“The war against American citizens”

Katrina vanden Heuvel WaPo column:

In 1971, before becoming a Supreme Court justice, Lewis F. Powell Jr. penned a memo to his friend Eugene Sydnor of the U.S. Chamber of Commerce advocating a comprehensive strategy in favor of corporate interests. Powell wrote, “Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.”

In last week’s ruling in McCutcheon v. Federal Election Commission , the Supreme Court was not a mere instrument so much as a blowtorch, searing a hole in the fabric of our fragile democracy.


Lithwick on the Disappearing Political Outrage over SCOTUS’s Campaign Finance Decisions, and Disappearing Colbert


It’s clear that at least some proportion of Americans are even more likely than they were before to give up the fight; to become further disaffected and disenfranchised in the wake of a decision by the court to privilege the free-speech rights of a fistful of millionaires over their own. And it’s important to recognize that as the public gives up, the things that once appeared corrupt will soon seem like just another day on Capitol Hill.


RNLA Issues Response to Bauer-Ginsberg; Praises Some Parts But Not Push for Early Voting

The report and the press release.  From the executive summary:

While RNLA agrees with a majority of PCEA’s recommendations, we caution against the Commission’s recommendation that states embrace expanded early voting as a solution to the systemic election administration problems identified in its report. The experience from recent elections demonstrates that early voting does not solve the problem of long lines. It is also expensive, distracts from Election Day preparations, and diminishes the importance of Election Day. Most Americans continue to prefer to vote alongside their neighbors and fellow citizens at the polls on Election Day so reform needs to start there. Accordingly, states should instead invest their limited time and resources fixing the problems at the polling place and ensuring a smoother absentee voting process for those who use it out of necessity, not convenience.

Here’s my view on the conservative resistance to early voting.


“Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967–2011″

Matthew Christiansen and Bill Eskridge have posted this draft on SSRN (forthcoming Texas Law Review).  Here is the abstract:

In 1991, one of us published a groundbreaking study demonstrating that Congress frequently overrides Supreme Court statutory interpretation decisions. The intervening two decades have shed light on the phenomenon of congressional overrides as numerous scholars have turned their attention to the override process. The 1991 study and subsequent scholarship have shown that overrides are a critical component of the Congress-Court dialogue in statutory interpretation cases. A recent article in the New York Times, however, announced that congressional overrides declined significantly after 1991, and all but dried up in the new millennium. That assertion cast serious doubt on Congress’s future role in the statutory interpretation dialogue with the Supreme Court. In this study, the authors show that, contrary to the reports in the New York Times and elsewhere, congressional overrides did not decline during the 1990s. Quite the opposite. That decade was a “golden age” of overrides in which Congress displaced many more Supreme Court statutory interpretation decisions than the decades prior. The authors further show that, although overrides have fallen off since 1999, they remain an important part of the legal landscape.

Altogether, the authors identify 276 Supreme Court statutory decisions overridden by Congress between 1967 and 2011 — some of which have been overridden multiple times. These overrides are focused overwhelmingly on federal procedure and jurisdiction, criminal law, civil and political rights, bankruptcy, tax, and intellectual property. The majority of overrides are motivated not by a desire to rebuke an errant Supreme Court decision, but instead by the perceived need to update public policy. Empirically, the authors demonstrate that a few key characteristics of a Supreme Court statutory decision — a closely divided Court, a loss for an administrative agency, a finding of plain meaning based upon the whole act or whole code canons, and an invitation or plea for Congress to Act — make the decision much more likely to be overridden than the average statutory decision.

As a normative matter, the authors argue that congressional overrides serve valuable public purposes, for they represent democratically legitimate policy updates and contribute to both good public policy and even the predictable operation of the rule of law. The authors suggest a variety of doctrinal implications courts and agencies ought to heed to capture these normative values. The last section of the Article proposes a series of institutional reforms that Congress, the President, and the Supreme Court ought to consider in the face of the last decade’s decline in overrides. In particular, they focus on how, under the Supreme Court’s deference regimes, the decline overrides is likely to shift policymaking authority to the executive branch.

