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Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
The Voting Wars Website
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Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Newspapers and Magazine Commentaries
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Search Results for: "americans elect"
notice the almost exclusive focus on the other wrongs Democracy 21 has called out in the past, and no endorsement of hearings on the targeting of conservative groups: [NOTE: See update at end of post.]
Statement of Democracy 21 President Fred Wertheimer on IRS Improperly Targeting Conservative Groups and Groups Improperly Claiming 501(c)(4) Tax Status
The IRS was dead wrong to target conservative groups claiming tax-exempt status as section 501(c)(4) “social welfare” organizations based on their names and identified interests. This never should have happened and steps should be taken to ensure it does not happen again.
At the same time, however, it is clear that a number of groups have improperly claimed tax-exempt status as section 501(c)(4) “social welfare” organizations in order to hide the donors who financed their campaign activities in the 2010 and 2012 federal elections.
Democracy 21, joined by the Campaign Legal Center, sent a series of letters to the IRS, starting in October 2010 asking for investigations and appropriate action against certain groups that clearly appeared to be improperly claiming tax-exempt status as 501(c)(4) groups.
The groups included Crossroads GPS, the pro-Republican group created by Karl Rove, Priorities USA, the pro-Obama group created by former Obama White House officials, American Action Network, a pro-Republican group, and Americans Elect, an independent group seeking to run an independent for President in 2012.
In each of these cases, we provided information that documented the groups were not ‘social welfare” organizations and not entitled to 501(c)(4) tax status.
It is these groups and others like them that should have been the focus of the IRS’s attention.
To date, however, the IRS has taken no action against these groups who are improperly claiming tax status as section 501(c)(4) “social welfare” organizations.
We believe the information and supporting materials we sent to the IRS documented an overwhelming case that both Crossroads GPS and Priorities USA are not “social welfare” organizations within the meaning of the Internal Revenue Code and are therefore not eligible for section 501(c)(4) tax status.
Similarly, we believe the cases are open and shut that the American Action Network and Americans Elect are not entitled to section 501(c)(4) tax status.
For example, as we informed the IRS, an article from the Center for Public Integrity’s iWatch News (October 31, 2011) reported that American Action Network spent $30 million in 2010.
According to the article and federal campaign finance reports, $26 million of the $30 million spent by American Action Network in 2010 was spent for “independent expenditures” and “electioneering communications,” as defined by federal campaign finance laws. The article stated:
The conservative American Action Network, a leading independent player in last year’s election, poured $26 million – out of some $30 million in spending – from secret donors into political ads and activities to help Republican candidates. . . .
As required by law, the network reported the $26 million it spent on political activities to the Federal Election Commission before Election Day.
Our letter to the IRS noted that this means that 87 percent of American Action Network’s expenditures in 2010 were made for campaign-related activities reported to the FEC under the campaign finance laws. The article further stated:
“If over 80 percent of a group’s expenditures are for political purposes that require reporting to the FEC, then that organization will not qualify for tax exempt status under section 501(c)(4),” Marc Owens, who was director of the IRS exempt organizations division for a decade, told iWatch News.
Our IRS letter stated that no one understands the tax laws to say that an organization is eligible for section 501(c)(4) tax-exempt status if 87 percent of its expenditures are made for campaign-related activities reported under the nation’s campaign finance laws.
In the case of Americans Elect, we informed the IRS that this group was registering as a political party around the country in order to provide the opportunity for an independent candidate to run for President. At the same time, the group was claiming to be a 501(c)(4) “social welfare” organization so they could keep their donors secret. It is an oxymoron for an organization to be registered as a political party and also to claim to be a 501(c)(4) “social welfare organization.
There is absolutely no basis on which a registered political party can qualify as a 501(c)(4) “social welfare” organization.
These four cases and others like them must not be ignored or swept under the rug because of the wrongful actions of the IRS in the case of the conservative groups who were targeted.
The congressional committees that have announced investigations of the IRS treatment of conservative groups must also investigate the failure of the IRS to address the blatant abuses by groups that have improperly claimed section 501(c)(4) tax-status.
UPDATE: After I posted this, Fred Wertheimer sends along the following additional thoughts:
The last paragraph of my statement is an endorsement of both the hearings on the IRS wrongdoing on the tea party groups, hearings that have already been announced, and a call for hearings on the failure of the IRS to enforce the laws against groups that have been improperly claiming 501(c)(4) status as “social welfare” organizations
I fully support hearings on both.
