Graeme Orr has posted this draft on SSRN ((2014) Critical Review of International Social and Political Philosophy ‘Political Parties, Partisanship and Political Theory,’ Special Issue, Forthcoming). Here is the abstract:
This paper examines the legal conception of political parties. It does so by unearthing the history and ontology of the common law relating to political parties, in international perspective. The flexibility of the unincorporated association, in which parties are understood through the private law of contract as networks of internal rules or agreements, rather than as legal entities, has proven to be a mask. In the common law’s imagination, the ideal party is a ground-up organisation animated by its membership. But the law mandates no such thing, and in its statutory and constitutional conception intra-party democracy is sublimated as parties need be no more than an electoral persona or brand.
Barry Burden, Bradley Jones, and Michael Kang have posted this draft on SSRN (forthcoming, Legislative Studies Quarterly). here is the abstract:
To enhance explanations for party polarization in the U.S. Congress, we focus on an unappreciated legal structure known as the sore loser law. By restricting candidates who lose partisan primaries from subsequently appearing on the general election ballot as independents or nominees of other parties, these laws give greater control over ballot access to the party bases, thus producing more extreme major party nominees. Using several different measures of candidate and legislator ideology, we find that sore loser laws account for as much as a tenth of the ideological distance between the major parties.
SCOTUSBlog reports the Court will issue one or more opinions Tuesday. Although it is unlikely the Court will issue an opinion in the McCutcheon campaign finance case argued in October, because controversial cases with multiple opinions usually take longer to draft and release, it is possible that the opinion could be released Tuesday. This would be especially likely if the Court punts in the case, as Justice Breyer and others suggested at oral argument might be advisable. The Court could remand the case back to the lower court for fact finding on the nature of the kind of joint fundraising committee fundraising which could occur if the courts blow up the federal aggregate limits.
Again, I’m not saying this is likely, but it is possible.
Mike Allen with details on a project involving Bauer, Ginsberg and others.
The Telegraph: “The District 2 race was by far the closest of the nine commission races. Schlesinger won by just 26 votes. But Ficklin’s research turned up more than enough voters who were in the wrong district to cast doubt on the results.”
The latest from Virginia.
Josh Israel writes for Think Progress:
Earlier this month, the Republican-controlled Wisconsin Assembly took the first step toward preventing voters from forcing recall elections against elected officials not accused of any legal or ethical wrongdoing. While this move may appear self-serving — in 2011 and 2012, three Republican State Senators were removed from office and Gov. Scott Walker (R) had to face voters midway through his term — it raises questions about whether the current recall system several states have is beyond repair.” The Wisconsin Assembly has the right idea: mid-term recalls of public officials without cause is hurts America’s republican democracy.
It’s not every day a writer at Think Progress agrees with Wisconsin Republicans.
Huge news in WSJ:
The Obama administration Tuesday proposed a crackdown on the widespread use of tax-exempt organizations for political campaigning, seeking to reduce the influential role that the secretive groups have played in recent elections.
The new “guidance” issued Tuesday by the Treasury Department and the Internal Revenue Service would curtail a broad array of these tax-exempt entities’ activities, including campaign advertising, voter registration, get-out-the-vote efforts, and distribution of voter guides and campaign materials.
Here is the government statement. The guidance should appear today in the Federal Register, and open for notice and comment.
This is a long time coming. Whether one likes 501(c)(4) involvement in campaigns or not, lack of clarity is a problem both for groups which can face harassment or the public which is ill served by the failure to enforce existing law as written.
The ideal solution here is for Congress to take away the benefits of shadow super PACs from forming as 501(c)(4)s, by requiring the same disclosure of funding of election-related advertising regardless of the organizational form the group takes. (My thoughts on that point here.) But Congress is not going to act on this any time soon, and so this is a good second-best solution.
VPAP: “If accurate, the VPAP estimate will mean there will be 100 times more ballots recounted this year than in 2005, when Democrat Creigh Deeds lost a razor-thin vote to Republican Bob McDonnell.”
Must-read Houston Chronicle story quoting the great Kathleen Clark on congressional ethics obligations.
Worth clicking for the graphic alone.
I expect this story to have legs.
The lawyers at Perkins Coie have filed this complaint in intervention and motion on behalf of young North Carolina voters, raising the kinds of issues wrote about in my recent NYT oped.
Abbe Gluck and Lisa Schultz Bressman have posted this draft on SSRN (forthcoming, Stanford Law Review). This moves to the top of my statutory interpretation reading pile. Here is the abstract:
This is the second of two Articles relaying the results of the most extensive survey to date of 137 congressional drafters about the doctrines of statutory interpretation and administrative delegation. The first Article focused on our respondents’ knowledge and use of the interpretive principles that courts apply. This second Article moves away from the judicial perspective. Our findings here highlight the overlooked legislative underbelly: the personnel, structural and process-related factors that, our respondents repeatedly volunteered, drive the details of the drafting process more than do judicial rules of interpretation. These factors range from the fragmentation caused by the committee system; to the centrality of nonpartisan professional staff in the drafting of statutory text; to the use of increasingly unorthodox legislative procedures – each of which, our respondents told us, affects statutory consistency and use of legislative history in different and important ways. Our respondents also painted a picture of legislative staffers in a primary interpretive conversation with agencies, not with courts, and as using different kinds of signals for their communications with agencies than courts consider.
Most of the structural, personnel and process-related influences that our respondents emphasized have not been recognized by courts or scholars, but understanding them calls into question almost every presumption of statutory interpretation in current deployment. These findings have significance for textualism, purposivism and beyond. They undermine the claims of proponents of each theory that theirs is the most democracy-enhancing, because none makes satisfactory efforts to really reflect congressional expectations. Our findings challenge textualism’s operating assumption that text is the best evidence of the legislative bargain and suggest more relevant – but still-formalist – structural features that might do better. They reveal that although purposivists or eclectic theorists may have the right idea with a more contextual approach, many of factors on which they focus are not the same ones that Congress utilizes. With respect to delegation, for both types of theorists, Chevron now seems too text- and court-centric, in the light of our findings, to actually capture congressional intent to delegate, which has been its asserted purpose.
In the end, our findings raise the question whether the kind of “faithful agent” approach to interpretation that most judges currently employ – one aimed effectuating legislative deals and often focused on granular textual details – can ever be successful. We thus look to different paradigms less dependent on how Congress works, including rule-of-law and pragmatic approaches to interpretation. These alternatives respond to the problem of the sausage factory, but pose different challenges in light of the modern judicial sensibility’s pronounced concern with legislative supremacy.
WRBC: “Tuscaloosa City School board candidate Kelly Horwitz has filed an appeal with the Alabama Supreme Court in the Tuscaloosa voter fraud case.”
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Thanks for reading, and thanks to the ABA Journal!
The latest from Wisconsin.
“Debates about campaign finance in Citizens United and abortion and Obamacare…could distort the court’s analysis of religious freedom.”
—Professor Rick Garnett, speaking to NYT’s Adam Liptak on the Hobby Lobby case.
And no, I would not expect Californians to pass this measure if it made it to the ballot.