID are to be made by registered voters living in the district boundaries. If no such registered voters are present, property owners vote….
Henderson said she doesn’t want her involvement with the CID to be private. She said Gartner initially approached her in June to explain the goals of the CID and ask her to consider “unregistering her vote” so the property owners could make the decision. The more she researched the situation, Henderson said, things “just didn’t seem to be as good as they were saying to me at first.”
Gartner “tried to get me to unregister, and that’s pretty manipulative,” Henderson said. “The district plan and the district border is manipulative, too.”
Gartner said she did nothing illegal when contacting Henderson and was surprised Henderson viewed her contact negatively.
Noren said she spoke with Henderson about withdrawing her registration but that the clerk’s office only does so “very occasionally” and does not recommend it.
J.H. Snider for the Times-Union.
I get the appeal in blaming Republicans. I understand the attraction in good vs evil stories. I see the strength in the partisan rally. I get it’s a great strategy for winning elections.
But it is not a strategy for governing. We won’t have a functioning government until we create a functioning democracy. And it is precisely because of the rhetoric of Republicans such as Trump, that we have a chance now to build a campaign that rallies America to this obvious truth. There will be citizens of good conscience who argue against the idea of wealth equality. There will be liberals as well as conservatives who argue against the notion of speech equality. But who is going to explain to America that citizens do not deserve equal representation as citizens? Who’s going to defend the grotesque system that gives 400 families so much political power? If there is one truth for us that is self-evident, it is that a representative democracy should represent us equally. And if there is one truth that cannot be denied, it is that America’s democracy doesn’t.
Focusing America on that core principle may well be “dumbing down” the debate. I don’t think so. I think its a way to elevate the debate above the stupid partisanship that has disillusioned so many. I think it’s time to fight for a big idea that Americans actually believe and that was the core idea of our Republic: that representative democracy represent its citizens equally. I think we could win that fight. And if we do, we would win something much bigger than yet another partisan election.
I’m happy to be called “absurd” and “foolish” for standing up for that ideal, and proposing an idea to get it. But when I am, I’m not sure it is I who am “dumbing down” the democratic debate. I’m not sure that’s debate at all.
Mark Schmitt for Vox.
Gov. Larry Hogan’s 11-member Redistricting Reform Commission, created on Aug. 6 by executive order, met for first time near the State House Thursday where they outlined their first steps to reform the process of drawing Maryland’s congressional and legislative district lines.
In order to combat Maryland’s A+ grade in gerrymandering, an unlucky subject to be excelling at, the commission plans to hold four to five “regional summits,” or public hearings, over the next two months. The final outcome will be a report outlining voters concerns with redistricting, due to the governor and General Assembly leaders by Nov. 3, less than 10 weeks from now.
The commission will have to produce a quick turnaround with a “fairly aggressive” schedule, according to the governor’s office. In addition to the report, the commission is tasked with recommending a constitutional amendment on congressional and legislative redistricting to be introduced during the Maryland General Assembly’s next legislative session.
That’s the lead story in NCSL’s The Canvass.
FairVote provides its innovative analysis and pro-voter perspective to activists, local and state policymakers, and to all three branches of the federal government. This month, FairVote submitted amicus curiae (“friend of the court”) briefs along with the Center for Competitive Democracy in the Supreme Court for two cases, each seeking a full hearing before the highest court in the land. Both briefs highlight practical statutory solutions, such as forms of ranked choice voting, to the problem of no-choice elections.
Read FairVote’s brief in Balsam v. Guadagno, the New Jersey case about closed primaries, here.
Read FairVote’s brief in Rubin v. Padilla, the California case about “top two,” here.
Adam Liptak in the NYT:
Mr. Feldman conducted an extensive analysis of overlapping language, using anti-plagiarism software to detect similar wording in briefs and opinions from 1946 to 2014. The study and related findings were based on almost 10,000 briefs and looked for passages of at least six words with an overlap of at least 80 percent.
Justice Thomas’s majority opinions had the highest rate of overlaps with language in parties’ briefs in the decade since Chief Justice John G. Roberts Jr. joined the court.