The main focus of my statement today is on the blatant abuses of the tax laws by certain groups improperly claiming 501(c)(4) tax status and the failure of the IRS to do anything about it, because this problem is being all but ignored in the current discussion. This is also a serious IRS problem that is relevant to the current discussion and deserves public attention.
If the IRS targeting issue becomes a basis for ignoring and walking away from the blatant abuses of the tax laws that have gone on for the past two elections, as some no doubt would like to see happen, then citizens can expect to see groups improperly claiming 501(c)(4) tax status continue to spend hundreds of millions of dollars in secret contributions in future elections to influence their votes.
WSJ: “A nonpartisan group that’s planning to spend $1.75 million on TV ads supporting independent Angus King in Maine’s U.S. Senate race includes New York City Mayor Michael Bloomberg. The first of two ads sponsored by Americans Elect went into rotation on Friday.”
That’s the lead story in this month’s issue of Ballot Access News. This will eventually be on line, but there is a lag between the print and online version.
But you want this news now, especially before the election. What to do? It’s easy. Subscribe!
“IRS Responds to Rulemaking Petition Submitted by Democracy 21 and Campaign Legal Center, Says Agency Will Consider Changing Rules for 501(c)(4) Eligibility”
IRS Responds to Rulemaking Petition Submitted by Democracy 21 and Campaign Legal Center, Says Agency Will Consider Changing Rules for 501(c)(4) Eligibility
In a letter sent today to the IRS, Democracy 21 and the Campaign Legal Center acknowledged and welcomed a July 17, 2012 letter from Lois Lerner, IRS Director of the Exempt Organizations Division, stating that that the IRS “will consider proposed changes” in the regulations governing eligibility for section 501(c)(4) tax-exempt status.
On July 27, 2011, Democracy 21, joined by the Campaign Legal Center, submitted to the IRS a “Petition for Rulemaking on Campaign Activities by Section 501(c)(4) Organizations.” The groups wrote the IRS again on March 22, 2012 urging the agency to undertake the rulemaking.
According to today’s letter to the IRS:
We welcome Ms. Lerner’s statement in your July 17 letter that the IRS “will consider proposed changes” in the regulations governing eligibility for tax-exempt status under section 501(c)(4) organization. But we want to stress once again that the need for urgent action we noted in our July 27, 2011 letter is all the more true today.
We strongly urge the IRS to promptly institute a rulemaking proceeding to address this matter. We also strongly urge the IRS to act expeditiously in the interim to stop the blatant abuses of the tax laws that are resulting in massive amounts of secret money being laundered into our national elections by groups claiming to be “social welfare” organizations.
According to Democracy 21 President Fred Wertheimer:
The letter we have received from the IRS provides an important new development in the effort to end the massive amounts of secret money being spent in federal elections by groups claiming 501(c)(4) tax-exempt status. We believe this is the first time the IRS has publicly indicated it will consider new regulations to govern the eligibility of groups for 501(c)(4) tax-exempt status.
Ms. Lerner states that the IRS regulations have been in place since 1959, more than a half century ago. Circumstances have changed dramatically since then. Effective new IRS regulations would eliminate the current efforts by phony “social welfare” groups to inject secret contributions into federal elections by claiming to be 501(c)(4) groups.
The IRS letter provides a potential second breakthrough in the multi-prong effort to end the massive amounts of secret money that have returned to federal elections for the first time since the Watergate scandals. The first breakthrough occurred in federal district court on March 30, 2012 when Representative Chris Van Hollen (D-MD), represented by the Democracy 21 Legal Team, won a lawsuit striking down an FEC regulation that gutted existing disclosure requirements for contributions spent to make electioneering communications. Another important part of the multi-prong effort involves the fight that will continue in Congress next year to enact comprehensive new disclosure laws for outside spending groups.
In her July 17 letter to the reform groups, Ms. Lerner stated:
The IRS is aware of the current public interest in this issue. These regulations have been in place since 1959. We will consider proposed changes in this area as we work with the IRS Office of Chief Counsel and the Treasury Department’s Office of Tax Policy to identify tax issues that should be addressed through regulations and other published guidance.
According to today’s letter from the reform groups to the IRS:
We believe the letter from Ms. Lerner recognizes the controversy that currently exists over the role that groups claiming status as “social welfare” organizations are playing in our elections, post-Citizens United.
The letter to the IRS from the reform groups stated:
[D]evelopments in the course of the 2012 national elections have served to underscore that IRS regulations that are contrary to law are facilitating widespread misuse and abuse of the tax laws by organizations claiming tax-exempt status under section 501(c)(4) as “social welfare” organizations, in order to keep secret the donors financing their campaign-related expenditures.
