July 30, 2010

Exciting News: Gronke and Tokaji to Take over as Election Law Journal Editors in 2011

As many blog readers know, Dan Lowenstein and I have been co-editing ELJ since its first issue in 2001. Nine years is a long time to edit a peer-reviewed journal, and though Dan and I are extremely proud of what we've accomplished, we both felt it was time to turn the reins over to a new group of editors. And we are thrilled that Paul and Dan T have agreed to lead the journal going forward. We will be leaving the journal in very capable hands and are excited about the plans the new editors have for the journal. (Much more to come on that.)

Here's an announcement that went out to subscribers this morning. There will be more on the transition from Dan L. and me in The Party Line editorials of ELJ 9:3 and 9:4. ELJ 9:4 will be a blockbuster issue, with many of the exciting papers from the Lowenstein festschrift.

Posted by Rick Hasen at 09:27 AM

"The Democrats' Redistricting Nightmare"

David Bass has written this article for The American Spectator.

More CU Links

SCOTUSBlog has a bunch.

Ben Heineman writes Hidden Expenditures After Citizens United.

The Nation offers Citizens United after Citizens United.

Posted by Rick Hasen at 09:12 AM

July 29, 2010

Justice Scalia Comments on the Citizens United Decision

Speaking at the Museum of the Rockies: "During a question-and-answer session following his speech, Scalia defended [CU]. He said big corporations "don't give a darn" and give to both parties. Furthermore, he added, corporations are groups of individuals who are entitled to free speech."

Posted by Rick Hasen at 09:19 PM

"Republicans for Clean Air" a Bit Less Clean

Remember this from McConnell v. FEC?

    Because FECA's disclosure requirements did not apply to so-called issue ads, sponsors of such ads often used misleading names to conceal their identity. "Citizens for Better Medicare," for instance, was not a grassroots organization of citizens, as its name might suggest, but was instead a platform for an association of drug manufacturers. And "Republicans for Clean Air," which ran ads in the 2000 Republican Presidential primary, was actually an organization consisting of just two individuals--brothers who together spent $25 million on ads supporting their favored candidate.

Those two brothers, who ran those ads against John McCain and in favor of George W. Bush in the 2000 Republican primaries, are now in a great deal of SEC trouble.

Posted by Rick Hasen at 04:47 PM

"Legislative Battles Drive Second-Quarter Lobbying Spending by Major Corporations, Special Interests"

The Center for Responsive Politics reports.

Posted by Rick Hasen at 02:26 PM

"Sen. Richard Shelby steers cash to ex-aides"

This Politico report begins: "Since 2008, Alabama Sen. Richard Shelby has steered more than $250 million in earmarks to beneficiaries whose lobbyists used to work in his Senate office-- including millions for Alabama universities represented by a former top staffer."

Posted by Rick Hasen at 01:35 PM

New Lawsuit Filed Against California Top-Two Primary

You can read the anti-Prop. 14 complaint and motion for a preliminary injunction. More here and from Richard Winger, one of the plaintiffs.

Posted by Rick Hasen at 01:21 PM

Eighth Circuit, on 2-1 Vote Strikes Down 3 Minnesota Judicial Canons

In Wersal v. Sexton, the Eighth Circuit struck down Minnesota's ban on judicial candidates endorsing other candidates for office, its ban on personal solicitation of campaign contributions by judicial candidates, and its ban on such candidates solciting contributions for a political organization or candidate. (The solicitation ruling puts it at issue with other courts, including most recenlty the 7th Circuit's Siefert opinion.)

Judge Bye's dissent includes the following general comment at the end of the opinion:

    Although not essential to the legal conclusions I reach today, I wish to comment briefly on the development of our caselaw in this area.

    Underlying today's decision, as well as our prior decisions, are somewhat competing philosophies with respect to judicial elections. These differences were most evident in White I. In White I's majority opinion, written by Justice Scalia, the Court made clear that judicial elections should be played out under the same rules as any other election for public office. By contrast, Justice Ginsburg, in her dissenting opinion, presented a competing philosophy, which would "differentiate elections for political offices, in which the First Amendment holds full sway, from elections designed to select those whose office it is to administer justice without respect to persons." White I, 536 U.S. at 805 (Ginsburg, J. dissenting). Although White I may not have provided the final word on the larger philosophical debate, it did provide us with the appropriate framework for deciding constitutional challenges arising in the context of judicial elections. Once the Court made the threshold choice to apply the strict scrutiny framework to speech restrictions governing judicial elections, the result in White I was clear: the suppression of views on disputed legal and political issues is, as the Court noted, only tenuously related to any interest in maintaining an impartial judiciary.

    White II was this court's first opportunity to apply the strict scrutiny framework announced in White I to a relatively more difficult set of provisions in the Minnesota Code of Judicial Conduct. I joined this court's opinion in White II because I concluded that Minnesota's ban on partisan activities and solicitation from large groups, although perhaps important, were not essential to the state's interests in maintaining judicial impartiality or its appearance.

    In parting ways with the court today, I note my increasing discomfort with the court's analytical approach. As I see it, the court's analysis, at the most basic level, amounts to an examination of whether a given speech restriction placed on judges is essential--in every case--to fully realize the protections of due process. Without prejudicing the outcome of future challenges, no speech restriction, whether it is imposed on judicial candidates or simply judges, is essential to due process in every case. The majority's approach, in my view, significantly discounts the role states play in maintaining a judicial system that serves its people with a higher standard of fairness and impartiality. Although the Constitution guarantees a minimum standard of fundamental fairness, Minnesota has endeavored to hold itself to a higher standard. Implicit in the majority's opinion is the notion that any effort to maintain judicial impartiality or its appearance beyond what the Constitution requires is nonessential and expendable. To be sure, White I counsels us to review restrictions on speech with exacting scrutiny. But where a state has crafted its restrictions carefully to maintain a fair and impartial judiciary, in both practice and appearance, as Minnesota has done here, the First Amendment must yield.

Posted by Rick Hasen at 11:43 AM

More CU Links

The People for the American Way blog offers The Consequences of Citizens United.

Paul Hogarth and Eric Alterman comment on the filibuster of the DISCLOSE Act.

And this morning the Shareholder Protection Act H.R. 4790 passed the House Financial Services Committee by a roll call vote of 35 Yes - 28 No.

Posted by Rick Hasen at 11:35 AM

"The Cash-for-Speaker Program"

Politico reports that "[a]ccording to materials distributed by Boehner's camp and obtained by POLITICO, lobbyists and other major donors across the country who give the maximum or help raise $100,000 will get meetings with Boehner, calls from senior aides with updates on the campaign and 'VIP access to all events, including roundtables, briefings, breakout discussions and interactive panel discussions.'"

Posted by Rick Hasen at 10:13 AM

"Money and Direct Democracy in California"

I'm speaking Sunday on a panel on "Big Money vs. Direct Democracy: Who Wins?" at the 2010 Global Forum on Direct Democracy.

I have posted my slides for the event here.

Regular blogging will resume Monday.

Posted by Rick Hasen at 10:09 AM

"Dems pour cold water on GOP request for new Black Panther hearings"

See here.

Posted by Rick Hasen at 10:01 AM

"Dems Take on Supreme Court's Giant Sell-Out of Our Democracy to Corporations"

Joshua Holland has written this oped.

Posted by Rick Hasen at 09:51 AM

"The Meaningful Vote Commission: Restraining Gerrymanders with a Federal Agency"

Joseph Peters has published this essay in the George Washington Law Review.

Posted by Rick Hasen at 09:31 AM

"Suit looks to overturn state judicial regulations on fundraising, political affiliation"

The Cincinnati Enquirer reports.

Posted by Rick Hasen at 09:28 AM

"EXCLUSIVE: DOJ Accused of Stalling on MOVE Act for Voters in Military"

FOX News reports on J. Christian Adams' latest accusations against DOJ.

Posted by Rick Hasen at 09:23 AM

Budget Director Orszag's Legacy, and Concerns over Congressional Dysfunction

Check out this NYT analysis.

Posted by Rick Hasen at 09:16 AM

"Capuano's Response to Citizens United Nears Approval Amid Strong Opposition"

BNA reports that Rep. "Capuano's Shareholder Protection Act (H.R. 4790) would amend the 1934 Securities Exchange Act to mandate that companies allow their shareholders to approve political expenditures through an annual vote. The committee is scheduled to vote on the bill July 29, before holding a hearing on other, unrelated matters"

Posted by Rick Hasen at 09:10 AM

"For Rangel and House Ethics Panel, the Brinkmanship Continues"

The NY Times offers this report.

UPDATE: CBS reports Rangel has cut a deal.

Posted by Rick Hasen at 09:06 AM

" K Street Brought Out Big Guns to Kill DISCLOSE"

Roll Call offers this report ($). A snippet: "A Democratic lobbyist said the bulk of corporate outreach on the campaign finance bill was done primarily by companies based outside of the United States but that have substantial operations here. "

In somewhat-related news, Politico offers New Business Plan: Crush Dems.

Posted by Rick Hasen at 08:59 AM

July 28, 2010

Dept. of Oy

CQ Politics: "It didn't take long for new independent expenditure organizations to take advantage of recent court rulings to maximize their impact on the 2010 election. Since Friday, at least three groups filed new documents with the Federal Election Commission stating that they intend to raise unlimited funds from individuals, corporations and unions to run ads before the Nov. 2 midterms."

Posted by Rick Hasen at 02:39 PM

"New York's Inbred Judiciary: Pathologies of Nomination and Appointment of Court of Appeals Judges "

Jim Gardner has posted this draft (Buffalo Law Review Docket) on SSRN. Here is the abstract:

    The practice of selecting judges by popular election, commonplace among the American states, has recently come in for a good deal of criticism, much of it well-founded. But if popular election of judges is a bad method of judicial selection, what ought to replace it? Opponents of judicial election typically treat gubernatorial appointment as self-evidently better. New York’s experience with gubernatorial appointment to its highest court, the Court of Appeals, suggests that greater caution is in order. Although New York’s current method of selecting Court of Appeals judges was designed to be wide open and based entirely on merit, the selection process, as it has actually evolved in practice, is neither. It has instead degenerated into a fundamentally closed competition among a very small number of sitting judges of the intermediate state appeals court, making it a process not of judicial appointment, but of judicial promotion. Worse, unlike appointees to the U.S. Court of Appeals for the Second Circuit, which draws from essentially the same lawyer population, few appointees to the New York Court of Appeals have previously distinguished themselves in arenas other than judicial service on lower state courts. Whereas Second Circuit appointees overwhelmingly have significant prior accomplishments in legal practice and executive branch service, the judges of the New York Court of Appeals are distinguished mainly for having worked their way up through the state judiciary. Perhaps that is why the New York Judicial Nominating Commission received only seventeen applications for Chief Judge of New York in 2008, when the position last became vacant.