Paul M. Collins Jr., a political scientist at the University of Massachusetts, Amherst, who helped conduct two more limited studies that came to similar conclusions, said there might be a link between Justice Thomas’s approach to arguments and the high rates of seemingly borrowed language in his opinions.“His lack of engagement in oral arguments suggests that he doesn’t find them especially useful,” Professor Collins said. “If this is true, his view of cases is being heavily shaped by the legal briefs filed in the cases.”
Justice Thomas is often more expansive when not writing for the majority. In the last term, he filed 30 dissents and concurrences, more than any other justice. Many concerned major constitutional questions, were longer than the majority opinions they critiqued and made novel points.
Over the years, the average rate of nearly identical language between a party’s brief and the majority opinion was 9.6 percent. Justice Thomas’s rate was 11.3 percent. Justice Sonia Sotomayor’s was 11 percent, and Justice Ruth Bader Ginsburg’s 10.5 percent. All three sometimes produce institutional prose.
In response to my tweeting a link to this piece, Judge Michael Smyth tweeted (in a tweet since deleted) questioning whether the focus on Justice Thomas was fair, given the close rates for Justices Sotomayor and Ginsburg.
From Josh Douglas:
I am pleased to announce that the AALS Section on Election Law has selected the winner of the Call for Papers: Hank Chambers (U. of Richmond) “Local Officials and Voter ID.”
Hank will join David Schleicher (Yale Law School), Jocelyn Benson (Wayne State), Richard T. Ford (Stanford), and Trey Grayson (former KY Secretary of State) at the Section’s program, titled “Election Law at the Local Level,” on Friday, January 8, 2016 from 10:30 am-12:15 pm at the AALS Annual Meeting in New York City.
The final paper will be published in the Election Law Journal. I have pasted the abstract below.
Local Officials and Voter ID
Henry L. Chambers, Jr., Professor of Law, University of Richmond
The interpretation state and local officials provide of voting laws can be just as important as the substance of the law. For example, how voter identification laws are interpreted can be just as important as the fact that voter identification is required of voters at the polls. Whether a voter can vote or be assured that his vote will be counted may depend on the interpretation of voter identification laws. However, whether a voter can vote may also depend on how a poll official or poll worker interprets the law. Further, how much time the voter or other voters must devote to voting may depend on how the local official or the poll worker interprets voter identification laws.
Virginia’s voter identification law provides an example. One legitimate form of identification under that law is “any valid employee identification card containing a photograph of the voter and issued by an employer of the voter in the ordinary course of the employer’s business.” Va. Code §24.2-643. The language of the law raises many issues. Two are whether validity requires that the card have an unexpired expiration date and whether validity requires that the employee continues to be employed by the employer. Though these questions can be answered by state or local officials well before an election, poll officials and poll workers must understand how officials have interpreted the law.
However, even if the official interpretation of the law is relatively clear, poll officials and poll workers still must determine whether the identification the voter presents is sufficient. For example, if the validity of the identification requires that the voter be employed by the employer when the identification card is proffered, whether the poll worker may deny the identification if the voter cannot prove that he or she works for the employer or whether the poll worker may deny the identification only if there is a reason for the poll worker to suspect that the voter does not work for the employer remains an issue. Resolving such issues in the absence of an absolutely clear interpretation of the law may take time.
The length of time necessary for a poll worker to determine whether a voter has valid identification matters. Delays will affect how long other voters must wait to vote, the likelihood that those other voters will stay in line to vote, and the likelihood that others will see long lines and not bother to vote. Media reports of long lines may also dissuade potential voters from approaching the polls at all. That is particularly problematic given that voter identification is not about voter qualification, but is merely supposed to prove that the voter is the person identified in the poll book.
Steven Rosenfeld at Alternet:
Given the arc of Lessig’s activism, it’s not surprising that an individual who is driven to address one of the fundamental flaws in American politics is willing to embrace one of America’s most divisive politicans because he’s saying the right things about his issue. While that may be predictable or inevitable, it also a bit desperate and naïve—which has always been the danger of single-issue politics.
Let’s imagine that Lessig somehow links up with Trump. Are people who want to see a fundamental restructuring of interplay between private money and political candidates suppose to ignore Trump’s racism, sexism, elitism, and war-mongering, just because Trump has been bombastically telling Americans that he’s invested and gotten results from politicians, and “that’s a broken system”?