I’m really looking forward to reading this because the NYT report referred to in the abstract is this piece by Adam Liptak discussing my research, End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review 205 (2013).


A Tale of Two Campaign Finance Appeals at SCOTUS: Why No Push to Allow Corporate Contributions to Candidates?

Pardon the inside-baseball post, but I think it reveals a little bit more about how the Court is going about dismantling what’s left of campaign finance limits.

After the Supreme Court decided McCutcheon v. FEC, striking down the aggregate limits on federal contributions, it disposed of two other cases it had been holding since McCutcheon. In one case, James v. FEC, also involving federal aggregate limits, the Court sent the appeal back to the district court to reconsider in light of McCutcheon. That’s sort of standard operating procedure when the Court holds a case and then decides another case on the same topic. (Indeed, Justin wrote a column for Justia a while back suggesting that James might have been a better case for the Court than McCutcheon when it came to striking aggregate limits.)

In contrast, the Court denied cert. in Iowa Right to Life v. Tooker, a case challenging a ban on direct corporate contributions to candidates and allowing them for unions.  The union twist is somewhat different, but I litigated the corporate ban against Jim Bopp in the Ninth Circuit and won. And all circuits to have considered the issue (including the 4th Circuit, reversing a contrary decision in the Danielczyk case) have rejected challenges to the corporate ban under the authority of an earlier Supreme Court case, FEC v. Beaumont.

Beaumont was on somewhat shaky ground after Citizens United, and on very shaky ground now (for reasons I explained at Slate) under McCutcheon.  I still think lower courts are bound to follow Beaumont. But one can easily imagine a lower court on remand in Tooker saying something like “While we are bound by Beaumont, we don’t see how Beaumont can coexist with McCutcheon and we urge the Supreme Court to clarify and take the case.”  But the Court denied cert., meaning the case is essentially over.

So why the different treatment of James and Tooker? There is both a procedural answer and a strategic answer.

The procedural answer is that James came up on an appeal and Tooker on a cert. petition. A cert. denial means nothing on the merits but a decision on appeal, even if it is a summary affirmance or dismissal, means the lower court got it right (although not necessarily for the right reasons).  I’ve written a lot about how mandatory appellate jurisdiction in some election cases has skewed those cases (it explains the demise of the poll tax, for example, as I explain in The Supreme Court and Election Law). Michael Solimine and Josh Douglas have written on these courts too, and Will Baude had a recent blog post on it. So procedurally the cert. denial in Tooker is no big deal and expresses nothing on the merits.

But strategically I think it is a big deal. A remand of Tooker to reconsider in light of McCutcheon almost certainly would have set up the case for eventual Supreme Court review—because the lower court likely would have seen itself bound by Beaumont but seriously questioning Beaumont‘s reasoning.

And CJ Roberts is playing the long game, not wanting to move quickly.  It is pretty clear he resents the mandatory appellate jurisdiction that brings so many McCain-Feingold and FECA campaign finance cases directly to the Supreme Court.  Note what the Chief writes in McCutcheon: “McCutcheon and the RNC appealed directly to thisCourt, as authorized by law. 28 U. S. C. §1253. In such a case, ‘we ha[ve] no discretion to refuse adjudication of the case on its merits,’ Hicks v. Miranda, 422 U. S. 332, 344 (1975), and accordingly we noted probable jurisdiction.568 U. S. ___ (2013).”  And consider this exchange between the Chief and Ted Olson in the first Citizens United oral argument:

MR. OLSON: I — I think I would agree with that, but I would also say that the — the idea, the functional equivalent of express advocacy is the very magic word problem that this Court has struggled with in McConnell and in — in each of the cases.
I would — I said at the beginning that this is an incomprehensible prohibition, and I — and my — I think that’s demonstrated by the fact that since 2003 this Court has issued something close to 500 pages of opinions interpreting and trying to apply the First Amendment to Federal election law. And I counted 22 separate opinions from the Justices of this Court attempting to — in just the last 6 years, attempting to figure out what this statute means, how it can be interpreted. In fact –
CHIEF JUSTICE ROBERTS: Well, that’s because it’s mandatory appellate jurisdiction. I mean, you don’t have a choice.

