“Bipartisan Overhaul of Dysfunctional FEC Introduced by Representatives Kilmer and Renacci “

Release:

Today, Rep. Derek Kilmer (D-WA) and Rep. Jim Renacci (R-OH) introduced a bipartisan bill to overhaul the Federal Election Commission (FEC) and break the gridlock that has left the federal campaign finance watchdog incapable of performing many of its most important duties.  The Restoring Integrity to America’s Elections Act would reform an agency where enforcement actions and rulemakings have ground to a halt in recent years despite a spike in apparent violations and a pressing need to promulgate new rules in responses to Supreme Court decisions striking down a number of longstanding campaign finance laws.  Representatives Lou Barletta (R-PA) and John Carney (D-DE) are also original cosponsors of the bill.

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Justice Alito Sends Conflicting Signals on Amicus Briefs in Federalism Cases

I found this statement in Justice Alito’s dissent in the Fair Housing case to be curious:

The Court also stresses that “many of our Nation’s largest cities—entities that are potential defendants in disparate-impact suits—have submitted an amicus brief in this case supporting disparate-impact liability under the FHA.” Ante, at 23–24.

This nod to federalism is puzzling. Only a minority of the States and only a small fraction of the Nation’s municipalities have urged us to hold that the FHA allows disparate-impact suits. And even if a majority supported the Court’s position, that would not be a relevant consideration for a court. In any event, nothing prevents States and local government from enacting their own fair housing laws, including laws creating disparate-impact liability. See 42 U. S. C. §3615 (recognizing local authority).

Although Justice Alito says these shouldn’t count, he’s also saying that if you do this, you want to get a lot of states and municipalities on board.

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“New Rick Perry Super PAC Ad May Amount to an Illegally Large Campaign Donation”

Shane Goldmacher National Journal:

A new ad from the super PAC supporting Rick Perry may amount to an illegally sized campaign contribution because it prominently features official signs and paraphernalia from the Perry campaign.

The 30-second spot, which began airing in Iowa earlier this week, was paid for by the Opportunity and Freedom PAC, which is led by former Perry chiefs of staff Ray Sullivan and Mike Toomey.

The ad features footage from Perry’s announcement speech, including a podium decorated with an official Perry campaign logo, a plane emblazoned with the campaign’s insignia, and images of the crowd waving official Perry presidential signs.

Federal election law states that broadcasting materials produced by a campaign amounts to a campaign contribution. If the ad, which is airing as part of a $145,350 buy that the super PAC recently reported, is ruled to be such a contribution by election authorities, then it would be above the legal limits of what Perry can receive.

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Chief Justice Roberts is Still Very Conservative

Josh Gerstein rounds up angry conservative reactions to the Obamacare ruling. And of course they are angry.

But let’s put this into context: on racial issues, on campaign finance, on states’ rights, abortion, Roberts is still very, very conservative.

He is more conservative than Justice Kennedy on many of these issues.

That he is not as conservative as Scalia, Thomas or Alito does not mean he’s a liberal. It’s all relative.

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“W.H., Watchdogs rail against ‘dark money’ provision tucked into House bill”

WaPo:

The House Appropriations Committee approved a spending bill last week that included little-noticed provisions to hobble executive branch efforts to mandate campaign finance disclosure by federal contractors and other corporations.

The bill would also prohibit the IRS from moving ahead with a rule defining political activity for nonprofits.

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King v. Burwell: The Return of “Purpose” in Statutory Interpretation

The Supreme Court’s decision in King v. Burwell is interesting not only in its result but in its application of statutory interpretation.