This is the danger of single-issue politics: seeing the light and being blinded by it. The problem is not that Lessig’s analysis of the problem is wrong. His remedies, including a national system of publically financed elections, are also correct—that, too, has been proven over the years in states and cities to be a generally better approach than the endless dialing-for-campaign-dollars status quo.
Wisconsin’s Supreme Court shut down the John Doe investigation of conservative groups in July, but it turns out the probe was even worse than the judges knew. Documents filed at the state Supreme Court opposing Special Prosecutor Francis Schmitz’s motion to reconsider show that partisan motives ran through those who conducted their operations in secret while using gag orders to silence targets….In an email to Mr. Schmitz on Nov. 27, 2013, GAB staff counsel Shane Falk encouraged the special prosecutor to keep up the good work and “stay strong” in his pursuit of conservative nonprofit groups and allies of Mr. Walker. “Remember, in brief, this was a bastardization of politics and our state is being run by corporations and billionaires,” Mr. Falk wrote. “That isn’t democracy to say the least, but due to how they do this dark money, the populace never gets to know.” “The cynic in me says the sheeple would still follow the propaganda even if they knew,” Mr. Falk continued, “but at least it would all be out there so that the influences on our politicians is clearly known.” By “the sheeple” Mr. Falk means Wisconsin voters.
Paul Edelman has posted this draft on SSRN. Here is the abstract:
With the noting of probable jurisdiction in Evenwel v Abbott it appears that the Supreme Court will finally make clear what “one person, one vote” is meant to accomplish. Is it supposed to equate representation between districts, or is it supposed to equate voting power between districts? Having side-stepped this issue for 50 years it is time for the Court to make clear what its doctrine is about.
One possibility raised by the plaintiffs in Evenwel is that, at least in the context of the Texas state senate districts, one achieve both ends simultaneously. That is, the plaintiffs claim that it is possible to draw the districts so as to have both equality of total population as well as equality of citizen voting age population in every district. To support this claim they provide an affidavit claiming it can be done in this case as well as an appeal to the increasing power of the districting software.
If the Court wishes to go down the road of accommodating both interests it may need to be reassured that the option is available not only in Texas but in any districting situation. And even if the Court does not require that districting plans consider the power of the vote, individual states themselves may wish to if they can do that as well as achieve equality of representation. That is what I provide in this paper. I will show that there are very good theoretical reasons to believe that it will always be possible to draw districts that will be simultaneously close in both total population and citizen voting age population (or, indeed, any other additional population that the Court desires.)
Some of this analysis, however, depends on how the Court chooses to assess the deviation in voting power. I argue that the choice of a threshold for total deviation in the voting age population is intimately related to one’s model of voting power. I show that the relationship between the deviation of voting power and the deviation of voting populations is linear in the variable that characterizes the voting model. Thus, the Court must choose, either explicitly or implicitly, a model of voting power should it decide to take the power of the vote into consideration. Even so, I show that the standard of 10% deviation in the voting population leads to a deviation of less than 10% in voting power over a broad range of models.
Paul Gronke rounds them up.
The hubris of the Harvard Professor is breathtaking. In virtually every respect, his strategy is absurd. Lessig’s political reform agenda is stymied by Republicans, not Democrats. Why not direct his energies where the opposition resides? All of the current Democratic presidential candidates support the thrust of these reforms. But saying that this is their highest priority is likely to harm, not boost, their candidacies. Why would even the most ardent supporter of the three pillars of Lessig’s reform agenda cast a ballot solely on this basis? Big and important issues divide the two parties today and the stakes of public action or inaction are huge. We don’t have the luxury of using the election to try to build a mandate for a set of political reforms that would have no chance of passing in the face of GOP opposition and would be of only incremental utility if they did. …
Lessig is a far less commanding presence but his ambition burns no less than that of Trump. The notoriety, celebrity, and adoring audiences are heady stuff, even if on a much smaller scale. Lessig told Bloomberg that Trump’s candidacy is evidence that his reform message is taking hold. Lessig said, Trump “strikes people as credible when he says all these people (politicians) are bought – I used to buy them…Trump is saying the truth.” Lessig will be a minor figure in this election and the causes for which he fights are unlikely to advance from it. Both Lessig and Trump, despite their differences in visibility and importance in the election, will have contributed to the dumbing down of American politics, a reality that will bring tears to the eyes of civics teachers and political science professors across the country.
