AG Holder Says Race Not Major Factor in Lynch Confirmation Holdup

Here he is on MSNBC:

“My guess is that there is probably not a huge racial component to this, that this is really just D.C. politics, Washington at its worst,” Holder said. “A battle about something that is not connected to this nominee – holding up this nominee. I think that’s the main driver here.”

I think that’s exactly right.


The Political Safeguards of Horizontal Federalism

Over at Balkinization, I’ve been blogging (here, here, here, and here) about the benefits associated with spillovers, which occur when one state’s policies affect citizens of another state. Most of those arguments have to do with my other field, federalism. But they are relevant to two debates in election law. First, to the extent that election law scholars are interested in the role that political parties play in safeguarding vertical federalism, a topic that has inspired great articles from both Larry Kramer and Jessica Bulman-Pozen, I speculate that political parties play an equally important role in safeguarding horizontal federalism. Second, to the extent that we are all worried about polarization and the “big sort,” interstate spillovers may provide a partial antidote to polarization’s worst excesses. That’s because they force all of us to live under someone else’s law. You might think that living under someone else’s law is a terrible thing because it violates the deep-seated democratic principle of self-rule. But democracy isn’t only about self-rule; it’s also about ruling together. Given our impulse to retreat into our all-too comfortable red or blue enclaves, it’s very useful for our worlds to collide now and then. Those collisions give us a chance to see how other people live, to live under someone else’s law, to try someone else’s policy on for size. Democracy, in short, requires us to do just what spillovers require us to do: Work it out. Sometimes we work it out directly. Sometimes we need a referee. Sometimes we just take our lumps and live under a policy we don’t like. And we do so for a simple reason: We’d rather live with other people than without them.


Rick Perry Slips and Refers to Himself as “the Candidate”

Des Moines Register:

Because he’s not a declared presidential candidate yet, Perry in his prepared remarks at a Dallas County GOP event Thursday evening was careful to say he’s in Iowa to push for the election of all constitutional conservatives — in state government, in Congress and “obviously, the president of the United States.”

But he slipped up in a question-and-answer session when a reporter asked him about remarks one of his new aides had made in 2011. “I’m the candidate,” Perry stressed. “And my views are the ones that matter, not” those of Jamie Johnson, whose hire was announced Wednesday.

(h/t Political Wire)


“McConnell Makes Changes, but Senate Gridlock Remains”


WASHINGTON — When he became majority leader, propelled by sweeping Republican victories last year, Senator Mitch McConnell of Kentucky vowed to run a more productive and traditional Senate than his Democratic predecessor, Senator Harry Reid of Nevada.

In some ways, that has come to pass. Democrats have been given greater opportunity to amend bills than Republicans had when Mr. Reid had a majority. Mr. McConnell promised there would be no government shutdown, and he averted one over funding the Department of Homeland Security. And, occasionally, senators now have to work on Fridays.

But when it comes to the central role of a Senate leader — getting things done — Mr. McConnell has been impeded by internal struggles in his party and the hostility that awaits him across the aisle.


“Leveling the Playing Field? The Role of Public Campaign Funding in Elections”

Tilman Klumpp, Hugo Mialon, and Michael Williams have posted this draft on SSRN (forthcoming, American Law and Economics Review).

In a series of First Amendment cases, the U.S. Supreme Court established that government may regulate campaign finance, but not if regulation imposes costs on political speech and the purpose of regulation is to “level the political playing field.” The Court has applied this principle to limit the ways in which governments can provide public campaign funding to candidates in elections. A notable example is the Court’s decision to strike down matching funds provisions of public funding programs (Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 2011). In this paper, we develop a contest-theoretic model of elections in which we analyze the effects of public campaign funding mechanisms, including a simple public option and a public option with matching funds, on program participation, political speech, and election outcomes. We show that a public option with matching funds is equivalent to a simple public option with a lump-sum transfer equal to the maximum level of funding under the matching program; that a public option does not always “level the playing field” but may make it more uneven and can decrease as well as increase the quantity of political speech by all candidates, depending on the maximum public funding level; and that a public option tends to increase speech in cases where it levels the playing field. Several of the Supreme Court’s arguments in Arizona Free Enterprise are discussed in light of our theoretical results.



“Corporate Speech and the First Amendment: History, Data, and Implications”

This looks like a must-read from John Coates:

This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking. The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson. Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.