Posted by Rick Hasen at 02:36 PM

Norm Ornstein on Karl Rove and DISCLOSE

Ornstein: "I am not eager to see the 501(c)4 loophole used in the next 100 days to allow secret fat cats, corporations and unions to flood the zone with vicious ads. But that would be a small price to pay to get some robust disclosure regimen on the books for the future. If DISCLOSE isn't passed this year, whether it takes effect immediately or not, it will not pass in 2011, given certain Republican gains in the House and Senate. Thank you again, Karl, for showing us what the post-Citizens United landscape will look like in that case."

Posted by Rick Hasen at 02:32 PM

"MONEY & POLITICS: Aetna, Humana, Other Insurers Mull New Group to Influence November Races"

This item appears on the blog of the Center for Public Integrity (via Democracy 21).

Posted by Rick Hasen at 10:36 AM

Jerry Goldfeder on "Election Law Developments"

Here, in the NYLJ.

Posted by Rick Hasen at 09:28 AM

"Why can 41 senators crush popular will to temper money in politics?"

Ciara Torres-Spelliscy explores.

Posted by Rick Hasen at 09:25 AM

Today's Politico "Arena" on New Black Panther Case

See here. My contribution is here.

Posted by Rick Hasen at 08:15 AM

"Filibuster reform is short of needed votes"

The Hill offers this report.

Posted by Rick Hasen at 08:05 AM

NYT Puts Some Blame for DISCLOSE's Failure on Democrats

Keeping Politics in the Shadows: "Supporters of the Disclose Act did not help their case by adding several extraneous provisions that gave Republicans additional excuses for voting no. In a bill that was supposed to be about disclosure, there was no need to prohibit independent expenditures by some government contractors, or recipients of Troubled Asset Relief Program funds, or oil drillers. The House inserted an especially distasteful provision that exempted the National Rifle Association from disclosure requirements."
This is what I've been saying for a while.

Posted by Rick Hasen at 07:41 AM

July 27, 2010

"Mass. Legislature approves plan to bypass Electoral College"

See here.

Posted by Rick Hasen at 03:47 PM

"Rebooting California: Initiatives, Conventions and Government Reform"

Loyola Law School Los Angeles and the Loyola of Los Angeles Law Review are pleased to announce a Symposium on California Government Reform, to be held on our campus on Friday, September 24, 2010. A dedicated issue of the Law Review will be published in early 2011. An impressive array of scholars and policy leaders will discuss some of the pressing structural issues facing California, including electoral and political reform. The schedule and a complete list of speakers can be found on our website. Please also visit the website to register for the Symposium (attendance is free, except for a minimal charge for those desiring MCLE credit), or email events@lls.edu.

The Symposium is co-sponsored by: the California State Association of Counties, the California Supreme Court Historical Society, the Center for California Studies at Sacramento State University, the Center for Governmental Studies, the Civil Justice Program at Loyola Law School, the Jesse M. Unruh Institute of Politics at the University of Southern California, the League of California Cities, and United Ways of California.

For more information, please contact Karl Manheim (karl.manheim-at-lls.edu).

Posted by Rick Hasen at 03:45 PM

DISCLOSE Cloture Vote Fails on Party Line Vote

(Sen. Reid voted no to preserve his ability to bring up cloture motion again.) For stories and reaction, see Washington Post, NY Times, The Hill, Politico, CCP, CLC, Democracy 21.

Posted by Rick Hasen at 03:38 PM

"House Panel to Consider Bill to Mandate Investor Votes on Political Spending"

See here.

Posted by Rick Hasen at 09:26 AM

The Latest on Texas Redistricting

See here.

Posted by Rick Hasen at 09:23 AM

"Yes, the Black Panther Case Is Small Potatoes"

Abby Thernstrom has penned this response to Andrew McCarthy at NRO.

Posted by Rick Hasen at 09:19 AM

"Target Corp. spending company money on candidates"

The Washington Post offers this report on post-CU corporate electoral activity. I don't know the particulars of MN law, but my guess is that none of the advertising supporting Republican candidates would say paid for by "Target Corp.," because the money is going to a political committee.

Posted by Rick Hasen at 08:28 AM

Last Pre-Vote DISCLOSE Update

Eric Brown has a useful roundup. A later update here from Fox News.

Today's Politico "Arena" is on the bill. My contribution is here.

There's now reason to think that Senator Snowe could vote yes, because she knows the bill will fall short.

What a missed opportunity by both sides.

Posted by Rick Hasen at 08:21 AM

"Redistricting: Should Computers Draw the Lines?"

Josh Goodman explores at the Governing Politics blog.

Posted by Rick Hasen at 08:00 AM

July 26, 2010

"One Republican senator said the expectation was that no one would break ranks to support the measure."

NYT on DISCLOSE.

But Roll Call says there may be another vote on the bill in the near future.

Posted by Rick Hasen at 08:44 PM

"What's Next After Citizens United?"

The Daily Journal offers this report.

Posted by Rick Hasen at 08:40 PM

Huge Variation in "Unmailable" Voter Registration Materials.

Check this out. If only there were some kind of ranking of states' election administration capabilities...

Posted by Rick Hasen at 03:04 PM

"The Imperfect Primary: Oddities, Biases, and Strengths of U.S. Presidential Nomination Politics"

Barbara Norrander's new book is now available.

Posted by Rick Hasen at 03:00 PM

"DISCLOSE Act still a few votes shy"

Politico offers this report. CCP offers Fact-checking final DISCLOSE push. The Campaign for Fair Elections says "the DISCLOSE Act is simply a first step toward a Congress that is more accountable to everyday Americans."

Posted by Rick Hasen at 02:57 PM

"Obama Slams GOP on DISCLOSE Act"

The Hill offers this report. I've put a transcript of the President's remarks below the fold.

THE PRESIDENT: Good afternoon, everybody. Tomorrow there's going to be a very important vote in the Senate about how much influence special interests should have over our democracy. Because of the Supreme Court’s decision earlier this year in the Citizens United case, big corporations -- even foreign-controlled ones -- are now allowed to spend unlimited amounts of money on American elections. They can buy millions of dollars worth of TV ads –- and worst of all, they don’t even have to reveal who’s actually paying for the ads. Instead, a group can hide behind a name like "Citizens for a Better Future," even if a more accurate name would be "Companies for Weaker Oversight." These shadow groups are already forming and building war chests of tens of millions of dollars to influence the fall elections.

Now, imagine the power this will give special interests over politicians. Corporate lobbyists will be able to tell members of Congress if they don't vote the right way, they will face an onslaught of negative ads in their next campaign. And all too often, no one will actually know who's really behind those ads.

So the House has already passed a bipartisan bill that would change all this before the next election. The DISCLOSE Act would simply require corporate political advertisers to reveal who’s funding their activities. So when special interests take to the airwaves, whoever is running and funding the ad would have to appear in the advertisement and claim responsibility for it -– like a company's CEO or the organization’s biggest contributor. And foreign-controlled corporations and entities would be restricted from spending money to influence American elections -- just as they were in the past.

Now, you'd think that making these reforms would be a matter of common sense, particularly since they primarily involve just making sure that folks who are financing these ads are disclosed so that the American people can make up their own minds. Nobody is saying you can't run the ads -- just make sure that people know who in fact is behind financing these ads. And you'd think that reducing corporate and even foreign influence over our elections would not be a partisan issue. But of course, this is Washington in 2010. And the Republican leadership in the Senate is once again using every tactic and every maneuver they can to prevent the DISCLOSE Act from even coming up for an up or down vote. Just like they did with unemployment insurance for Americans who’d lost their jobs in this recession. Just like they're doing by blocking tax credits and lending assistance for small business owners. On issue after issue, we are trying to move America forward, and they keep on trying to take us back.

At a time of such challenge for America, we can't afford these political games. Millions of Americans are struggling to get by, and their voices shouldn't be drowned out by millions of dollars in secret, special interest advertising. The American people’s voices should be heard.


A vote to oppose these reforms is nothing less than a vote to allow corporate and special interest takeovers of our elections. It is damaging to our democracy. It is precisely what led a Republican President named Theodore Roosevelt to tackle this issue a century ago.

Back then, President Roosevelt warned of the dangers of limitless corporate spending in our political system. He actually called it "one of the principal sources of corruption in our political affairs." And he proposed strict limits on corporate influence in elections not because he was opposed to them expressing their views in the halls of democracy, but he didn't want everybody else being drowned out.


He said, "Every special interest is entitled to justice, but no one is entitled" -- "not one is entitled to a vote in Congress, or a voice on the bench, or to representation in any public office," because he understood those weren’t individual voters -- these are amalgams of special interests. They have the right to hire their lobbyists. They have the right to put forward their view. They even have the right to advertise. But the least we should be able to do is know who they are.

So on Tuesday we face the sort of challenge that Teddy Roosevelt talked about over a century ago. We've got a similar opportunity to prevent special interests from gaining even more clout in Washington. This should not be a Democratic issue or a Republican issue. This is an issue that goes to whether or not we’re going to have a government that works for ordinary Americans; a government of, by and for the people.

That's why these reforms are so important, and that’s why I urge the Senate to pass the DISCLOSE Act.

Thank you.

Posted by Rick Hasen at 12:58 PM

Mountain Out of Molehill Dept.

Senate Republicans want hearings on New Black Panther/Adams.

Posted by Rick Hasen at 12:46 PM

"Lobbyists call bluff on 'Daschle exemption'"

Politico offers this very interesting report.

Posted by Rick Hasen at 11:22 AM

"The (Possible) Mother of All Battles: What If a Conservative Supreme Court Justice Retires?"

Jeff Greenfield ruminates. I reflected on how the prospect of a conservative Justice retirement should a Republican be elected president in 2012 could help Democrats as a campaign issue in the 2012 elections.