Obituary of a voting rights icon.
But the recent complaints could signal a shift from how the parties have approached complaints in the past.
“A general truce was in place for a number of years as both parties realized it wasn’t in their interest,” explained veteran campaign finance attorney Michael Toner, who is also a former FEC chairman, about the cost and burden of pursuing and defending complaints. “That truce is breaking down.”
The source believes the creation of the American Democracy Legal Fund is a sign that filing FEC complaints could become an establishment-endorsed tactic in campaigns.
“That would up the ante,” Toner said.
In the coming days, we are going to hear more and more about state Republican parties that require “loyalty oaths” to participate as a candidate in a party’s primary — loyalty oaths require a candidate to pledge that he or she will support in the general election the candidate who wins the party’s primary. In light of that, readers might enjoy reading about Justice Scalia’s encounter with these loyalty oaths, as a voter, nearly 20 years ago. This story is recounted in our book, The Law of Democracy:
In practice, many parties enforce “loyalty oaths” informally, as with controlling entry into the nomination setting in what are called “firehouse primaries” (a “firehouse primary” is a polling process conducted by a party without state supervision). In the mid-1990s, a news report indicated that Justice Antonin Scalia had “questioned the legality of the oath” required from Republican voters who sought to participate in a firehouse primary in Fairfax, Virginia, but had then signed the form “after getting an explanation from a party official.” Eric Lipton, Democracy Can Stop Traffic, Wash. Post, Jan. 8, 1995, at A1.
We end this excerpt with a question: Were Justice Scalia’s initial reservations well-founded?
The South Carolina Republican Party form that Donald Trump will have to make a decision about signing by the end of next month contains this language:
I hereby affirm that I generally believe in and intend to support the nominees and platform of the
Republican Party in the November 8, 2016 general election; that I will not knowingly violate any
election law or any law defining and prohibiting corrupt and fraudulent practices in campaigns and
elections in this state; that I will qualify for the office if elected thereto, including, but not limited to,
complying with any limitation prescribed by the Constitution of the United States; that I will fulfill all
filing requirements set by the South Carolina Republican Party, including but not limited to completion
of this form and payment of a non-refundable $40,000 filing fee; that I acknowledge if I have not jointly
submitted this form and the filing fee by the 5:00 P.M. September 30, 2015 filing deadline, my name is
not eligible to appear on the ballot; and that I understand that my name will appear on all ballots as
designated in this declaration.
If you wonder whether these oaths have any serious legal bite, South Carolina law gives the parties plenty of power to enforce the oaths. But it is important to understand that this law does NOT apply to the presidential primaries; I offer the law to illustrate how, outside the presidential context, state laws can attempt to give these loyalty oaths powerful legal bite:
SECTION 7-11-210. Notice of candidacy and pledge.In the event that a person who was defeated as a candidate for nomination to an office in a party’s primary election shall thereafter offer or campaign as a candidate against any nominee for election to any office in the ensuing general election, the state chairman of the party which held the primary (if the office involved is one voted for in the general election by the electors of more than one county), or the county chairman of the party which held the primary (in the case of all other offices), shall forthwith institute an action in a court of competent jurisdiction for an order enjoining the person from so offering or campaigning in the general election, and the court is hereby empowered upon proof of these facts to issue an order.
Of course, just because state law authorizes this does not mean the law is constitutional.
Josh Gerstein posted it.
Joining me on Episode 2 of the ELB Podcast is the nation’s leading First Amendment lawyer, Floyd Abrams. Floyd was one of the lawyers arguing in the Supreme Court in the 2010 case, Citizens United v. FEC, which freed corporate and labor union spending in elections.
Is more money in elections good or bad for our democracy? Would it be better to lift all limits on money in elections? What is the Supreme Court doing in the area of free speech? What of the new decision in Reed v. Town of Glibert? And what of academics and their views of the First Amendment?
I would love your feedback on this new endeavor!
News from New York.