“Measuring Illegal and Legal Corruption in American States: Some Results from the Edmond J. Safra Center for Ethics Corruption in America Survey”

Oguzhan Dincer and Michael Johnston have posted this draft on SSRN.  Here is the abstract:

Using data from the “Edmond J. Safra Center for Ethics Corruption in America Survey”, we construct indices measuring two specific forms of corruption across American states: illegal and legal. We define illegal corruption as the private gains in the form of cash or gifts by a government official, in exchange for providing specific benefits to private individuals or groups, and legal corruption as the political gains in the form of campaign contributions or endorsements by a government official, in exchange for providing specific benefits to private individuals or groups, be it by explicit or implicit understanding. We then put our indices to work and investigate why some states are more corrupt than the others. In addition to demographic and economic variables we also investigate how political participation effects corruption depending on how well it is covered by the media. Our results suggest that we have a lot to learn about the politics of corruption control.

I’m working on a paper on this topic posting soon, reaching similar conclusions.  Looking forward to reading this.


“WyLiberty Attorneys File Brief in Wisconsin Free Speech Case”


Wyoming Liberty Group attorneys filed an amicus curiae (friend-of-the-court) brief in the Wisconsin Supreme Court today in Three Unnamed Petitioners v. Peterson, a case consolidated with two others in what has become known as the “Wisconsin John Doe Investigation.” The prosecution in each case alleges illegal campaign finance coordination between political groups and ostensibly members of Wisconsin Governor Scott Walker’s campaign. WyLiberty’s brief argues that Wisconsin law governing coordination is unconstitutionally overbroad, and the latest effort to criminalize political participation.



“FEC Ruling Allows Foreign Volunteers To Provide PAC With Intellectual Property”

Bloomberg BNA:

The Federal Election Commission voted 4-2 to approve a controversial, long-pending advisory opinion allowing a political action committee to receive intellectual property produced by foreign volunteers.
The vote at an FEC open meeting March 19 fell mainly along party lines, with one Democratic commissioner, FEC Chairwoman Ann Ravel, joining the three FEC Republicans to approve the ruling. Two commissioners holding Democratic seats, Steven Walther and Ellen Weintraub, dissented.
Approved was an advisory opinion (AO 2014-20) allowing a political action committee called Make Your Laws, or MYL PAC, to receive computer services from foreigners using open-source code, which could then become the intellectual property of the PAC.

Two Election Law Cases Lead off @SCOTUSBlog’s Petitions to Watch List for Mar. 20 Conference



Issue: (1) Whether a state’s voter ID law violates the Equal Protection Clause where, unlike in Crawford v. Marion County Election Board, the evidentiary record establishes that the law substantially burdens the voting rights of hundreds of thousands of the state’s voters, and that the law does not advance a legitimate state interest; and (2) whether a state’s voter ID law violates Section 2 of the Voting Rights Act where the law disproportionately burdens and abridges the voting rights of African-American and Latino voters compared to White voters.


Issue: Whether and to what extent false statements of fact, which are designed to deceive voters, are protected by the Free Speech Clause of the First Amendment.


“Voting Rights Advocates Settle Voter Registration Suit”

Press release: “Today, voting rights advocates announced a settlement with the Massachusetts Department of Transitional Assistance (DTA) that will ensure that hundreds of thousands of eligible Massachusetts citizens are provided opportunities to register to vote in compliance with the National Voter Registration Act (NVRA). In light of the settlement, the parties have jointly requested that U.S. District Court Judge Denise J. Casper enter an order dismissing the claims against the DTA. The settlement will become effective when Judge Casper enters the requested order.”


DOJ’s Silence on the Wisconsin Voter ID Case Before SCOTUS

Linda Greenhouse joins the chorus of people calling for the Supreme Court to agree to hear Frank v. Walker, the Wisconsin voter id case, up for a Supreme Court conference vote on Friday. (I think it is very unlikely we will hear anything Monday, when the Court next issues orders.  If the court is seriously considering the case, it has been taking two conferences to vet the cases to make sure they are appropriate vehicles to hear issues. If there is a cert. denial, I would expect a dissent from that decision, given Justice Ginsburg’s earlier strong dissent in the Texas case).

But conspicuously absent from the set of filings from amici calling for the Supreme Court to hear the case is the United States Department of Justice. DOJ’s failure to support the cert. petition stands in sharp contrast to the Texas voter id case and the challenge to North Carolina’s strict voting case, where DOJ is an active participant beginning at he level of the trial court. It is also in contrast with DOJ filing an amicus brief in the 7th Circuit in the Wisconsin case, urging the 7th Circuit to affirm a lower court holding that Wisconsin’s law violated both Section 2 of the Voting Rights Act and the Constitution’s equal protection clause.

