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Table of Contents
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The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
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Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
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Ballot Access News
Brennan Center for Justice
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California Election Law (Randy Riddle)
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Equal Vote (Dan Tokaji)
Federal Election Commission
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Legal Theory (Larry Solum)
Political Activity Law
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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: bailout
CLC: “This week more jurisdictions moved forward with bailouts from the preclearance provisions of the Voting Rights Act as the Supreme Court weighs a challenge to the constitutionality of those provisions. Yesterday, a three-judge court in Washington, DC approved a final consent decree exempting the City of Wheatland, California from the Act’s preclearance provisions. On the same day, the Justice Department announced that it had reached agreement on a bailout with the city of Falls Church, Virginia (along with the Falls Church City Public School District) and submitted a proposed consent decree for approval to a three-judge court in the U.S. District Court for the District of Columbia.”
Justin Levitt posts the order and notes its possible significance, As Ryan Reilly reported, a conservative group tried to block the bailout. Both sides are using the New Hampshire case to debate the fairness and necessity of continued section 5 coverage for parts of the country.
Bryan Tyson, who worked for Rep. Lynn Westmoreland during the 2006 VRA reauthorization, penned this oped.
Rep. Westmoreland and I were strange bedfellows back in 2006, when he (a conservative Republican) pushed my proposal to have “proactive bailout” added to the 2006 legislation.
“Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 the Voting Rights Act”
Nate Persily, Charles Stewart III, and Steve Ansolabehere have written an important new paper [updated], which I have now posted. The paper comes just in time for argument in the Shelby County case. Here is the introduction (minus the footnotes):
Three years ago, when the Supreme Court last considered the constitutionality of the coverage formula of Section 5 of the Voting Rights Act, we submitted an amicus brief on behalf of neither party analyzing the relevance to the case of voting patterns in the 2008 election.1 In particular, the brief and a subsequent Harvard Law Review article that expanded upon it,2 highlighted relative rates of racially polarized voting in the covered and noncovered jurisdictions to demonstrate where racial polarization had increased over time. Although some states had improved and others worsened in the gap in candidate preferences between racial groups, the brief and article concluded that, contrary to much conventional wisdom, racial polarization had actually increased in the 2008 election, especially in the areas covered by section 5 of the VRA.
We find ourselves in much the same position now as we did three years ago. We also find ourselves coming to the same conclusions, which have become, if anything, more strongly supported by recent data. Voting in the covered jurisdictions has become even more polarized over the last four years, as the gap between whites and racial minorities has continued to grow. This is due both to a decline among whites and an increase among minorities in supporting President Obama’s reelection. This gap is not the result of mere partisanship, for even when controlling for partisan identification, race is a statistically significant predictor of vote choice, especially in the covered states.
Moreso now than four years ago, both sides in the VRA debate look to the 2012 election to support their case. Critics of the VRA point to the reelection of the nation’s first African American president, amidst record rates of minority voter turnout, as evidence of how “times have changed” since 1965. The “strong medicine” of the VRA is no longer needed in the South,3 they argue, because the historic barriers to minority participation and office holding have largely vanished. For supporters of the VRA, the history since 1965 and the 1982 reauthorization demonstrate the continuing danger to minority voting rights in the covered jurisdictions. They point also to this past election as confirming Congress’s suspicions in the reauthorization process as new obstacles to voting, such as photo identification laws and restrictions on early voting, were more prevalent in the covered states. In the run up to the 2012 election, section 5 proved it had bite, as photo ID and other laws were prevented from going into effect by the DOJ or the District Court in Texas, South Carolina, and Florida, and Texas’s congressional redistricting plan was found to be intentionally discriminatory.
These contrasting views of the relevance of the 2012 election may very well provide the media frame for the debate over section 5 in the current challenge to the VRA in Shelby County v. Holder. Of course, the contending narratives of – “look how far we’ve come” versus “see how much voting discrimination persists” – are usually not the stuff of constitutional arguments. Moreover, the results of a highly salient and well-funded presidential election may seem beside the point for the constitutionality of a law that has its greatest effect in the context of local, below-the-radar, election law changes.
All involved in the debate over the VRA must admit, however, that we do not know exactly what the world will look like if section 5 is struck down. Of course, the South would not revert back to Jim Crow days: politics has evolved beyond the days of threatened lynchings for the exercise of the franchise. But the many examples in the legislative record of voting rights violations prevented by the VRA hint at what might happen if the covered jurisdictions were otherwise unconstrained. Even if Jim Crow will not return, the familiar regional pattern of discrimination might, as new stratagems replace old ones with minority voters becoming collateral damage in increasingly vicious partisan fights.
The litigants in the Shelby County case disagree over the applicable constitutional test and the necessary evidentiary showing for upholding the VRA. In particular, the challengers assert that Congress needed to distinguish the covered from the noncovered jurisdictions, in order to demonstrate that the coverage formula captures the areas of the country (and only those areas) that pose the greatest threat to minority voting rights. From their perspective, the coverage formula can only be “congruent and proportional”4 (and therefore constitutional) if it is precisely tailored to capture only “guilty” jurisdictions and no “innocent” ones.
