“Mayday, a Super PAC to Fight Super PACs, Stumbles in Its First Outing”

Derek Willis, NYT’s The Upshot:

Mayday should find opportunities on the Democratic side, backing primary candidates for whom campaign finance reform is a top issue against candidates for whom it is one of many. Having a presidential contest in 2016 will increase the field of potential targets compared with 2014. The number of freshman Republicans in the House facing their first re-election fight will provide some potential opportunities.

But unless Mayday can Republican primary voters to unseat incumbents on the issue of money in politics, winning a legislative majority that will change the current campaign finance rules looks dubious.



“Georgia senator: Ban driver’s licenses for immigrants with DACA”


Similar legislation died on a bipartisan vote in the state Senate during this year’s legislation session. Critics said Senate Bill 404 would have punished children for the choices their parents made and blocked them from working and contributing to the state’s economy. Supporters spoke about upholding the nation’s legal immigration system. On Monday, McKoon cited road safety, “voter integrity” and security issues.

“There have been press reports in North Carolina that folks on deferred action have registered to vote – have attempted to vote,” he said. “We simply can’t have that in our state. We have to have elections that people can respect the integrity of.”

“You generally are not going to be granted admittance to a federal building without a driver’s license of some kind and that is a security measure,” he added. “And if you start talking about issuing these licenses to large populations that we know very little about — in terms of where is the person’s country of origin, what is their reason for being in the country — I think quite frankly we create some security challenges as well.”


“How the GOP used Twitter to stretch election laws”

Chris Moody with the campaign finance coordination story of the season on CNN:

Republicans and outside groups used anonymous Twitter accounts to share internal polling data ahead of the midterm elections, CNN has learned, a practice that raises questions about whether they violated campaign finance laws that prohibit coordination.

The Twitter accounts were hidden in plain sight. The profiles were publicly available but meaningless without knowledge of how to find them and decode the information, according to a source with knowledge of the activities.

The practice is the latest effort in the quest by political operatives to exploit the murky world of campaign finance laws at a time when limits on spending in politics are eroding and regulators are being defanged.

The law says that outside groups, such as super PACs and non-profits, can spend freely on political causes as long as they don’t coordinate their plans with campaigns. Sharing costly internal polls in private, for instance, could signal to the campaign committees where to focus precious time and resources.

The groups behind the operation had a sense of humor about what they were doing. One Twitter account was named after Bruno Gianelli, a fictional character in The West Wing who pressed his colleagues to use ethically questionable “soft money” to fund campaigns.

A typical tweet read: “CA-40/43-44/49-44/44-50/36-44/49-10/16/14-52–>49/476-10s.” The source said posts like that — which would look like gibberish to most people — represented polling data for various House races.

Posting the information on Twitter, which is technically public, could provide a convenient loophole to the law — or could run afoul of it.

See also the related video.

My first impression is that Ken Gross, quoted in the story, hits the key question:

“If it truly requires some sort of Ovaltine decoder ring to make heads or tails of the information, then there certainly is the possibility that there was some pre-arrangement,” Gross said. “Just making it public is not enough. You have to further meet the requirement of no pre-arrangement or coordination. But it is the burden of the government to demonstrate that.

I expect we will hear much more from this as other campaign finance reporters work on this story.

I would love to hear the back story of how Chris discovered this. Wow.


“Two Charged in Campaign Finance Case; De Blasio Aide Backs Out of Speaking With Special Prosecutor”


Since 2012, Mr. Adler has been investigating the Working Families Party’s relationship with Data & Field Services, a corporation formed by the left-leaning party to provide its candidates with get-out-the-vote staffing and expertise.

Investigators are looking at whether the for-profit firm charged significantly lower fees than is typical for such services, potentially providing an unfair advantage to favored candidates.

According to a criminal complaint, David Thomas, who served as treasurer in Councilwoman Debi Rose’s 2009 campaign, and Ms. Rose’s campaign have been charged with grand larceny in the third degree and a variety of other charges. David Jones, a political consultant, was charged with grand larceny in the third degree.