What explains DOJ’s silence? Within the voting rights community, the decision to seek cert. in the Wisconsin case is controversial. To win, it requires the Court to either expand the scope of the Voting Rights Act section 2 in the vote denial cases or to reinvigorate the equal protection clause in the context of voting rights beyond that which the Court did in the Crawford v. Marion County case.

Crawford, like Frank, came up from the 7th Circuit as a horrible opinion from a Seventh Circuit judge. I wrote an oped in the Washington Post urging the Supreme Court to take the case. It did, and the Supreme Court made things worse. Crawford was essentially a green light for ever more restrictive voter id laws.

Why should now be different? The Frank decision is also horrible. But the judge who wrote the horrible Crawford opinion in the Seventh Circuit, Judge Posner, had a revelation that voter id laws were about voter suppression rather than fraud prevention. Judge Posner wrote a fiery dissent in the Wisconsin case now, and the 7th circuit [corrrected] divided 5-5 on whether to rehear the Wisconsin case en banc. Those supporting the cert. petition in the Wisconsin case, like Linda Greenhouse, are betting that Justice Kennedy and/or Chief Justice Roberts will have a similar revelation on voter id. That’s a big, big bet.

Compare that to Texas. In the Texas voter id case, now pending before the 5th Circuit, we have a holding that Texas’s passage of the voter id law was the product of intentional racial discrimination. That’s a finding which should be very hard to reverse on appeal. it provides an easier constitutional path for the Supreme Court to strike down Texas’s voter id law. The upside of that would be a Supreme Court decision striking down a voter id law on constitutional grounds. The downside is that other cases, like Wisconsin, do not involve intentional discrimination and so a Texas holding might not help very much outside of Texas. It would be an outer bound of what’s allowed and forbidden.

But before this Supreme Court, DOJ may have calculated it will take what it can get.

UPDATE: Sasha Samberg-Champion writes:

I am formerly of the DOJ’s Civil Rights Division and a great fan of your site.  I think you are a little off in your tea leaf reading with respect to the Wisconsin Voter ID case.  As a matter of policy, the SG’s office virtually never files in support of someone else’s cert petition (as opposed to filing its own petition).  That is true even where the DOJ has weighed in as amicus below.  Rather, the SG’s office will weigh in regarding the cert petition only in response to a CVSG (call for the views of the SG).  My understanding is that this policy is precisely to avoid this sort of speculation.  There are thousands of cert petitions filed each year and the DOJ does not want its failure to file in support in any one of them to be read as having any meaning (nor, for that matter, does it want to be lobbied incessantly, and have to make a difficult decision, with respect to each petition).  So the “failure” to file in this case is unsurprising; it would have been surprising for the DOJ to weigh in before being asked by the Court.

Interesting. Though my sense is that this case is of such importance that DOJ would have weighed in if the government thought this case was likely winnable.



Senator Durbin Plays the Race Card

I usually am skeptical of claims that someone is improperly injecting race into a political issue. But I find Senator Durbin’s comments about Republican obstructionism (and it is obstructionism) on the nomination of Loretta Lynch to be attorney general to be an improper injection of race into a purely political issue:

“And so, Loretta Lynch, the first African American woman nominated to be attorney general, is asked to sit in the back of the bus when it comes to the Senate calendar,” Durbin said on the Senate floor Wednesday morning. “That is unfair. It’s unjust. It is beneath the decorum and dignity of the United States Senate. This woman deserves fairness.”

Durbin, of course, was comparing Lynch to Rosa Parks, the civil rights icon who in 1955 refused to give up her bus seat to a white passenger.


“Identity Crisis: The Supreme Court’s Identity Crisis on Voting Rights”

Linda Greenhouse in the NYT:

But I have a sense now that those dots are getting connected. Not only was Selma’s 50th anniversary — the real one, not my imaginary one of two years ago — a stirring national event, but in Ferguson itself, residents areturning to the ballot box as the path to reform. I hope it’s not a fantasy to imagine that the Supreme Court — yes, the Roberts court — will seize the opportunity that the Wisconsin case provides to send a message different from the one it sent two years ago, an affirmative message the country now urgently needs to hear.


“IRS may broaden rule to police political nonprofits”

Politico Pro with a big story (albeit behind the paywall):

The IRS may broaden a looming controversial rule to police political nonprofits to include political parties and political action committees, the IRS chief said Wednesday.