Roberts wants to go slow.  As I explained here, the contrast is with Justice Thomas, who hates Roberts’ faux judicial restraint and is ready to kill off all of campaign finance.

A decision striking the corporate ban next would further enmesh the Court in controversy.  I expect instead Roberts’ preferred order is (1) strike down federal soft money ban (for reasons explained in the Slate piece); (2) strike individual contribution limits: (3) strike corporate ban.

This is about strategy, not the end result.


“GOP creates new fundraising group after McCutcheon ruling”

Byron Tau reports:

In the wake of a major campaign finance ruling from the Supreme Court last week, the three major Republican Party committees have formed a new joint fundraising effort that will allow them to collect big checks from major donors.

According to documents filed with the Federal Election Commission, the newly formed Republican Victory Fund is a joint fundraising committee composed of the Republican National Committee, the National Republican Congressional Committee and the National Republican Senatorial Committee.

Guess we are starting to see if some of the “wild hypotheticals” mentioned at the McCutcheon oral argument will come true.

“In Chevron Case, FEC Brings Clarity to the Federal Contractor Ban and Super PACs”

Covington‘s Inside Political Law:

The rules on corporate contributions to Super PACs were made clearer today when the Federal Election Commission (FEC) released its finding that Chevron Corporation’s $2.5 million contribution in 2012 to the Congressional Leadership Fund (a Super PAC) had not violated the bar on government contractors making contributions in federal elections.

Public Citizen and several environmental groups had alleged that Chevron Corporation and Chevron U.S.A. Inc. had numerous federal contracts, and consequently could not contribute to a Super PAC.  On a bipartisan 5-1 vote, the FEC dismissed the charges, finding that Chevron Corporation—which made the contribution—was not a federal contractor at the time, and that federal contractor status could not be imputed to the company merely because it had a wholly-owned subsidiary that owned a subsidiary that in turn owned a subsidiary that owned a federal contractor.  In so doing, the FEC followed the agency’s longstanding practice of permitting a parent company with a federal contractor subsidiary to make a contribution as long as it has sufficient funds from sources other than the contractor subsidiary.  Nor is the federal contractor ban particularly stringent, permitting officers, shareholders, a corporate PAC, and subcontractors to contribute, even when the contractor cannot.

Having resolved the case by applying the facts to existing law, the FEC did not address an even more fundamental issue raised by Chevron:  Applying the federal contractor ban to contributions to a Super PAC is inconsistent with the Supreme Court’s limiting of campaign finance restrictions to the prevention of quid pro quo corruption or its appearance.  Last Wednesday’s decision in McCutcheon v. FEC highlights the doctrinal fragility of the federal contractor ban in cases like this.

Full disclosure:  Covington represented Chevron before the FEC in this matter.


Ex-Felon Voting Rights Bill

Press release:

U.S. Senator Ben Cardin (D-MD) has introduced a bill, S. 2235, the Democracy Restoration Act that would reduce recidivism rates by restoring voting rights to individuals after they have served their time and have been released from incarceration. Studies indicate that former prisoners who have voting rights restored are less likely to reoffend, and that disenfranchisement hinders their rehabilitation and reintegration into their community. Original cosponsors of S. 2235 include Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), and Senators Richard Durbin (D-Ill.), Sheldon Whitehouse (D-RI), Cory Booker (D-NJ), Tom Harkin (D-Iowa), and Bernie Sanders (I-Vt.). Companion legislation also was introduced today in the House of Representatives by Congressman John Conyers (D-Mich.), Ranking Member of the House Judiciary Committee.

