Top Recent Downloads in Election Law on SSRN

…ed in the last 60 days 14 Jun 2015 through 13 Aug 2015 Rank Downloads Paper Title 1 102 The Party’s Over: McCutcheon, Shadow Parties, and the Future of the Party System Joseph Fishkin and Heather Gerken University of Texas School of Law and Yale University – Law School Date posted to database: 13 Jun 2015 Last Revised: 29 Jul 2015 2 72 Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and…

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“Commemorating the 50th Anniversary of the US Voting Rights Act”

…en, James U. Blacksher, Michael L. Clemons, Jonathan I. Leib http://www.sciencedirect.com/science/article/pii/S0962629815000608 The legacies of the U.S. Civil Rights Act, fifty years on Caroline Nagel,Josh Inwood, Derek Alderman, Ujju Aggarwal, Claire Bolton, Steve Holloway, Richard Wright, Mark Ellis, Priscilla McCutcheon, Katherine Hankins, Andy Walter, Kate Derickson http://www.sciencedirect.com/science/article/pii/S0962629815000463  …

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Republicans File Major New Challenge to McCain-Feingold Soft Money Rules

…filed. It may be because the Wagner v. FEC case makes it easier to get three-judge courts in BCRA case. In the McCutcheon case of 2014, Chief Justice Roberts added language which seemed to invite a challenge to the soft money rules: “When donors furnish widely distributed support within all applicable base limits, all members of the party or supporters of the cause may benefit, and the leaders of the party or cause may feel particular gratitude….

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In the Election Law Mailbag

Albert W. Alschuler, Limiting Political Contributions after McCutcheon, Citizens United, and Speech Now (Florida Law Review) Eric Berger, The Rhetoric of Constitutional Absolutism (William and Mary Law Review) James A. Gardner, Partitioning and Rights: The Supreme Court’s Accidental Jurisprudence of Democratic Process (FSU Law Review) Eitan D. Hersh, Hacking the Electorate: How Campaigns Perceive Voters (Cambridge) David B. Magleby, ed., F…

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The Status of the Federal Contractor Ban as Applied to Super PACs

…ance restrictions to the prevention of quid pro quo corruption or its appearance.  Last Wednesday’s decision in McCutcheon v. FEC highlights the doctrinal fragility of the federal contractor ban in cases like this. Full disclosure:  Covington represented Chevron before the FEC in this matter. UPDATE: Craig Holman sent the following message to the election law listserv (reprinted with permission): Every indication at this point is that the federal…

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2015 Supplement to Election Law Casebook

…v. Alabama* Williams-Yulee v. Florida State Bar* 281 Care Committee* American Tradition Partnership v. Bullock* McCutcheon v. FEC* Kobach v. EAC Earlier description: The 2015 supplement is shipping in time for fall classes, and will now include edited versions of the Evenwel one person, one vote case in the district court and the Supreme Court’s recent opinion in Williams-Yulee. Here’s an earlier written description of the supplement: The 2015 Su…

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A war within the Republican party?

…some ads. They are taking over major functions once reserved for the official parties. Our article begins with McCutcheon v Federal Election Commission, which struck down the FECA’s caps on how much hard money in toto one donor could give to candidates and party committees in a given year. It quickly morphs into a rumination on the future of the party system. That’s because McCutcheon can only be understood against the deep shifts taking place i…

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“The Role of Three-Judge Courts in Conservative Attacks on Campaign Finance Reform and Voting Rights”

…ce and voting rights cases heard by three-judge district courts.  What is similar about Citizens United v. FEC, McCutcheon v. FEC, NAMUDNO v. Holder, and Evenwel v. Abbott?  In each one of these cases, the Justices agreed to hear a direct appeal from a three-judge district court.  Three-judge districts courts (composed of two district court judges and one court of appeals judge) are a rarity in federal law, but play a very significant role in cam…

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2015 Supplement to Election Law Casebook Coming Soon

…e Court’s October 2014 term. It includes an edited version of of the Supreme Court’s new campaign finance case, McCutcheon v. FEC, an edited version of Shelby County v. Holder, and coverage of the Supreme Court’s consideration of new redistricting cases from Alabama and Arizona, raising new questions about racial gerrymandering claims and the scope of state power to enact citizen redistricting commissions for congressional districts via vot…

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9th Circuit Panel Upholds Hawaii Ban on Campaign Contributions by Government Contractors

