Via Doug Chapin comes news today from WFAE that some North Carolina want to cut back further on early voting. This comes after Ohio SOS Husted announced uniform rules for hours for early voting throughout Ohio. Husted’s announcement was controversial because he eliminated Sunday voting, which has been used by some African-American organizations for a “souls to the polls” push to go vote from church.
Doug cautions that it is easy to read the North Carolina cutbacks as a partisan means of suppressing the vote, but that would be wrong in North Carolina’s case:
What might get lost in the fierce partisan debate is the fact these requests are bipartisan and have far more to do with how much early voting is costing some communities compared to the number of voters using it…North Carolina’s efforts to adapt to the new early voting hours echoes similar disputes in Ohio, Georgia and elsewhere – where tension has emerged between the desire to establish statewide standards that are fair to all voters and the reality that different communities have different resources and differing ideas of what “convenience” means in the early voting context.
One might think that uniformity avoids issues of partisanship. So this flips things on its head: uniformity might work to serve partisan goals and lack of uniformity might have a good, non-partisan reason.
This is an issue we will have to think more closely about. Ohio SOS Husted has long taken the position that he requires uniformity throughout the state, and uniformity in at least some things could be required by Bush v. Gore. But if some large urban (likely Democratic) counties have more demand for early voting, and a desire for voting on Sundays, maybe they should get more early voting time. And if some small, rural (likely Republican) counties have less demand for early voting, maybe they need not have the expense of early voting time that few will use. But there’s still the question of how to deal with partisan bias: what if the small rural county wants to cut back on early voting because it is rarely used except by students—students who may tend to vote for Democrats?
The final version of Bob Bauer’s paper has been published by the Duke Journal on Constitutional Law and Policy.
Yasmin Dawood has posted this draft on SSRN (forthcoming Duke Journal of Constitutional Law & Public Policy). Here is the abstract:
Why is corruption wrong? This article argues that there are two main approaches to conceptualizing the “wrong” of corruption: first, corruption as an abuse of power; and second, corruption as inequality. In addition, I claim that there is a conceptual convergence between these two approaches. As a result, many forms of corruption can be framed as either an abuse of power and/or as a violation of equality. I show that even quid pro quo corruption can be framed in equality terms — a surprising outcome given the Supreme Court’s acceptance of quid pro quo corruption and rejection of equality-based corruption.
This article also raises two queries about Lawrence Lessig’s theory of dependence corruption. My first claim is that dependence corruption is not fully consistent with an originalist understanding of corruption, and my second suggestion is that the “wrong” at issue in dependence corruption is ultimately a concern about representation.
In addition to developing a conceptual map of corruption, this article focuses on the theoretical puzzles and challenges posed by corruption. For corruption as inequality, I identify seven forms that it could take, and I show how some of these forms have manifested in the Court’s campaign finance decisions. For corruption as the abuse of power, I identify three conceptual challenges (involving corrupt political gain, the public interest, and legislative independence). I argue that these conceptual challenges make it difficult to distinguish corruption from ordinary democratic politics.
I read an earlier draft of this. Highly recommended!!
Politico: “House Republicans are gearing up to take their IRS tea party-targeting investigation to a whole new level next week — potentially even holding former IRS official Lois Lerner in contempt of Congress.”
Brian Galle and Donald Tobin have posted their comments on the IRS Rulemaking to SSRN. Here is the abstract:
The Notice is a good first step. It creates bright-line standards that are easy to apply and that will eliminate much of the gray area regarding permissible political activity. Clearer lines will reduce the discretion on the part of the IRS. By decreasing the IRS’s discretion, the regulation will reduce the opportunity for the IRS to be used as a political tool in an Administration’s tool box.
However, the Notice does not go far enough. Congress has established a regulatory regime that has as its central purpose the disclosure of any significant campaign contributions by individuals or firms. In recent years many organizations have exploited the confidentiality rules of § 501(c)(4) to evade that regime, to the detriment not only of U.S. political discourse but also the non-profit sector. The Final Rule should ensure that groups with significant partisan political activity cannot obtain exemption under § 501(c)(4), or indeed under any parallel provision of § 501.