“Invest in Smarter Government”

Lee Drutman for Cato:

Congressional offices are thus stretched thin. They lack resources to develop and execute policies. What this means is that to get its work done, Congress has to rely significantly on lobbyists representing some very narrow interests, primarily large corporations and business associations who tend to benefit from the status quo. It’s hard to get anything done in Washington if you don’t have significant help from outside lobbyists, anyway. Lobbyists play essential roles in shepherding legislation through — drafting and vetting laws, building coalitions, and ensuring widespread support.11

By my count (looking at disbursement data), the Senate spent $490 million on compensation, and the House spends $876 million, a total of $1.37 billion, in 2013. If this seems like a lot of money, consider that it is 0.03% of the total federal budget of $3.6 trillion. It is also less than half of the $3.24 billion spent on direct lobbying in 2013 (which itself is probably less than half of the money actually spent on lobbying). Since the Republicans took control of the House in January 2011, they’ve cut committee staffs by 20 percent. Congress is being run on the cheap.

Here’s what I would do with my wave of the magic wand. I would triple the amount the Congress spends on staff (keeping it still at just under 0.1% of the total federal budget). I’d also concentrate that spending in the policy committees. I’d give those committees the resources to be leading institutions for expertise on the issues on which they deal. I’d also give these committees the resources to hire their own experts — economists, lawyers, consultants, etc.12 But I’d also make sure that these committees were not explicitly partisan. Rather than Republicans and Democrats having separate committee staffs, have one committee staff of professionals and experts. Staff could be a mix of political leanings. But let them be one team, where they argue and hash out ideas together.


“Low voter turnout eases ballot-measure requirement”


Got a ballot measure for 2016? You’re in luck.

Ballot initiatives two years from now will need about 30 percent fewer qualifying signatures than they did this year, according to the political-consulting types at Sacramento’s Redwood Pacific Public Affairs.

The reason: abysmal turnout for the Nov. 4 election. California requires valid signatures equal to 8 percent of the most recent gubernatorial vote to qualify a constitutional amendment for the ballot, 5 percent for regular laws and veto referenda.


“California officials ponder all-mail voting”

SacBee reports.

While some opponents believe all-mail elections open the door to voter fraud, academics and voting-rights advocates worry an all-mail statewide voting system would further disenfranchise young people, residents at the lower end of the socio-economic ladder and those whose native language is not English..

Every election, many ballots go uncounted, including those that are filled out incorrectly, missing valid signatures or simply mailed in too late. Research out of UC Davis shows that nearly 3percent of the vote-by-mail ballots received – or roughly 91,000 – in the June primary election were not counted. It was 1percent, or 69,000 ballots, in the 2012 general election.

“California has one of the highest uncounted mail-ballot counts in the nation,” said Kim Alexander, founder and president of the California Voter Foundation. “At a time when civic participation is in decline, I think it’s important to nurture the voting process as much as we can, which means operating polling places and keeping voting a visible, public act rather than something people only do in the privacy of their homes.”

Other experts doubt moving to all-mail would indeed speed up the counting process. Much of the lag time is attributable to the large number of ballots that pour into county elections offices in the final days and hours.


“Fifth Circuit Reverses Lower Court and Restores Mississippi Disclosure Requirements”

Release: “Today, in Justice v. Hosemann, the United States Court of Appeals for the Fifth Circuit reversed a trial court ruling that had struck down several Mississippi disclosure requirements as applied to certain individuals and groups engaged in ballot measure advocacy.  The Campaign Legal Center had filed an amicus brief and later a supplemental letter brief in the case urging this result.”

Institute for Justice release:

“In America, you shouldn’t need lawyers and accountants in order to speak about politics, all you should need is an opinion,” said IJ Attorney Paul Avelar. “But Mississippi insists on keeping laws on the books that don’t benefit the public—they only impose onerous burdens on speech and scare ordinary Americans away from political engagement, resulting in less speech.”

The plaintiffs have until November 28 to seek rehearing by the full 5th Circuit, or until February 12 to seek review by the U.S. Supreme Court.