…he federal contractor ban remains pending. The 9th Circuit held the ban satisfied exacting scrutiny, even after McCutcheon, and even though it is a ban, rather than a limit on contributions, citing the danger of pay to play. The bulk of the opinion also upheld a variety of reporting, disclaimer, and disclosure requirements required by Hawaii law. And the court included dicta affirming the special importance of disclosure in the Citizens United er…

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James Sample on Williams-Yulee and The Future of Judicial Campaign Regulation

…nnedy takes an absolutist position that independent expenditures unequivocally cannot corrupt (Citizens United, McCutcheon etc…). In those decisions, not to mention in ATP v. Bullock, in which the Court refused the state of Montana even the opportunity to stand in the well of the Supreme Court and say, to the Court face-to-face, “Yes, independent expenditures can corrupt and we have a documented empirical record contradicting the Cour…

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Jamie Raskin on Hillary Clinton and a Constitutional Amendment to Overturn Citizens United

…wealth.  This is the wall that has been mostly demolished by the Roberts Court in both Citizens United and the McCutcheon decision…. Thankfully there is no talk of hypocrisy in Hasen’s critique, but still all Clinton gets from him is a lot of negative energy.  First, he faults her for not trying to fix “the nation’s disclosure laws,”  which is strange because she supported the Disclose Act, which U.S. Rep. Chris Van Hollen introduced and w…

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“Presupposing Corruption: Access, Influence, and the Future of the Pay-to-Play Legal Framework”

…tes “corruption” in the political sphere. In light of its decisions in 2010’s Citizens United v. FEC and 2014’s McCutcheon v. FEC—two seminal cases that dramatically altered campaign finance regulation—the Court now appears to recognize that access and influence do not constitute quid pro quo corruption or the appearance thereof. Consequently, this view has led to deregulation of the legal framework of campaign finance in recent years. Furthermor…

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#SCOTUS Didn’t Mean It When They Said It Dep’t

…n ingratiate. See 251 F. Supp. 2d, at 555-557 (opinion of Kollar-Kotelly, J.). Ingratiation and access, in any event, are not corruption. I explain how the Court significantly narrowed the definition of corruption in Citizens United in my Michigan Law Review article, Citizens United and the Illusion of Coherence. It is a trend that was extended from expenditures to contributions in last year’s McCutcheon case.  …

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99 Rise Says It Has Disrupted #SCOTUS Again, with Campaign Finance Messages

…althiest 1%. Protestors rose one by one to deliver their statements to the Court, demanding they “Reverse McCutcheon and overturn Citizens United,” before raising their index finger in the air, a gesture signifying “one person, one vote” political equality. They were detained and arrested by court security. “The Supreme Court is deeply complicit in the corruption of our democracy,” said Belinda Rodriguez, who p…

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“American Plutocracy”

…tructed and justified a new form of government called plutocracy. Campaign finance cases from Buckley (1976) to McCutcheon (2014) contain a series of constitutional principles that serve to increase political inequality and economic inequality. Those constitutional principles also serve as the “apparatus of justification” sought by Piketty, the justifications for inequality that might allow today’s state of affairs to endure. Th…

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Floyd Abrams Speech on First Amendment Discusses McCutcheon, Citizens United

…ve become so vast. Let me offer one example of a post-Citizens United case in which those differences were spelled out with particular brio by members of the Supreme Court. It is the recentMcCutcheon case, which struck down a cap on the total amount of contributions an individual may make to candidates (while leaving in effect the limits Congress had set on a candidate by candidate basis).  …

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“The New Normal in Election and Political Law”

…dergone radical changes in the past five years. The Supreme Court’s recent decisions in Citizens United v. FEC, McCutcheon v. FEC, and Shelby County v. Holder have systematically reshaped our campaign finance and voting rights regimes. We can expect these changes in the law to have significant, long-term effects on electoral politics. Yet most analyses have focused on these decisions’ individual impacts rather than their collective consequences o…

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“Unlimited and Undisclosed: The Religious Right’s Crusade to Deregulate Political Spending”

…tions as a vehicle to derail campaign finance laws, including in high profile cases such as Citizens United and McCutcheon, which have contributed to the flood of money in our elections. The political spending of religious right groups to support Republican candidates over the last two decades, and how it has increased since the Citizens United. The work of religious right groups against disclosure laws that would require big political spenders s…