Although defenders of the VRA point to higher rates of successful section 2 VRA cases as one example of where the covered states have distinguished themselves as voting rights iolators, they also maintain that Congress need only justify continued coverage by finding persistent dangers to voting rights in covered areas alone. The coverage formula, from its inception, has always been over and underinclusive of the jurisdictions of concern. Overinclusivity is addressed by the bailout provision, which allows “good” jurisdictions to escape coverage when they can demonstrate a clean voting rights record. So long as the coverage-formula-plus-bailout regime represents a rational attempt to address the problem of minority voting rights violations, defenders argue, the law is constitutional.
The challengers’ argument against the coverage formula would put Congress in an awkward position whenever justifying a geographically specific civil rights law. If the covered jurisdictions remain completely unchanged in their disrespect for minority voting rights, then the VRA is not working as promised. On the other hand, successful deterrence of voting rights violations in the covered states becomes evidence of its unconstitutionality if those jurisdictions become less distinct. In the oral argument in NAMUDNO, Chief Justice John Roberts described this problem as “the Elephant Whistle problem.” To summarize the allegory: A guy with a whistle around his neck walks into a bar. Another guy asks him, “why are you wearing a whistle around your neck?” “It’s to keep away elephants,” the first responds. “How do you know it’s working?” the second asks. “Do you see any elephants around here?”
If the Court takes the elephant whistle problem seriously, the challenge for defenders of the VRA is to find a metric that can hint at the danger of the VRA’s removal while simultaneously not suggesting it either has been ineffective or has outlived its usefulness. To some extent, the number of preclearance denials and DOJ requests for more information can do this by pointing at the types of laws that would have gone into effect but for the existence of the VRA. But even those data are incomplete because they cannot pick up the VRA’s deterrent effect – that is, the laws that were never proposed or passed because politicians knew they would not be allowed to go into effect. We should expect the number of laws denied preclearance to be small as compared to the number of laws that are never passed because of the VRA’s deterrent effect.
Joan Biskupic for Reuters
Mark Sherman for AP (on bailout)
Bob Barnes for WaPo
NYT Room for Debate (multiple contributors)
“U.S. Supreme Court Poised To Determine Constitutionality of Section 5 of the Voting Rights Act; Merced County Files Amicus Brief Defending Its Bailout From Section 5 Coverage.”
On January 2, 2013, two of Nielsen Merksamer’s leading voting rights experts, Marguerite Leoni and Chris Skinnell, filed an amicus curiae brief in the United States Supreme Court, in the pending constitutional challenge to Section 5 of the federal Voting Rights Act (Shelby County, Ala. v. Holder)….
In August of 2012, after more than two years of investigation, the United States Attorney General found that Merced County met the criteria, and consented to Merced County’s bailout. Marguerite and Chris represented the County in the bailout action. The bailout also had coattails, freeing more than 80 cities, school districts and special districts with territory in the County from the need to comply with Section 5′s preclearance obligation. Merced County’s was far and away the largest and most complex bailout action to be approved by the United States District Court for the District of Columbia since the bailout criteria were last amended by Congress in 1982.
The purpose of Merced County’s just-filed amicus brief was to provide the Supreme Court with information regarding Merced County’s successful Section 5 bailout, and to respond to attacks on the County’s bailout in recent press coverage and court filings, which suggest that the County was not entitled to bail out, and the Attorney General permitted the County to bail out improperly to support his argument that bailout is a viable option.
Ryan Reilly reports for HuffPo.
Press release: “The State of New Hampshire and the United States Attorney General reached an agreement today that would grant a bailout for the ten towns and townships in the State that are subject to the preclearance requirements of the Voting Rights Act. The agreement was submitted to a three-judge court in Washington, DC, and asks the court to wait thirty days to enter it, so that the towns can publicize the proposed settlement. Campaign Legal Center Executive Director J. Gerald Hebert serves as legal counsel to the State of New Hampshire in his capacity as a solo practitioner. New Hampshire becomes the first state to bailout since Congress changed the bailout requirements under the Voting Rights Act in 1982. To read the joint motion to enter consent judgment and decree, click here. To read the proposed consent judgment and decree, click here.”
This is no surprise.
We write in response to Mr. J. Christian Adams’s article, “Eric Holder Cons the Courts to Save Voting Rights Act,” to which you linked earlier in the day. That article is misinformed on the facts and the law. Merced County was qualified to bailout, and worked extremely hard to get there. There was no “collusion” of any sort. At the time it sought Attorney General Holder’s consent, the County had been victorious in the Lopez litigation, was in full compliance with its preclearance obligations, and satisfied the bailout requirements. The County worked for over ten years to qualify for bailout before even contacting the Attorney General. Even then, it took two more years to convince the Attorney General to consent.