Before the case, so much ink was spilled (and more virtual ink virtually spilled) on the question of deference to the IRS’s interpretation of ambiguity under the statute (under the so-called “Chevron” doctrine) as well as principles of federalism, which were used to argue for results for and against the Administration in the case. There were also questions about the standing of various plaintiffs. There were arguments about the intent of the drafters, and what MIT economist Gruber said, or may have said, or may have misspoken about the way the law was supposed to work. In the end, the Court rejected application of Chevron deference to the IRS and federalism made no appearance. Nor did standing or Gruber get discussed.  Instead the Court’s analysis went basically like this:

The question whether tax subsidies applied to poor people in states that did not set up their own health care exchange is important, so important that it is hard to believe that Congress would have delegated that question to an agency (and particularly to the IRS, whose job it is to collect revenue not design health care policy). So there is no “Chevron” deference on the question. The court has to use its tools of statutory interpretation to decide the case. The law, read as a whole, is ambiguous. It is certainly possible to read the challenged language as giving subsidies only to people in state exchanges and not in the federal exchange. But there are other parts of the law, read in context, that only make sense if subsidies apply to those in state or federal exchanges. In such an ambiguous case, it is the purpose of the law that should govern. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

This means of interpretation is important for a number of reasons. First, it means that a new administration with a new IRS Commissioner cannot reinterpret the law to take away subsidies. Second, it puts more power into the hands of Congress over administrative agencies (and therefore the executive), at least on issues at the core of congressional legislation. Third, and most important as a general principle, it rehabilitates a focus on the law’s purpose as a touchstone to interpretation, over a rigid and formalistic textualism that ignores real-world consequences. If followed through consistently, this principle would greatly improve our statutory interpretation. As I wrote on this point in Slate in July, discussing the various lower court opinions on the Obamacare question:

Unless you are a lawyer or a glutton for punishment, you probably want to avoid reading the new D.C. Circuit and 4th Circuit opinions reaching conflicting results on the legality of key provisions of the Affordable Care Act—the parts that provide subsidies for Americans who sign up for health insurance through the exchanges the law created. The opinions are full of jargon parsing the intricacies of the mammoth health care law. But well within the weeds of these lawyerly discussions is a more fundamental question: Is it the courts’ job to make laws work for the people, or to treat laws as arid linguistic puzzles?

In today’s King v. Burwell, the Court said that in close cases, make the law work the way Congress obviously intended it. That’s a very good thing.

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#SCOTUS Fair Housing Decision May Have Effect on Voting Rights Act

This morning on a 5-4 vote the Supreme Court upheld the use of a disparate impact test in a fair housing case. Justice Kennedy wrote the opinion, joined by the Court’s four liberals and over four dissenting Justices.

A parallel issue arises under the effects test of Section 2 of the Voting Rights Act.  What does one have to show in the vote denial cases, such as when voter id laws have a disparate impact on racial minorities? Statistical disparities are not enough in the housing context, but looking at them is ok provided there is proof of causality:

But disparate-impact liability has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability were imposed based solely on a showing of a statistical disparity. Disparate-impact liability mandates the “removal of artificial, arbitrary, and unnecessary barriers,” not the displacement of valid governmental policies. Griggs, supra, at 431. The FHA is not an instrument to force housing authorities to reorder theirpriorities. Rather, the FHA aims to ensure that those priorities can be achieved without arbitrarily creatingdiscriminatory effects or perpetuating segregation.

Unlike the heartland of disparate-impact suits targetingartificial barriers to housing, the underlying dispute in this case involves a novel theory of liability. See Seicsh-naydre, Is Disparate Impact Having Any Impact? An Appellate Analysis of Forty Years of Disparate ImpactClaims Under the Fair Housing Act, 63 Am. U. L. Rev.357, 360–363 (2013) (noting the rarity of this type of claim). This case, on remand, may be seen simply as anattempt to second-guess which of two reasonable approaches a housing authority should follow in the soundexercise of its discretion in allocating tax credits for low-income housing.

