“The POLITICO 100: Billionaires dominate 2016”


The 100 biggest donors of 2016 cycle have spent $195 million trying to influence the presidential election ― more than the $155 million spent by the 2 million smallest donors combined — according to a POLITICO analysis of campaign finance data.

The analysis found that the leading beneficiaries of checks from the top 100 donors were Jeb Bush’s floundering campaign for the GOP nomination (a supportive super PAC received $49 million from donors on the list), Democratic front-runner Hillary Clinton (super PACs dedicated to her raised $38 million from top 100 donors) and Ted Cruz’s insurgent GOP campaign ($37 million).



“Bradley A. Smith commentary: Obama should not violate deal with Congress”

Columbus Dispatch oped:

President Obama has indicated that he is considering issuing an executive order requiring companies who have contracted with the federal government to disclose their giving to trade associations, nonprofits and other organizations that participate in the political process. Succumbing to pressure from liberal Democrats and activist groups favoring greater regulation of political speech, the president appears to have settled on this order as — in the words of his chief of staff — one of his “audacious executive actions” that are not “subject to undoing through [Congress] or otherwise.”

Such an action would be bad policy. But equally as important, the order would directly contravene the Omnibus spending bill that the President signed into law just last month. More than simply bad policy, it is bad government.


“For Sanders, campaign finance purity not always possible”


A lavish Martha’s Vineyard Democratic fundraiser that Bernie Sanders attended in 2007 featured lobbyists for many of the industries he now rails against on the presidential campaign trail, according to a guest list obtained by MSNBC.

The Vermont senator’s appearance at the event underscores the challenge Sanders faces in trying to address criticism that he has both not done enough to help fellow Democrats and that he’s fallen short of the very high bar for campaign finance purity he’s set for himself. Helping Democrats often means collecting checks from wealthy donors and industry executives, whom he has made the enemy of the “political revolution” he hopes to spark.


“De Facto Class Actions? Injunctive Relief in Election Law, Voting Rights, and Other Constitutional Cases”

Michael Morley has posted this draft on SSRN. Here is the abstract:

When a court holds that a legal provision is unconstitutional; inconsistent with, or preempted by, federal law; or invalid under an agency’s organic statute or a framework statute such as the Administrative Procedures Act, the court must decide whether to grant injunctive relief and, if so, how broad that relief should be. In particular, the court must decide whether to issue a Plaintiff-Oriented Injunction or a Defendant-Oriented Injunction. A Plaintiff-Oriented Injunction bars the government defendants from enforcing the challenged provision only against the plaintiffs in the case or affected members of plaintiff organizations. A Defendant-Oriented Injunction, in contrast, completely bars the government defendant from enforcing the challenged provision against anyone in the state or nation.

Many courts tend to award Defendant-Oriented Injunctions in election law and voting rights cases, even when they are not brought as class actions, without recognizing or addressing most of the pertinent issues that choice implicates. Individual plaintiffs typically lack Article III standing to seek relief protecting the rights of third parties not before the court. And such third parties may neither fall within the court’s personal jurisdiction nor wish to challenge the provision at issue. Defendant-Oriented Injunctions in non-class cases also raise asymmetric preclusion concerns, undermine the policy considerations underlying Rule 23, and allow trial courts to enforce their rulings beyond the geographic limits of their jurisdiction.

This Article presents a new framework for determining the proper scope of injunctive relief in election law, voting rights, and other constitutional cases. First the court should assess whether granting the requested relief solely to the individual plaintiffs would create unconstitutional disparities concerning fundamental rights in violation of Equal Protection principles, although this seldom, if ever, should be the case. Second, after confirming that limiting relief solely to the individual plaintiffs would be constitutional, the court should then determine whether such a Plaintiff-Oriented Injunction would be proper under the challenged statute or regulation itself by applying traditional severability principles. If the challenged provision can be applied coherently, and the entity that enacted the provision still would have intended for it to be enforced, even with the plaintiffs excluded from its scope, then a Plaintiff-Oriented Injunction would be the proper remedy. Otherwise, a Defendant-Oriented Injunction is required.

This Article further contends that, when plaintiffs file a non-class case seeking to enjoin a legal provision, the court should determine at the outset whether a Plaintiff- or Defendant-Oriented Injunction would be necessary if the plaintiffs prevail. If a Defendant-Oriented Injunction would be required, the court should order that the case proceed as a Rule 23(b)(2) class action so that all rightholders who stand to benefit from a favorable ruling are included as class members. Conducting such an analysis at the outset of the case eliminates most of the concerns implicated by Defendant-Oriented Injunctions.