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“The FEC Hearing and Its Detractors”

…The agency was acted entirely reasonably in inviting views on what it might do, if anything, in response to the McCutcheon case.  So what followed was predictable: the usual strong divisions were expressed and anyone hoping for a clear picture of the problems of campaign finance and how to address them was bound to be disappointed.  The FEC is not the culprit here: it only hosted the discussion and is not responsible for its content. It was a hea…

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Ravel and Weintraub: Come on Over to the FEC

…concern to all. When the Commission reached out for public comment on the state of our elections in the wake of McCutcheon v. FEC and other Supreme Court decisions, over 32,000 Americans commented. These comments came from Americans of all walks of life. They overwhelmingly urge the Commission to increase disclosure of political spending and limit the influence of money in our elections. Now, the Commission will open its doors for a public hearin…

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“Of Constituents and Contributors”

…coming, University of Chicago Legal Forum).  Here is the abstract: In the stirring conclusion to his opinion in McCutcheon v. FEC, Chief Justice Roberts pointed to the close connection between campaign contributions and what he called the “political responsiveness at the heart of the democratic process.” Invoking Edmund Burke, the Chief Justice eloquently declaimed that “[c]onstituents have the right to support candidates who share their views an…

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“The Law of Democracy at a Crossroads: Reflecting on Fifty Years of Voting Rights and the Judicial Regulation of the Political Thicket”

…ope of congressional authority over elections. Last term, the Court decided an important campaign finance case, McCutcheon v. FEC, which struck down aggregate contribution limits and opened the door for more campaign finance deregulation. This symposium will allow leading legal scholars and political scientists to gather at a critical juncture in election law to debate and shape the future of the field. You can see the schedule of events here. &n…

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Judge Posner on Free Expression and the First Amendment

…How would you characterize the First Amendment jurisprudence of the current Court? Posner: Very nice for fat cats and enemies of abortion. Question: …..[H]ow bad in your view have things become in light of rulings such as McCutcheon v. FEC (2014)? Posner: Very bad. Question: Do you favor some kind of constitutional amendment to remedy the problems you have identified Posner: [The idea of a constitutional amendment is] a waste of time….

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“Meet the New Super Donors”

…cycle. The Supreme Court, however, obliterated the aggregate cap last April on First Amendment grounds with its McCutcheon v. FEC ruling. And with that, K Street’s familiar refrain to candidates’ pleas for campaign cash—“I’ve maxed out”—was no longer operative. Campaigns, meanwhile, interpreted McCutcheon as a hall pass for harassing K Street donors. In this free-fire fundraising environment, O’Brien is now liberated to give more and bother his r…

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“Governing and Deciding Who Governs”

…hafetz has posted this draft on SSRN (forthcoming, University of Chicago Legal Forum). Here is the abstract: In McCutcheon v. Federal Election Commission, Chief Justice Roberts wrote that, “Campaign finance restrictions that pursue other objectives [than eradicating quid pro quo corruption or its appearance], we have explained, impermissibly inject the Government ‘into the debate over who should govern.’ And those who govern sho…

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“McCutcheon Calls for a National Referendum on Campaign Finance (Literally)”

Andrew Tutt has posted this draft on SSRN (Columbia Law Review Sidebar). Here is the abstract: In McCutcheon v. FEC, the Supreme Court tightened First Amendment limits on Congress’s authority to regulate campaign financing. McCutcheon ostensibly left in place the old regime that allows campaign-finance regulation so long as it strikes at quid pro quo corruption or its appearance. But two recurring themes in the McCutcheon opinion indicate that t…

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Jim Bopp On the Hunt

…ng special campaign finance restrictions on lobbyists and those doing business with the city.  The filing cites McCutcheon as a reason to change course. The other describes Jim’s attempt to return to the Supreme Court on the issue in Doe v. Reed : disclosure in the face of threats, harassment, or other reprisals.  In Doe v. Reed , the Court rejected a facial challenge to a law requiring disclosure of signatories to referendum petitions (the refer…

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10/9 FEC Meeting: Citizens United, McCutcheon & More

…regular PACs with separate independent-expenditure accounts. Another implements the Supreme Court’s decision in McCutcheon , removing the aggregate limits on contributing to candidates, party committees, and PACs.  Still another announces an upcoming rulemaking to consider further refinement in light of McCutcheon , including potential adjustments to existing earmarking, affiliation, and disclosure rules to help prevent circumvention of the exist…