We have been counsel to the County of Merced for election and preclearance matters for over a decade, and we represented the County in the recent bailout action—Gerry Hebert was our co-counsel in Washington. We also represented the County (without Mr. Hebert’s involvement) in the 2006 litigation brought by Joaquin Avila and referred to in the article, Lopez v. Merced County.
First, Mr. Adams’s implicit characterization of Merced County’s bailout as a sweetheart arrangement bears no relationship to the actual facts. The County worked with USDOJ for more than two years on the bailout negotiations, including two in-person meetings in Washington, D.C., at which the County pleaded its case. USDOJ sent a team of investigators to the County who combed through 10 years of records pertaining to the County’s Section 5 compliance, as well as that of independent jurisdictions within the County’s boundaries. In addition, the County produced thousands of pages of documents at DOJ’s request, including 10 years worth of agendas and minutes for the County, and for virtually every city, school district and special district with territory in the County.
That process followed a long-running historical internal “audit” of electoral practices conducted by the County itself and in which USDOJ had no part. The audit was undertaken with a view toward qualifying for bailout and long pre-dated the NAMUDNO decision and even the 2006 VRA renewal. The County’s preclearance compliance record at the time it requested the United States Attorney General’s consent to bailout was absolutely complete except for two matters under California Proposition 218, which the County believed (and still believes) did not require preclearance. The County submitted them nevertheless in the spirit of the ongoing negotiations for bailout. Every major minority group in the County wrote a letter to the United States Attorney General in support of bailout.
Second, Mr. Adams is simply incorrect about the Lopez litigation. There was no “settlement”; the County won that lawsuit outright, having summary judgment granted in its favor. See Lopez v. Merced County, 2008 U.S. Dist. LEXIS 3941 (E.D. Cal. Jan. 16, 2008). Thus, the County was not disqualified from bailout by virtue of the provision relating to consent decrees entered within the last 10 years. 42 U.S.C. § 1973b(a)(1)(B).
And finally, regarding the submission of a number of historical voting changes for preclearance in connection with the bailout, there are a number of points to be made:
- All of those submissions, except for the two mentioned above, concerned independent subjurisdictions within the borders of the County over which the County has no control. The County had previously argued strenuously in the Lopez litigation, an enforcement action, that Section 5 was unconstitutional if the County were liable for the actions of these independent jurisdictions. That issue aside, Section 5 itself provides that oversights in preclearance compliance may be forgiven in a bailout action if they were “were trivial, were promptly corrected, and were not repeated.” 42 U.S.C. § 1973b(a)(3). In other words, Mr. Adams’s implication that Section 5 has a “no tolerance” standard—and that the Attorney General is therefore ignoring the command of Congress—is refuted by the text of Section 5 itself. In fact, the vast majority of the submissions, which the County made on behalf of these jurisdictions so that the bailout negotiations could proceed, were “precautionary” because they involved matters that the County did not believe required preclearance, but submitted anyway to avoid disputes that could harm negotiations.
- Merced County’s approach is also consistent with case law under Section 5, which holds that the preclearance obligation can be retroactively satisfied. See, e.g., Moore v. Caledonia Natural Gas Dist., 890 F. Supp. 547, 550 (N.D. Miss. 1995) (“‘retroactive federal approval satisfies the preclearance requirements of § 5.’ Since the new procedures were eventually approved, the court held that the changes did not violate the prescription of § 5.” (quoting East Flatbush Elec. Comm. v. Cuomo, 643 F. Supp. 260, 264 (E.D.N.Y. 1986) (three-judge § 5 court))). See also Waide v. Waller, 402 F. Supp. 902, 925 (N.D. Miss. 1975) (three-judge § 5 court) (“The belated satisfaction of the Voting Rights Act requirements moots the first prong of plaintiff’s attack on § 25-31-1, and we therefore certify that the challenged statute is in full compliance with the requirements of the Voting Rights Act.” (emphasis added)).
- Reviewing the pleadings from prior bailout actions—including ones granted well before the constitutionality of the 2006 renewal became an issue—shows that such “post hoc” preclearances are typical in connection with bailout, seriously undermining the notion that such an approach is part of a vast conspiracy to save Section 5. As just a few examples, Roanoke County, Virginia (bailed out 2001), Warren County, Virginia (bailed out 2002), and Shenandoah County, Virginia (bailed out 1999), all acknowledged—in their bailout action complaints filed with the D.C. District Court—having administered multiple voting changes without preclearance. While these changes were ultimately submitted by the jurisdictions prior to filing the bailout suits, and each received preclearance, not all the submissions were made before the policies were enforced.
Bottom line, Merced County’s nearly 10-year quest to bailout from Section 5 was fortuitously successful right after NAMUNDO and before Shelby County v. Holder, but appropriate and well-deserved nonetheless.