An important and appropriate means of ensuring that disparate-impact liability is properly limited is to givehousing authorities and private developers leeway to state and explain the valid interest served by their policies.This step of the analysis is analogous to the business necessity standard under Title VII and provides a defense against disparate-impact liability. See 78 Fed. Reg. 11470 (explaining that HUD did not use the phrase “business necessity” because that “phrase may not be easily understood to cover the full scope of practices covered by the Fair Housing Act, which applies to individuals, busi-nesses, nonprofit organizations, and public entities”). As the Court explained in Ricci, an entity “could be liable for disparate-impact discrimination only if the [challenged practices] were not job related and consistent with business necessity.” 557 U. S., at 587. Just as an employer may maintain a workplace requirement that causes adisparate impact if that requirement is a “reasonable measure[ment] of job performance,” Griggs, supra, at 436, so too must housing authorities and private developers be allowed to maintain a policy if they can prove it is necessary to achieve a valid interest. To be sure, the Title VII framework may not transfer exactly to the fair-housing context, but the comparison suffices for present purposes…

In a similar vein, a disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity. A robust causality requirement ensures that “[r]acialimbalance . . . does not, without more, establish a primafacie case of disparate impact” and thus protects defendants from being held liable for racial disparities they did not create. Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 653 (1989), superseded by statute on other grounds,42 U. S. C. §2000e–2(k). Without adequate safeguards atthe prima facie stage, disparate-impact liability mightcause race to be used and considered in a pervasive way and “would almost inexorably lead” governmental orprivate entities to use “numerical quotas,” and seriousconstitutional questions then could arise. 490 U. S., at 653.

I expect lower courts will look at this language in the Section 2 vote denial cases.

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#SCOTUS is Not Transparent Enough

The latest from AP’s Mark Sherman:

Supreme Court justices’ annual reports on investments, paid travel and other financial matters remain shielded from public view more than five weeks after they were filed.

For the first time since John Roberts became chief justice in 2005, the justices probably will leave town for their summer break before the reports are released.

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“Supreme Court Watchers Are Tired of This Redistricting Case”

National Journal:

June has brought a new, unwelcome routine for Mary Jo Pitzl, a political reporter for the Arizona Republic. Her beat includes congressional redistricting, the subject of a major Supreme Court decision three time zones away that has been eagerly anticipated for weeks—but hasn’t yet come.

“I’m a night owl. This is bad,” Pitzl says. “I set my alarm for 6:45, stumble out of bed, get to my computer and open all the relevant windows.”

Pitzl and a small community of Western political professionals, elected officials, and journalists have been rising with the sun every Monday this month (and a few other days, too), waiting to see whether the Court junks congressional maps in Arizona, California, and possibly other states. A case from Arizona could invalidate the independent commissions that drew the maps in several states where voters used ballot measures to take gerrymandering power away from state legislators. Depending on how the Court rules, those legislators and their aides could start redrawing congressional maps any day.

But because the Court never announces which opinions it will release on a given day, interested parties have spent early mornings waiting for a decision on five days so far this month. After weeks primed in the starting blocks without an answer, they’re starting to get antsy….

Technology has made the wait for Supreme Court opinions both faster and more torturous, in a way. Rick Hasen, an election law professor at the University of California, Irvine who writes atElectionLawBlog.org, recalled that he had to wait half an hour after the landmark Bush v. Goredecision was announced in 2000 to read the opinion. It was first available online on TheWashington Post‘s website. Now, quick reports are immediately available on SCOTUSblog and Twitter, and opinions are posted to the Supreme Court’s website minutes after they are announced.

“It’s fun to gripe about it, but there are a lot more things to complain about how SCOTUS conducts itself,” Hasen said. (The morning of June 15, Hasen tweeted: “As an election law person about to get on a plane, I am THRILLED #SCOTUS did not decide AZ redistricting case today.”) It would help if the Court simply said which opinions would come out each day, Hasen continued.