Looking forward to reading this!


“Uproar could lead to revamping Democratic caucuses”

Des Moines Register:

After a whisper-thin count left doubts about which Democratic candidate actually won the Iowa caucuses, there are fresh calls for the party to mirror the simple, secret-ballot method that Iowa Republicans use.

“It’s worth discussing again, but it’s not as simple as it sounds,” said Norm Sterzenbach, a former Iowa Democratic Party executive director who, after five election cycles, is an expert on the nuts and bolts of the caucuses.

Why are Democratic insiders so reluctant to update a voting system panned this week by national political observers as archaic and nonsensical?

They blame New Hampshire, the state Iowa party leaders have worked with for decades to make sure Iowa retains the first-in-the-nation caucuses and New Hampshire the first primary.


“Questions abound after judges invalidate 2 NC congressional districts”

Charlotte Observer:

The day after a panel of federal judges invalidated two of North Carolina’s 13 congressional districts, state elections officials were working on a Saturday afternoon to encourage voters with absentee ballots to vote the full ballot anyway.

Kim Strach, executive director of the N.C. Board of Elections, and Josh Lawson, general counsel for the board, said Saturday that they did not want voters who received the 8,611 absentee ballots sent out for the March 15 primary elections to lose an opportunity to vote.

“The number one message we want to get out is we want voters to continue voting,” Strach said Saturday afternoon.


North Carolina Will Appeal Racial Gerrymandering Case Involving Congressional Districts

See here.

I expect the state’s lawyers are spending the weekend drafting an emergency motion to SCOTUS to stay this ruling for the March election, given that absentee ballots are already out. I would not at all be surprised to see a stay even if, as seems fairly likely, this ruling is ultimately affirmed by the Supreme Court for future elections.

And of course, North Carolina could potentially moot this case by drawing new districts that are political, but not arguably racial, gerrymanders.


Indefensible: WI Supreme Court Won’t Allow Prosecutors to Get Outside PRO BONO Help in Case Against WI Supreme Court

So there’s a potential claim that WI Supreme Court justices should have recused themselves from deciding the John Doe case, given that they themselves benefitted from campaign financing by the same groups in the case.  The district attorneys asked for outside help on those cases, from an outside law firm specializing in SCOTUS appeals which would work pro bono (for free).

And today the Wisconsin Supreme Court, itself the target of the appeal, said no (over Justice Abrahamson’s dissent).

Heck, the Justices won’t even let an outside printing company print redacted portions of the John Doe record for the Supreme Court appeal.

This is totally indefensible.

Howard rounds up the stories.


“WH response to petition offends campaign finance advocates”

The Hill:

Activists say they are offended by the White House’s response Friday to a petition signed by more than 117,000 people demanding that federal contractors be required to disclose political spending.

The petition, generated on the White House We the People petition page, called for President Obama to take action now or be remembered as the president whose inaction aided the rise of secret money in politics. But the White House, which had 60 days to respond, only reiterated remarks from the president’s last State of the Union address.

“We have to reduce the influence of money in our politics, so that a handful of families and hidden interests can’t bankroll our elections  —  and if our existing approach to campaign finance can’t pass muster in the courts, we need to work together to find a real solution,” the We the People Team wrote, quoting Obama.
Rootstrikers, an activist organization fighting money in politics, called the response “offensive” and “wholly unsatisfactory.”


“Ask the Author: Richard L. Hasen”

Kate Ackley interviewed me for CQ Weekly ($):

In his new book, “Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections,” law professor Richard L. Hasen of the University of California, Irvine, calls President Barack Obama a hypocrite on political money issues and suggests controversial remedies, such as outlawing fundraising by lobbyists, to quell what he views as out-of-control campaign spending.

 Hasen spoke to CQ’s Kate Ackley. Here’s an edited transcript

“Donald Trump’s Campaign, Billed as Self-Funded, Risks Little of His Fortune”


What remains is a quintessentially Trumpian endeavor that blurs the line between campaigning and brand-building and complicates Mr. Trump’s claims that he is funding his own White House campaign. About three-quarters of Mr. Trump’s total campaign spending has either gone to reimburse his own businesses or has been covered by funds from grass-roots donors, according to an analysis by The New York Times of F.E.C. reports. Virtually all of the money Mr. Trump himself has put into the campaign was lent, rather than donated outright, meaning that he could potentially sell enough hats and T-shirts to pay himself back down the road.