We believe, however, that groups carrying out “substantial” electioneering activities should generally be eligible for exemption under § 527, and that the IRS should make that clear in the Final Rule. The main consequence of any ruling denying § 501(c)(4) status based on the political activity of the organization, therefore, would simply be to require the disclosure of an organization’s donors, and to ensure that the organization’s political expenditures are disclosed contemporaneously with the election they seek to influence.
Accordingly, the Final Rule should be designed in a way that channels organizations with any substantial amount of undisclosed electioneering activity into § 527. For example, we propose a strong presumption that any group with candidate-related political activity of more than 10% of its budget, or of more than an overall cap of some amount, such as $1 million, whichever is lesser, should be recognized as a § 527 political organization and not as a § 501c(4) social welfare organization. The final rule should interpret “electioneering” broadly to include facially non-partisan activities that can be used to partisan advantage, including candidate-related advertising that falls outside the window immediately surrounding an election. Groups that voluntarily disclose their donors could retain c(4) status.
Additionally, we suggest that the IRS seriously consider developing rules to limit the use of for-profit entities to evade § 527. We urge the IRS to take a clearer stand on its enforcement plans and legally dubious Forms 990. And we argue that nothing in the Notice, or in what we additionally suggest here, would raise serious First Amendment concerns.
Politico magazine reports.
Following up on this post, a trial court has issued this ruling holding that the arena measure may not go on the ballot. The court offers two reasons: (1) the proposal must be made as an amendment to the city charter, not done, as this purports to do, through an initiative; (2) the circulation of the measure did not substantially comply with the requirements for circulating initiatives and the problems could have misled voters.
We will see if there will be an appeal, but on first read the opinion seems persuasive.
There are reports that the NFL is monitoring Arizona’s SB 1062, which gives private businesses the right to refuse service to anyone if providing service would violate their religious beliefs. Phoenix is scheduled to host next year’s Super Bowl, but the league stated that such a bill would be inconsistent with the league’s (stated and purported) policies of tolerance, inclusiveness, and non-discrimination for all sorts of reasons, including sexual orientation. …But isn’t this corporate speech? Isn’t the NFL, a powerful entity, engaging in First Amendment expressive activities by using its economic influence to affect public policy? Isn’t this exactly what critics of the “corporations have First Amendment rights” meme object to? (The NFL is not a corporation but an unincorporated association of associations, but I doubt that matters much for most arguments). Liberals and progressives and supporters of LGBT rights–the very groups most likely to be critical of Citizens United, are now quite pleased with, and supportive of, the NFL’s stance and the (hoped-for) effect it could have on this horrific piece of public policy. But other than the valence of the political position at issue, how is this different than a large company trying to affect environmental policy or elections (which, in turn, will define policy)?
In the law, a motion for reconsideration is the longest of shots, the least hale of Hail Marys, the 60-yard field-goal attempt with less than a minute on the clock, the full-court jump shot at the buzzer, the … well, you get the idea. It almost never works.
But there are those extremely rare cases where it’s successful, where a court will cop to having made a mistake, overlooked a material fact, or misapplied past precedents. And that’s precisely what former Reno Councilwoman Jessica Sferrazza is counting on with her latest legal effort.
Last week, the Nevada Supreme Court ruled that a person’s service on a local government body — such as the Reno City Council — is limited to 12 years under the state’s term-limits law, regardless of whether one is serving as a council member or the mayor. Thus, having served 12 years on the council, Sferrazza and all similarly situated officials throughout the state, are now banned for life from running for mayor. (Sferrazza and Reno Councilman Dwight Dortch contended — quite correctly, in my view — that mayor was a separate office, and thus a person could run and serve another 12 years, just as a person can serve 12 years in the Assembly and then run for and serve another 12 in the state Senate.)
Today, Sferrazza’s attorney — Bradley Schrager of Wolf, Rifkin, Shapiro, Schulman & Rabkin — filed a motion for reconsideration with the Nevada Supreme Court, contended that justices had overlooked relevant precedents in their ruling.
And now the Court wants a response.
Great event coming to Harvard March 6.