 

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Sensenbrenner Declines to Endorse Democrats’ Alternative VRAA

Ari Berman:

In a statement to The Nation, Rep. James Sensenbrenner (R-WI), the lead GOP sponsor of the 2006 VRA reauthorization and the 2014 VRAA bill, reiterated his support for the VRA but declined to endorse the new bill. “Restoring the VRA is critically important,” Sensenbrenner said. “Every American needs to know that we understand their right to vote is sacred. However, I stand by the legislation I introduced last Congress. Passing any bill on voting rights will be a Herculean task and there is no chance of succeeding if we abandon our bipartisan approach.”

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The Real Reason #SCOTUS Justices Don’t Want Live Broadcast of Opinion Announcements

Tony Mauro:

Release of opinion announcements is an especially prickly issue with the justices. The announcements are summaries written by the justice who wrote the majority, and the other justices in the majority don’t sign off on the wording.

Current and former justices have said they are sometimes surprised to hear the announcement, which may overstate or oversimplify the holding in ways they don’t approve. As a result, some justices don’t want the opinion announcements to be featured in the news media as an accurate representation of court decisions.

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More Thoughts on The UpShot’s Piece on Leftward Roberts Court Term

Yesterday I wrote What is the Significance of the Roberts Court’s Relatively Liberal Term?, responding to NYT The UpShot’s The Roberts Court’s Surprising Move Leftward.

Over at Balkinization, Joey Fishkin and Cary Franklin are much more critical, and David Strauss offers a valuable response.

As I told the Times, the same sex marriage and Obamacare cases loom so large this term, that public thinking about how “liberal” the Court’s term is will be strongly colored by how those decisions come out.

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“Short Film About Victim of Texas Voter ID Law Shows Why We Need to Pass The Voting Rights Advancement Act Being Introduced Today”

Release:

Today, as Sen. Patrick Leahy (D-VT) and Rep. John Lewis (D-GA) introduce the Voting Rights Advancement Act (VRAA) on the eve of the second anniversary of Shelby County v. Holder, the Campaign Legal Center is releasing a short film focusing on a lifelong voter disenfranchised by Texas’ voter photo ID law (SB 14).  The most restrictive and burdensome voter ID law in the nation, the Texas law was rejected by the Department of Justice prior to the Shelby County ruling and is a perfect example of why Congress needs to pass new legislation to protect the rights of all citizens to vote.

The new three and a half minute film produced by Firelight Media traces the efforts of the Campaign Legal Center’s Voter ID Project to assist Tony, a longtime registered Texas voter, to overcome the many hurdles erected by the new law in order to obtain the photo ID required by SB 14 in order to vote.

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Justice Alito’s Odd Failure to Act for Months in Birth Control Case

Lyle Denniston:

The federal government’s top Supreme Court advocate moved again on Tuesday to make sure that the Justices are keeping up with the government’s success in heading off a round of new challenges to the birth-control mandate in the Affordable Care Act.  In the second letter of its kind, Solicitor General Donald B. Verrilli, Jr., sent along a copy of a new decision — with the same outcome — this time, by the U.S. Court of Appeals for the Fifth Circuit.

Instead of seeking to alert the full Court as he had done on May 21, Verrilli asked that this notification go to Justice Samuel A. Alito, Jr.  It has been more than two months since Alito, on April 15, blocked a decision by the U.S. Court of Appeals for the Third Circuit with what had appeared at the time to be only a temporary order.  However, the order remains in effect, unchanged.

The April 15 order said that the Third Circuit’s ruling would be put on hold until the federal government had filed a response to the non-profits’ plea for delay.  The government response was due five days later.  The order also went on to say that the delay would last pending “further order” by him or the full Court.  That kind of language ordinarily signals that another order would be coming after both sides had offered their views, although there is no guarantee of such an additional order.

Because Alito apparently has not passed the issue along to his colleagues, and has taken no action himself, it may be that the order will be left in effect until the Court decides whether or not to grant review of one of the developing cases on the issue.  In the Court’s previous decision on the birth-control controversy, a year ago in the case of Burwell v. Hobby Lobby Stores, it dealt only with the challenge to the mandate by for-profit businesses owned by devoutly religious families. sparing them from having to provide the coverage required by the ACA…

 

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“Judge Strikes Down California’s Ballot Initiative To Kill Gays”

BuzzFeed reports.