Posted by Rick Hasen at 11:19 AM

NALEO Does Not Endorse SG Kagan for Supreme Court

See here: "Based upon our evaluation, NALEO has determined that we will neither endorse nor oppose the confirmation of Solicitor Kagan to serve on the U.S. Supreme Court, as there is insufficient information in her record regarding her stance on issues central to NALEO's civic engagement mission, particularly the protection of immigrant rights and voting rights. In addition, her record does not appear to indicate a substantial level of involvement in public service to the Latino community or in promoting access for Latinos to the judicial profession."

Posted by Rick Hasen at 10:53 AM

The DISCLOSE Act End Game

Eliza thinks there's little chance the bill passes when it comes up for a vote, likely this week. CQ Politics says at this point it is all about drawing contrasts between Democrats and Republicans.

What a shame that moderate Republicans would not come out with their own proposal to do the important things that need to be done with campaign finance disclosure after Citizens United, and what a shame that Democrats used the bill as an opportunity to try to do things beyond disclosure that lost the possibility of bipartisan compromise and gave opponents talking points against the entire bill.

Posted by Rick Hasen at 09:05 AM

"Voting Rights and Election Law"

Congratulations to Michael Dimino, Brad Smith and Michael Solimine on the publication of their new casebook, Voting Rights and Election Law (LexisNexis 2010). A copy just arrived in the mail.

Posted by Rick Hasen at 08:59 AM

"From Coast To Coast, Courts Scrutinize Campaign Laws"

The Connecticut Law Tribune offers this report.

Posted by Rick Hasen at 08:54 AM

July 25, 2010

California Chief Justice Nominee Has "No Opinion" on Whether California Initiative Process Needs Reform

See here. More: "Told of her remarks on the death penalty and initiative process, [Gerald Uelmen, a Santa Clara University law professor] said it was 'somewhat alarming' that she was not more conversant on the issues." The outgoing chief justice, Ronald George, has been an outspoken opponent of the initiative process in California.

Posted by Rick Hasen at 09:51 PM

"K Street Files: Lobbyists Direct Campaign Cash to Party Committees"

Roll Call offers this interesting report.

Posted by Rick Hasen at 09:41 PM

Senate Cloture Vote Coming for DISCLOSE Act Tuesday

See here.

Posted by Rick Hasen at 09:37 PM

"10 States Add Campaign Finance Laws"

This report first appeared in USA Today.

Posted by Rick Hasen at 09:27 PM

SpeechNow Files Cert Petition on Disclosure Issue It Lost Before the En Banc DC Circuit

Check out the cert petition; Lyle Denniston's analysis for SCOTUSBlog; the SG's letter to Congress explaining why the government did not argue for the constitutionality of the limits on contributions to independent expenditure committees in the Supreme Court; and this press release from SpeechNow.

Posted by Rick Hasen at 09:02 PM

July 22, 2010

"Schumer files new version of campaign-finance bill to court centrist votes"

The Hill offers this report.

I'll be travelling tomorrow, so regular blogging will resume Monday.

Posted by Rick Hasen at 04:49 PM

"Salazar backs 'lifetime ban' for revolving-door lobbyists"

The Washington Post offers this report.

Posted by Rick Hasen at 04:44 PM

"Rangel to face House trial on ethics violations"

The Washington Post offers this report.

Posted by Rick Hasen at 04:40 PM

"New groups aim to spend big on election ads"

AP offers this report.

Posted by Rick Hasen at 04:24 PM

"FEC APPROVES TWO ADVISORY OPINIONS ON INDEPENDENT EXPENDITURE-ONLY POLITICAL COMMITTEES"

See this press release and Commissioner Walther's dissenting statement.

Posted by Rick Hasen at 03:51 PM

"Welfare Agencies Boost Voters"

USA Today offers this report, which begins: "The recession that impoverished millions of Americans is producing a side effect: new voters." See also 'Motor voter' law likely to be bigger priority for states about new DOJ guidelines. More from Demos.

Posted by Rick Hasen at 03:46 PM

"Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America"

Rick Pildes has posted this draft on SSRN (forthcoming, California Law Review). Here is the abstract:

    Politics as partisan warfare: that is our world. Over the last generation, American democracy has had one defining attribute: extreme partisan polarization. We have not seen the intensity of political conflict and the radical separation between the two major political parties that characterizes our age since the late 19th century. Within Congress, the parties have become purer and purer distillations of themselves. The parties are now more internally unified, and more sharply differentiated from each other, than anytime over the last 100 years. Moreover, this polarization is not limited to those in office. Over the last generation, there has been a dramatic ideological and partisan sorting of voters as well. A center in America’s governance institutions has all but disappeared.

    This article explores the causes of this polarization. Are the causes relatively contingent and short-term ones, so that it is possible to envision this structure of extreme partisan polarization changing, perhaps if certain institutional changes were made in the way American democracy and elections are designed? Or are the causes deep-rooted and structural ones, so that the appropriate conclusion is that this extreme partisan polarization is likely to be the ongoing structure of American politics and democracy for the coming years, regardless of any efforts that might be made to diminish this polarization? In particular, the article explores three potential causes of this polarization, which I label Persons, History, and Institutions.

    "Persons" refers to the view that polarization is a reflection of particularizing polarizing personalities of various recent political figures, including Presidents. This view is reflected in the longing for the "statesmen" of past decades, who forged political breakthroughs across party and ideological lines to enact major policy initiatives. "History" describes the view that large-scale historical and transformative forces in American politics account for the modern structure, coherence, and polarization of the Democratic and Republican parties of today. The specific historical processes involve the end of the 20th Century one-party monopoly on the American South, which began with the 1965 enactment of the Voting Rights Act; the destruction of that world eventually led, by the 1990s, to the South having a system of genuine two-party competition for the first time since the Civil War. How much does the dramatic re-organization of American democracy entailed by that transformation account for the structure of partisan conflict today? "Institutions" refers to more discrete structures that organize democracy: the structure of primary elections, gerrymandering, campaign finance, and the internal rules that allocate power to political leaders in the House and Senate today. How much do these specific institutional features contribute to polarization, and in what ways, if any might they be changed to diminish it?

    To foreshadow, the article concludes that the major cause of the extreme polarization of our era is the historical transformation of American democracy and America's political parties set into motion by the 1965 Voting Rights Act. Thus, perhaps the extreme polarization over the last generation should not be seen as aberrational (indeed, the pre-1965 structure of parties is the one to view as aberrational). This polarization, for better or worse, might be the "mature" structure of American democracy. As such, it is likely to be enduring, despite the best efforts of Presidents and reformers to transcend the extreme polarization of recent years.

    This article was presented as the 2010 Jorde Lectures at the University of California at Berkeley Boalt Law School (fall 2009), and at Princeton University (spring 2010). Commentary on the article was provided by Sean Wilentz (History Dept., Princeton) and David Kennedy (History Dept., Stanford), Michael McConnell (Law School, Stanford), Nolan McCarty (Politics, Princeton) and Paul Frymer (Politics, Princeton). The California Law Review is publishing all of this commentary, along with the Jorde Lecture article.


I read this piece in draft, and it is a MUST-READ.

Posted by Rick Hasen at 03:38 PM

"New version of DISCLOSE Act introduced in Senate"

CCP blogs about this new version of DISCLOSE.

Posted by Rick Hasen at 09:43 AM

"Win or Lose No voting system is flawless. But some are less democratic than others."

The New Yorker offers this review of Numbers Rule: The Vexing Mathematics of Democracy, from Plato to the Present (Princeton; $26.95), by George Szpiro.

Posted by Rick Hasen at 09:40 AM

"FEC Drafts Would Back Unlimited Funding For 'Independent Expenditure' Committees"

BNA offers this report ($).

Posted by Rick Hasen at 09:35 AM

"BP's changing lobbying disclosure amount? It figures."

The Washington Post offers this report.

Posted by Rick Hasen at 09:09 AM

"Candidates must adhere to new social media rules"

The Baltimore Sun's "Maryland Politics" blog reports. More here.

Posted by Rick Hasen at 08:21 AM

"A Bigger House of Representatives?"

The LA Times offers this report.

Posted by Rick Hasen at 08:16 AM

July 21, 2010

"Three of every four oil and gas lobbyists worked for federal governmen"

WaPo reports.

Posted by Rick Hasen at 09:53 PM

D.C. Flap Over Dwindling Election Panel"

WaPo reports.

Posted by Rick Hasen at 09:50 PM

"15-year-old Alabama law on donations to judicial campaigns never enforced"

This Birmingham News report begins: "A 15-year-old Alabama law that says judges should not hear cases in which one of the parties donated at least $2,000 to their campaigns has never been enforced, locked in a stalemate over whether it first needs to be reviewed by the U.S. Department of Justice for evidence that it would not disenfranchise minorities."

Posted by Rick Hasen at 09:47 PM

"Many in NY election gave 6 votes to 1 candidate"

AP reports on a Port Chester exit survey. You can read the entire 72-page report by Kimball and Kropf here.

Posted by Rick Hasen at 09:40 PM

"On the ballot in Alaska: transparency"

Stateline offers this interesting report.

Posted by Rick Hasen at 09:34 PM

"Redistricting Litigation: What Every Judge Should Know"

The Election Law Program (of William and Mary Law and the National Center for State Courts) has produced this new set of videos on redistricting. In the videos, John Hardin Young interviews noted redistricting experts Jessica Amunson, J. Gerald Hebert, and Trevor Potter. While intended to educate judges, journalists and members of the general public will find it a clear explanation of the basics of redistricting litigation.

Posted by Rick Hasen at 09:29 PM

"CCP files comments on FEC advisory opinions"

See this press release. It does not appear that anyone in the reform community filed comments on the draft AOs.

Posted by Rick Hasen at 09:21 PM

"Conservative Media Stokes New Black Panther Story"

NPR offers this report. The network also had this extensive interview with J. Christian Adams.