Donald Trump must rule out a third-party bid before October if he wants to compete in South Carolina’s Republican primary, a crucial test in the nominating contest.
Trump has repeatedly refused to rule out a third-party candidacy, noting that he could use the threat of an independent bid as leverage, but he cannot appear on the South Carolina primary ballot unless he pledges to support the GOP nominee in the general election.
Trump said Tuesday when asked about the rule by reporters in Iowa that his campaign is “looking into it.”
Politico Playbook quotes from a Glenn Thrush article as follows:
To the annoyance of the Clinton campaign, Biden’s allies have strategically leaked his modest, noncommittal doings to the media, which have given otherwise ho-hum confabs with Elizabeth Warren and President Obama’s former counsel Bob Bauer bombshell treatment (Warren … offered her usual warning against bringing more Wall Street executives into the White House; the Bauer sit-down was a relatively dry give-and-take on state election laws and deadlines).
But the Thrush article itself [now] says:
To the annoyance of the Clinton campaign, Biden’s allies have strategically leaked his modest, noncommittal doings to the media, which have given otherwise ho-hum confabs with Elizabeth Warren and President Obama’s former counsel Bob Bauer bombshell treatment (Warren, according to a person with knowledge of the interaction, offered her usual warning against bringing more Wall Street executives into the White House; the talk with Bauer, an old Biden friend who worked with him closely in the White House, was intended to be an informal, personal check-in session that was leaked against the wishes of the participants).
Bauer’s firm, through Bauer’s partner Marc Elias, represents Hillary Clinton’s campaign. It would not surprise me if there was pushback to the original writing, and it would not surprise me if that original reporting was inaccurate.
Derek Muller has posted this draft on SSRN (forthcoming, FSU Law Review). Here is the abstract:
Arizona State Legislature v. Arizona Independent Redistricting Commission might be viewed as a dispute about the control over redistricting, with a heavy emphasis on the perceived problems of and solutions to partisan gerrymandering and incumbent entrenchment. Or the case might be about the power of the people to wrest control from an unresponsive legislature and pass their own laws via ballot initiative. But that is not really this case. This Article notes that it is something more nuanced. This case is less about the ballot initiative or about partisan gerrymandering, and more about a delegation of legislative power from the legislature to an unelected agency.
The case turned almost exclusively on the definition of the word “Legislature” as it appears in the Constitution, which has little precedent in Supreme Court opinions except for a couple of century-old cases of tangential relevance. But there is also a rich history of interpreting and constructing the Elections Clause — but it has occurred in Congress and in the states. These historical election disputes were all but absent in the Supreme Court, effectively ignored.
This Article examines the dispute over Arizona’s independent redistricting commission largely through a critique of the delegation of power from the legislature to an unelected entity. It then examines the historical records from two sources. First, it scrutinizes pre-Seventeenth Amendment discussions about the power to delegate legislative power to the people. Second, it consider and congressional adjudications about election disputes concerning the proper role of the state legislature and delegations of the lawmaking power to other entities. These two examinations conclude that the historical understanding of the power of the “Legislature” precluded a delegation of its power to another entity. It concludes with some concerns about several justices’ conclusions in the case, along with parting thoughts about the impact of these historical records in future litigation.
Fascinating from the NYT:
With the tide flowing in President Obama’s favor on the Iran nuclear deal, the architect of legislation that gave Congress a say in its approval is none too happy about the possibility that the accord may never reach a final vote.
Senator Bob Corker of Tennessee, chairman of the Senate Foreign Relations Committee, said on Tuesday that it would be a travesty if Democrats filibustered any resolution disapproving of the accord between Iran and six world powers. The Senate this spring voted, 98 to 1, in favor of the Iran Review Act, which gave Congress the right to vote on a resolution of approval or disapproval of a final deal.
Sarah Binder: “GOP senators now fret Dems might filibuster Iran disapproval res. Did GOP overestimate Dem support when they devised rules for debate?…’Expedited procedures’ in Senate typically ban filibusters. That’s what makes them ‘expedited.’Why not this time?”