Meanwhile, William & Mary Law School launches ‘Revive My Vote’ project.


The EPI and Election Reform: The Early Returns Are Promising

I want to offer a brief response to Rick Hasen’s post about the release of Pew’s 2012 Election Performance Index.  Now that we can assess state performance across two comparable elections, he asks an excellent question:  Will we see states trying to improve their performance?  I suggested as much in my book, The Democracy Index:  Why Our System is Failing and How to Fix It, where I proposed creating a ranking like the EPI.

It’s only been a few days, of course, but the early returns are heartening.  States are obviously paying attention; there are lots of stories about states touting their rise in the rankings or grumbling about their scores, with more discussions happening behind the scenes.

More importantly, election officials are already using the EPI to push for reform.  Secretary of State Jon Husted, for instance, noted that one of the reasons that Ohio didn’t rank higher on the EPI was its failure to keep up with other states in creating an online registration system and urged his legislature to take up the bill.   Iowa is paying special attention to military and overseas balloting, which pushed its rankings down.  Florida was working with Pew in advance of the EPI’s release and promises that it has already enacted transparency and access reforms that will improve its rankings next time.  Indiana’s Secretary of State tells us that, as we speak, the state is working on a post-election auditing process in order to up its ranking.  The state also issued “a call to action” suggesting further improvements.  Georgia insists that it’s going to do a better job on data collection in the future in order to increase its score.

We see the same thing happening at the top of the rankings, also as I predicted.  For example, the Secretary of State of Montana – which now ranks near the top – is not resting on her laurels.  She called for additional reform so that Montana could maintain its position.  So, too, the Secretary of State of top-ranked Michigan, which fell just shy of the top five, has called for online voter registration and changes to absentee voting in order to move the state higher up the list.  Twelfth-ranked Washington is on the hunt for ways to improve its already strong ranking.  And in North Dakota, which ranked first in the nation, policymakers who oppose voting rules recently enacted in North Dakota are using the EPI as a cudgel to beat the other side, arguing that those changes put the state at risk of losing its treasured number one spot.

I don’t want to overclaim.  It’s going to be hard to prove exactly how much of a push the EPI gives reform going forward, as Rick noted in his generous review of my book a few years ago.  Nonetheless, if anything the pressure on states to improve seems likely to increase over time.  The EPI has only been on the scene for two years, and this is the first time we’ve been able to make an “apples to apples” comparison (comparing a presidential election to a presidential election).  If the EPI continues to develop into the touchstone for measuring election performance, it should matter more in these debates.  Moreover, the pressure will mount for low-performing states.  States improved an average of 4.4 percentage points between 2008 and 2012.  As the always observant Doug Chapin noted, “even states showing modest improvement run the risk of being left behind.”  A spokesperson for Washington State has plainly gotten the message:  “[M]uch of what we’ve done is outstanding” but “others are catching up . . . We’re still a high performing state [but] other states are making rapid improvements.  Essentially, all boats are rising . . .”

Even if the EPI doesn’t prod a single state to do a single thing, it will still matter a great deal to election reform.  That’s because it provides an essential tool for data-driven policymaking:  a baseline.  Just as we cannot get a good read on economic policy without measures like the GDP, so, too, we cannot get a good read on elections policy without a reliable measure of how well our election system is working across time.  Already, for instance, we’ve begun to learn things we didn’t know before.  States with high obesity rates, for instance, seem to have trouble getting their voters to the polls.  So, too, we’re shaking loose some of our assumptions about which systems are working and which aren’t.  For instance, a number of states with long lines in 2012 ranked pretty high on the EPI, suggesting that the long lines were not a sign of a failing system.  Ohio and Florida, the perennial objects of late-night comedy during elections season, were somewhere in the middle of the pack.  Moreover, we see rich states and poor states performing well and badly on the list, something that at least raises questions about the real drivers of election performance.