Posted by Rick Hasen at 10:53 AM

The FEC AO: Why Existing Disclosure Law Won't Disclosure Be Adequate

A number of people, both on the election law listserv and in private messages, have quarreled with my earlier blog post about the FEC AO and disclosure: the argument they make is that there will be disclosure of contributions to IE committees, so where's the problem. Here's an edited version of a response on that point which I sent to the listserv:
We have never had the situation before on the federal level where people, and now presumably corporations and labor unions, could make large---indeed unlimited---contributions to fund independent expenditures. But we have had similar contributions in other contexts: contributions to 527s on the federal level, and contributions to ballot measure committees in California. In my view, there is a problem when wealthy donors, particularly non-human entities such as corporations and labor unions, can hide their donations behind innocuous sounding groups, like "Americans for American Values." (Especially prevalent will be the use of multiple levels of committeees. Though the information on contributions will be available through the FEC website, in my view this level of disclosure is inadequate. It is only when the disclosure of the largest contributor(s) is on the face of the advertisement (what some term a "disclaimer") that the disclosure is adequate.

Undisclosed donations will be especially important to corporations. Many corporations won't want to alienate many of their customers by having their corporate names associated with advertising against a candidate. But they'll be more than happy to participate if they can obscure their identity. This is what I expect to happen under the new AO.
We saw recently in California just how important such disclosure is. I have little doubt that the anti-public utility ballot measure (Prop. 16), backed almost exclusively by private utility PG&E and misleadingly marketed as a "right to vote on taxes measure," would have passed but for the prominent disclaimers required by California law letting voters know that PG&E was a major backer of the initiative.

Existing federal law will not provide such a disclaimer. There are also other problems with groups using numbers of committees to try to obscure the true identity of the spender. So I don't believe existing federal disclosure law is up to the task..

Watch this ad and you can see the kind of disclosure I think we need desperately.
So what should happen now? I'd love to see Democrats abandon the broader DISCLOSE Act for this term, and focus on a narrower bill that would deal specifically with this type of problem. I'd like to see moderate Republicans come forward too to support this. (Doesn't Senator McCain remember what "Republicans for Clean Air" did to him in the 2000 presidential primaries?) I don't hold much hope that either Republicans or Democrats will step up, but that's what I'd like to see happen.

Posted by Rick Hasen at 10:08 AM

More on FEC AOs

From BNA ($), consistent with what I reported last night.

Posted by Rick Hasen at 07:53 AM

July 20, 2010

Lederman Back to Georgetown

See here. Bad news for the country is good new for the election law listserv, which has missed his voice.

Posted by Rick Hasen at 08:24 PM

"Rove-linked group uses secret donors to fund attacks"

A must-read from Politico.

Posted by Rick Hasen at 08:18 PM

BP Federal Contributions Running Dry: But Gusher of Tickets to ARCO Arena for Sacramento Lawmakers

See here and here.

Posted by Rick Hasen at 07:47 PM

"Outside sources have big part in making law"

Part II of the San Jose Mercury News series on California lawmaking is now available. Read it!

Posted by Rick Hasen at 07:42 PM

Very Big News: Draft FEC Advisory Opinion to Allow Corporations and Unions to Make Unlimited Contributions to Independent Expenditure Committees

The draft AO in Commonsense Ten just was posted, and comments are due by tomorrow at 5 pm. (See also the Club for GrowthAO, which also was just posted, and the Walther alternative.)

If this AO passes, as it apparently will without even a meeting or public discussion, it is going to make it much more likely that the public will be unaware of the identity of corporate and union backers of campaign ads. A new disclosure regime is therefore essential, whether it comes through the DISCLOSE Act or otherwise. I said when CU was decided that a few more dominoes had to fall before I'd expect a flood of new money into elections. This is one big domino.

UPDATE: I explain more about why we need better disclosure, and the kind of disclosure we need, here.

Posted by Rick Hasen at 07:35 PM

CCP Responds to Fred W. on Whether DISCLOSE Favors Unions

See here.

Posted by Rick Hasen at 07:16 PM

In Nearly Unanimous and Bipartisan Decision, NASS Still Wants the Incredibly Weak U.S. Election Assistance Commission to Be Disbanded

How disheartening. I've written about this turf war among elections officials here.

Posted by Rick Hasen at 07:13 PM

"Disclosures About Disclosure"

Lloyd Mayer has posted this draft (forthcoming, Indiana Law Review) on SSRN. Here is the abstract:

    An often overlooked aspect of the Supreme Court's recent decision in Citizens United v. FEC is the sharply contrasting factual accounts regarding disclosure of independent election-related spending. For eight of the Justices, such disclosure is constitutionally defensible because it enables voters to make informed decisions. For Justice Thomas, however, such disclosure is constitutionally suspect because of its potential to result in retaliation and related chilling of First Amendment speech in the form of financial contributions. The continuing importance of these contrasting narratives can be found not only in the pending Supreme Court case of Doe v. Reed, in which the plaintiffs are challenging disclosure of referendum petition signers, but also in the debates in Congress and numerous state legislatures regarding whether to substantially expand disclosure requirements in the wake of Citizens United.

    This article questions both factual assertions. Looking first at the informing voters claim, existing political psychology research reveals that whether contributor information provides helpful information to voters depends on what information is disclosed and how it is disseminated to voters. Knowing the identities of numerous smaller contributors is highly unlikely to aid voters, as compared to knowing the identities of larger donors who may be more well-known, and, possibly, knowing aggregate information about smaller contributors such as geographic and industry concentrations. Moreover, even the useful information is more likely to help voters if it is provided in a manner that facilitates their learning of it before the relevant election. As for the retaliation claim, there is sparse evidence that outside of certain specific contexts -- civil rights groups during the 1950s and 1960s and communist and socialist parties today -- there is much if any retaliation, much less retaliation that rises to a level that raises serious concerns, against contributors whose support becomes known through the existing disclosure rules. That said, the ever increasing access to such information through the Internet may change this conclusion.

    While much remains unknown about the effects of political contributor disclosure, what is known suggests at least two changes that could result in better knowledge for voters and, for the first change, less exposure to retaliation or the risk of retaliation for smaller contributors. The first change would be to reduce the public disclosure of identifying information for smaller contributors, releasing only data relevant for aggregation purposes for such contributors. The second change would be to expand the disclosure of information regarding larger contributors through disclaimers on mass media and other large-scale communications that identify not only the group paying for such communications but the major funders of that group. These common sense strategies both match what we know about the effects of disclosure and may have the added benefit of relieving some of the constitutional tension in this area.

Posted by Rick Hasen at 07:05 PM

Sausage Factory Opening in Texas

Get ready for the new redistricting battle.

Posted by Rick Hasen at 09:19 AM

"The Case Against the New Black Panthers; Abigail Thernstrom is wrong to belittle this shocking episode."

Andrew McCarthy responds.

Posted by Rick Hasen at 09:08 AM

J. Christian Adams on Alleged "Chaos, Discrimination, Thuggery, and Dishonesty" at Virginia State Board of Elections

See here at Adams' "Election Law Center" blog, which he describes as "more red than the ivory tower."

Posted by Rick Hasen at 09:04 AM

July 19, 2010

Deal Reached for 2010 W. Va. Byrd Replacement Election

See here.

Posted by Rick Hasen at 08:48 PM

"Money and Power in the City of the Angels"

The Center for Governmental Studies has issued this report, which analyzes the impact of Los Angeles' twenty-year old campaign finance reforms on the 2009 city elections.

The LA Times focuses upon the report's noting of the rise of candidate controlled ballot measure committees. The story quotes noted election law attorney Stephen Kaufman as stating that ballot measure expenditures cannot be limited constitutionally. That is correct, but I believe CGS was arguing for limits on contributions to candidate-controlled ballot measure committees. I've made a detailed argument on why limits on such contributions could be justified on traditional anti-corruption grounds.

Posted by Rick Hasen at 08:44 PM

"Bill guaranteeing polling stations becomes law"

How this bill became a law is as interesting as the law itself.

Posted by Rick Hasen at 08:36 PM

"Myths and Realities Regarding Claims that Labor Unions are Treated More Favorably than Corporations by the DISCLOSE Act, Passed in June by the House and Pending in the Senate"

Fred Wertheimer's latest. More support from Trevor Potter and Scott Thomas. Meanwhile, reformers target Sens. Snowe and Collins.

Posted by Rick Hasen at 08:33 PM

"Supreme Court ruling raises bar for corruption, fraud prosecutions"

The Washington Post offers this report.

Posted by Rick Hasen at 09:25 AM

"W.Va. Legislature Failed To Take Action But 2010 Senate Race Still Likely"

Ken Rudin explains. David Dayen thinks the election will wait until 2012.

Posted by Rick Hasen at 09:20 AM

"Riches, Elections, and Free Speech"

Robyn Blumner's column discusses the Scott trigger provision case.

Posted by Rick Hasen at 09:16 AM

Sen. Snowe on DISCLOSE: "I Can't See It Happening This Summer"

This Politico report also gets Sen. McCain's views on DISCLOSE.

Posted by Rick Hasen at 09:12 AM

"New Battle Lines Drawn Over Redistricting"

Eliza's latest.

Posted by Rick Hasen at 09:08 AM

"Brown should find a way to back campaign ad disclosures"

The Boston Globe offers this editorial.

Posted by Rick Hasen at 09:04 AM

"Mass. may join effort to bypass Electoral College"

The Boston Globe offers this report.

Posted by Rick Hasen at 09:01 AM

Clarence Page on DOJ/Black Panthers

See here.

Posted by Rick Hasen at 08:48 AM

"Franken-Coleman Senate Recount: Flap over felon votes shows GOP playing fast and loose with facts"

Jay Weiner has written this post for MinnPost.com.

During the Franken-Coleman controversy, Weiner was one of the more interesting and comprehensive journalistic voices covering the recount and court action. I just received in the mail an advanced copy of Jay's new book, This Is Not Florida: How Al Franken Won the Minnesota Senate Recount. It is scheduled for a September release and I look forward to reading it.

Posted by Rick Hasen at 08:45 AM

"Joe Biden fined $219K for 2008 presidential campaign violations"

Politico offers this report.

Posted by Rick Hasen at 08:38 AM

July 18, 2010

Justice Thomas on Bush v. Gore: Justices "Would Not Say It's Politics"

See here.

Posted by Rick Hasen at 09:14 PM

July 17, 2010

"Eleventh Circuit Expedites Florida Public Funding Lawsuit "

Richard Winger has the schedule.

Posted by Rick Hasen at 10:58 AM

"Oregon Voters Flock To Independent Party -- Whether They Mean To Or Not"

Oregon Public Broadcasting reports.