Section 5 Opponents to Argue that DOJ Breaking Bailout Rules in Order to Save the Constitutionality of Voting Rights Act section 5
I expect this argument to get a lot of play.
The great irony here, for those who don’t follow this issue closely, is that you have people who oppose section 5 of the VRA complaining that DOJ is making it too easy for those jurisdictions subject to its preclearance provision to escape from the Act’s coverage.
UPDATE: Adams says he’s not an opponent of section 5.
I’ve noted that the New Hampshire bailout request seems calculated to help the constitutional case for the Voting Rights Act as the Supreme Court hears the Shelby County case.
But conservatives are signalling they may not go along.
And in case the connection to the Shelby County case (in which the Supreme Court will consider the constitutionality of section 5) is lost on anyone, Gerry Hebert explains: “It should be important to the Court, in considering Section 5’s constitutionality, that not a single jurisdiction seeking a bailout has been turned down, and that States and political subdivisions are pursuing bailouts with ease in greater numbers than ever before.”
Andrew Cohen interviews Jerry Goldfeder.
Just like Gerry Hebert is the “Bailout King,” I think Jerry Goldfeder will be thought of as the “Presidential Election Disaster King.”
NPR: “Over 21 years, attorney J. Gerald Hebert handled more than 100 civil rights cases as the Justice Department’s point man enforcing the Voting Rights Act. Now, he helps governments gain release from the law’s central mandate. In election law circles, he’s known as the “Bailout King.” No lawyer has guided more counties and cities with a history of voter discrimination to “bail out” from federal oversight of their local elections. Hebert’s prolific work was cited in a dissenting opinion by Supreme Court Justice Clarence Thomas. Hebert, 63, uses a largely unknown exemption, or “bailout,” in the 1965 statute to help communities that have closed painful chapters in their pasts.”
Was Chief Justice Roberts Most Unprincipled in Applying the Doctrine of Constitutional Avoidance in the Health Care Case, in NAMUDNO (the Voting Rights Act Case) or in Citizens United?
In my initial post on the health care decision, I stated “Once again, the Chief has manipulated the doctrine of constitutional avoidance to do what he wanted to do in a high profile, important case.”
I hadn’t had a chance to go back and expand on this issue since I wrote that, but Nicholas Rosenkranz’s very smart post has prompted me to do so. Rosenkranz persuasively argues that Roberts’ use of the avoidance canon in the health care case is not your typical application of the canon: rather than apply it, as is typically done, to a textual ambiguity (such as to the question whether a ban on “vehicles” in the park covers bicycles), the Chief applies to to alternative “constitutional characterizations” of an unambiguous law (the health care mandate is either an unconstitutional “penalty” or a constitutional “tax”).
As poor as this analysis is as an application of the avoidance canon, CJ Roberts engaged in two worse applications of the canon in recent years. In the NAMUDNO case, considering the constitutionality of section 5 of the Voting Rights Act, the Court read the Voting Rights Act to allow for a utility district to “bail out” from coverage under the Act, an interpretation that the Chief Justice advanced to avoid the constitutional question whether section 5 was unconstitutional. Unlike the health care case, in NAMUDNO the Court did confront a question about textual meaning (did the Voting Rights Act give the utility district a chance to “bail out” from coverage of the act?). But the unprincipled part of the decision was that the textual meaning advanced by the Chief Justice was wholly unsupported by the text or the legislative history of the Act. I devote about half of my article, Constitutional Avoidance and Anti-Avoidance by the Roberts Court, 2009 Supreme Court Review 181, to demonstrating the truth of this assertion. Below the fold, I’ve included an excerpt from my article explaining why the district court so thoroughly rejected the argument that it should avoid the constitutional question by interpreting the Act to allow the utility district to bail out.
As with the taxing power analysis by the Chief in the health care case, the bailout analysis in NAMUDNO was a total surprise. See Heather Gerken, The Supreme Court Punts on Section 5, Balkinization (June 22, 2009) (“the statutory argument is one that almost no one (save Greg Coleman, the lawyer who argued the case and who is now entitled to be described as a mad genius) thought was particularly tenable because of prior Court opinions.”); Richard L. Hasen, Sordid Business: Will the Supreme Court Kill the Voting Rights Act? Slate (Apr 27, 2009), online at http://www.slate.com/id/2216888/ (“Since there’s no good statutory loophole, the larger constitutional question seems unavoidable.”).
And then there’s Citizens United, the well known case in which the Supreme Court on a 5-4 vote struck down the limits on independent corporate spending in elections. Constitutional avoidance was an issue there too. As I explain in my article, a week after NAMUDNO was issued, the Court announced it would not be deciding Citizens United by the Court’s summer break as scheduled. Instead, the Court set the case for reargument in September (before the start of the new Court Term), expressly asking the parties to brief the question whether the Court should overturn two of its precedents upholding the constitutionality of corporate spending limits in candidate elections. The constitutional issue had been abandoned by the law’s challengers in the court below and was not even mentioned in the challengers’ jurisdictional statement. Moreover, the constitutional question could easily be avoided through a plausible interpretation of the applicable campaign finance statute. Among other things, the the Court could have held that video-on-demand, which requires a cable subscriber to choose to download video for viewing, is not a “broadcast, cable or satellite communication that refers to a candidate for federal office” as defined by BCRA.