Campaign-related spending by section 501(c)(4) groups whose overriding purpose clearly appears to be influencing elections, has grown exponentially since we first called on the IRS to conduct a rulemaking proceeding a year ago.
According to today’s letter, the Petition submitted to the IRS by Democracy 21, joined by the Campaign Legal Center, stated:
The large scale spending ofsecret contributions in federal elections by section 501(c)(4) organizations is doing serious damage to the integrity and health of our democracy and political system. The IRS needs to act promptly to address this problem by issuing new regulations to stop section 501(c)(4) organizations from being improperly used to inject tens of millions of dollars in secret contributions into federal elections. The new regulations must conform with the IRC and withcourt rulings interpreting the IRC. The regulations should provide a bright-line standard that implements the insubstantial expenditures standard set forth by the courts and specifies a limit on the amount of campaign activity that a section 501(c)(4) organization may undertake consistent with its tax-exempt status. The IRS needs to act expeditiously to ensure that the new regulations are in effect in time for the 2012 presidential and congressional elections. Petition at 18-19 (emphasis added).
Today’s letter to the IRS also noted that the reform groups have sent several letters to the IRS challenging the claims by a number of groups that they were entitled to tax-exempt status as 501(c)(4) “social welfare” groups and asking the IRS to investigate the groups. The groups included Crossroads GPS, Priorities USA, American Action Network and Americans Elect.
The letter sets forth recent published reports that show why the reform groups believe the overriding purpose of Crossroads GPS is to influence elections.
The letter stated:
Political operatives are using “social welfare” organizations as conduits for injecting secret money into federal elections by attempting to exploit what they claim to be purported ambiguities in existing IRS standards.
These operatives argue, for example, that as long as ads do not contain “express advocacy” they can attack or promote candidates in whatever way they want and such ads do not constitute “intervention or participation” in campaigns, and thus may be run without limit by a section 501(c)(4) organization.
The IRS, however, has made clear that ads do not need to contain “express advocacy” in order to be treated as “intervention or participation” in campaigns for purposes of section 501(c)(4). See, e.g., Rev. Rul. 2004-6 (listing six factors that “tend to show” that an ad is for the purpose of influencing a candidate election.)
The political operatives also argue that a “social welfare” organization can spend up to 49 percent of its revenues on overt campaign intervention, without running afoul of the rules that currently require a section 501(c)(4) organization to be “primarily engaged” in social welfare activities. See 26 C.R.F. 1.501(c)(4)-1(a)(2)(i).
Such claims have gone unchallenged by the IRS, despite the fact that the IRS has never set forth a “49 percent” rule. The IRS has failed to clarify its rules regarding the amount of candidate election-related activity a section 501(c)(4) “social welfare” group is permitted to conduct. As a result, groups claiming status as section 501(c)(4) organizations have been allowed to become major players in influencing the 2012 federal elections and to use secret contributions to do so.
The failure of the IRS to take action on this matter has allowed groups that are in reality campaign operations – but claim to be 501(c)(4) “social welfare” groups – to make assertions about IRS rules that are unsupported by law, and thereby to provide a veil of secrecy for the donors financing their campaign-related expenditures.
# # #
Note to the Media
Enclosed is a link to the letter sent today by Democracy 21 and the Campaign Legal Center to the Internal Revenue Service (IRS) and described in our press release sent out earlier this morning entitled, “IRS Responds to Rulemaking Petition Submitted by Democracy 21 and Campaign Legal Center, Says Agency Will Consider Changing Rules for 501(c)(4) Eligibility.”
Who was it who said that the people are revolting? Mel Brooks?
ABC News reports. WaPo has the group’s statement, which at least some opponents of AE thinks leaves wiggle room for something. After all, as Ken Vogel noted on Twitter, the group has a nice package of ballot access in a number of states. Richard Winger too notes the potential for the group’s ballot access use in the future.
Meanwhile Lessig responds to Lumea on neutrality and AE, something which seems pretty moot.
I expect Buddy Roemer will continue to try for the Reform Party nomination and he will continue to be a non-factor. I’d keep an eye instead on Gary Johnson.
Why did AE fail? First it is hard to build a movement around ballot access rather than a candidate. Second, despite what partisans say on both sides, Obama and Romney are close enough to the center that there is not really room for a radically different candidate in the middle.
And then there was the bad press from the group’s democracy deficit, which was a self-inflicted wound.