IRS Commissioner John Koskinen said the agency may expand a yet-to-be-released rule governing 501(c)(4), “social welfare” groups, to include political groups known as 527s, which focus on elections. It could require them both — as well as other types of tax-exempt groups — to operate under the same definition of “political activity.”

It is really hard to assess the implications of all of this without seeing a draft rule.


“The Coordination Fallacy”

Michael Gilbert and Brian Barnes have posted this draft on SSRN (forthcoming FSU Law Review).  Here is the abstract:

This symposium piece tackles an important issue in campaign finance: the relationship between coordinated expenditures and corruption. Only one form of corruption, the quid pro quo, is constitutionally significant, and it has three logical elements: (1) an actor, such as an individual or corporation, conveys value to a politician, (2) the politician conveys value to the actor, and (3) a bargain links the two. Campaign finance regulations aim to deter quid pro quos by impeding the first or third element. Limits on contributions, for example, fight corruption by capping the value an actor can convey to a politician. What about limits on coordinated expenditures? By preventing coordination on large expenditures like television ads, the law turns very useful support into less useful support, reducing the value an actor can convey. But actors can surmount this with more money: $1 million spent on less useful ads can convey a lot of value, often more than smaller amounts spent on very useful ads or contributions. Limits on coordination may also inhibit bargaining, the third element of a quid pro quo, but again, sophisticated actors can surmount this: they can bargain without discussing the substance of any expenditures. So coordination regulations cannot deter much corruption, at least not when wealthy and sophisticated actors are involved, the very actors who cause the most concern. Consequently, coordination regulations may violate the Constitution. This is not because coordinated expenditures do not corrupt but because the regulations do not deter. Solving this problem requires more than a broader set of regulations. It requires confronting a fallacy at the heart of campaign finance: the belief that coordination relates in any operational way to corruption.



“Bibi Deploys the Southern Strategy”

Jeffrey Goldberg:

The now-and-apparently-forever prime minister, Benjamin Netanyahu, ought to be proud of his country’s record of enfranchisement. He should be happy that Arabs vote in large numbers, just as Jews vote in large numbers. But Netanyahu was not happy yesterday when he saw Arabs heading to the polls. He said, in a message distributed on social media and meant for his base, “Right-wing rule is in danger. Arab voters are streaming in huge quantities to the polling stations.”

It is often said (by me, among others) that Netanyahu would do very well as a Republican candidate for governor or senator in America. In the past, I imagined him fitting in with the fiscally conservative, rhetorically responsible, socially tolerant, foreign-policy hawkish wing of the party. What I didn’t fully understand was just how much of Lee Atwater he had in him. Atwater, you’ll remember, was the South Carolina Republican operative who was one of the prime innovators of racial dog-whistling, an approach used by a good number of Republicans to instill fear in white voters.


Brennan Center, Volokh File Brief in Employee Candidate Case

Case page:

In this brief to the U.S. Court of Appeals for the Fourth Circuit, the Brennan Center argues that firing a government employee merely for running for office not only violates her First Amendment rights but also undermines everyone’s interest in fostering competition, opportunity, and participation in democratic elections.

On March 16, 2015, the Brennan Center for Justice, along with Common Cause and the Pennsylvania Center for the First Amendment, filed an amicus brief authored by Eugene Volokh, Gary T. Schwartz Professor of Law at UCLA School of Law, in Lawson v. Union County Clerk of Court. The brief supports Melanie Lawson, the plaintiff-appellant, in her appeal of the lower court’s decision upholding her termination.

Lawson, while on leave from her job as a deputy clerk of court in Union County, S.C., in 2012 had run for office to replace her boss, the county clerk of court. She campaigned on the message that her 20 years of experience working in the clerk’s office would make her an effective clerk of court.  She lost the election and then was fired from her job.

The right of public employees under the First Amendment to be protected from retaliation for their personal political activity is well established. There is a narrow exception for employees whose jobs entail policymaking that requires political allegiance to leadership; but, the brief argues, Lawson’s role did not fit that exception. She performed strictly administrative tasks—collecting receipts, managing dockets, publishing judges’ orders, tracking data—for the county’s family court. Nor was there any evidence that Lawson’s candidacy disrupted the functioning of the clerk’s office.