When the Court finally issued Citizens United, Chief Justice Roberts issued a separate concurring opinion, the main thrust of which appeared to be to justify not applying the doctrine of constitutional avoidance. He said that the interpretation offered to avoid the constitutional issue simply was not a plausible one. “This approach [of the dissent to apply avoidance] is based on a false premise: that our practice of avoiding unnecessary (and unnecessarily broad) constitutional holdings somehow trumps our obligation faithfully to interpret the law. It should go without saying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.”
In my earlier article, I tried to explain why the Court applied a canon of avoidance in NAMUDNO but of anti-avoidance (reach out and decide a difficult constitutional question even if there is a plausible statutory construction to avoid it) in Citizens United. I came up with three possible theories: First, the fruitful dialogue explanation posits that the Court will use constitutional avoidance only when doing so would further a dialogue with Congress that has a realistic chance of actually avoiding constitutional problems through redrafting. On this reading, the Voting Rights Act got “remanded” to Congress because Congress may fix it in ways that do not violate the Constitution, but the corporate spending limits provision of federal campaign finance law perhaps does not deserve remand because the campaign finance laws are not constitutionally fixable. Second, the political legitimacy explanation posits that the Court uses the constitutional avoidance doctrine when it fears that a fullblown constitutional pronouncement would harm its legitimacy. Some evidence supports this understanding. In the same Term that the Court avoided the constitutional question in NAMUDNO, it used the same avoidance canon to narrowly construe a different provision of the Voting Rights Act in Bartlett v Strickland, and it applied constitutional avoidance (in deed if not in name) to narrowly construe Title VII of the 1964 Civil Rights Act in Ricci v DeStefano, the controversial New Haven firefighters case. Each of these cases involved tough questions of race relations whose resolution could harm the Court’s legitimacy. In contrast, campaign finance issues are much lower salience to the public, and are less likely to arouse the passion of interest groups and perhaps the ire of Congress. Third, the political calculus explanation posits that the Court uses constitutional avoidance to soften public and Congressional resistance to the Court’s movement of the law in a direction that the Court prefers as a matter of policy.
The Chief Justice’s application of the constitutional avoidance canon in the health care case fits with the second and third rationales. The Chief could have engaged in the questionable act of avoidance to preserve the Court’s legitimacy. Alternatively, as others have suggested he may be playing the long game, sacrificing a chance to strike down the health care law in order to set new markers on issues including the commerce clause and the spending power.
But what these three opinions have in common is the Chief Justice’s selective manipulation of the constitutional avoidance doctrine for legal and political ends. This does not make the Chief Justice unique as a Supreme Court Justice—far from it. But it hardly makes him the neutral umpire he fancies himself.
Below, a piece by Chris Elmendorf on statistical tests for racism, and their impact on the Voting Rights Act. Originally published in JURIST (jurist.org), and available there at http://jurist.org/forum/2012/06/christopher-elmendorf-voting-future.php.
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Enacted in 1965 and reauthorized several times since, the Voting Rights Act (VRA) has long been regarded as the capstone of our nation’s civil rights architecture. The VRA’s core provisions have, however, come under sharp criticism from commentators and jurists who consider them outmoded or even unconstitutional in a society that is far more racially tolerant than it was in 1965. Defenders of the VRA argue that it remains necessary because contemporary racial prejudices or the lingering effects of past discrimination represent ongoing barriers to the political aspirations of minority voters and candidates.
Beyond riling up the already converted, neither side has made much headway in this debate. Progress has been slowed by difficulties in measuring the severity and geography of contemporary racial prejudices, and the extent to which they shape voters’ decisions. Most scholars believe that survey-based measures of overt racial prejudice underestimate contemporary prejudice, because survey respondents do not want to be seen as racist or to see themselves as racist. Psychologists have developed alternative measures of “implicit bias” or “racial resentment” that do not require survey respondents to cop to being racist, but other scholars dispute the scientific [PDF] or normative [PDF] validity of these metrics. And whatever one makes of the metrics, they have not yet yielded a fine-grained picture of the geography of racial discrimination, which is necessary to resolve current controversies about the VRA.
My purpose in writing this commentary is not to describe the contours of seemingly intractable debate, but to argue that answers are finally at hand — thanks to path-breaking new research on the geography of discrimination. Seth Stephens-Davidowitz, a doctoral student in economics at Harvard, is deploying publicly available information to measure the frequency with which Google searches use the “n-word” in each of the nation’s 210 media markets. (It turns out that most searchers who used the n-word were looking for derogatory jokes about black people.) He shows [PDF] that in relatively prejudiced regions, then-candidate for president, Barack Obama, substantially underperformed relative to his expected vote share.