Ballot access for third party candidates in this country is way too hard, and AE had a good idea to get around it. But its execution did not work, especially how it tried to present itself as a publicly-driven force but a core group kept tight control of its rules and expected substantive outcomes.
When is Tom Friedman’s column running when he explains why Americans Elect was not the next big thing?
Weigel explains what went wrong.
The discussion continues, even if Americans Elect may not.
“Tom Friedman said Americans Elect would be Amazon.com & an iPod wrapped up in the blogosphere. And now it’s Pets.com.”
The following press release arrived via email:
A Statement by Americans Elect CEO Kahlil Byrd
12:01 A.M., MAY 15, 2012 - Over the past two years, Americans Elect has focused on achieving three clear goals:
· Gaining nationwide ballot access for a third presidential ticket to compete in the 2012 race;
· Holding the first ever nonpartisan secure national online primary at AmericansElect.org; and
· Fielding a credible, balanced, unaffiliated ticket for the 2012 presidential race.
Through the efforts of thousands of staffers, volunteers, and leadership, Americans Elect has achieved every stated operational goal. Despite these efforts, as of today, no candidate has reached the national support threshold required to enter the “Americans Elect Online Convention” this June. (Read a detailed summary of the AE process here and the full rules here.)
Because of this, under the rules that AE delegates ratified, the primary process would end today. There is, however, an almost universal desire among delegates, leadership and millions of Americans who have supported AE to see a credible candidate emerge from this process.
Every step of the way, AE has conferred with its community before making major decisions. We will do the same this week before determining next steps for the immediate future. AE will announce the results of these conversations on Thursday, May 17.
As always, we thank everyone who has participated in this effort and will honor the work, efforts and trust so many people have placed in Americans Elect.
Lessig Says Roemer Would Pledge Not to Be Spoiler in Presidential Election If He Has No Realistic Chance of Winning
See here. “Though he says he’s in this race to win, if he became the Americans Elect candidate, he has now committed to a crucial promise: if at the end of the race, Roemer writes, ‘I discover I have no realistic chance of winning, I will ask my supporters to vote their conscience or for their second choice so the issue of spoiler can be dropped once and for all.’”
I wonder how that will go down with the AE funders who decide which candidates get to go on the ballot.
AE Transparency explains. See also With Failures Rapidly Mounting, What Is Americans Elect’s End-Game?
Politico on Americans Elect: Third-party candidate for POTUS: Anyone? Walker?
AEI Transparency reports.
He makes his case atThe Atlantic Wire.
Earlier, Lessig and I had an exchange about the serious problems I have with Americans Elect’s transparency and its democracy deficit.
I have also discussed Lessig’s campaign finance reform ideas in detail in a forthcoming Harvard Law Review book review (which also reviews a book by Jack Abramoff).
“Democracy 21 and Campaign Legal Center Again Call on IRS to Investigate Eligibility of Crossroads GPS for Tax-Exempt Status as ‘Social Welfare’ Organization”
n a letter sent to the IRS today, Democracy 21 and the Campaign Legal Center again called on the agency “to investigate and take appropriate enforcement action against Crossroads GPS regarding its claimed status as a section 501(c)(4) tax-exempt ‘social welfare’ organization.”Crossroads GPS is the brainchild of long-time Republican party operative Karl Rove.The letter also again called on the IRS “to similarly investigate and take appropriate enforcement action against Priorities USA, American Action Network and Americans Elect, other organizations which we believe are improperly claiming status under section 501(c)(4).”Priorities USA is a group that backs President Obama’s re-election, American Action Network is a group founded by former U.S. Senator Norm Coleman that supports Republican candidates, and Americans Elect is a group that has gained ballot access as a political party in numerous states to run a candidate for president. These groups also claim status as tax-exempt “social welfare” organizations.According to the letter from the watchdog groups:It appears clear that Crossroads GPS is engaging in substantial spending to influence elections and is accordingly not eligible for section 501(c)(4) tax status under existing tax law and court interpretations of the law. It is also appears clear that Crossroads GPS is raising numerous secret million dollar and multi-million dollar donations to fund these expenditures.The letter to the IRS today stated:In an article dated April 13, 2012 (copy enclosed), The Washington Post reported that Crossroads GPS received a secret donation of $10 million dollars to be used to make expenditures to attack President Obama’s campaign for reelection.According to the Post article:An anonymous donor has given $10 million to run ads attacking President Obama and his policies, escalating the money race that is defining the 2012 presidential campaign. And in the new, freewheeling environment of independent political giving, the identity of this donor, like many others, is likely to remain a permanent mystery.The donation went to