3-Judge Federal Court Strikes Down 2 North Carolina Congressional Districts as Racial Gerrymanders

The 100 pages of opinions are here. One of the three judges dissented as to one of the two districts.

If North Carolina wishes, it could seek direct Supreme Court review. There is already a Virginia case raising similar issues before the Court. And we are waiting for other rulings in similar cases, including the remand of the Alabama racial gerrymandering case from last year which got this ball rolling.

On these cases, see my piece, Racial Gerrymandering’s Questionable Revival, Alabama Law Review (forthcoming 2015) (draft available).

Update: The court has given two weeks to parties to redraw these districts, but early voting has already begun. [Correction: It is absentee voting, not in person early voting which has already started.] Republican lawmakers have already criticized this change as “eleventh hour.”

The state might file an emergency motion with the Supreme Court, and the Court could delay this ruling. The Supreme Court has been very wary of allowing court changes to election rules just before the election. (See this paper on the Purcell Principle).



“Judge puts Michigan ‘gag order’ election law on hold”

Detroit Free Press:

A federal judge agreed to put at least a temporary halt to an election law bill passed in December that would restrict how local and school officials communicate with their residents about ballot proposals and millage issues.

U.S. District Judge John Corbett O’Meara ruled Friday that the bill, the last one passed at the end of the year without any public hearings or debate, is unconstitutionally vague and an infringement on free speech rights.


“All the money in the world isn’t buying votes this primary season”

Noah Bierman for the LAT:

Money may yet prevail in this year’s presidential election, but the failure so far of big donors to propel candidates to the top of the heap has shown the limitations of even huge stockpiles of cash and put some critics of lax campaign finance laws on the defensive.

Former Florida Gov. Jeb Bush, who has collected more super-PAC money than any candidate, finished with less than 3% of the vote in Iowa, where his super PAC spent about $3,000 on television ads for every vote he won. Although he says he hopes for a “reset” in New Hampshire, Bush has lagged badly in polls leading up to Tuesday’s primary there.

Wisconsin Gov. Scott Walker, another early favorite of the big-donor class, dropped out four months before the first ballots were cast.


Meanwhile, two candidates who rail against big money and declined to establish their own super PACs, Republican Donald Trump and Vermont Sen. Bernie Sanders, a democratic socialist running as a Democrat, finished near the top of their races.

The lesson, says Richard L. Hasen, a professor at UC Irvine and author of a new book on campaign spending, “Plutocrats United,” is that money remains powerful, but not all powerful.


“The Supreme Court and the 2016 Elections”

Looking forward to this event Feb. 22 at UCI Law (which will be livestreamed):

UCI Law Professor Rick Hasen and Ed Whelan, president of the Ethics and Public Policy Center (EPPC), a conservative D.C. think tank, will offer perspectives on the Supreme Court and the 2016 elections. The event will be moderated by UCI Law professor Henry Weinstein. The panelists will discuss questions such as why Democratic-appointed and Republican-appointed Justices differ on constitutional law and statutory interpretation, the extent to which the Supreme Court will be an issue in the 2016 election, and the extent to which the 2016 elections will influence the future of the Supreme Court….

This program is co-sponsored by the UCI Law Speakers Series, and the UCI Law student chapters of the American Constitution Society and The Federalist Society.

RSVP here by February 19 to reserve your seat. Lunch will be provided.



“Nevada Democratic caucus overlooks Sabbath observers”

Las Vegas Review Journal:

Observant Jews and Seventh-day Adventists who want to caucus with Nevada Democrats on Feb. 20 are out of luck.

The party’s noon caucus falls squarely in the middle of a Saturday, a sacred day of rest and worship for both faiths.

Jewish clergy said the timing of the caucus disenfranchises those who want to participate and pointed out that other high-profile early-state caucuses and primaries don’t fall on a Saturday.

A party spokesman said the big event is set for that day and time to maximize participation.

I’ve complained about this before as a reason to kill the caucuses. In 2012, Republicans had a post-sundown caucus to accommodate observant Jews.


“Claims about Corruption in the Case for Political Equality”


There is a shift here to more careful claims about what money buys and when: that it counts for more in some races than in others; that it is not all that effective if the candidate is a “bad product”; that money’s effects are more of a “skew” than a power play; and that those effects are not always all that obvious unless you look closely.  But there is little change in the statement of campaign money’s impact: it is large, pernicious and pervasive, and it accounts for “the rise of a plutocratic class capturing private benefits for personal gain.”