I argue here that Stephens-Davidowitz’s research is likely to be the nail in the coffin of Section 5 of the VRA, which requires jurisdictions in certain regions of the country to “pre-clear” changes to their election laws with the US Department of Justice or the District Court of the District of Columbia. But even as it hastens the demise of Section 5, Stephens-Davidowitz’s work should greatly strengthen Section 2 of the Act, which applies nationally and which prohibits election laws that “result” in minority voters having “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
Breaking News: Divided D.C. Circuit Panel Upholds Constitutionality of Voting Rights Act, Teeing Up Issue for Supreme Court
The Shelby County opinion is here. Judge Williams dissented. The court also issued a unanimous opinion in the related LaRoque case, finding the issue mooted by DOJ’s belated preclearance of the law in question.
From Judge Tatel’s majority opinion in Shelby County:
The point at which section 5’s strong medicine becomes unnecessary and therefore no longer congruent and proportional turns on several critical considerations, including the pervasiveness of serious racial discrimination in voting in covered jurisdictions; the continued need for section 5’s deterrent and blocking effect; and the adequacy of section 2 litigation. These are quintessentially legislative judgments, and Congress, after assembling and analyzing an extensive record, made its decision: section 5’s work is not yet done. Insofar as Congress’s conclusions rest on predictive judgments, we must, contrary to the dissent’s approach, apply a standard of review even “more deferential than we accord to judgments of an administrative agency.” Turner Broad., 520 U.S. at 195. Given that we may not “displace [an agency’s] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo,” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951), we certainly cannot do so here. Of course, given the heavy federalism costs that section5 imposes, our job is to ensure that Congress’s judgment is reasonable and rests on substantial probative evidence. See Turner Broad., 520 U.S. at 195 (“In reviewing the constitutionality of a statute . . . [o]ur sole obligation is to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence.”
(internal quotation marks omitted)). After thoroughly scrutinizing the record and given that overt racial discrimination persists in covered jurisdictions notwithstanding decades of section 5 preclearance, we, like the district court, are satisfied that Congress’s judgment deserves judicial deference.
The majority also relied upon section 2 evidence, especially Ellen Katz’s study, to make the point that the covered jurisdictions remain at greater risk of intentional discrimination in voting on the basis of race to justify different treatment under the law. It also relied heavily on the increasing number of jurisdictions “bailing out” from section 5 coverage—this increased bailout activity seems to have been orchestrated directly to allow courts to make this determination. The majority concludes by noting that it is deferring, although the “legislative record is by no means unambiguous.”
Judge Williams’ dissent dives into the data too, and finds little basis to find a problem with minority voter turnout, the number of minority voter officials, or the extent of unconstitutional state racial discrimination in voting to justify the burden of preclearance in covered jurisdictions of all of these voting changes. He disagrees strongly with the relevance and importance of the section 2 data.
In one portion of the dissent with contemporary relevance, Judge Williams writes:
Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana? A glimpse at the charts shows that Indiana ranks “worse” than South Carolina and Texas in registration and voting rates, as well as in black elected officials (Figures I, II and III). As to federal observers, Indiana appears clearly “better”—it received none (Figure IV). As to successful § 2 suits South Carolina and Texas are “worse” than Indiana, but all three are below the top ten offenders, which include five uncovered states (Figure V). This distinction in evaluating the different states’ policies is rational?Despite a congressional record of over 15,000 pages and 22 hearings, Shelby County, 811 F. Supp. 2d at 496, there is little to suggest that § 4(b)’s coverage formula continues to capture jurisdictions with especially high levels of voter discrimination. To the extent that the answer is, as the district court suggested, that Congress wished to “continue to focus on those jurisdictions with the worst historical records of voting discrimination,” id. at 506, such an overwhelming focus on historical practices appears foreclosed by Northwest Austin’s requirement that current burdens be justified by current needs.
It goes without saying that racism persists, as evidenced by the odious examples offered by the majority, see Maj. Op. at 27-29. But without more evidence distinguishing current conditions in the covered jurisdictions from those in the uncovered ones, § 4(b)’s coverage formula appears to be as obsolete in practice as one would expect, in a dynamic society, for markers 34-to-59 years old. Accordingly, I dissent.
Judge Williams held that only the coverage formula was unconstitutional and did not fully reach the constitutionality of section 5 as a whole. But if the Supreme Court agreed with him, the result would be the same: section 5 would be unconstitutional to apply (though in theory Congress could try to reenact it with a new coverage formula).
And this may be the most significant aspect of things. Judge Williams has provided a way for the conservatives on the Supreme Court to end Section 5 without having to declare that it would necessarily be unconstitutional if Congress tweaked it. And of course in this Congress there would not be a revised section 5.