Crossroads GPS, the conservative nonprofit group founded with support of political operative Karl Rove, which also reported another donor giving at least $10 million over the past two years, according to draft tax returns released by the organization.The group would not identify the donors, who could be individuals, groups or corporations, and under tax and campaign laws, is not required to disclose them.According to Democracy 21 President Fred Wertheimer:It is essential that the IRS act to stop the farce that Crossroads GPS is a “social welfare” organization. Karl Rove and Crossroads GPS are thumbing their nose at the American people. They are injecting secret, million dollar and multi-million dollar contributions into federal elections in direct conflict with the basic right of citizens to know the donors financing campaign expenditures to influence their votes. This cannot be allowed to continue. The IRS must take action against all groups not entitled to 501(c)(4) tax-exempt status.According to J. Gerald Hebert, Executive Director of the Campaign Legal Center:The continued refusal by the IRS to reign in scofflaws abusing a privileged tax status has only encouraged even more blatant disregard for the law by these groups and their anonymous funders. A secret ten million dollar contribution to run attack ads shows pure contempt for the law, the agency’s willingness to enforce it, and the publics right to know who is funding our elections. The IRS must do its job and enforce the law even in the face of political pressure to let the scofflaws continue.The letter to the IRS stated:The new $10 million secret contribution to Crossroads GPS to run attack ads against President Obama as he runs for re-election is a stark illustration of the problem caused by groups engaged in campaign spending claiming eligibility as “social welfare” organizations under section 501(c)(4).The report in The Washington Post stated that Crossroads GPS and its affiliated Super PAC, American Crossroads, together plan to spend an estimated $300 million in the 2012 elections. The expenditures by these two affiliated groups clearly appear to be for one overriding purpose: to elect and defeat candidates.The Washington Post article also shows the huge size of the contributions from secret donors that are being used to finance campaign-related expenditures:The tax returns show that Crossroads GPS has collected the vast majority of its donations from the super-rich. The forms show that nearly 90 percent of its contributions through the end of 2011 had come from as few as two dozen donors, each giving $1 million or more.Today’s letter to the IRS pointed out:In prior letters sent to you on October 5, 2010, September 28, 2011, December 14, 2011 and March 9, 2012, our organizations have called on the IRS to investigate and take appropriate enforcement action against Crossroads GPS and other similarly situated organizations improperly claiming tax-exempt status as section 501(c)(4) “social welfare” organizations.In our earlier letters, we noted that the overriding purpose of these groups is to influence elections and that the groups are spending substantial amounts to do so. These groups appear to be spending far more to intervene and participate in campaigns than the law and court interpretations allow “social welfare” organizations to spend for such purposes.It is apparent that these groups are claiming section 501(c)(4) tax status in order to keep secret from the American people the donors financing their campaign-related expenditures. If these organizations are not eligible for tax status under section 501(c)(4), then they are improperly using the tax laws to shield their donors from public disclosure and improperly using secret contributions to influence the 2012 national elections.The letter continued:As we have previously noted, it appears the overriding purpose of Crossroads GPS is to influence elections. The ads run by Crossroads GPS are campaign-related under IRS standards. The standards provide that ads do not have to contain express advocacy in order to be treated as intervention and participation in campaigns for purposes of determining eligibility for tax-exempt status as a section 501(c)(4) organization.The letter concluded:As we have stated in our previous letters, we are deeply concerned about the failure of the IRS to take any public steps to show that the agency is prepared to enforce the tax laws applicable to section 501(c)(4) “social welfare” groups.The ongoing harm to the public from the agency’s failure to act is that section 501(c)(4) groups are being used as vehicles to raise and spend secret contributions on a massive scale to influence the 2012 elections.Unless the IRS acts, the public interest in transparent campaign finance activities — an interest that was strongly affirmed by the Supreme Court in the Citizens United case — will be greatly damaged by the agency allowing groups to misuse the tax laws to hide the identities of wealthy donors giving huge amounts to influence this year’s presidential and congressional elections.
The following just arrived via email:
BOARD OF ADVISORS MEMBER LAWRENCE LESSIG: AMERICANS ELECT BRINGS NEEDED REFORM TO THE ELECTION SYSTEM
WASHINGTON, D.C., APRIL 2, 2012–Americans Elect is honored to have Lawrence Lessig, Director of the Edmond J. Safra Foundation Center for Ethics at Harvard University, and the Roy L. Furman Professor of Law and Leadership at Harvard Law School, as a member of its Board of Advisors.
