2015 Supplement to Election Law Casebook

The 2015 supplement (152 pages) to Lowenstein, Hasen, and Tokaji, Election Law Cases and Materials, is going to the printer today. Instructors using the book can write to crutan (at) cap-press.com to get a pdf of the book for planning purposes beginning next week.  Among the items covered in the supplement (a * means an edited version of the case or significant excerpts appears): Evenwel* Shapiro v. Mack Harris v. AZ Redistricting Commission…

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A war within the Republican party?

  Coauthored with Joseph Fishkin, University of Texas Law School A recent story perfectly embodied the central puzzle in a paper that we recently published in the Supreme Court Review. The story tells about the war between the Koch brothers and the Republican National Committee over whose database of voter information will be used in 2016. It sounds a little arcane, but voter data is the lifeblood of any campaign: who is on your side, who…

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

David Gans: Election law cases have come to the Supreme Court in droves in recent years, as conservative activists have taken advantage of federal laws that provide for a direct appeal to the Supreme Court in certain campaign finance 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…

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2015 Supplement to Election Law Casebook Coming Soon

The 2015 supplement to Lowenstein, Hasen, and Tokaji 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 Supplement to the fifth edition of Election Law: Cases and Materials will be up to date through the end of the Supreme…

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

A important unanimous decision by Judge Fisher (joined by Kozinski and Watford) in the 9th Circuit as a challenge to the 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…

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

The following is a guest post from James Sample of Hofstra, who has been doing very important work in the area of judicial elections, filling a key void left by Roy Schotland’s passing. Here are James’s thoughts: As Rick’s initial post indicated, Williams-Yulee is a huge victory for those concerned with cash in the courtroom. It is, moreover, a surprise victory for the broader judicial-elections-are-different premise. I tend…

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

Jamie in Salon: The country’s most prolific voting rights scholar and blogger, Richard Hasen—a colleague and friend of mine—is the most recent legal academic to pour cold water all over the movement for a constitutional amendment to rebuild the statutory wall protecting democratic elections from the flood of plutocratic and corporate wealth.  This is the wall that has been mostly demolished by the Roberts Court in both Citizens United and…

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

Allison Davis has posted a draft of this student note (forthcoming William & Mary Business Law Review) on SSRN.  Here is the abstract: Political spending, in all of its various permutations, lies at the nexus between campaign finance law and pay-to-play law. Both of these legal doctrines seek to minimize the corrupting effects of money upon elected officials and candidates, and both impose various caps and restrictions on political…

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

Brad Smith trying to recast the holding of Citizens United in the NYT: “The court’s position is pretty simple, and it is not that independent expenditures can never create gratitude in an officeholder,” said Bradley A. Smith, a professor of law at Capital University Law School. “Rather it is that as a constitutional matter, they do not pose a threat of corruption sufficient to justify the invasions of First Amendment rights that the ‘reformers’…

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

Press release via email: Six members of the grassroots organization 99Rise disrupted the nation’s highest Court this morning, issuing a series of statements protesting recent court rulings that facilitate enormous increases in campaign spending by a tiny fraction the wealthiest 1%. Protestors rose one by one to deliver their statements to the Court, demanding they “Reverse McCutcheon and overturn Citizens United,” before…

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“American Plutocracy”

Tim Kuhner has posted this draft on SSRN (forthcoming, Kings Law Journal).  Here is the abstract: This essay explores the linkages between economic inequality, political inequality, and money in politics. Said another way, it explores the linkages between Thomas Piketty, Gilens & Page, and campaign finance law. It argues that the U.S. Supreme Court has constructed and justified a new form of government called plutocracy. Campaign finance…

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Floyd Abrams Speech on First Amendment Discusses McCutcheon, Citizens United

Via Concurring Opinions: You may agree or disagree with the positions we took or the clients for whom we took them. But one thing is common to all of the examples I have just cited to you. No one in any of these matters — not any opponent, not any judge, no one — said anything to the effect that since our client was a corporation that it had no First Amendment rights and should not be heard to say that those rights had been violated. I do not…

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“The New Normal in Election and Political Law”

Announcement via email: The Yale Law and Political Society and Yale Law & Policy Review are hosting a conference on Saturday, April 11 at Yale Law School (127 Wall St., New Haven, CT 06520). The conference will explore the current state of political and electoral legal practice, with an eye to generating new ideas for research and advocacy. Election and political law have undergone radical changes in the past five years. The Supreme Court’s…

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

New Common Cause report: Common Cause’s new report, “Unlimited and Undisclosed: The Religious Right’s Crusade to Deregulate Political Spending,” focuses on how one particular interest group has waged war on important campaign finance laws in order to allow more big money in our political system. The new report explores: How religious right, anti-marriage equality, and anti-abortion organizations have served as plaintiffs in over 70 lawsuits…

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“The FEC Hearing and Its Detractors”

Bauer: It seem unfair that just holding a hearing subjects the FEC to criticism and ridicule. 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…

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Ravel and Weintraub: Come on Over to the FEC

Press release via email: Chair Ann M. Ravel and Commissioner Ellen L. Weintraub: FEC To Hold Public Hearing on Wednesday, February 11 Federal Election Commission Chair Ann M. Ravel and Commissioner Ellen L. Weintraub are pleased to invite you to the Commission’s public hearing, where the Commission will hear testimony from members of the public on how to improve campaign finance rules to promote transparency in political spending and fight…

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“Of Constituents and Contributors”

Richard Briffault has posted this draft on SSRN (forthcoming, 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…

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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”

I am looking forward to participating in this event at FSU (where I will be presenting my Purcell Principle paper): Friday, March 27 – Saturday, March 28, 2015      2015 marks the 50th Anniversary of the Voting Rights Act of 1965, presenting a perfect opportunity to reflect on the changes that have occurred since the Supreme Court entered the “political thicket” over five decades ago. Since the 1960s, the Court has changed the landscape…