I haven’t seen any written opinion yet.

I am somewhat surprised given that courts in CA generally do not police initiatives for substantive unconstitutionality unless they pass. More when I can see an opinion.

UPDATE:

This may be the entire order, and it includes information that the ballot proponent did not show up in court to defend it.

HERE‘s an earlier piece on whether courts can stop substantively unconstitutional laws from circulating or appearing on the ballot.

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Democrats Have Stronger Proposal to Amend Voting Rights Act, But Huge Obstacles to Enacting It

Ari Berman has the scoop on a new “Voting Rights Advancement Act” (not to be confused with the earlier “Voting Rights Amendment Act”) to fix what many see are problems with the Supreme Court’s gutting of the precelarance provisions two years ago in the Shelby County case. “The legislation will be formally introduced tomorrow by Senator Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, and leaders of the Black Caucus, Hispanic Caucus and Asian Pacific American Caucus in the House. Civil rights icon Representative John Lewis will be a co-sponsor.”

One key provision would recreate preclearance with a new coverage formula:

The Voting Rights Advancement Act restores Section 5 of the VRA by requiring states with fifteen voting violations over the past twenty-five years, or ten violations if one was statewide, to submit future election changes for federal approval. This new formula would initially cover thirteen states: Alabama, Arkansas, Arizona, California, Florida, Georgia, Louisiana, Mississippi, New York, North Carolina, South Carolina, Texas and Virginia. (The VRAA of 2014 covered only Georgia, Louisiana, Mississippi and Texas.) Coverage would last for a ten-year period.

Berman reports the bill will have other significant provisions, including nationwide precelarance for certain changes, such as enactment of voter id laws or proof of citizenship at registration.

A few reactions.

1. It is hard to blame Democrats for introducing a bill that more closely tracks their preferences. The original VRAA was written for bipartisan compromise.  (Tellingly, one feature excluded voter id objections from the list of objections which could count under a new coverage formula).  Democrats have been patient, but Republicans are not moving at all on the compromise legislation. So Democrats had little to lose putting up a marker.

2. If this bill ever became law, there would be some serious constitutional questions about it if it came before the current Supreme Court.  Heather Gerken is quoted in the article as saying the timeline is better in terms of constitutionality, and I agree. But the fact is that many of the older objections were based on conduct that was not itself unconstitutional. And so it is not clear that those earlier objections could be used to rein in states now with the strong medicine of preclearance.  Further, as to the national preclearance standards, there would not be an “equal sovereignty” objection (with some states being treated differently than others) but there would remain the federalism question about state v. federal control over elections.  Constitutionality, in short, is uncertain.

3. In terms of dealing with the biggest problems today, they crop up everywhere, from Kansas, to Arizona, to Ohio to Pa.  The idea of nationwide preclearance of discrete election practices may have more impact than those states to be targetted for blanket preclearance.

4. At the very least, with the 50th anniversary of the VRA approaching, it is good to see Democrats doing something to keep this issue in the news.

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Inside the Ben Carson Super PAC

Washington ExaminerWashington Examiner:

While the super PACs say they do not work together, they may combine into one larger super PAC soon. Former Carson campaign chairman Terry Giles resigned from the campaign to reportedlyform a third super PAC that would seek to combine both The 2016 Committee and One Voice into one operation. Under federal election law, Giles must wait 120 days before getting involved in the world of super PACs.

“I imagine at 120 days and one second my phone’s going to ring and it’s going to be Terry saying let’s get together and talk about this,” Sousa said. “I’m not going to get rid of my organization, but I’m certainly happy to work with other organizations to make sure that we’re not duplicating efforts and throwing money away, and it’s all well coordinated — or as well-coordinated as the law allows it to be.”