“Guest Blog: Janai Nelson, Race Reasoning in Alabama Redistricting: A View from the Supreme Court”


If ultimately forced to draw a new plan in the current post-Shelby world, Alabama would no longer have Section 5 to rely on—for better or worse. Instead, it would have to take account of the Voting Rights Act’s other anti-discrimination weapon, Section 2, which prohibits any voting law that results in vote dilution or denial on account of race—and, of course, the constitution. Near the close of the argument, Justice Alito alluded to this possibility by querying how Section 2 might factor in to the drawing of a new plan. Undoubtedly, we should expect any new plan that might arise from this case to find its way before the Court for a reprise of similar quandaries around race, partisanship, and power.  That plan, like this one, should be viewed in the context of Alabama’s unending wily schemes to minimize minority voting power, including using false claims to protect it.


“California Legislature is looking more moderate due to voting reforms”

George Skelton LAT column:

Until last week, no Democratic state legislator running for reelection had lost to a Republican in 20 years. Then suddenly three did.

When incumbents start losing their legislative seats, it means something is happening.

The national Republican wave? Sure. Some of that washed into California. But it wasn’t just that.

Also credit — or blame — voter-approved reforms that are starting to affect California’s legislative elections.

I’ll be interested to see how social scientists respond to the claims in this column.


“Race, Politics and Drawing Maps; The Supreme Court Hears an Alabama Case on the Voting Rights Act”

NYT editorial begins:

As long as politicians are entrusted with drawing legislative maps, they will use their pen to gain partisan advantage. Courts generally do not interfere with that process, but there are limits to this where race is involved. The problem is figuring out which motive — race or partisanship — underlies the redistricting. On Wednesday, the Supreme Court considered this issue in a thorny case that could have significant implications for the future of the Voting Rights Act.

It concludes:

A purpose of the voting rights law was to preserve the voting power of minority groups in different ways depending on local conditions. This kind of rigid redistricting isolates minority voters and limits their political power. It is up to the justices to reaffirm the law and, as the election-law scholar Justin Levitt has written, to stop lawmakers from turning “a refined and sophisticated piece of federal legislation into a cartoon.”


“Governing and Deciding Who Governs”

Josh Chafetz has posted this draft on SSRN (forthcoming, University of Chicago Legal Forum). Here is the abstract:

In McCutcheon v. Federal Election Commission, Chief Justice Roberts wrote that, “Campaign finance restrictions that pursue other objectives [than eradicating quid pro quo corruption or its appearance], we have explained, impermissibly inject the Government ‘into the debate over who should govern.’ And those who govern should be the last people to help decide who should govern.”

This passage sounds great — after all, who could object to an attempt to purge official self-dealing, especially in the election-law context? And therein lies its insidiousness: this rousing language masks a programmatic attempt by Roberts and his colleagues to distance themselves rhetorically from the structures and processes of governance and thereby to justify their privileged place above the other branches with regard to such issues.

This essay, written for the University of Chicago Legal Forum‘s 2014 “Does Election Law Serve the Electorate?” symposium, identifies and unpacks two distinct distancing strategies exemplified in that passage. First, the Court’s use of the first-person plural (“we have explained”) posits a trans-temporal unified identity for the Court, which is implicitly contrasted with the shifts and vagaries of mere electoral politics. Part I examines this judicial self-presentation by contrasting the treatment of corruption in Caperton, on the one hand, and Citizens United and McCutcheon, on the other. Second, Roberts’s implicit contrasting of the Court with “those who govern” serves to suggest that the Court is somehow removed from the arena of partisan politics. Part II discusses this claim with reference toBush v. GoreShelby County, and election-law disputes surrounding the 2014 midterms.

The conclusion will consider what these rhetorical distancing strategies get the Court, and what a critical evaluation of them gets us.

I heard this paper presented last week and it sounds terrific.  I can’t wait to read it!


“Outside Spending Didn’t Buy The Election”

Sabato’s Crystal Ball:

6. Outside groups didn’t buy the election

Crystal Ball Senior Columnist Alan Abramowitz ran a regression analysis to see what effect outside spending had on the Senate races. The correlation between the Democratic and Republican outside spending difference and the Democratic margin was .23, which is not statistically significant. In contrast, the correlation between the Democratic margin and incumbency status was a more significant .76, and the correlation between the Democratic Senate margin in 2014 and the Democratic presidential vote margin in 2012 was an even more significant .89.