Franko, Kelly, and Witko oped at TPM.
Wisconsin Supreme Court justices expressed concerns Tuesday about the state’s requirement — halted since soon after it was enacted — that voters show photo identification at the polls.
Among those raising questions was Justice Patience Roggensack, widely viewed as a leader of the conservative bloc that makes up a majority of the court. She said she was bothered that to get state ID cards for voting, people would have to provide a birth certificate or pay $20 to get one.
“I’m troubled by having to pay the state to vote,” she said during three hours of arguments.
Cincinnati Enquirer reports. Money quote:
State Rep. Matt Huffman, R-Lima, in a General Assembly committee discussion this month about early voting, dismissed Sunday voting. “There’s that group of people who say, ‘I’m only voting if someone drives me down after church on Sunday.’ … Really? Is that the person we need to cater to when we’re making public policy about elections?” Huffman said. “A lot of those people would have voted anyway, except they waited till Sunday because it’s convenient for them.”
Yeah. Why make voting convenient for voters anyway? Let’s make it harder for everyone, but especially people who will vote against our party.
Wonder if this will be challenged as unconstitutional.
A group of prominent First Amendment advocates (Floyd Abrams, Arthur Eisenberg, Joel Gora Michael Meyers, Nadine Strossen, Harvey Silverglate, and Bill Van Alstyne) submitted this comment to the IRS on their proposed rulemaking.
Congratulations to Ned Foley, Mike Pitts, and Josh Douglas on the publication of their new casebook with Aspen. This makes the fifth casebook in the field (meaning there are just about the same number of casebooks as people teaching the course!).
The five books are:
Lowenstein, Hasen, and Tokaji, Election Law–Cases and Materials (5th ed. 2012)
Issacharoff, Karlan and Pildes, The Law of Democracy (4th ed. 2012)
Dimino, Smith, and Solimine, Voting Rights and Election Law (2010)
Gardner and Charles, Electon Law in the American Political System (2012)
and now the new Foley, Pitts, and Douglas book
Bloomberg BNA: “Top Democratic and Republican election lawyers are recommending that the Federal Election Commission change its rules to require reporting of “nationwide independent expenditures” by super PACs and others that buy national ads or make other big expenditures in presidential campaigns.”
You can read it here #hsgovchat.
On February 17 I noted that the DOJ page on Section 5 gave no indication that Shelby County had been decided and that section 5 was no longer being enforced against previously covered jurisdictions.
The page has now been updated, with a top section reading:
The Shelby County
On June 25, 2013, the United States Supreme Court held that it is unconstitutional to use the coverage formula in Section 4(b) of the Voting Rights Act to determine which jurisdictions are subject to the preclearance requirement of Section 5 of the Voting Rights Act, Shelby County v. Holder, 570 U.S. ___, 133 S. Ct. 2612 (U.S. June 25, 2013) (No. 12-96). The Supreme Court did not rule on the constitutionality of Section 5 itself. The effect of the Shelby County decision is that the jurisdictions identified by the coverage formula in Sectilon 4(b) no longer need to seek preclearance for the new voting changes, unless they are covered by a separate court order entered under Section 3(c) of the Voting Rights Act.
“No, ma’am. I don’t vote for black people. They got their place, I got my place.”
–Lousiana voter, interviewed by NPR in Democratic Sen. Landrieu Walks A Fine Line In Red Louisiana
(h/t Adam Serwer)
In mid-2011, the Florida legislature reduced the state’s early voting period from fourteen days to eight and eliminated the final Sunday of early voting. We compare observed voting patterns in 2012 with those in the 2008 General Election and find that racial/ethnic minorities, registered Democrats, and those without party affiliation had significant early voting participation drops and that voters who cast ballots on the final Sunday in 2008 were disproportionately unlikely to cast a valid ballot in 2012. Florida’s decision to truncate early voting may have diminished participation rates of those already least likely to vote.
William & Mary symposium featuring Ken Gross, Larry Noble, and Trevor Potter.
Since September, when DeCamp took over as the lead investigator, the effort has scrutinized 245 individual voters. Of those, more than 80 have been referred to county attorneys for possible prosecution.