I expect Shelby County to seek cert., and for the Court to agree to hear this case next term, with a decision likely by June 2013. It is also possible that another one of these cases, such as the Texas or South Carolina section 5 challenges related to their voter i.d. laws, could leapfrog over these cases and be heard first by the Court.
As to what the Court will do, my money is on the Court holding—one way or another–that section 5 can no longer be enforced against the covered states.
Washington Times: “Prince William County this week became the largest local jurisdiction in the nation to be released from the requirements of a historic federal law ensuring fair treatment for minorities at the polls.”
Also noted in the report: Bailout King Gerry Hebert is working on bailing out the state of New Hampshire.
“Justice Department Reaches Agreement with King George County, Virginia, on Bailout Under the Voting Rights Act”
It is hard for me to see it as anything but a subtle call for the President’s reelection and a reminder/thank you for the auto industry bailout.
Frances Faircloth has written this very interesting note for the Yale Law Journal. It looks at the problems with expanding bailout under the law as a means of preserving the constitutionality of section 5 of the Voting Rights Act.
Federal District Court Calls Out Supreme Court on Its Shoddy Statutory Interpretation of the VRA in the NAMUDNO Case
From today’s opinion in the Shelby County case, I was gratified (but somewhat surprised) to see the following passage in the district court’s discussion of NAMUDNO:
On appeal, however, the Supreme Court reversed and remanded. In a decision that has since been criticized by some as “a questionable application of the doctrine of ‘constitutional avoidance,’” see Richard L. Hasen, Constitutional Avoidance and Anti-Avoidance by the Roberts Court, 2009 SUP. CT. REV. 181 (2009); see also Ellen Katz, From Bush v. Gore to NAMUDNO:-A Response to Professor Amar, 61 FLA. L. REV. 991, 992-93 (2009) (describing the Court’s “statutory construction” of the bailout provision in Nw. Austin II as “contrived”), Justice Roberts, writing for an eight-justice majority, sidestepped the “big question” of Section 5′s constitutionality by instead resolving the case on narrower, statutory grounds, see Nw. Austin II, 129 S. Ct. at 2508. Specifically, the Court found that the plaintiff-district qualified as a “political subdivision” eligible to petition for bailout — even though it did not register voters and was therefore not a political subdivision as that term is defined in Section 14(c)(2) of the Act. See 42 U.S.C. § 1973l(c)(2) (defining “political subdivision” to include “any county or parish” or “any other subdivision of a State which conducts registration for voting”).
Great looking symposium in the Minnesota Law Review.
This press release from Gerry Hebert begins: “This summer has been a busy one for local governments taking advantage of the opportunity to bailout from coverage under the Voting Rights Act of 1965. So far this year, the following local jurisdictions have bailed out: Jefferson County (TX) Drainage District no. 7; Alta (CA) Irrigation District; the City of Manassas Park, VA, and Rappahannock County, VA. Currently, there are five other bailouts pending before the DC Court, all of which have reached agreement with the United States Attorney General that the local government has met all of the bailout criteria. These include the City of Bedford, VA; Bedford County, VA; the City of Williamsburg, VA; James City County. VA; and Culpeper County, VA.”
I expect these bailouts (and others) to be highlighted in the Supreme Court in defense of any constitutional attack on the supposed onerousness of Section 5 preclearance requirements.
The Washington Times offers this report.
“Department of Justice Consents to Jefferson County (TX) Drainage District No. 7 Voting Rights Act ‘Bailout’”
Gerry Hebert has issued this press release.
The Washington Post offers this report. The newspaper also offers Risky career move paid off for fundraiser Rob Collins — and the Republicans.
Gerry Hebert’s latest success, and I believe the first outside of Virginia (besides the MUD in NAMUDNO).
UPDATE: DOJ has posted this press release, which shows approval of bailout for Sandy Springs, Ga. as well.
SECOND UPDATE: More on Sandy Springs from Holtzman Vogel.
You can read the Court’s order here. Among other things, the DOJ wanted to determine whether Shelby County is eligible for bailout. But Shelby County does not want bailout. So the case is moving directly to summary judgment on the question whether Congress’s extension of the VRA section 5 for another 25 years exceeded congressional power, the issue left undecided in NAMUDNO. Briefing on the summary judgment motion should be complete in December, meaning we should have an opinion from the district court in the early part of 2011. This is a case I will continue to monitor closely, as it could be the case that causes the Supreme Court to revisit the issue it left open in NAMUDNO.
Franita Tolson has posted this draft on SSRN (forthcoming Utah Law Review). Here is the abstract:
- Partisan gerrymandering has been criticized as stifling political accountability and voter participation, and as anti-competitive and harmful to democracy. This article offers a dissenting view: that partisan gerrymandering, though sometimes antagonistic to democratic ideals, can potentially be democracy-enhancing and federalism-reinforcing. This article provides the first scholarly treatment of the constitutionality of partisan gerrymandering as a structural safeguard of federalism. Building on the political safeguards literature developed by Herbert Wechsler over fifty years ago, this article contends that partisan gerrymandering links state and federal officials in a way that can protect the states’ regulatory authority.