The district court erroneously ruled that Lawson’s administrative job did require political allegiance to her boss and that her candidacy therefore was not protected by the First Amendment, the Brennan Center and fellow amici contend. This ruling “does not merely limit Lawson’s First Amendment rights; it also shrinks political opportunity and chills democratic participation on a wider scale,” the brief argues. Amici are calling on the Fourth Circuit to reverse the U.S. District Court for the District of South Carolina:

The district court’s holding lets the government unjustifiably deter some of the most qualified people from running for office—experienced government workers with the expertise and credibility to offer voters viable alternatives to incumbents. By allowing incumbents to threaten such would-be candidates with job loss, the district court’s holding effectively excludes the most qualified newcomers from the political process and costs citizens the accountability, efficiency, and opportunity that arise when incumbents face viable competition for election.

The Brennan Center’s brief is available here.


“Wisconsin Supreme Court Urged to Affirm Constitutionality of State Restrictions on Coordinated Spending in John Doe Case”


Today, the Campaign Legal Center, joined by Democracy 21, Common Cause in Wisconsin and the League of Women Voters of Wisconsin, submitted an amici brief to the Wisconsin Supreme Court, to be filed upon leave of the court, in Three Unnamed Petitioners v. Peterson.  The brief urges the court to find Wisconsin’s restrictions on the coordination of expenditures between candidates and outside groups constitutional.  The consolidated case centers around a challenge to a so-called John Doe investigation of alleged illegal coordination between the campaign of Wisconsin Governor Scott Walker and outside groups.  That investigation has been halted until various challenges are resolved.



Floyd Abrams Speech on First Amendment Discusses McCutcheon, Citizens United

Via Concurring Opinions:

You may agree or disagree with the positions we took or the clients for whom we took them. But one thing is common to all of the examples I have just cited to you. No one in any of these matters — not any opponent, not any judge, no one — said anything to the effect that since our client was a corporation that it had no First Amendment rights and should not be heard to say that those rights had been violated. I do not exaggerate when I say that if anyone had said that in court, he or she would have been laughed out of it.

Yet much of the debate about the Citizens United case sounds as if it was shocking for the Supreme Court to have held that corporations receive First Amendment protection at all. The opinion for the Court, written by Justice Anthony Kennedy, cited 25 cases, including ones involving for-profit non-media corporations, in which First Amendment protection had been afforded to corporations. Even Justice John Paul Stevens’ dissenting opinion said that “[w]e have long since held that corporations are covered by the First Amendment.” Yet listen to a different part of Justice Stevens’ opinion in which he states that “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires” – as if that wiped out all those First Amendment cases.  Or to Senator Elizabeth Warren, instructing us that “corporations are not people. People have hearts, they have kids, they get jobs, they get sick, they cry, they dance. They live, they love and they die.” All true and yet all unresponsive to why the First Amendment, as it has so often been held to do, should not be held to protect the speech of corporations as well as “real” people. Or of New York University Law Professor Burt Neuborne writing that unlike corporations, human beings “die, do not enjoy economic advantages like limited liability, and, most important, have a conscience that sometimes transcends crude economic self-interest.” These differences, Professor Neuborne argued, “raise a threshold question . . . about whether corporations are even in the First Amendment ballpark.”

It is worth pondering about what a different nation we would live in if the answer to that question were a negative one. All the examples I cited a moment ago would become moot. Gone, then, would have been even the possibility of full free speech protections for the various entities that I mentioned a moment ago – for Barnes & Noble seeking to protect the confidentiality of the purchasers of its books, for the Brooklyn museum which wished to choose its own art regardless of the artistic taste of the Mayor, for the motion picture company not wanting to be charged with a crime for including an essential sexually oriented scene in a movie about the relationship between an older woman and teen aged boy, for colleges and universities seeking to be free to engage in affirmative action, and for corporations that are ordered by the Federal government to include language on their lawfully sold products that is drafted to persuade the public not to purchase them. The same would be true of your university — also a corporation — if it concluded that its First Amendment freedoms were at risk.

So for me, at least that part – that foundational part of the Citizens United case – should have been easy. But it isn’t. Nothing is, in the First Amendment area, these days because differences about what the First Amendment is about have become so vast. Let me offer one example of a post-Citizens United case in which those differences were spelled out with particular brio by members of the Supreme Court. It is the recentMcCutcheon case, which struck down a cap on the total amount of contributions an individual may make to candidates (while leaving in effect the limits Congress had set on a candidate by candidate basis).



“Campaign seeks to pave way for independents in debates”


A group of influential political scientists, current and former elected officials and activists are challenging a decade-old rule that they say prevents independents from engaging in presidential debates — and, in turn, effectively keeps them out of the contest entirely.

The campaign, dubbed “Change the Rule,” is aimed at convincing the Commission on Presidential Debates to change the standard it uses for third-party candidates to qualify for the debates.