As a distinguished professor of law, Lessig is currently overseeing a five-year research project addressing institutional corruption in a number of contexts at the EJ Safra Lab. Americans Elect has benefited from his insight and knowledge about corruption in our political institutions, as we challenge the traditional primary system by creating an online nominating process and achieving ballot access in all 50 states.
“The Americans Elect’s effort to reform our political election system is a hard-fought and a worthy task. If we don’t reform our political process to end the gridlock in Washington it will be difficult to solve the serious problems our country faces today,” Lessig said.
Prior to returning to Harvard, Lessig was a Professor of Law at Stanford Law School (where he was founder of Stanford’s Center for Internet and Society), Harvard Law School (1997-2000), and the University of Chicago Law School. Lessig clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court.
For much of his academic career, Lessig has focused on law and technology, especially as it affects copyright.
Lessig also serves on the boards of Creative Commons, MAPLight, Brave New Film Foundation, Change Congress, The American Academy, Berlin, Freedom House and iCommons.org. He is on the advisory board of the Sunlight Foundation….
I had missed this oped by David Boren, Christine Todd Wittman and William Cohen a few weeks back. What does AE want,at least according to these authors? to push the two main presidential candidates (more) to the center:
The American people should challenge the two parties and their presidential candidates to make three ironclad commitments:
First, candidates of both parties should endorse the main principles contained in the Simpson-Bowles bipartisan budget proposal. We all understand it takes both spending cuts and revenue increases to balance the budget. That way, all Americans would participate in the sacrifice and it would be fair.
Second, candidates of both parties should create a national unity government by including leaders from both parties in the Cabinet. During World War II, Winston Churchill created a “war Cabinet,” representing all parties, to unify Britain in a time of great crisis. Today America desperately needs the same kind of unity government.
Third, candidates should commit to support a statutory approach or, if required, a constitutional amendment which permits a limit on campaign spending and allows only individual citizens eligible to vote in each election to contribute. The buying and selling of elections and public office must be stopped!
The Guardian offers this report, with the subhead: “Group says their plan to take on America’s two-party system is on track – but a lack of engagement is hampering their cause.”
“Independent, Schmindependent: Forget the Rules and the Rhetoric, the Reality Is That Americans Elect Is All About the Duopoly”
John Lumea’s latest.
Meanwhile, there are four Feb. 29 postings on the Americans Elect site, under the heading “board decisions,” indicating changes to the bylaws and pre-convention rules that, it says, have been posted for delegates review. But it is not apparent what the changes are or where any more detailed explanation of the changes can be found for purposes of review. Next to each of the four items, it says, “this decision has been approved,” and if you roll your cursor over the question mark alongside, it says, “This decision was unanimously approved by the Board and is not subject to delegate review.” It is not clear from the site when the board was vested with that power….
On the site’s news page, there is notice of another meeting of the board, by telephone, to be held today “to vote on the following items: adoption of amendments to the Pre-Convention Rules, to post the Post-Election Rules on the website for public comment and to adopt amendments to the Bylaws,” but no other specifics are provided.
“Don’t let Americans Elect muddy the 2012 race; A third-party candidate could get enough votes in a key swing state in November to toss the presidency to the otherwise loser.”
Harold Myerson has written this column for the LA Times.
“The Shadow Super PAC of ‘Centrism’ Or, How Americans Elect Is Trying to Have Its Cake and Eat It Too’
Must-read John Lumea column on the continued internal democracy deficit at Americans Elect, and the serial violation of a neutrality pledge by Americans Elect’s leadership.
Americans Elect Amends Rules to Give Unanimous Committee Power to Block Candidates, Taking Away Delegate Power to Overrule
Now we know how Americans Elect will keep Stephen Colbert (and presumably anyone non-centrist) off the ballot, even against the unanimous wishes of voters/delegates. From a petition to reverse this rule change:
The previous version of Bylaw 5.6 had this to say about the power of the corporate-appointed Candidate Certification Committee and the power of delegates to overturn its decisions:
Section 5.6. Committee Override by Delegate Vote. Any decision of the Platform of Questions Committee or the Candidate Certification Committee shall be nullified by a majority vote of all registered Delegates, except that a maximum of three candidates for President and three candidates for Vice President may be placed on the ballot by Delegate nullification.
The new version of the Bylaw 5.6 posted March 16 updates 5.6 by adding this clause to its end:
, and except that only a non-unanimous vote of the Candidate Certification Committee regarding contingently qualified candidates may be subject to reversal vote by the Delegates.