Posted by Rick Hasen at 10:54 AM

Two More on Black Panthers/Adams Controversy

The WaPo ombudsman writes Why the silence from The Post on Black Panther Party story?. Politico offers A conservative dismisses right-wing Black Panther "fantasies'.

Posted by Rick Hasen at 10:48 AM

July 16, 2010

Media Matters: "Adams' Case Falls Apart Even Further"

See here.

Posted by Rick Hasen at 03:21 PM

CCP Comments on FPPC Interpretation of California Campaign Finance Law

See here.

Posted by Rick Hasen at 03:18 PM

von Spakovsky Affidavit on Adams Allegations

Here.

Posted by Rick Hasen at 03:15 PM

Covington Webinar on New SEC Pay to Play Rule

See here.

Posted by Rick Hasen at 03:12 PM

The Effect of Party Realignment on Partisan Supreme Court Splits

I hadn't thought of this obvious connection.

Posted by Rick Hasen at 12:48 PM

"Voting as Veto"

The final version of Michael Kang's Michigan Law Review paper is now available. Here is the abstract:

    This Article introduces an alternate conception of voting as veto - based on "negative preferences" against a voter's least preferred outcomes - that enriches voting theory and practice otherwise dominated by a conception of voting as a means of expressing a voter's ideal preferences. Indeed, the familiar binary choices presented in American political elections obscure the pervasiveness of negative preferences, which are descriptively salient in voting under all types of circumstances. Negative preferences have been overlooked, despite their theoretical and practical importance across many domains, leaving important questions unexplored in the literature. The Article develops a normative and positive account of voting as veto that identifies the costs, benefits, and critical tradeoffs in the formal recognition of negative preferences.

I always enjoy Kang's work and look forward to reading this!

Posted by Rick Hasen at 12:40 PM

It's Not Citizen Kane. It's Not Even Citizens United.

A CU Debate Trailer that will win no Oscars.

Posted by Rick Hasen at 12:35 PM

"After the GAO Report: What Do We Know About Public Election Funding?"

Michael Miller has posted this draft on his research website. Here is the abstract:

    In June of 2010, the Government Accountability Office (GAO) released a comprehensive evaluation of the effects of full public funding in Arizona and Maine. The report seeks to evaluate the policy effects of public funding in the states with regard to several stated goals of its supporters, including slower campaign spending growth, diminished interest group influence, enhanced political participation, and heightened electoral competitiveness. The GAO's paper is timely considering that full funding programs are becoming both more common and more visible to the public at large; however, its analysis of public funding is not comprehensive. Moreover, its findings in some areas are not sufficiently robust. These shortcomings are generally resultant of unnecessary limitations that GAO researchers place on their data as well as improper methodological choices.

    That said, the GAO's analysis does contain several interesting findings, and its publication marks a good opportunity for political scientists and policy analysts to compare notes. Combining the contributions from each provides a more complete picture of what is known and unknown in the study of publicly funded elections. In this paper, I review the findings of the GAO report as well as those of a growing number of scholars who have examined the topic. I describe what the GAO, political scientists, and policy analysts have told us about public election funding, as well as opportunities that remain for further research. Where applicable, I supplement this
    review with basic analysis of additional data. This essay should therefore be useful both for political scientists and the policy community.

I'm looking forward to reading this.

Posted by Rick Hasen at 12:30 PM

"Parties crossing the aisle to reshape 2012 presidential nominations"

The Washington Post offers this very interesting report. Sandy Levinson comments.

Posted by Rick Hasen at 09:41 AM

"A Fundraising Gap"

This NY Times report includes the following: "In red states and blue states -- nearly a dozen competitive Senate races in all -- Republicans raised more money over the last three months than their Democratic challengers. Yes, Democrats will argue, some of their candidates have more money in the bank. But the financial reports filed Thursday offer the latest indication of the momentum and enthusiasm advantage that Republicans carry four months before Election Day."

Posted by Rick Hasen at 09:00 AM

Reform Groups Keep After Sen. Brown

See here.

Posted by Rick Hasen at 08:54 AM

"Voter Registration in a Digital Age"

The Brennan Center has issued an important new report. From the description: "This report is the first in-depth survey of these registration innovations--"automated" voter registration, in which government offices like DMVs collect and transfer voter registrations electronically, and online voter registration, in which citizens submit voter registration applications over the Internet. Based on documentary research and interviews with election officials in fifteen states, this report explains how paperless voter registration works, reviews its development, and assesses its impact."

Posted by Rick Hasen at 08:51 AM

"The Lonely Death of Public Campaign Financing"

Richard Esenberg has posted this draft on SSRN (Harvard Journal of Law and Public Policy). Here is the abstract:

    This paper argues that the recent decision of the United States Supreme Court in FEC v. Davis renders the idea of public financing of elections largely irrelevant. In Davis, a majority of the Court saw the provision of a "compensatory" benefit to the opponent of a candidate who spends more than a designated amount as a burden on speech. That burden, moreover, cannot be justified by an interest in "leveling the playing field." The paper argues that Davis’ rationale is equally applicable to candidates facing independent expenditures. It suggests that a public financing system cannot be designed in a way that provides asymmetrical funding (often called "rescue" or "fair fight" funds) to those whose candidacies are criticized by such expenditures.

    If these efforts to level the playing field are not permitted, public financing of campaigns is likely to be either undesirable (because it will drive money to independent expenditures) or irrelevant (because such independent expenditures will swamp any conceivable amount of public funding). I argue that this is not an undesirable development, suggesting that we move from a model of control to competition with respect to the funding of political campaigns.

Very timely.

Posted by Rick Hasen at 08:48 AM

"Deadline to name state chief justice unclear"

The SF Chronicle offers this report.

Posted by Rick Hasen at 08:42 AM

July 15, 2010

Who Will Be the First to File a Complaint Over Alvin Greene Action Figures?

See here. Would George Steinbrenner have approved?

Posted by Rick Hasen at 02:09 PM

McDonald on Voter Fraud Allegations in Minnesota

Here is a guest post from Michael McDonald:

    The answer to Rick's question "Did Enough Illegal Felons Vote in Minnesota in 2008 to Tip the Balance to Al Franken?" is no. According to a report produced by Minnesota Majority, to date 10 of 2,921,147 ballots were found to be illegally cast in the 2008 Minnesota general election, for a rate of 0.0003%. Even if all of these illegal ballots included recorded votes cast for Sen. Franken, this is insufficient to alter the outcome of a 225 vote margin.
    There are solid reasons to suspect that Minnesota Majority has overstated the number of illegal votes. Their report begins with describing simple matching procedures between the voter file and a list of felons on only name (first, last, and middle) and birth year, which will generate a number of false positive matches. So, the number of 1,359 individuals citing repeatedly in the report, 899 in Hennepin and 460 in Ramsey, should be dismissed as a clear over-estimate. (Why is it always the Democratic areas that are only investigated?) Assuming that Minnesota Majority performed the simple matching procedure correctly as they described without further massaging the data, which is what the New Jersey Republican Party did to inflate the number of false matches in allegations of double voting that used similar database matching procedures.
    Minnesota Majority describes some poorly documented additional procedures involving the checking of other court records whereby they winnowed this number of allegedly illegal votes down to 341, 289 in Hennepin and 52 in Ramsey. Of those, 9 have been convicted, and if I read the report properly, a 10th individual was identified and convicted independently by the Ramsey County Attorney General's office. From the timeline on p.7 of the report, it appears that by June 24th Hennepin County decided not to pursue 683 of the 899 simple matches and Ramsey County had ruled out 5 of the 460. These in-depth investigations by the Attorneys' General offices that have led to 10 convictions are of the type - I hope - that I believe are the correct method to deal with these simple matches. As Justin Levitt and I have argued in an article published in The Election Law Journal, and the Brennan Center has discussed in greater detail in a report on database matching procedures, a simple match alone is insufficient evidence in support of an illegal vote.
    Up to this point I am in agreement that this is the way to proceed with this matter and I think a service has been done to protect the integrity of the ballot that will likely dissuade similar abuse in the future. However, I find it distasteful to publicize names of people in the Minnesota Majority report whose charges were dismissed, perhaps because they were flagged due to the bad luck of having the same name and birth year as a felon. If this is the case, Minnesota Majority caused and continues to cause these people emotional distress and should desist this misguided vigilante justice. I also think it is clearly disingenuous for Minnesota Majority to state the failure by the county Attorneys General to investigate 1,359 individuals is evidence of a "gross travesty of justice" when their own checks of unknown quality winnow this number down to 341. At best, that is the number that should be cited, minus those where the allegations have been investigated and dismissed. I find this not only to be political grandstanding meant to cast doubt on the 2008 election, but disrespectful of law enforcement officials whose resources are likely stretched thin by budget cuts. It makes me wonder what the penalty is under Minnesota law for knowingly making a frivolous allegation under Minnesota Statute section 201.275, which is what in my opinion Minnesota Majority did when, as I understand from their report, they submitted in their affidavit to the county Attorneys General 1,359 names generated by a simple match and not the 341 names that they had verified, assuming those procedures were sound. To repeat, a simple match alone is insufficient evidence in support of an illegal vote, a fact that Minnesota Majority likely understood when they conducted their additional records search to verify the illegal votes.
    Posted by Rick Hasen at 02:05 PM

"The New Black Panther Party Is the New ACORN"

Newsweek:

    Thernstrom may be right, but she misses the point. Like the ACORN case, it's not about a real investigation; it's about staging an effective piece of political theater that hurts the Obama administration.

Posted by Rick Hasen at 10:55 AM

"Reid Will Push Wounded DISCLOSE Act"

See here.

Posted by Rick Hasen at 10:33 AM

U.S. District Court in Florida Upholds Trigger Provision in Rick Scott; Expect Appeal to 11th Circuit

See this report. It sounds like the judge ruled orally from the bench. If someone has a written opinion, please send it along. [UPDATE: The short opinion is here; the substance of the ruling on the merits was oral, however.] We now have split decisions on the trigger issue from the Ninth and Second Circuits, and Supreme Court review seems likely.

Money quote: "Still, [U.S. District Court Judge] Hinkle called it a 'very close issue' and said this case or a similar law in another state could come down to a 5-4 vote in the U.S. Supreme Court. 'I'm not at all sure the (Florida) statute will be upheld, especially with given the way the wind is blowing on campaign finance...I can't end the uncertainty.'"