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Top Recent Downloads in Election Law on SSRN

…s Date posted to database: 27 Aug 2014 Last Revised: 1 Sep 2014 4 74 The Democracy We Left Behind in Greece and McCutcheon Ciara Torres-Spelliscy Stetson University – College of Law Date posted to database: 4 Aug 2014 Last Revised: 30 Sep 2014 5 66 Protecting Political Participation Through the Voter Qualifications Clause of Article I Franita Tolson Florida State University – College of Law Date posted to database: 26 Aug 2014 Last Re…

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Breaking: Supreme Court to Hear Arizona Redistricting Case and Florida Case on Judicial Campaign Speech: Analysis

…e more conservative side aimed at shrinking voting rights or loosening campaign finance rules (Citizens United, McCutcheon, Shelby County).  Today’s emergency petition from voting rights advocates in Wisconsin is somewhat of an exception, but the petition raises issues not about voting rights more broadly, but about changing rules mid-election, an issue on which I think voting rights advocates could win. But today’s Supreme Court gran…

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“Campaign Finance, Federalism, and the Case of the Long-Armed Donor”

…SRN (forthcoming, University of Chicago Law Review Dialogue).  Here is the abstract: In its ruling last Term in McCutcheon v. FEC, the Court struck down federal campaign-finance laws that limited the aggregate amount of money that Shaun McCutcheon and other would-be campaign donors could give to a variety of political committees and to individuals running for Congress in states and districts other than their own. Chief Justice Roberts began his o…

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“The CEO and the Hydraulics of Campaign Finance Deregulation”

…money as speech not only when wealthy individuals donate to political candidates, but also when consumers spend money at the cash register. The politicization of retail markets means that business leaders are unlikely to respond to McCutcheon v. FEC by embracing transparency with their campaign donations, and also suggests that campaign finance deregulation is causing hydraulic effects that the Court has failed to anticipate.    …

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Election Law Panels at William & Mary Supreme Court Preview, September 20, 2014

…d Vieth, LULAC, and Florida redistricting cases), Pam Karlan (DOJ, Stanford), and Erin Murphy (Bancroft, argued McCutcheon). The session will cover race and redistricting, Section 2 voter ID and early voting cases, and campaign finance. In addition, a morning panel on civil rights cases before the Court will include a discussion of Alabama Legislative Black Caucus v. Alabama. The Preview congregates judges, former solicitors general, Supreme Cour…

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Judge Randa Issues Order Immediately Barring Wisconsin from Enforcing Limits on PAC Contributions to State Candidates

…nd it seems like a reasonable, if potentially challengeable application of the Supreme Court’s opinion in McCutcheon.  It is not exactly the same issue: McCutcheon involved (among other things) a limit on the total amount that one individual could give to all federal candidates in an election. The disputed provision here limits the total amount of money from ALL political committees which a state candidate can take. Judge Randa said this ki…

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New Letter from Former ACLU Leaders Supports Campaign Spending Limits

…m the letter: We believe that the Supreme Court’s campaign finance decisions from Buckley to Citizens United to McCutcheon are based on three fallacies. First, the Court wrongly equates spending unlimited sums of money with pure speech. We agree that campaign spending is a mix of speech and conduct. At reasonable spending levels, the speech element predominates, rendering unreasonably low campaign spending levels (like the absurdly low spending l…

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“Without Limits, Will Campaign Contributions Dominate Politics?”

…elections—and there’s more money than ever for Senate and House campaigns. In April, Alabama businessman Shaun McCutcheon gave his name to a US Supreme Court decision to eliminate legal restrictions on how much an individual can give in total to candidates and committees. McCutcheon says it’s great to have more money in politics—putting it this way: “we’re just spreading speech.” What’s the likely impact of more money in politics—this year and i…

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“Wealthy political donors seize on new latitude to give to unlimited candidates”

…“Sabin and other wealthy political contributors have more access than ever to candidates since the ruling in McCutcheon v. Federal Election Commission. More than 300 donors have seized the opportunity, writing checks at such a furious pace that they have exceeded the old limit of $123,200 for this election cycle, according to campaign finance data provided by the Center for Responsive Politics, a nonpartisan research organization.”…

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