It will be up to prosecutors on whether to bring charges based on the evidence provided by the DCI.
Since the investigation began in July, 2012, five cases have resulted in guilty pleas. Fifteen are pending before courts across the state, DeCamp said.
A Des Moines Register investigation into the five guilty pleas last December revealed they generally involved voters who didn’t intentionally violate state election laws.
WaPo: “Former Republican presidential nominee Mitt Romney is lending his support to an initiative that would change the way Utah political parties choose their candidates. In an e-mail to former Utah Gov. Mike Leavitt (R), Romney said he supports Count My Vote, an initiative that would require party nominees to be chosen in primaries rather than through a convention system.”
The Republican and Democratic leaders of the state Senate on Monday said a law that ensnared a legislator on perjury and voter-fraud charges is ambiguous and might need to be changed.
Sen. Roderick Wright is awaiting sentencing in May after he was convicted last month of lying about his true residence, which a Los Angeles County jury determined was outside his Senate district.
Senate President Pro Tem Darrell Steinberg, D-Sacramento, and Senate Minority Leader Bob Huff, R-Diamond Bar, said in separate comments to reporters that current state law is so ambiguous that other lawmakers also could be in violation of a requirement that they live in the district they represent while running for office.
After very successful stints at CRP and Public Campaign.
Adam’s Sidebar includes a quick rebuff of Toobin’s column:
Jeffrey Toobin of The New Yorker recently called Justice Thomas’s silence “downright embarrassing.” But the real work of the Supreme Court is done in written opinions, and there Justice Thomas has laid out a consistent and closely argued judicial vision.
[I originally wrote this piece for the First Amendment Center published Oct. 8, 2007. It was part of a symposium on Justice Thomas's First Amendment jurisprudence. I am reprinting it below here, as it has moved on the Center's website, and I wanted to make it more available given that I referenced it in a recent post responding to Jeffrey Toobin on Justice Thomas's performance on the Court. I have not updated this piece to take into account many significant post-2007 developments.]
Justice Thomas: leading the way to campaign-finance deregulation
This article is part of an online symposium on the First Amendment Center Online concerning Supreme Court Justice Clarence Thomas’s First Amendment jurisprudence.
“In my view, the Constitution leaves it entirely up to citizens and candidates to determine who shall speak, the means they will use, and the amount of speech sufficient to inform and persuade.”
— Nixon v. Shrink Missouri Government PAC (2000) (Thomas, J., dissenting)
Justice Clarence Thomas has not been afraid to go it alone when it comes to expressing the view that the First Amendment prohibits most, if not all, campaign-finance regulation. Twice he has taken a position rejected by his eight other colleagues in this area. But Justice Thomas’ clear, if radical, deregulatory vision has proven to be influential, drawing other justices (perhaps soon a majority) toward his view that money spent on election-related advertising and other forms of speech cannot be limited by the government.
Thomas’ campaign-finance vision: no contribution limits, no spending limits, few (if any) disclosure requirements
Contribution and spending limits
Understanding Justice Thomas’s vision requires a bit of background on the Supreme Court’s campaign-finance jurisprudence, beginning with Buckley v. Valeo (1976), a case that well preceded Justice Thomas’s confirmation to the high court. In Buckley, the Supreme Court established that the amounts of campaign contributions could be limited to prevent corruption or the appearance of corruption, but that limits on spending of money could not be justified by an anticorruption interest (because of the lack of evidence that independent spending could corrupt candidates) or on equality grounds (because doing so would be “wholly foreign” to the First Amendment). The Court declared that limits on the amount of contributions only “marginally” restricted First Amendment rights and were therefore subject to lower constitutional scrutiny, while spending limits more directly limited speech and were therefore subject to strict scrutiny.