Posted by Rick Hasen at 10:04 AM

U.S. PIRG Back on the (Stalled) DISCLOSE Bandwagon

See here.

Posted by Rick Hasen at 09:57 AM

"Tea Party on the ballot? Some say it's a trick; Activists say it's a veiled attempt to steal GOP votes"

Interesting news from Michigan.

Posted by Rick Hasen at 09:48 AM

"Voters need to push back against corporate cash"

Dan Smith has written this oped in the St. Petersburg Times.

Posted by Rick Hasen at 09:45 AM

"FEC Delays Rulings on Advisory Requests That Could Clarify Disclosure Requirements"

BNA offers this important report ($). At issue is not only disclosure, but the question whether corporations and unions may contribute directly (and in unlimited sums) to IE committtees. (I have a related constitutional issue pending in the San Diego case.)

Posted by Rick Hasen at 09:41 AM

DC Court of Appeals Affirms Ruling Keeping anti-Same Sex Marriage Initiative Off the Ballot

The opinion is here. AP has this report.

Posted by Rick Hasen at 09:34 AM

July 14, 2010

"Inquiry Looks at Fund-Raisers Before Votes in Congress"

The NY Times offers this report.

Posted by Rick Hasen at 08:42 PM

Dept. of Understatement

WaPo: "It's turning into the year of setbacks for campaign finance regulations."

Posted by Rick Hasen at 08:38 PM

"2008 voter-intimidation case against New Black Panthers a political bombshell"

The Washington Post offers this report.

Posted by Rick Hasen at 08:31 PM

Did Enough Illegal Felons Vote in Minnesota in 2008 to Tip the Balance to Al Franken?

That's the charge made in this report by the group Minnesota Majority. Governor Pawlenty wants further investigation. John Fund is unsurprisingly enthusiastic.

I'll withhold judgment until others who have more experience than I take a look at the matching methodology. A good place to start is with this ELJ article by McDonald and Levitt.

Posted by Rick Hasen at 08:28 PM

"Governor Releases Legislation for the Upcoming Special Session"

The latest on the Sen. Byrd replacement in West Va.

Posted by Rick Hasen at 08:18 PM

"Sen. Brown to oppose Disclose Act"

The Hill explains: "With their hopes for a Brown yes vote now dashed, Democrats and watchdog groups are training their lobbying fire on GOP Sens. Olympia Snowe and Susan Collins, two Maine centrists who along with Brown have played decisive roles in a bevy of controversial summer bills. ...Democrats also could lose the support of two centrist Democrats, Sens. Ben Nelson (Neb.) and Blanche Lincoln (Ark.) -- who is locked in a tight reelection contest -- making Republican support even more crucial to overcoming an expected GOP filibuster."

In addition, Sen. Feinstein opposes the House version of the bill because of the NRA carve-out.

Posted by Rick Hasen at 06:30 PM

What Won't Brown Do for You?

Soon after Democrats and reform groups put all their DISCLOSE eggs in the Scott Brown basket, Brown came out firmly and strongly against it.

Senator Schumer vows to push ahead, and reform groups are now targeting Senators Snowe and Collins (John McCain has long been abandoned by these groups). It is not at all clear that this effort will work, or whether it would be enough to pass an attempted filibuster.

Given what Senator Brown has said about campaign finance reform, I wonder if he will now come out with his own proposal to deal with these issues, so at least crucial disclosure rules will be in place in time for the 2012 elections. I bet if he took the lead on a bill, he would get bipartisan support and backing from the reform groups.

Posted by Rick Hasen at 10:29 AM

Sixth Circuit Strikes Down Two Judicial Elections Canons, and Expresses Doubts about a Third One

The Sixth Circuit in Carey v. Wolnitzek has struck down Kentucky's ban on judicial candidates publicly announcing their party affiliations and its ban on the personal solicitation of campaign contributions. It has remanded for clarification on the reach of the "commit" canon, a decision from which one of the three judges on the panel dissented.

Though the Carey court tries to distinguish the recent Seventh Circuit Siefert case on the solicitation question, it appears to me that these opinions are in conflict, making this issue a more likely candidate for Supreme Court review.

Posted by Rick Hasen at 10:13 AM

Internet-Only Primary Being Used in Federal Election

See here.

Posted by Rick Hasen at 10:02 AM

"Quinn uses veto to push voter privacy in primaries"

The Chicago Sun-Times offers this report. Richard Winger provides some context.

Posted by Rick Hasen at 09:59 AM

More on Second Circuit Public Financing Decision

Following up on this post, here is more coverage and commentary:
AP

Hartford Courant

NY Times (editorial)

Brennan Center (definitely with a "glass half full" headline)

Campaign Legal Center

Center for Competitive Politics

BNA ($)

Posted by Rick Hasen at 09:54 AM

Very Sad News: Phil Frickey Has Passed Away

You can read the memorial notice from UC Berkeley here.

Phil was a giant in the field of legislation, and his work on statutory interpretation (including his co-authored casebook with Bill Eskridge and Beth Garrett) redefined the field. He was brilliant, insightful, and careful in his scholarship. More than that, he was a wonderful person, generous with his time and modest about his own substantial accomplishments. It is a loss for the field and for all who knew him.

Posted by Rick Hasen at 09:43 AM

July 13, 2010

Second Circuit Panel Issues Two Important Decisions on Connecticut Campaign Finance Law

In a major campaign finance decision with important national implications, a Second Circuit panel in Green Party of Connecticut v. Garfield agreed with a federal district court that the "trigger provision" of Connecticut's campaign finance law (giving additional funding when a participating candidate faces a self-financed opponent or large independent spending against the candidate) is unconstitutional. This decision is at odds with the Ninth Circuit decision in the McComish v. Bennett case, and the split makes it even more likely that the Supreme Court will agree to hear the McComish case. (The Court already issued a stay in the McComish case pending a cert. petition being filed). The Second Circuit held the issue was squarely addressed by the Supreme Court's earlier opinion in FEC v. DAvis. The Ninth Circuit had found the Davis case easily distinguishable.

In addition, the Second Circuit panel held that the public funding law did not discriminate against minor parties in making public funding benefits much more easily available to major party candidates. Although the panel spent much more time on the minor party issue than on the trigger provision issue, it is the latter that will draw more national attention.

The panel also upheld Connecticut's broad ban on contributions by certain government contractors and potential contractors. It held that the ban on contributions by lobbyists, however, was unconstitutional. It further held that a ban on all solicitation of contributions by contractors and lobbyists were unconstitutional, but it suggested a more narrowly tailored anti-bundling law could pass constitutional muster. (I am currently writing about limits on lobbyist campaign finance activities and will have more to say on this case eventually.)

Judge Kearse dissented on the minor party issue only.

For procedural reasons, the appeals are in two parts, Part 1 on minor parties and the trigger provision and Part 2 on contractor and lobbyist campaign finance limits.

Richard Winger is strongly critical of the minor party aspect of the decision. He predicts a request for rehearing en banc or a cert petition to the Supreme Court. I would be surprised if the Supreme Court agreed to review that aspect of the case, but the dissent by Judge Kearse on this issue makes it more likely than otherwise that either the Court would hear this aspect of the case or it would be taken en banc. If the Court agrees to hear the McComish case early next term (as I expect), and there is an appeal on the trigger provision question pending before the Supreme Court, I would expect the case to be held for the decision in McComish.

Posted by Rick Hasen at 09:55 AM

Lawyers' Committee Won't Back SG Kagan

Wow.

Posted by Rick Hasen at 08:21 AM

"Contribution Limits and Voting Rights"

Allison Hayward asks: "do low contribution limits run afoul of the Voting Rights Act?"

Posted by Rick Hasen at 08:17 AM

"The Future of Section 2 of the Voting Rights Act in the Hands of a Conservative Court"

Luis Fuentes-Rohwer has posted this draft on SSRN (forthcoming, Duke Journal of Constitutional Law and Public Policy). Here is the abstract:

    This Essay argues that the future of the majority-minority district is in peril, as a conservative majority on the Court stands poised to strike down section 2 of the Voting Rights Act. When the Court takes up the constitutionality of Section 2, binding precedent will play a secondary role at best. Instead, the Justices' policy goals and ideological preferences - namely, their personal disdain for the use of race in public life - will guide the Court's conclusion. In this vein, Justice Kennedy holds the fate of the Act in his hands. To be clear, this Essay is not trying to prognosticate the future of the Act. Instead, it is far more intrigued by the many lessons that the fate of the Act offers about the Court as an institution; the Court's treatment of colored communities and their interests; and the role political attitudes play in guiding judicial behavior. As the Court continues to position itself at the center of many political controversies, these lessons gain greater urgency.

Posted by Rick Hasen at 08:14 AM

More on Corporations Post-CU

Leslie Lenkowsky sends along the following thoughts about this post:

    This is not all that surprising for several reasons.

    Although its methodology has been questioned, the Capital Research Center (and others) have demonstrated for many years that corporate philanthropy has a left-of-center tilt.

    Corporations are pragmatic in their political activity. The period under study covers years in which liberal groups were very competitive at both the Federal and state levels and thus, attractive to companies wanting to cover all bases.

    Most importantly, this data say more about the political preferences of board members than of how corporations will behave post-CU. Those preferences are shaped by a variety of factors, including education, geography, upbringing, etc. The question of relevance in the post-CU era is how these personal preferences will affect the actions of people as board members, when they are supposed to make decisions with the company’s interest foremost. My guess is that as long as liberal political groups remain competitive, they will get a good share of post-CU corporate funding, which will also have the "happy" outcome (from the viewpoint of directors) of consistency with their personal preferences.

    Posted by Rick Hasen at 08:10 AM

"Supreme Court Review: Campaign Cash, Controversy"

Nina Totenberg offers this end of the term wrap-up for NPR.

Posted by Rick Hasen at 07:54 AM

"Time's up on costly runoff elections"

Alex Statky and Rob Richie have written this Politico oped.

Posted by Rick Hasen at 07:47 AM

July 12, 2010

"Citizens United and the Myth of a Conservative Corporate America"

This is fascinating. I'll be interested to hear what others think of these data and this methodology.