Now this position may sound like the long-standing corruption argument now having to straddle the line between its empirical and moral foundations—having to concede after all this time the complexity of money’s effects while insisting that the corruption remains as bad as ever.  But Rick is not an anti-corruption theorist of the old school.  He is arguing for campaign finance regulation as an antidote to extreme political inequality, a position forcefully and skillfully laid out in his new book, Plutocrats United.


“Enough about our ‘corrupt campaign finance system’ already. Let’s talk equality.”

Lee Drutman at Vox offers a generous review of my book, Plutocrats United:

In reading Plutocrats United, I found myself doing a lot of nodding to myself. I am on board with Hasen — equality is a much more sensible and practical justification for regulating campaign finance.

But Sanders gets big applause lines when he says things like, “We can no longer continue to have a corrupt campaign finance system.” Corruption polls well. That’s the reason Larry Lessig has used it in his various political adventures.

And for decades, campaign finance reformers have played to the central role that the Court gave corruption in Buckley. They’ve now spent four decades trying to prove that our campaign finance system is “corrupt,” searching for that always elusive evidence that would somehow convince the Court.

But they haven’t succeeded. At what point is it time to accept Einstein’s famous definition of insanity: “doing the same thing over and over again and expecting a different result”? Maybe that time has finally come.


“Editorial: Something smells in the Democratic Party”

Des Moines Register:

Once again the world is laughing at Iowa. Late-night comedians and social media mavens are having afield day with jokes about missing caucusgoers andcoin flips.

That’s fine. We can take ribbing over our quirky process. But what we can’t stomach is even the whiff of impropriety or error.

What happened Monday night at the Democratic caucuses was a debacle, period. Democracy, particularly at the local party level, can be slow, messy and obscure. But the refusal to undergo scrutiny or allow for an appeal reeks of autocracy.


“Va. elections board officially repeals loyalty pledge at GOP request”


Donald Trump may have come in second in the Iowa caucuses. But the presidential candidate scored victory in Virginia on Thursday, when the state Board of Elections officially repealed a controversial loyalty pledge at the request of the state GOP.

Under the now-rescinded pledge, voters wishing to choose the Republican presidential nominee in the March 1 primary would have had to sign a statement affirming they were Republicans.


“The Conservative Playbook for Keeping ‘Dark Money’ Dark”


How do you stop states and cities from forcing more disclosure of so-called dark money in politics? Get the debate to focus on an “average Joe,” not a wealthy person. Find examples of “inconsequential donation amounts.” Point out that naming donors would be a threat to “innocents,” including their children, families and co-workers.

And never call it dark money. “Private giving” sounds better.

The documents obtained by ProPublica were prepared by the State Policy Network, which helps conservative think tanks in 50 states supply legislators with research friendly to their causes, and the Conservative Action Project (CAP), a Washington policy group founded by Edwin Meese, a Reagan-era attorney general.


“Does Big Money Still Matter? You Bet It Does”

Eliza Newlin Carney in TAP:

Good-government advocates are “oblivious to the failure of ‘big money’ to dictate the race,” wrote Bradley Smith, chairman of the Center for Competitive Politics, in a Wall Street Journal commentary headlined “That’s Odd, ‘Big Money’ Isn’t Buying This Election.” One of the contest’s “unexpected surprises,” wrote New America senior fellow Lee Drutman, is how well Donald Trump and Bernie Sanders have done with such little backing from wealthy donors.

It’s easy to see why billionaire donors don’t look so influential anymore. Former Florida Governor Jeb Bush and his super PAC spent $14.9 million on the Iowa caucuses, but won just 5,238 voters (a mere 2.8 percent of the total GOP vote) and a single delegate. That added up to $2,845 per vote—a dismal showing that U.S. News & World Report dubbed “by far the worst bang-for-the-buck performance” of any GOP candidate.

But the failure of Bush or any other big spender to win an election says little about the actual role that money plays in politics and—perhaps more important—in policy-making. As a long list of self-financed millionaire candidates can attest, having the biggest wallet is no guarantee of success. And as election lawyer and author of the recent book Plutocrats United Richard Hasen has noted, the real issue is not just how political money boosts candidates, but how it helps big donors win the tax breaks, contracts, and policies they seek.

Also overlooked in the argument that money doesn’t matter is the ever-growing role that millionaire and billionaire donors are playing in elections other than the race for the White House. Super PACs, which may raise unlimited contributions if they don’t coordinate with candidates, are wading aggressively into not just House and Senate contests, but into gubernatorial, state legislative, mayoral, city council, and even school board races.