I call for the specific reversal of the decision to add this clause. I am aggrieved by the clause because it takes away my ability as a delegate to choose who will be on the Americans Elect ballot, and instead places power in the hands of the Candidate Certification Committee, whose members are selected non-democratically by the Americans Elect Board of Directors, whose members in turn appointed themselves.
Alex Pareene: “This, though, was penned back when they were expecting a Michael Bloomberg to sign up for their effort. Now they can’t even manage an Olympia Snowe. Primary voting begins in less than two months, and the only declared candidate who actually meets those qualifications is … Buddy Roemer. At the moment, no candidate, declared or drafted, is on pace to actually meet the number of clicked supporters (10,000 for establishment candidates, 50,000 for outsiders) necessary to qualify for the ballot, which will almost certainly necessitate major rules changes. Americans Elect, then, is a high-profile third-party ballot access campaign without a candidate.”
BuzzFeed reports, with the subhead: “After a quiet change to the bylaws, every penny the group brings in will be given to its rich backers, despite claims to the contrary. No wonder they’re not advertising it.”
Here, at the constantly-interesting Crooked Timber.
“More Americans Elect Vogon Democracy: to Reverse our Policies, Just Contact and Convince 10,000 Delegates We’ve Hidden From You and Who May Not Exist. You Have 48 Hours.”
Irregular Times on the internal democracy struggles at Americans Elect.
I had asked Larry Lessig about how he could support Americans Elect given their well known transparency problems (for example, they won’t reveal their donors based upon unsubstantiated claims of potential harassment). Larry’s explanation is here and I appreciate the care he has taken in responding. Here’s my reply.
Larry’s says he would like transparency of donors at Americans Elect, but he is not too troubled by the lack of transparency in this instance because, given AE’s structure, he does not believe that secret money could be used to corrupt a candidate (unlike Super PAC spending benefiting a candidate) in the AE process and it won’t affect the results of the AE candidate selection process. Further, Larry argues, maybe the concern about AE harassment is a legitimate one given that this is an effort to upend the two-party duopoly which could anger some establishment types. I’ll respond to each of these points.
1.Transparency, Corruption, and Information Shortcuts. To begin with, corruption is not the only value I see in transparency. Another value is providing valuable information to voters. In a recent California initiative, the utility Pacific Gas and Electric supported an initiative shielding the utility from competition by public utilities. PG&E spent $43 million supporting the measure through a “Yes” committee, compared to $1 million on the No side. But the measure went down to defeat, in large part I believe because each “Yes” ad included information that PG&E supported it. Voters are busy, not stupid. Knowing PG&E backed a utility measure was all they needed to know to vote “no.”
Similarly, if it turns out (as appears to be the case) that AE is backed primarily by a handful of hedge fund managers and no small donors, voters can evaluate whether the effort might be engineered to produce a certain kind of candidate (say, a centrist candidate who will be good to the interests of hedge fund managers). Yet AE presents itself as “unencumbered by special interest and Super PAC money. We’re not influenced by the political class of consultants or guided by Washington lobbyists.” Voters should be able to fully evaluate the AE effort. This is especially true if, as alleged by the first commenter on your Tumblr post responding to me, AE is manipulating the rules: changing how candidates are presented to the public in order to promote some over others, hiding AE delegate votes so that opponents of board rules don’t see them, etc.
As to corruption, I would not be so sure. As I explained in my first Politico piece, under AE’s bylaws the controlling reserve the right to veto choices of voters cast through their Internet primary. It is also not clear that their Internet primary will be free of manipulation, and there’s no secret ballot. In short, the AE board (presumably controlled by those paying the bills) have enough levers at their disposal to be able to significantly influence who the choice of the AE candidate. If that’s right the danger of corruption is as real as it is for Super PACs.
Now it may be that the AE process could get out of the Board’s control. I’ve suggested in my second Politico piece that it could be hijacked by Stephen Colbert as a kind of performance art. In your Kindle Single One Way Forward you say “We need to Occupy Americans Elect” to get them to choose a reform candidate (presumably your ally Buddy Roemer). But just because the process might be hijacked doesn’t mean that the corruption danger is not there. (Of course, the possibility of hijacking also means that AE could be taken over so that a candidate of the far left or far right gets chosen, who acts as a spoiler and leads to the election of a candidate who is the last choice of a majority of voters. But that’s a different problem.)