In other words, partisanship in a polarized era, represented by the ’12 presidential vote margin, was by far the strongest predictor of 2014’s Senate vote. Naturally, incumbency status is also significant. But the difference between amounts of outside spending by groups affiliated with both parties has surprisingly little effect, perhaps because both sides spent so much that the money from Republicans neutralized the cash from Democrats, and vice versa.

(h/t Political Wire)


Is Justice Thomas Gently Chiding CJ Roberts and J. Alito on Same Sex Marriage Cases?

Important Josh Blackman post. “Thomas Weighs In On Denial Of Stays in SSM Cases: ‘Our recent practice, however, gives me little reason to be optimistic.'”Justic

So this suggests that Scalia and Thomas have been voting to hear the same sex marriage cases, but they are not being joined by (most likely) Alito and Roberts.

Here’s what I wrote last year (in what has proven to be partially wrong, or premature), about why I expected a cert. grant in the same sex marriage cases:

It takes only four votes to grant a cert. petition, and it is hard for me to imagine Justices Scalia, Thomas and Alito not wanting to take one of the cases coming up, such as the Utah case, in which a federal court held that the state’s ban on same-sex marriage violates both equal protection and due process guarantees, or the Ohio case, where a federal judge indicated he’s quite likely to reach that same result as to Ohio’s law.  If lower courts are going to start siding with same-sex marriage proponents, and start legalizing same-sex marriage as a result of court order in places such as conservative Utah, then it seems hard to imagine Scalia, Thomas, and Alito not urging the Court to take the case.

So where’s the fourth vote?  I think Adam is right that Kennedy would rather let the issue percolate for a while (witness his convoluted opinion in Windsor not addressing the issue more straightforwardly). But Chief Justice Roberts is a different story.  He appears in Windsor to oppose judicial imposition of same sex marriage.  That’s where his sympathies are. The question is whether he pulls the trigger or not and votes to take one of these cases. Strategically, he could decide it is better not to vote to take the cases if he thinks, as many thoughtful observers do, that if Kennedy had to decide the issue, he would side with the right to same-sex marriage.

But that same strategic calculation which might lead the Chief not to vote to grant cert. could lead one of the four Court liberals to vote to take the case. That is, they too may want to force Kennedy’s hand, if they are confident in his vote.  If it only takes one of the four to join in a vote for cert., I think it is pretty likely to happen. The way it might not happen happen is if Alito, Scalia and Thomas all decide to vote strategically not to hear these cases.  I’m guessing they won’t be able to resist.

Of course, with the new Sixth Circuit opinion creating a Circuit split, I think it inevitable the Court will take up the issue very soon.


“Podcast: The Supreme Court considers racial gerrymandering”

National Constitution Center:

Rick Hasen from the UC-Irvine School of Law and Roger Clegg from the Center for Equal Opportunity join our Jeffrey Rosen to discuss one of the biggest Supreme Court cases this term, about the roles of race and party in determining election districts.

This week, the U.S. Supreme Court heard oral arguments in two combined cases from Alabama that asked the Justices to parse out the process of gerrymandering.


“Voting rights battles will continue before 2016″

USA Today: “Supreme Court rulings forced last-minute changes in state voting procedures for the midterm elections across the country, but the battle over voting rules is far from over. Courts are still hearing arguments over voter ID and early voting laws, legal challenges that could reshuffle voting rules again before 2016, when a presidential election will probably increase voter turnout and long lines at polls.”


“After takeover, Nevada GOPers ready voter ID”

MSNBC: “Yet another Republican-controlled state is looking to impose a voter ID law just in time for the 2016 elections. GOP state lawmakers in Nevada are readying ID bills for early next year, Secretary of State-Elect Barbara Cegavske told msnbc in an interview. Cegavske said she knew of two separate bills that might end up being merged together.”