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What’s the Significance of the Roberts Court’s Relatively Liberal Term?

NYT’s The UpShot crunches the numbers and find that this term liberal outcomes have prevailed more than in a number of years:

The Supreme Court under Chief Justice John G. Roberts Jr. has been a conservative court. But even conservative courts have liberal terms – and the current term is leaning left as it enters its final two weeks.

The court has issued liberal decisions in 54 percent of the cases in which it had announced decisions as of June 22, according to the Supreme Court Database, using a widely accepted standard developed by political scientists. If that trend holds, the final percentage could rival the highest since the era of the notably liberal court of the 1950s and 1960s led by Chief Justice Earl Warren. The closest contenders are the previous term and the one that started in 2004 and ended with the announcement of Justice Sandra Day O’Connor’s retirement.

I think the trend this term is real; indeed I tweeted about it last week. Indeed, if same sex marriage prevails and Obamacare survives unscathed, it would really solidify the term as a liberal one. (Though as I told the Times, if these cases came out the other way no one would think of the term as liberal at all).

Nonetheless, this doesn’t mean we have a liberal Court or that liberal trend will continue.  But here are some thoughts on the phenomenon and significance:

1. Case selection. As Cass Sunstein noted, “Discussion of supposed leftward shift of Sup Ct does not control for selection effects – case mix is not constant.”  It is not just that the Court gets to deny cert in cases, and avoid certain issues such as abortion cases or affirmative action, much of it is the luck of the draw in terms of what cases make it up to the Court.  And litigants self-select.  For a long time liberals have wanted to stay out of the Court in many classes of cases (e.g., voting rights or campaign finance cases) because they know where five votes are.

2. Counting just opinions. Thinking of the Supreme Court allowing Texas to use its draconian voter id law during the 2014 election seems like a pretty “conservative decision.” But because it happened on an emergency stay, it did not lead to a formal opinion that counts in The UpShot’s numbers.  Nor will decisions on abortion clinics.  Some of what the Court does is not reflected in opinions.

3. All cases not created equal, and all Justices are not equal. A few years ago the Court gutted the Voting Rights Act on one day and then the next day took a great step toward recognizing same sex marriage. Those cases loomed over the entire term.  And of course there was only one Justice in the majority in both cases: Kennedy. They reflected Kennedy’s views, which are conservative/libertarian but with streaks of liberalism in isolated areas.

So yes it is true that the term is trending liberal. And that’s a good thing if you are a liberal. But don’t expect the Court to stay this way, not even into next term (or next week).

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“Setting Congress Up to Fail”

Margaret Kwonka has posted this draft on SSRN (forthcoming 17 Berkeley J. Afr.-Am. L. & Pol’y 97 (2015)).  Here is the abstract:

In Shelby County v. Holder the Supreme Court invalidated key provisions of the Voting Rights Act of 1965 based on Congress’s failure to justify the formula used to determine which jurisdictions would be subject to the Act’s pre-clearance requirement of submitting all changes to voting procedures to the Justice Department for prior approval. This short essay explores one problematic feature of the Court’s analysis: its refusal to consider the legislative record as adequate because it was created to justify the coverage formula after the fact, rather than to facilitate deliberation on the coverage formula before a decision had been made. This reasoning essentially imports from administrative law a rule called the Chenery principle, and as this essay explains, it does so without justification. The differences between administrative and legislative decision making processes compel different treatment by the courts, and treating legislative records like administrative ones, in essence, asks of Congress something it is institutionally ill-equipped to perform. It sets Congress up to fail.

 

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“Daniel Weiser, activist and political numbers guru, dies at 81″

Dallas Morning News:

Daniel Weiser is arguably the most powerful Dallas political figure who never sought elected office.

A statistician, he was a leader in ending the poll tax and bringing single-member districts to city and county and state elections. In 1973, he took his Texas redistricting argument to the U.S. Supreme Court and won.