All of the credit for this goes to Pew, which developed a rigorous and assiduously nonpartisan process for building the EPI.  Pew’s careful procedure and remarkable end product put the lie to the naysayer’s claim that any index would be dismissed out of hand as partisan.  As to the rest, we’ll see.


Republican FEC Commissioners Write NYT Letter to Editor Responding to Commr. Ravel’s NYT Oped

It pulls no punches, beginning: “Our Federal Election Commission colleague Ann M. Ravel would rather grandstand than follow the law and judicial precedent.”

Flashback to Dec 4: “Ravel said she found the level of partisan division at the FEC ‘very surprising’ after arriving in late October from her previous post as head of California’s campaign finance and ethics agency, the Fair Political Practices Commission (FPPC).”


Republican FEC Commissioners Issue Statement About Enforcement

Statement re Defending the Commission in Public Citizen v. FEC begins:

For nearly forty years, votes to defend the Commission in cases challenging dismissals of administrative complaints have been routine, pro forma acts. Even when the Commission has split on whether to proceed in an enforcement matter, the decision to defend has been uncontroversial. In recent days, however, our colleague Commissioner Ann Ravel has announced her desire to upend this consensus. Not only does this effort derail longstanding Commission practice, but more troublingly, it contravenes well-established legal precedents and evinces a flippant disregard for judicial review.

A copy of the email from Commissioner Hunter’s office with the press release has the following cover note:

Good afternoon, hope you are well.  Attached please find a statement from Lee Goodman, Matt Petersen and me regarding the FEC’s vote to authorize defense of suit in Public Citizen v. FEC.

Please remember any response to this email is subject to a FOIA request.  As we have learned, CREW views positive emails to Republican Commissioners as evidence of collusion.


“In India, show the finger after voting, get cheaper gas and food”

Love this:

Showing the finger can get you a punch in the face in many parts of the world. In India, during this general election at least, it can earn discounts at gas stations, restaurants, spas, stores and hospitals after voting.

India’s polling stations mark each voter’s left forefinger with an indelible dot of a silver nitrate solution after casting the ballot to guard against voter fraud.

Could we do this in the US? Not in elections with federal candidates on the ballots and not in some states even in state and local elections.


“How to start a Super PAC because you can”

WaPo on 17 year old PACmeister.

The three boys aimed to make their application as “ridiculous as possible,” Grant said. He picked “Corporate Antelope” as his official title or position. His friends Brady Harper and Hudson Roberts are “Arch-Mage” and “Not Pope,” respectively. They left blank the section asking for the bank accounts where they would deposit funds, because, well, the teens don’t have bank accounts. They created a Web site using the free service “Weebly.” (It’s currently blank other than a background of the Manhattan skyline and the PAC’s name.)

Within several days, Grant received the notice from the FEC that his application had been received. And just like that, “Because We Can” was given an official committee ID number.


“Campaign Finance and the Nihilist Politics of Resignation”


his is the politics of resignation. We accept the status quo not because we want it, and certainly not because we don’t care about “process.” To the contrary: We are resigned precisely because we view the very process by which we would effect change as corrupt. We thus steer away from the politics of reform, and focus our (dwindling level of) political attention on other issues instead.

This is reform’s greatest challenge. The ordinary way we do politics in America—Democrats yelling at Republicans, Republicans yelling at Democrats—won’t move this issue, because neither side will seem credible as reformers, at least as against the other. That is Cillizza’s sensible, and unfortunately true, point.

But what if we could crack this cynicism, and melt the resignation? What if there were a way to give Americans hope—not that ordinary politicians could be different, but that a different kind of political power could matter? Not one from the inside, but one born on the outside. Not a power seeking political office, but a power seeking to change the way politics works. Americans might not rally to yet another politician promising change. That’s Cillizza’s insight. But could they be rallied to a cause that would change the way politicians promise?

Such a movement is this generation’s moonshot. Yet the reformers I know—as decent and committed as anyone could imagine—think small. They call their thinking “realistic.”