2. Affecting the Outcome. Even if we don’t characterize the levers the AE board has to influence the candiate selection process as “corruption,” there’s no denying that those levers exist. And if they do that’s all the more reason for voters to know who is behind the effort. A candidate put on the ballot by thousands of small donors across the country would be viewed differently by voters (justifiably so) compared to a candidate bankrolled by a few hedge fund managers who “bought” ballot access for the candidate in advance. It is just something we should all know before we make our decisions.
3. Harassment. The harassment issue is a canard. I’ve done a study of the recent claims of harassment in the gay marriage context (a social issue much hotter than the question of the two-party duopoly, I’d say), and the claims are incredibly weak. It is far more likely that the AE people are hiding their donors because you would see a small group of large, wealthy donors which would be less appealing to the average voter than through a mass movement. And even if some harassment were plausible, I’d suggest that your former boss has it right here: “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously … and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”
UPDATE: Lessig replies here, and on this note I think all the relevant points have been made.
Lessig responds to my query about his support for an organization which does not disclose his donors. His careful post merits a careful response. Stay tuned.
Americans Elect press release (via email): “We are giving all voters a serious third choice for president in 2012. We are unencumbered by special interest and Super PAC money. We’re not influenced by the political class of consultants or guided by Washington lobbyists.”
Surprise, surprise. He’s “intrigued” by Americans Elect.
I have written this opinion piece for Politico. It begins:
When it comes to critiquing modern American politics, Stephen Colbert has been less a comedian and more a performance artist. He didn’t just joke about Super PACs — he created one (“Americans for a Better Tomorrow, Tomorrow”), then raised a million bucks for it. He illustrated the absurdity of the Supreme Court’s Citizens United decision and Federal Election Commission’s coordination rules by briefly becoming a presidential candidate, transferring his Super PAC’s control to Jon Stewart and then “not coordinating” with him.
But Colbert’s biggest piece of political performance art may be yet to come. It could end up putting him in a position to influence the presidential election. It’s no joke.
Consider Americans Elect. Backed by hedge fund managers and we don’t know who else (they won’t reveal their donors), the group has spent millions to secure ballot access in all 50 states for a presidential candidate to be chosen in a national Internet competition. (Also no joke.) The group’s aim appears to be to secure a centrist ticket to run as an alternative to President Barack Obama and his eventual Republican rival. It has attracted some early support — including New York Times columnist Tom Friedman. I and others have criticized the Americans Elect board for reserving to itself the power to overrule the results of the Internet plebiscite, and in response the board has indeed made it harder to overturn the popular results.
Getting a third party or independent candidate on the ballot nationally is a steep climb — since states have different qualifying rules. So Americans Elect presents a rare opportunity for such a candidate to gain immediate credibility — as well as an ability to focus on the race itself and not the battles over ballot access.
This offers an opportunity that Colbert may find too tempting to pass up.
John Lumea: “What this Board decision basically says is that as few as five people can fund the whole damned thing….It also strongly suggests that Americans Elect is not getting — and does not expect to get — significant financial support at the grassroots level of delegates.”
He adds as a “sidebar:” “How is it that Lawrence Lessig, one of the most informed and eloquent critics of the undue influence of money over politics — and one of the most ardent and public advocates for financial transparency from elected officials, corporations and political institutions — winds up on the Board of Advisors, a.k.a. the Leadership, of a political group with such a shadowy financial pedigree?”
From an AE emailed press release:
FOR IMMEDIATE RELEASE
A STATEMENT BY FORMER GOVERNORS DAVID BOREN AND CHRISTINE TODD WHITMAN:
WASHINGTON, D.C., MARCH 4, 2012–Below is a statement by the former Governor of New Jersey and current board member of Americans Elect, Christine Todd Whitman, and former Governor and U.S. Sen. of Oklahoma, David Boren, on this week’s decision by Senator Olympia Snowe.
“Sen. Olympia Snowe is the essence of a true public servant, and we celebrate her as she makes the tough decision to forgo reelection to the United States Senate. We strongly agree with Sen. Snowe’s thoughts that there is a ‘vital need for the political center in order for our democracy to flourish and to find solutions that unite rather than divide us. It is time for change in the way we govern.’
“That is why we stand with Americans Elect, because it offers a bipartisan solution to the gridlock that grips our nation today. It is a necessary shock to the system. The partisanship on display in Washington by both the Republican and Democratic parties and their refusal to work together poses a serious risk to the health of the nation.”
“Formal Call for Reversal of Americans Elect Board Of Directors Decision #1, a Violation of Rules and Bylaws”
This will be interesting to watch.
More on Americans Elect and mischief coming from me on Monday.