Posted by Rick Hasen at 05:16 PM

2010 Supplement to Election Law---Cases and Materials (Lowenstein, Hasen, and Tokaji)

Following up on this post, for those instructors out there who use the Lowenstein, Hasen and Tokaji casebook, Election Law--Cases and Materials (4th ed. 2008), the 2010 supplement is on its way to the printer and should be shipping to bookstores in early August. The ISBN for the 2010 supplement will be 978-1-59460-914-5 (120 pages). (Instructors who need an early pdf copy for planning purposes should contact Linda Lacy of Carolina Academic Press: linda-at-cap-press.com.)

The 2010 Supplement features edited versions of four principal cases: Citizens United, Doe v. Reed, NAMUDNO, and Caperton v. Massey. It also includes many new notes, and material that replaces portions of the Casebook's Chapters 15 and 16 on campaign finance contribution limits and spending limits. (CU replaces WRTL II as a principal case in the Casebook.)

Posted by Rick Hasen at 02:48 PM

"Watchdogs call on Sen. Scott Brown to back campaign finance bill"

The Hill offers this report. You can read the letter here.

Posted by Rick Hasen at 02:24 PM

"Nirvana's Krist Novoselic Promotes Election Reform"

This item appears at the WSJ's "Speakeasy" blog.

Posted by Rick Hasen at 02:19 PM

Speaking at the 2010 Global Forum on Modern Direct Democracy

Here is the schedule for this five-day even in San Francisco. I'll be speaking on Sunday, August 1, on this panel:

    Panel: "Big Money vs. Direct Democracy: Who Wins?", including presentation of new Citizens in Charge Foundation report
    * Thad Kousser, UCSD professor and visiting scholar, Bill Lane Center for the American West
    * Roy Ulrich, Common Cause and Pacifica Radio
    * Rick Hasen, Loyola Law School, the Election Law Blog
    * Mark Paul, New America Foundation

Posted by Rick Hasen at 09:02 AM

"With Supreme Court deadlocked, commission drops Gableman ethics case"

The latest from Wisconsin.

Posted by Rick Hasen at 08:45 AM

NYT Also Expecting Filibuster of DISCLOSE

See this editorial.

Posted by Rick Hasen at 08:42 AM

Christian Adams on the Ike Brown Case

See here.

Interestingly, the person/people emailing me links to articles and postings by Christian Adams has/have been using false email addresses.

Posted by Rick Hasen at 08:39 AM

The Bailout King Moves on to Kings Mountain, North Carolina

See here.

Posted by Rick Hasen at 08:34 AM

"U.S. District Court Rules that Constitution Does Not Require Congress to Increase the Size of the U.S. House"

Richard Winger has this post on this opinion of a three-judge federal court. According to this press release, the case will be appealed to the U.S. Supreme Court.

Posted by Rick Hasen at 08:31 AM

"Uneven Response on House Earmarks"

The Boston Globe offers this report.

Posted by Rick Hasen at 08:25 AM

"Redistricting need not be political blood sport"

This oped by Krist Novoselic And Rob Richie appears in the Milwaukee Journal-Sentinel. FairVote also has released a new report on redistricting reform.

Posted by Rick Hasen at 08:20 AM

"How our laws are really made"

The San Jose Mercury News has posted Part 1 of this must-read report (part 2 is coming July 18). It begins:

    Imagine: At a time when California is lurching from crisis to crisis, a legislator has an idea to make life better. He puts together a bill, gathers support and shepherds it into law.

    If only Sacramento worked like that. Instead, it often works like this:

    A lobbyist has an idea to make life better -- but only for his client. The lobbyist writes the bill, shops for a willing lawmaker to introduce it and lines up the support. The legislator? He has to do little more than show up and vote.

    This is the path of the "sponsored bill," a method of lawmaking little noticed outside California's capital but long favored on the inside. In many states lobbyists influence legislators; in California, they have -- quite baldly -- taken center stage in lawmaking.

Posted by Rick Hasen at 08:15 AM

"Big money from special interests attempts to sway three local elections; Without directly revealing their involvement, major industries and organizations play key roles in legislative contests."

The LA Times offers this interesting report.

Posted by Rick Hasen at 08:11 AM

July 09, 2010

SG Kagan and the McComish Case

Following up on this post an astute reader points me to this written response to a Senator's question:

    Do you agree that if Hastings has denied an associational freedom to a religious student group that it has granted to other groups, such a denial would be presumptively unconstitutional?

    Response:
    I do not think it would be appropriate for me to comment on a recent decision of the Supreme Court. As a general matter, I continue to believe that the First Amendment generally prohibits the government from subsidizing some points of view but not others; the example I gave in the article was a law providing for public funding of all speech endorsing incumbent city officials in reelection campaigns.

The reader asks " how this might relate to her view of Arizona's matching funds case. While obviously the Arizona law does not just provide public funding for speech endorsing incumbents, I wonder how far she would take that view when examining the Arizona public financing matching-funds law (which may end up subsidizing only one point of view in a given race)."

I don't see the Arizona system as subsidizing only one "point of view," but it does only subsidize one class of candidates: those who opt into the public financing system and then face large opponent or third party spending. Still, the answer does raise the question of how she would vote in McComish should the Court take that case.

Posted by Rick Hasen at 06:19 PM

"The Fair Use Senator: Can Harry Reid really post Sharron Angle's old campaign Web site?"

Eduardo M. Penalver and Sonia K. Katyal have written this Slate piece.

Posted by Rick Hasen at 12:55 PM

Don't Expect Justice Kagan to Agree with Justice Scalia on the Uses of Legislative History in Statutory Interpretation

Among the responses General Kagan gave to Senate Judiciary Committee members is an interesting set of answers to Ranking Member Senator Sessions:

    a. Is it appropriate to rely on legislative history if such legislative history is available from only one house of Congress?

    Response:
    I am not aware of any Supreme Court precedent suggesting that the Court may not consider legislative history from only one House of Congress. But in considering legislative history as evidence of what Congress meant when it enacted the statute, the breadth of the legislative history is relevant to its value.

    b. In looking to legislative history, is it appropriate to look at only committee reports and other formal documents, or is it appropriate to look at floor debates, committee meeting debates, hearing transcripts and other legislative materials?

    Response:
    Floor debates, committee meeting debates, hearing transcripts, and other legislative materials can be relevant sources of legislative history. But the Court should carefully consider the reliability of such materials as evidence of congressional intent.

    c. When looking at committee reports, is the report relevant only to the extent it represents the views of those who voted for the legislation in committee, or must the courts also look to the views of those who did not vote for the bill in committee, but did vote for the bill’s final passage?

    Response:
    A court considering legislative history typically will look to committee reports, but may also look to other materials, including statements of Members of Congress who voted against the legislation in committee but voted in favor of the bill’s final passage. The question, with respect to all such materials, is whether they reliably indicate Congress’s intent in enacting a statute.

    d. In looking at floor debates, is it necessary to compare what a member of Congress said on the floor with his final vote on the legislation to determine its relevance?

    Response:
    The weight to be given to a particular floor statement depends on the context, including the speaker's other statements and votes.

    e. Is it permissible for the courts to assess the veracity of statements in legislative history, or must the courts simply accept these statements as the true intentions of the legislature?

    Response:
    The weight to be given to a particular statement in the legislative history depends on the context, including other statements in the legislative history that express a contrary view.

    f. In his dissent in Lane v. Pena, 518 U.S. 187 (1996), Justice Stevens wrote that "a rule that refuses to accept guidance from relevant and reliable legislative history, does not facilitate -- indeed, actually obstructs -- the neutral performance of the Court's task of carrying out the will of Congress."
    i. Do you agree with Justice Stevens' statement?

    Response:
    I am not familiar with the context of Justice Stevens' statement. I believe, as I indicated to Senator Franken, that when the text of a statute is ambiguous, legislative history can be a valuable source of evidence of the meaning that Congress intended to give a particular statutory provision.

    ii. Do you think it is a court's task in statutory construction to "carry out the will of Congress," or is it a court's task to interpret the meaning of the text of legislation, leaving it to Congress to clearly express its will in that text?

    Response:
    The role of a court is to determine Congress's intent in enacting a statute. Where the text of the statute is clear, that is the end of the matter, because that is the best evidence of Congress’s intent. Where the text is ambiguous, it is the job of the court to determine what Congress meant by looking to other legal sources, such as the statute’s structure, title, context, and legislative history.

    g. Justice Scalia critiqued the practice of looking to legislative history in Conroy v. Aniskoff, 507 U.S. 511, 519 (1993), saying: "The greatest defect of legislative history is its illegitimacy. We are governed by laws, not by the intentions of legislators. As the Court said in 1844: 'The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself. . . .' But not the least of the defects of legislative history is its indeterminacy. If one were to search for an interpretive technique that, on the whole, was more likely to confuse than to clarify, one could hardly find a more promising candidate than legislative history."
    Do you agree that, given the diversity of viewpoints represented in the United States Congress, the legislative history of a statute could be a source of confusion?


    Response:
    In some cases, the legislative history of a statute may indeed be confusing. For that reason, among others, when the text of a statute is clear, the text should govern.

Posted by Rick Hasen at 12:19 PM

Beware Technorati

I and others who've been accessing the Election Law Blog over the past few days have had delays or blank pages caused when the site tried to access something called b.scorecardresearch.com (more about them here). I was not sure what the culprit was, but after removing and putting back a bunch of outside links on the blog, I determined that it was a code going to Technorati. Technorati allowed a code to track links from this blog to others. (Over the last few months for some reason it stopped doing that, showing that no one ever linked to this blog---which, fortunately for me, is not true.) In any case, I kept the code in despite the fact that it did not seem to do anything. But apparently that code was also going to this other site, and hanging up the blog.

If anyone continues to experience problems, please let me know.

Posted by Rick Hasen at 11:54 AM

"Special election cleared to fill Byrd's seat"

USA Today offers this report.

Posted by Rick Hasen at 08:22 AM

"Stays Were Common at High Court"

The Los Angeles Daily Journal offers this article ($), which focuses on the stays in Doe v. Reed, McComish v. Bennett (the Arizona public financing case), and Perry v. Schwarzenegger. [UPDATE: You can now read the entire article here.] I have posted some excerpts below the fold.

Stays Were Common at High Court

By Lawrence Hurley

Daily Journal Staff Writer

WASHINGTON - One of the most distinctive features of the U.S. Supreme Court's just completed term was the justices' unusual willingness to intercede at the early stages of controversial cases through their power to stay lower court rulings.

