Now Available: 2014 Supplement to Lowenstein, Hasen, & Tokaji: Election Law Cases and Materials

…7;s October 2013 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 an edited version of the lower court decision in the Alabama redistricting cases which the Supreme Court will hear in the October 2014 term. The supplement also considers developments in Voting Rights Act litigation after the Supreme Court’s Shelby County case as…

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“The CEO and the Hydraulics of Campaign Finance Deregulation”

…ould treat 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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“It Could Have Been Worse” is Not Saying Much About McCutcheon

David Cole’s piece on the ending Supreme Court term says it could have been worse in McCutcheon (and in many other cases on the Court’s docket this term).  For example, Cole notes, the Court could have adopted strict scrutiny to apply to contribution limits.  Nonetheless, as I showed at Slate, Reuters, and the Daily Journal right after the opinion came out, McCutcheon was pretty darn bad. I rate it also as one of the most significant…

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Seven Key Points on the Supreme Court Term

…is term did not feature many blockbuster decisions doesn’t mean Court less divided. 4. Biggest civil case:McCutcheon campaign finance case-down slope to more $ in politics http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/the_subtle_awfulness_of_the_mccutcheon_v_fec_campaign_finance_decision_the.html … 5. Biggest criminal case is cell phone case which updates 4th Amendment for 21st century. 6. Cases like # Harris queue u…

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#SCOTUS Underlines that Level of Scrutiny is Up for Grabs in Campaign Contribution Cases

…e, without deciding, that a law is subject to a less stringent level of scrutiny, aswe did earlier this Term in McCutcheon v. Federal Election Commission, 572 U. S. ___, ___ (2014) (plurality opinion) (slip op., at 10). But the distinction between that case and this one seems clear: Applying any standard of review other than intermediate scrutiny in McCutcheon—the standard that was assumed to apply—would have required overruling a precedent. Ther…

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Whoa: Judge Posner Attacks Chief Justice Roberts Truthfulness in Campaign Finance Case

…tain casualness about the truth? Richard A. Posner…. Which brings me to Chief Justice Roberts’ opinion in McCutcheon v. Federal Election Commission, the decision in April that, in the name of free speech, further diminished Congress’ power to limit spending on political campaigns. The opinion states that Congress may target only a specific type of corruption—quid pro quo corruption—that is, an agreement between donor and candidate that in e…

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About that #SCOTUS Unanimity…A Skeptical Note

…To begin with, the Court is still divided on big issues like campaign finance. Witness the bitter divisions in McCutcheon this term.  Or Shelby County on voting rights last term. And it is still quite divided on abortion and same sex marriage, two issues not really on the agenda right now for the Court. And when this Court wants to duck tough issues it can: think of the last two affirmative action cases, Fisher and Schuette. Even though neither…

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A New Era for Pay-to-Play

…sion regarding TL Ventures can and should be viewed in the larger context of campaign finance law.  In light of McCutcheon v. FEC, there has been an intense discussion over the definition of “corruption” and what level of corruption is needed to justify campaign finance regulations.  Interestingly, on page two of the Order, the SEC stated that “Rule 206(4)-5 does not require a showing of quid pro quo or actual intent to influence an elected offic…

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“Commentaries: The Impact of McCutcheon v. FEC”

Over at the Harvard Law Review Forum: Commentaries: The Impact of McCutcheon v. FEC Three leading election-law practitioners discuss the practical import of the Court’s latest campaign-finance decision After McCutcheon The decision will likely help the political parties regain some power By Jonathan S. Berkon & Marc E. Elias Read More The Practical Consequences of McCutcheon The decision leaves our campaign finance system largely undis…

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Robert Post’s “Citizens Divided” Book

…portant to read and understand, if for no other reason than Justice Breyer relies upon it in his dissent in the McCutcheon case.  (Reliance was quite odd because the book was listed as forthcoming and no draft was currently available.) I find the electoral integrity argument to be mostly a fancy way of making an appearance of corruption argument, and therefore the argument suffers from some of the same problems that this argument has.  (Pam makes…

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“The Irresponsible Actions of a New Government Ethics Group”

…rm legislation to make government honest.” The Initative’s chair, Dan Backer, who represented Shaun McCutcheon in his eponymous campaign finance case, told the paper that the Initiative is intended to champion “traditionally conservative ideals,” particularly “government ethics reform. … We’re taking an opportunity, when people are paying attention, to push the issue of government ethics reform.” However, the ads made no m…

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Another Walk for Campaign Finance Reform: This One with #SCOTUS Disrupter in Scorching California