Since Buckley, the Court’s jurisprudence has moved in fits and turns, as different Court majorities either showed deference toward legislative efforts to regulate campaign finances or showed hostility to such regulation on First Amendment grounds. At its most deferential, the Court, in another pre-Thomas decision, upheld limits on spending by corporations from their general treasury funds on advertising that expressly advocated the election or defeat of candidates for office. The Court, applying strict scrutiny, held that such laws were justified by the government’s compelling interest in preventing “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas” (Austin v. Michigan Chamber of Commerce, 1990). Over the dissent of Thomas and others, the Court in McConnell v. FEC (2003) extended Austin’s holding to unions and to additional election-related broadcast advertising that did not expressly advocate the election or defeat of candidates.
Since his first case on the Court raising contribution- or spending-limits questions, Thomas has been adamant in rejecting the Buckley framework in favor of a constitutional test that would apply strict scrutiny to both contribution and expenditure limits and hold all such laws as violating the First Amendment (Colorado Republican Federal Campaign Committee v. FEC, 1996 [Colorado I], Thomas, J., concurring in the judgment and dissenting in part). Speaking only for himself in part II of his Colorado I opinion, Thomas expressed the view that “under traditional strict scrutiny, broad prophylactic caps on both spending and giving in the political process … are unconstitutional.”
Justice Thomas seems to accept for the sake of argument the principle that the government has a compelling interest in preventing corruption or the appearance of corruption, but has found that various laws the Court has considered in its campaign finance cases to fail strict scrutiny on grounds that they are not “narrowly tailored.” In each of these cases, Thomas found that bribery laws or disclosure laws were a more narrowly tailored means to deal with any problems of corruption or the appearance of corruption. He further rejected any argument that campaign contributions are entitled to less constitutional protection than spending, believing that a person has the same right to spend directly as to hire others or give money to others to engage in effective political speech. Thomas believes political speech is entitled to the highest First Amendment protection.
Thus, Justice Thomas voted:
- To reject a federal law limiting the amounts of funds that political parties could spend in coordination with or independent of their candidates (Colorado I; FEC v. Colorado Republican Federal Campaign Committee, 2001 (Colorado II).
- To strike down a contribution limit of $1,075 for state office in Missouri (Nixon v. Shrink Missouri Government PAC, 2000).
- To reject a law limiting even nonprofit ideological corporations from making any campaign contributions to candidates for federal office (FEC v. Beaumont, 2003).
- To strike down all major provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA, or “McCain-Feingold”), including those limiting the giving of “soft money” to political parties (McConnell v. FEC).
- To strike down Vermont’s campaign-contribution limits for state office.
- To overrule Austin and McConnell in a recent challenge to the McCain-Feingold provisions limiting the spending of corporate treasury funds on election-related ads (FEC v. Wisconsin Right to Life (“WRTL”), 2007).
From these many opinions, it is clear that Justice Thomas would vote to strike down every contribution or spending limit that might be enacted by a legislative body in the United States. Under Thomas’s vision, it would be perfectly permissible, for example, for Microsoft or the AFL-CIO to give $100 million to a presidential candidate running for office. The justice believes any corrupt activity would be ferreted out and prosecuted under applicable federal bribery laws.
Thomas’ analysis is perhaps at its weakest when it delves into the realm of empirical predictions and political science. Besides seriously underestimating the difficulty of ferreting out prosecutable cases of bribery, he also takes an unrealistically charitable view of the motivations of donors. Thus, in response to evidence that “in 1996 and 2000, more than half of the top 50 soft-money donors gave substantial sums to both major political parties” — which suggested that major corporations, unions, and wealthy individuals were purchasing access to federal officeholders — Thomas expressed the view that there was “substantial overlap” between the ideological views of Democrats and Republicans and “[if] donors feel that both major political parties are in general agreement over an issue of importance to them, it is unremarkable that such donors show support for both parties” (McConnell).
In Colorado I, Justice Thomas pointed to campaign-finance disclosure as a more narrowly tailored means of dealing with the problem of corruption in the political process: “[D]isclosure laws work to make donors and donees accountable to the public for any questionable financial dealings in which they may engage.” But the justice over time has become more skeptical of the constitutionality of campaign finance disclosure requirements.
Even before Colorado I, Thomas wrote a concurring opinion in McIntyre v. Ohio Elections Commission (1995) affirming the right of a person to distribute anonymous campaign literature regarding a school board ballot measure. Thomas based his view on a historical analysis of how the Framers would have understood the right to anonymous campaign speech.