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Judge Posner on Free Expression and the First Amendment

At Concurring Opinions, the sixth installment of “Posner on Posner,” much of it on campaign finance. Snippets: Question: Is speech overprotected by our courts and in our culture? Posner: I think so. The most notorious example is expenditures on political advertising — Citizens United and its sequels. …. Question: The Roberts Court has rendered 36 First Amendment free expression rulings. How would you characterize the First…

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“Meet the New Super Donors”

Kevin Bogardus: “We used to have a standard fax, which we turned into an email, that would go out in response to solicitations that said something like Mr. O’Brien has hit his maximum or something like that,” says O’Brien, founder of the OB-C Group, a high-profile lobby firm. “The cap did have a real world consequence. Once you hit it, you hit it.” O’Brien was referring to the limit on a donor’s overall campaign contributions, which stood at…

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“Governing and Deciding Who Governs”

Josh Chafetz 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…

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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…

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Jim Bopp On the Hunt

Two press releases from Jim today.  One describes a request for a trial court to change its mind on a 2009 decision approving New York City’s laws prohibiting contributions from certain business entities (LLCs, LLPs, and partnerships), and placing 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…

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

Late Wednesday, the FEC posted several drafts of rules to be considered at a meeting Thursday.  One of the drafts implements the Supreme Court’s decision in Citizens United , removing prohibitions on labor and corporate spending on independent political activity; it would also allow corporations and labor organizations to contribute to others engaging in independent political activity, including SuperPACs and regular PACs with separate…

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Top Recent Downloads in Election Law on SSRN

(my bimonthly listing) Here: RECENT TOP PAPERS for all papers first announced in the last 60 days   4 Aug 2014 through 3 Oct 2014 Rank Downloads Paper Title 1 117 The Price of Corruption Usha Rodrigues University of Georgia Law School Date posted to database: 26 Aug 2014 Last Revised: 26 Aug 2014 2 113 The Problem of Voter Fraud Michael D. Gilbert University of Virginia School of Law Date posted to database: 30 Aug 2014 Last Revised: 18 Sep…

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

The number of election laws the Supreme Court has heard with a full argument has dropped off in recent years, I believe in part because voting rights advocates have tried to stay out of the Supreme Court. (See my ELJ analysis: The Supreme Court’s Shrinking Election Law Docket, 2001-2010: A Legacy of Bush v. Gore or Fear of the Roberts Court?.)  If you think of the major election cases the Supreme Court has heard in recent years, they have been…

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

Todd Pettys has posted this draft on SSRN (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…

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“The CEO and the Hydraulics of Campaign Finance Deregulation”

Sarah Haan has posted this draft on SSRN (forthcoming, Northwestern University Law Review). Here is the abstract. This Essay assesses what the Supreme Court’s evolving campaign finance jurisprudence could mean for business executives, who continue to be among the most active campaign contributors, and for politically-motivated consumers. It argues that voters increasingly view their consumer activities, not their campaign contributions,…

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

Via email: On Saturday, September 20 the Institute of Bill of Rights Law at William & Mary Law School will hold its 27th annual Supreme Court Preview. The event features a lunchtime breakout panel “The Court and Election Law” with Paul Smith (Jenner, argued 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…

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

AP reports.  Judge Randa is the same judge who issued the controversial orders in the John Doe Wisconsin campaign finance case, involving campaign financing surrounding the Wisconsin recalls.  Parts of his order were promptly put on hold by the 7th Circuit, and I expect that could well happen again. UPDATE: I have now read the Court’s opinion (read it here) and it seems like a reasonable, if potentially challengeable application of the…

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New Letter from Former ACLU Leaders Supports Campaign Spending Limits

From 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…

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“Without Limits, Will Campaign Contributions Dominate Politics?”

To the Point: There’s just nine weeks left before the mid-term 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.”…

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

WaPo: “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…

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“Sunshine’s Shadow: Overbroad Open Meetings Laws as Content-Based, Distinct from Campaign Finance Disclosure Laws, and Constitutionally Suspect”

Steven Mulroy has posted this draft on SSRN.  Here is the abstract: In this Article, Professor Mulroy discusses “strict” open meetings laws applicable in many states to local legislators — laws which restrict substantive discussion of government business even among two or three legislators (far short of a quorum) outside a properly noticed public meeting, and/or which contain no exceptions for sensitive, privacy-invasive topics which might…

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“The Uncertain Future of the Corporate Contribution Ban”

Richard Briffault has posted this draft on SSRN (forthcoming Valparaiso University Law Review). Here is the abstract: Concern about the role of corporate money has been a longstanding theme in American politics. The first permanent federal campaign finance law – the Tillman Act of 1907 – prohibited federally-chartered corporations from making contributions in any election and prohibited all corporations from making contributions in federal…

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“Navigating Election and Political Law: Leading Lawyers on Understanding Campaign Finance, Speech, Voting Rights, and the Laws that Govern (Inside the Minds)”

Looks like an interesting new book for election law practitioners with some top notch contributors: Navigating Election and Political Law provides an authoritative, insider’s perspective on the dynamics of the federal and state laws governing political contributions and spending, and how these laws are impacting practitioners and their clients. Written by partners from some of the nation’s leading law firms, this book guides the…

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Collins & Skover, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment

[This is the latest in a series of short reflections on new books in campaign finance which I am working my way through as I write my own manuscript on the subject.] Professors Ron Collins and David Skover, two law professors with expertise on the First Amendment, have written When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment. They wrote the book while the McCutcheon Supreme Court case was pending, and…

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