…rk explained. The statewide march comes on the heels of two Supreme Court decisions—Citizens United vs. FEC and McCutcheon vs. FEC—that have further enabled wealthy donors to contribute even larger sums to candidates running for political office. 2012 was the most expensive election in the country’s history, with a price tag exceeding 6 billion dollars, but with only 0.04% of Americans contributing more than $200 to political candidates, accordin…

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“Federal court strikes down state rule on political issue ads”

…ent Accountability Board was sued for seeking to regulate ads that weighed in on issues and candidates in the run-up to an election without expressly advocating for the defeat or victory of the candidates I have posted the 88-page unanimous 7th Circuit decision at this link. I have not had a chance to read it carefully yet but I do see that it relies on the stricter “exacting scrutiny” for contribution limits set forth in McCutcheon….

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After McCutcheon, New RNC Challenge to Soft Money Rules

On the day the Supreme Court decided McCutcheon, I wrote in Slate: Third and most dramatically, the court seems to open the door for a future challenge to what remains of the McCain-Feingold law: the ban on large, “soft money” contributions collected by political parties. These contributions were banned because it had become clear that political parties were becoming conduits for access between elected officials and big donors. Today Roberts rej…

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Just a Quick Thought on the John Doe Case and Its Troubling Implications for Campaign Finance Law

…ge of the opinion. I do think this ruling breaks new ground and goes much further than even Citizens United and McCutcheon.  While the Supreme Court is willing to tolerate circumvention of rules in the name of the First Amendment, this ruling celebrates it.  Further, it sees extensive cooperation between candidate campaigns and outside groups as well protected by the First Amendment when in fact it is the presence or absence of this cooperation w…

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“Prosecutors say McDonnell fixated on justice’s remark”

…ade the statement in his 2010 Citizens United ruling. In that campaign finance case, the court ruled that the government cannot stop corporations and unions from spending money to back or denounce candidates. Chief Justice John G. Roberts Jr. repeated Kennedy’s line in his April 2 opinion in McCutcheon v. Federal Election Commission, in which the court struck down aggregate limits on campaign contributions in a two-year election cycle….

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“State Aggregate Limits and Proportional Bans under McCutcheon”

…m CCP. “Policymakers in the District of Columbia and the 18 states with aggregate limits and proportional bans should strongly consider repealing these speech-stifling regulations in order to comply with the precedent set in the McCutcheon decision and avoid a likely successful legal challenge. Additionally, repealing these regulations will also enhance the First Amendment freedoms of the citizens residing in each of these states.”…

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More on Justice Breyer’s Citation to Book Not in the Record

The other day I noted that Justice Breyer cited to unavailable scholarship in his McCutcheon dissent. I updated the post to reflect that Derek Muller had made those points when the opinion was released, something I had missed.  Here’s another reference I missed, from Collins and Skover’s introduction to the SCOTUSBlog McCutcheon symposium: Reliance on secondary sources While James Madison and  The Federalist Papers  were quoted by th…

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Today’s Must-Read: Liptak Talks to Justice Stevens About Citizens United, McCutcheon

For one thing, in this column Justice Stevens confirms the rumors swirling for years that Justice Souter wrote the first draft of a Citizens United dissent.  (I called for its release in this Slate column.) The draft dissent, which has not been made public, questioned the majority’s attempt to recast a modest case into a blockbuster that would overrule major precedents and allow unlimited campaign spending by corporations and unions. The draft d…

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“Change the Constitution in Six Easy Steps? It Won’t Be That Simple, Justice Stevens; From campaign finance to political gerrymandering, the retired Supreme Court justice skips hard arguments in his new book in favor of unrealistic, poorly drafted solutions. “

…t famously in the Citizens United case, which freed corporate money from its shackles, and most recently in the McCutcheon case (PDF), which dropped limits on the total amount people can donate to federal candidates in a two-year period. These cases have all been 5-4, with the five conservative justices, led by Chief Justice John Roberts, striking down or limiting campaign finance laws and the four liberals, which included Justice Stevens when he…

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Perhaps for First Time, Justice Breyer’s McCutcheon Dissent Cites Unavailable Forthcoming Scholarship

I was rereading McCutcheon last night in preparation for a Monday talk on the case at the Center for the Study of Democracy.  I noticed that Justice Breyer cites to Robert Post’s forthcoming book on Citizens United: That is also why the Court has used the phrase “subversion of the political process” to describe circumstances in which “[e]lected officials are influenced to act contrary to their obligations of office by the prospect of finan…

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