The reach of McIntyre remained unclear, and in the 2003 McConnell case, Thomas was alone in voting to strike down BCRA’s new disclosure provisions. That provision was meant to stop the anonymous funding of ads such as those run in the 2000 New York primary attacking John McCain’s environmental record, and paid for by a previously unknown group, Republicans for Clean Air. The “group” turned out to be the Wyly brothers, longtime supporters of George W. Bush from Texas.
In McConnell, Justice Thomas read McIntyre as overruling Buckley at least in part, rendering unconstitutional many campaign-finance disclosure provisions. It is not clear from Thomas’ McConnell opinion what forms of disclosure may be constitutionally permissible, but at most the law could extend to disclosure of certain contributions and not to most expenditures. Thus, under Thomas’ vision, for example, Microsoft, the AFL-CIO or George Soros would have the right to spend anonymously $100 million independently supporting or opposing a presidential candidate.
Thomas’ growing influence on the Court in the campaign-finance arena
Since the beginning of his tenure on the Court, Justice Thomas has occupied one of the polar positions on the campaign-finance issue: a clear, deregulatory position. (At the other pole is Justice Stephen Breyer, whose “participatory self government” rationale would allow for greater consideration of equality in balancing First Amendment rights and government interests 1). Thomas’ steadfastness and clarity on this issue appears to have opened up space for additional justices to move toward his position on the issue.
When Thomas first wrote that Buckley should be overruled in favor of an across-the-board, strict-scrutiny approach to campaign-finance regulation, in Colorado I, Chief Justice Rehnquist and Justice Antonin Scalia notably failed to join that portion of Thomas’ opinion. By 2000, Justice Scalia was on board with overruling Buckley’s more complaisant standard of review for assessing the constitutionality of contribution limits (Shrink Missouri), and by 2001 Justice Anthony Kennedy agreed as well that Buckley “should be overruled” (Colorado II). Together, these three Justices recently staked out a position for overruling Austin and McConnell in last term’s decision in WRTL.
Justice Thomas’ influence in this area could soon gain majority status. In WRTL, Chief Justice Roberts and Justice Alito issued an opinion that did not go quite so far as the other three deregulatory justices would go, but it still significantly cut back the reach of the McConnell opinion, thereby allowing more corporate and union election-related ads to be paid for out of treasury funds. The chief justice’s opinion reads like a Justice Thomas opinion, full of paeans to the First Amendment and the value of free political debate, unfettered by campaign-finance rules. In declaring that “Enough is enough” when faced with an argument that strict campaign-finance laws are necessary to prevent the circumvention of core limits on money in politics, Chief Justice Roberts echoed Thomas’ skepticism of anti-circumvention arguments expressed in McConnell: “speech regulation will again expand to cover new forms of ‘circumvention,’ only to spur supposed circumvention of the new regulations, and so forth.” It seems only a matter of time before Roberts and Justice Samuel Alito move either firmly into Thomas’ camp or at least close to his position. 2
Justice Thomas may not find another four votes for his positions on a general right to engage in anonymous campaign-finance spending. But he could well see much of his vision of a deregulated campaign finance system come into being over the next decade. His influence in this area should not be underestimated.
1 See Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution, ch. 4 (Speech) (2005).
2 I expand on these ideas in Richard L. Hasen, “Beyond Incoherence: The Roberts Court’s Deregulatory Turn in FEC v. Wisconsin Right to Life.“
Richard L. Hasen is the William H. Hannon Distinguished Professor of Law at Loyola, Los Angeles, Law School. He is a nationally recognized expert on election law and campaign-finance regulation, is co-author of a leading casebook on election law, co-editor of the quarterly peer-reviewed publication Election Law Journal and the editor of the widely read Election Law blog. Hasen is also the author of The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (2003).
Kevin Drum: “I don’t know if I buy this, but I figured I’d pass it along. There’s a good chance the Supreme Court will indeed finish the job of gutting campaign finance limits, and if that happens we’ll all need a bit of solace.”