Pursuant to their power under Article I, Section 4, Clause 1 of the Constitution, commonly known as the Elections Clause, states can create politically homogenous districts and send an ideologically cohesive House delegation to Congress in order to influence federal policy in ways favorable to their interests. Given the controversy over the bailout, the stimulus package, and “Obamacare,” the states’ redistricting authority remains one of the few historical and textually-based vestiges of power that states can use to influence federal policy.
Part I of this article discusses the Supreme Court’s decision in Vieth v. Jublierer which, contrary to much of the caselaw, treats partisanship in redistricting as “expected,” and “constitutional.” This section also explores how later decisions validating mid-decade redistricting have increased the possibility that partisan gerrymandering can serve as a political safeguard. Part II builds on this foundation and argues that the Elections Clause serves as a textual anchor to support the constitutionality of partisan gerrymandering as a federalism safeguard. Finally, Part III considers the constitutional structure which, because of the link between state and federal officials in redistricting, requires congressional representatives to be responsive to both their constituents and to the state itself in order to be reelected. As the analysis in Parts I, II, and III will show, the expansion of federal power makes states more likely to use their redistricting power going forward to maneuver their House delegations toward their policy preferences.
I read this interesting piece in draft. Recommended.
Gerry Hebert offers these thoughts on why more localities haven’t bailed out of Section 5 coverage — and why they should.
The city council hasn’t voted yet, but the electoral board wants the city to bail out according to this report.
The NY Times also reports that Schumer-van Hollen would, with some exceptions, “ban political expenditures by government contractors, companies that received bailout money from the government under the Troubled Asset Relief Program and companies that have more than 20 percent foreign ownership.”
Christopher Seaman has posted this draft on SSRN (forthcoming, St. Louis U. L. Rev.). Here is the abstract:
- In Northwest Austin Municipal Utility District No. 1 v. Holder (“NAMUDNO”), 129 S. Ct. 2504 (2009), the Supreme Court declined to decide one of last Term’s most prominent issues: the constitutionality of the 2006 renewal of Section 5 of the Voting Rights Act. Instead, the Court adopted an unexpected statutory construction permitting the plaintiff to seek an exemption called “bailout” from continued coverage under this provision. But even though the Court avoided directly ruling on its constitutionality, NAMUDNO left little doubt that Section 5 remains on shaky constitutional ground.
A revised bailout system is likely the best approach for placing Section 5 on a more solid footing. To date, however, bailout has been little used; despite predictions made during the previous renewal of Section 5 in 1982, only a handful of the thousands of covered jurisdictions have sought and successfully obtained bailout. This paper suggests that Congress should adopt two major changes to the existing bailout system. First, Congress should implement an “automatic” bailout that would unilaterally remove from coverage all jurisdictions that have not violated the major provisions of the Voting Rights Act since the 1982 renewal. Second, the current requirements for obtaining bailout – which this paper calls “optional” bailout – should be revised to make it easier for jurisdictions to determine whether they are eligible. Adopting these changes will more narrowly tailor Section 5 to apply to jurisdictions with a recent history of discrimination in voting, and thus make it more likely to survive constitutional scrutiny the next time the issue is before the Court.
From today’s NY Times:
- The group, the Committee for Truth in Politics, has spent an estimated $5 million on advertising against the proposals, according to the Campaign Media Analysis Group, which monitors political advertising. The ads portray the financial reforms — misleadingly, the administration says — as a $4 trillion bailout for big banks.
The group’s membership and financing have been kept secret, and it has refused to divulge its donors; it is suing the Federal Election Commission, claiming the rules for disclosure in political advertising are an unconstitutional impediment to free speech.
James Bopp Jr., the lawyer and conservative advocate who represents the group in its lawsuit, said in an interview that the ads accurately reflected a section in the House bill that would allow the Federal Reserve to spend up to $4 trillion to stabilize the financial system in a liquidity crisis. He said characterizing the bill as anything other than a bailout “is a typical Washington lie where politicians do one thing in Washington, which is to advance the Obama socialist agenda, and lie about it when they go home because they don’t want anyone to know about it.”
Roll Call: “A new definition of ‘coordination,’ a prohibition of election spending by government contractors and recipients of bailout funds, a tightening of the provision in existing law concerning contributions and expenditures by foreign corporations.”
As I understand it, this consent decree will become final next month. “On remand, the Attorney General and the Defendant-Intervenors have agreed that the District has fulfilled the conditions required by Section 4(a) and is entitled to the requested declaratory judgment allowing it to bail out of Section 5 coverage. The parties also have agreed that the District’s alternative claim challenging the constitutionality of Section 5 should be dismissed without prejudice, pursuant to Rule 41(a), Fed. R. Civ. P. Accordingly, the District, the Attorney General and the Defendant-Intervenors have filed a joint motion for entry of this Consent Judgment and Decree.”