Breaking: Republicans Offering Potential Nominees for EAC

Bloomberg BNA has a breaking news report saying that the names were put in by Senate Leader McConnell. It quotes a spokesperson for Sen. Roberts, ranking Republican on Rules, that “The ball is with the White House.”

Lots of questions here.

1. Are these viable Republican nominees?  If not, what will the President do?

2. Why would Republicans do this? Perhaps the calculation is that it is better to have two Republicans to deadlock with the two new Democratic nominees on the commission than to have the two Democrats speak for the Commission—even though two commissioners does not a quorum make. [corrected]

3. Is there any chance there could be common ground at a new EAC?  Or will Republicans come in Don McGahn style, acting as flame throwers at an agency they despise?


“The Doctrine of One Last Chance”

Richard Re has posted this must-read short essay on SSRN (Green Bag).

Here is the abstract:

Constitutional avoidance is an old idea, but the Roberts Court has given it a new twist. Instead of avoiding constitutional questions whenever possible, recent Supreme Court majorities have tended to engage in avoidance just once before issuing disruptive decisions. For example, the Roberts Court initially ducked constitutional challenges to central pillars of the Bipartisan Campaign Reform Act and the Voting Rights Act. But when those measures came before the Court for a second time, they were both struck down as unconstitutional, despite their importance and bipartisan support. A similar pattern of limited deferral may be visible in other recent cases, as the Roberts Court has taken a pass on its first opportunities to strike at the Affordable Care Act, affirmative action in higher education, and same-sex marriage laws.

This emerging use of constitutional avoidance might be called “the doctrine of one last chance.” Under this doctrine, the Court must signal its readiness to impose major disruptions before actually doing so. Put more colorfully, the doctrine of one last chance is avoidance on steroids, but with an expiration date. The result is a practical rule of judicial decision-making — an attempt not just to extol the dueling virtues of judicial action and restraint, but to balance them. And the balance is attractive. Here as elsewhere, there is good reason to afford notice and postpone decision before causing massive and potentially unexpected disruptions. Still, the doctrine should give us pause: by facilitating major legal change, the doctrine of one last chance converts a cornerstone principle of judicial restraint into a playbook for judicial action.


Bauer Responds on My Appearance of Corruption Piece

Bob writes here about my recent Reuters Opinion piece. He may be surprised to learn I agree with much of his critique.  As I’ll have to flesh out at another time, I was defending the appearance issue less on the merits and more as a kind of intellectual crutch that the Court has used given evidentiary proof problems. I’ve been quite skeptical of appearance arguments as a whole across the Court’s election law jurisprudence.



Harvard Law and Policy Review Publishes Symposium Issue: Elections In America

Volume 8-1 of the HLPR.

Symposium: Elections in America


“G.O.P. Seeks Investigation Of Ex-Official From I.R.S.”


House Republicans on Wednesday formally asked Attorney General Eric H. Holder Jr. to begin a criminal investigation of Lois Lerner, the former Internal Revenue Service official caught up in the scandal over political targeting of Tea Party groups.

The Ways and Means Committee’s 23-to-14 vote along party lines was the latest move by Republicans to refocus attention on the I.R.S. controversy, and it was the first of two actions the House is expected to take this week to demand that federal prosecutors look more deeply into Ms. Lerner’s conduct.


“U.S. Attorney Criticizes Cuomo’s Closing of Panel”


Less than two weeks after Gov. Andrew M. Cuomo abruptly shut down a commission he had formed to investigate political corruption in New York State, the United States attorney in Manhattan is sharply questioning the governor’s decision and is taking possession of all of the panel’s case files, according to letters sent to the commission’s members on April 3 and again on Wednesday afternoon.

The move by the United States attorney, Preet Bharara, amounted to an unusual rebuke of Mr. Cuomo, a former prosecutor himself, who swept into office four years ago promising to clean up what many have called a culture of corruption in Albany.