Fulton County, Georgia admitted to illegally disenfranchising and misleading voters in the 2008 and 2012 elections in a settlement this month. For more than two dozen violations of state law — including improperly rejecting eligible ballots and sending voters to the wrong precincts — the county will pay a fine of $180,000. To make sure the problems do not continue in the future, the county has promised to spend an additional $200,000 on new training software for their poll workers….The county, which includes Atlanta, has a heavily African American voting population and leans progressive, voting overwhelmingly for President Obama in 2008 and 2012. As detailed in the new settlement, county elections officials misinformed the precincts of who was coming to vote and when, failed to provide absentee ballots to voters who requested them, and failed to put voters who registered on time on the rolls, among other violations. The head of Fulton County’s elections office was fired last year, which she credits to her refusal to cover up the improper purging of voters in 2012.
Jack Shafer writes for Politico.
Campaigns and super PACs supporting four Republican governors running for president raised at least $2.5 million in legal donations from companies with state contracts or taxpayer subsidies, illustrating potential conflicts of interest that may emerge when candidates exit the primary and return home.
NYT (which still puts “Super PACs” in quotes):
But Mr. Sanders’s fund-raising strategy will test the prevailing notion in Washington that no candidate can successfully compete on the national stage without tapping into the many millions of dollars that have poured into super PACs since the Supreme Court’s Citizens United decision in 2010.
The United States Court of Appeals for the District of Columbia Circuit today left standing the Securities and Exchange Commission’s “pay-to-play” rule, which bars investment advisers from providing paid services to state and local governments when making certain political contributions to state and local officials.
The court rejected as time-barred a challenge to the rule that was brought by state Republican parties in New York and Tennessee. The court held that the state parties brought their suit in the wrong court and at the wrong time, saying that the Investment Advisers Act required the challenge to be brought at the circuit court level and within 60 days of promulgation. The SEC rule took effect in 2010; the state parties sued in federal district court in 2014.
Informed investment advisers maintain strict procedures to comply with the SEC rule, which affects some federal elections as well as many non-federal elections. Four incumbent governors currently seek the presidency: Chris Christie of New Jersey, Bobby Jindal of Louisiana, John Kasich of Ohio, and Scott Walker of Wisconsin. The court’s ruling leaves in place a barrier to fundraising in direct support of their campaigns.
The opinion in New York Republican State Committee v. SEC is available here.
Charles Koch hit back at criticism of “the Koch brothers” during President Barack Obama’s energy speech in Las Vegas earlier this week, saying he was “flabbergasted” by the attack and charging that Obama made the dig as a favor to Senate Minority Leader Harry Reid (D-Nev.), who appeared with him.
“It’s beneath the president, the dignity of the president, to be doing that,” Koch said during a phone interview Tuesday…
That’s not the American way. That’s not progress. That’s not innovation. That’s rent seeking, and trying to protect old ways of doing business and standing in the way of the future.”
Obama continued: “I mean, think about this. Ordinarily, these are groups that tout themselves as champions of the free market. If you start talking to them about providing health care for folks who don’t have health insurance, they’re going crazy: ‘This is socialism, this is going to destroy America.’ But in this situation, they’re trying to undermine competition in the marketplace, and choke off consumer choice, and threaten an industry that’s churning out new jobs at a fast pace.”
Koch shot back: “I don’t know whether he knows what that phrase means, but ‘rent seeking,’ of course, is, in economic terms, is getting the government to rig the system in your favor. And that’s exactly what these so-called ‘renewable energy’ proponents are doing.”
I’m guessing that Obama, who taught at the University of Chicago, is familiar with the term “rent-seeking.”
The Sacramento County elections office published sample ballot booklets last year with a number of errors: Omitted were a statement from a Sacramento City Council candidate and a list of endorsed candidates from the Democratic Party. Included was an argument in favor of a Rancho Cordova tax measure – where the opponent’s argument belonged.
The same year, Galt City Council members up for re-election received incorrect information from the office about their ballot order. The incumbents, including one who lost by a razor-thin margin, used the information in campaign materials to tell voters how to select them.
LaVine, who was appointed by the Sacramento County Board of Supervisors in 2003, declined requests for an interview. In written responses, she said the number of mistakes last year was relatively small, “but even these few were not up to my standards. It was clearly a rough year.” She said the office has changed its procedures to prevent similar errors in the future, such as sending proofs to a larger group of people before printing.