He helped clear a path to public office for minorities, women and gays.

During his 55 years in politics he became a respected and sought-after authority on voter demographics.

Weiser, 81, died Saturday of heart disease at Medical City Dallas Hospital.

Condolences to his family.

 

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“CFI Announces Updated Historical Campaign Finance Statistics through 2014″

Via email:

 

Now available on CFI’s website are updated versions of tables covering historical statistics on campaign finance through 2014. These cover activity for full federal election cycles, in some cases dating back to 1974. Newly added this year are duplicate versions in nominal dollars and constant 2014 dollars. A sampling of the topics covered includes:

  • Spending levels in House and Senate elections, including how much it takes to win;
  • House and Senate spending by elections by competitiveness and type of race (incumbent/challenger, open seat);
  • Sources of funding for House and Senate races, including small v. large donors;
  • Independent and coordinated spending by political parties;
  • Independent spending by non-party organizations;
  • National Party Committee fundraising and sources of party funds;
  • Presidential election campaigns;

For the full list of data tables click here.

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New Lawsuit Challenging Presidential Debate Format

BAN:

On June 22, Level the Playing Field, Peter Ackerman, the Libertarian Party, and the Green Party, sued the Federal Election Commission in U.S. District Court in Washington, D.C. The case asks that the FEC be required to consider the rule-making petition that Level the Playing Field filed nine months ago over presidential general election debates. The case was assigned to Judge Tanya S. Chutkan, an Obama appointee. It is styled Level the Playing Field v FEC, 15cv-961.

UPDATE: here is the Associated Press story. FURTHER UPDATE: here is a New York Times mention of the lawsuit. The New York Times snidely added that over 300 people have said they are running for President. It is unfortunate that the New York Times reporter didn’t say that in the entire history of the United States, there has never been a presidential general election with more than 7 candidates who had enough presidential elector candidates to theoretically be elected by the Electoral College.

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SCOTUS Timing on TX Abortion Case: Will Justice Ginsburg Be Up Till 5 am Again?

Lyle Denniston reported Friday on this emergency stay petition filed by abortion rights plaintiffs in the litigation over Texas’s controversial abortion restrictions. The petition was filed Friday, and if the Court does not act, the challenged provisions of the law will go into effect July 1.

So far, Justice Scalia (the Circuit Justice assigned to handle emergencies from the 5th Circuit) has not asked for a response. Eventually that should be coming, but it seems that that the order for a response should come the sooner the better, with the rush to finish some of the the most controversial and important cases of the Supreme Court’s term over the next week. Then the Justices take off across the globe.

The situation reminded me of the emergency relief requested just before the 2014 elections surrounding Texas’s voter id law. It led to a dissent being issued by Justice Ginsburg at 5 am on a Saturday before the Monday when early voting would start in Texas. NPR’s Nina Totenberg asked Justice Ginsburg about the timing, and here was Justice Ginsburg’s explanation that it was because of a delay from Justice Scalia’s chambers.

Nina Totenberg: Justice Ginsburg, you were up until … Friday night/Saturday morning, writing a passionate dissent in the Texas voter id case. Just to let people in the audience know, this was a procedural question in some measure. And you can note a dissent in those kinds of cases and not write and it is fairly common for that to happen. But you wrote; you were joined by Justices Kagan and Sotomayor. So why did you write and why did it take until 5 in the morning?

Justice Ginsburg: Why till 5 in the morning? We didn’t get the last filing from Texas until Friday morning and then the Circuit Justice [Justice Scalia in this case—Ed.] as you know has to write a memo. And that came around some time in the middle of the afternoon. So there wasn’t much time to write the dissent. I had written a dissent in the North Carolina voting case, voting rights case. This one was… I would say it was very well-reasoned. You called it passionate.

UPDATE 6/24 at 2:30 pm PDT: Justice Scalia has asked for Texas to file a response by 4 pm Friday, which gives the Court more time to consider this request.

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