Perhaps the most high profile example of this was the stay granted in January that prevented the broadcast of the blockbuster trial in San Francisco over the constitutionality of California's Proposition 8, the ballot initiative that banned gay marriage.

The Supreme Court also attracted attention for two other stays it granted, both in cases coming from the 9th U.S. Circuit Court of Appeals. ...

In June, the Supreme Court decided the case narrowly, without reaching the question of whether the names should be released. Doe v. Reed, 2010 DJDAR 9570.

Instead, the court upheld the general right of states to release the names of people who sign petitions to put issues before a popular vote, holding on an 8-1 vote that the First Amendment rights of those who sign petitions are not automatically violated.

But the court said people who sign the petition could make case-by-case challenges to the release of names if they can persuade a federal judge that there is a likelihood of threats or harassment. The Washington petition signers now have a chance to do that before the state can release the names.

The eventual outcome in the case illustrates how the court's decision to grant a stay does not necessarily foreshadow the final ruling, Supreme Court watchers say.

Election law expert Rick Hasen, a professor at Loyola Law School in Los Angeles, noted the stay in the case was not a surprise because the Supreme Court had merely maintained the status quo - specifically that the names were not in the public domain - until it had a chance to review the case on the merits.

But Hasen and others feel quite differently about the stay in the Arizona elections case because the stay was sure to have a direct impact on election season despite the fact that the court hadn't yet decided whether to hear the case on the merits.

The stay was "really surprising," Hasen said, because it seemed to contradict Supreme Court precedent stating that courts should not issue decisions that affect how elections are conducted in the middle of election season.

"It's hard to see how the Supreme Court can justify changing the rules," he said.

While the parties brief the case, a provision of a state campaign finance law, known as the Citizens Clean Elections Act, that provides extra public subsidies to candidates who are running against privately funded candidates, is on hold. Candidates in this year's elections who opted to take the subsidies, including sitting governor Jan Brewer, a Republican, are now at a disadvantage against candidates raising funds privately.

The law gives candidates the opportunity to receive public financing if they give up their right to raise private funds. The amount of funding varies depending on whether the candidate faces an opponent in the primary or general election. The provision of the law under scrutiny allows the candidate to get additional funding if they are being outspent by someone raising funds privately. Primary elections in the state take place on August 24. McComish v. Bennett, 09A1163.

Monica Youn, a lawyer at the Brennan Center for Justice at New York University School of Law, who is in favor of campaign finance reform, described the court's action as "very irresponsible" because it threw "the entire system into chaos."

The decision to intervene indicates to Youn that the justices "are really not looking at the real-world consequences."

Nicholas C. Dranias, an attorney at the conservative Goldwater Institute in Phoenix, Ariz., who filed the application in the case on behalf of various political candidates, said he viewed the Supreme Court's actions quite differently.

Although the Arizona law was passed in 1998, the legal challenge was launched immediately after the Supreme Court issued a 2008 campaign finance ruling that cast into doubt the future of public financing. Davis v. FEC, 2008 DJDAR 9585. In that case, the court struck down a provision of the 2002 McCain-Feingold campaign finance law that increased the contribution caps for candidates running against self-financed opponents.

Dranias conceded that seeking a stay was a long shot but said he did so because he was so confident that the Arizona law was unconstitutional based on the ruling in Davis.

Criticism of the court's decision to grant the stay "has surface level appeal," he added, but ultimately, "the First Amendment is more important than the sanctity of politicians getting taxpayer funds."

Posted by Rick Hasen at 08:18 AM

"Corporations sue to allow campaign contributions"

The Star Tribune offers this report.

Posted by Rick Hasen at 08:04 AM

"In Disclose Act, Democrats are muzzling free speech"

George Will's latest column.

Posted by Rick Hasen at 08:01 AM

Bush v. Gore It's Not

Cincinnati.com: "The Ohio Historical Society says it will conduct an independent audit of Wednesday's vote count for a new statue for the National Statuary Hall at the U.S. Capitol in Washington, D.C." Thanks to Michael Solimine for the pointer.

Posted by Rick Hasen at 07:45 AM

"Pulling Back the Curtain on Redistricting"

Michael McDonald and Micah Altman have written this WaPo oped.

Posted by Rick Hasen at 07:40 AM

IRV in NYC?

See WSJ.

Posted by Rick Hasen at 07:37 AM

July 08, 2010

Why Wasn't Citizens United a 9-0 Decision in Favor of Citizens United?

This is my first in a series of posts in which I will highlight some interesting, though somewhat "inside baseball," posts about campaign finance and legislation issues in the U.S. Supreme Court's Citizens United decision. Most of these observations appear in footnotes to my article, Citizens United and the Illusion of Coherence, 109 Michigan Law Review (forthcoming 2011). (The article link will take you to SSRN where you can download a newly-revised version of the article.)

One interesting question about CU is why it was not a 9-0 opinion, with five Justices deciding for CU on constitutional grounds, and four other Justices deciding for CU on statutory grounds. The issue arose in the context of the dissent's argument that the Court should not have reached the constitutional question whether the First Amendment gives corporations a right to spend independently in candidate campaigns, but instead should have resolved the case on statutory grounds. The dissent pointed to a number of statutory arguments, including one that the statute did not apply to video on demand. This provoked a response from Chief Justice Roberts in his concurrence.

As I explain in fn. 153 of the current draft of the Michigan piece:

    Chief Justice Roberts called the dissent's views of these narrower grounds "quite perplexing" because the dissenters "presumably agree[] with the majority that Citizen United's narrower statutory and constitutional arguments lack merit--otherwise its conclusion that the group should lose this case makes no sense." Id. at 918 (Roberts, C.J., concurring). The dissent responded that there is "nothing perplexing about the matter" because the dissenters "do not share [the majority’s] view of the First Amendment" and therefore there is no occasion "to practice constitutional avoidance or to vindicate Citizens United's as-applied challenge." Id. at 938 n. 16 (Stevens, J., dissenting). One might add that the dissent likely wanted to avoid the political optics of a 9-0 defeat for the government (albeit on vastly different grounds), recalling the majority's controversial statement in Bush v. Gore, 531 U.S. 98, 111 (2000), that "Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy... The only disagreement is as to the remedy."

This exchange raises an interesting constitutional avoidance question as well: Are there ever situations when a statutory interpretation is plausible enough so as to implicate the doctrine of constitutional avoidance, and that should be adopted to allow a plaintiff to win a case in such circumstances, but not strong enough that the statutory analysis should prevail in the event the court concludes there is no constitutional doubt? To the CU dissenters, the statutory arguments in this case must have fallen into this category. It seems like a very thin window, and I cannot think of other examples like this one.

Posted by Rick Hasen at 02:10 PM

"W.Va. AG: Special election OK for Byrd's seat"

AP offers this report.

Posted by Rick Hasen at 01:36 PM

"Corporate 'candidate' fails to make ballot in Maryland's 8th district"

Murray Hill Inc. fails in its bid to run against Rep. van Hollen.

Posted by Rick Hasen at 01:27 PM

"Campaign Finance Battle, Not Roe v. Wade, Dominated Elena Kagan's Supreme Court Confirmation Hearings"

The Open Secrets blog reports nine times more mentions of CU than Roe.

Posted by Rick Hasen at 01:09 PM

"Court knocks redistricting initiative from ballot"

Big redistricting news from Florida. I expect this to end up before the state supreme court. Thanks to Dan Smith for the pointer.

UPDATE: Despite the title of this article, it is worth noting that this is a legislative ballot measure, not an initiative.

Posted by Rick Hasen at 09:46 AM

"Dems drop challenge to putting Greens on November ballot"

The latest from Texas.

Posted by Rick Hasen at 09:37 AM

Why Have Unions So Far Been More Active than Corporations Post-CU?

Eugene Volokh blogs here and here on the question, writing in light of a Washington Post article that I think is somewhat misleading in how it frames the question, for the reasons Eugene gives.

Eugene asked on the election law listserv the reason why there might be more union activity over corporate activity so far post-CU, given that the ruling presumably freed unions as well as corporations in terms of spending in campaigns. Here is what I sent to the listserv in response to that question:

    During the post-BCRA period before CU, labor unions engaged in more activity than corporations, much of it through 527s. Here's a note from the 2008 Lowenstein, Hasen, Tokaji casebook (as being modified for inclusion in the 2010 Supplement):

    7. BCRA seemed to have a larger immediate effect on corporations than unions. Of corporations giving more than $100,000 in soft money in both 2000 and 2002, the amount of spending from corporate treasury funds fell in 2004 from $113.2 million (in soft money) in 2000 to $6.1 million (given to "527" organizations). Robert G. Boatright et al., Interest Group and Advocacy Organizations After BCRA, in The Election After Reform: Money, Politics, and the Bipartisan Campaign Reform Act 112, 118 (Michael J. Malbin, ed. 2006). As for labor unions in the 2004 elections, "the flow of treasury funds to political parties was also halted, but most of the dollars appear to have been spent elsewhere, either directly or in the form of contributions to Democratic-leaning 527s." Thomas E. Mann, Lessons for Reformers, in Financing the 2004 Election 241, 249 (David B. Magleby et al., eds. 2006).

    One reason that I've heard for this phenomenon is that some corporate (but not) union spending before BCRA came from pressure from election officials and parties. Once BCRA passed, these corporations could use it as an excuse to stay more out of politics. If that's right, the pressure will start amping up again for corporate spending after CU.

    Union spending also probably is rising post-CU more quickly than corporate spending because of the disclosure issue. Unions don't have customers who might be alienated by political spending the way many corporations do. This is why I expect corporate spending to amp up once it becomes clear that corporations have ways (such as through the Chamber) to hide their identities, at least on the face of political advertising. (It is also why I think the Chamber has been so vocally opposed to the DISCLOSE Act.)


Others pointed out that there are certain adverse tax consequences to unions spending directly on campaigns, and that there might have been a pro-union skew because of the limited number of races which tended to involve union interests more, including the Arkansas Senate race. We will see what the fall brings.

Posted by Rick Hasen at 07:44 AM

"LaHood blasts lobbyists for leaked plan to fight cell phone restrictions"

This is an interesting inside look at creating an "industry front group."

Posted by Rick Hasen at 07:29 AM

"Anti-white bias at the Justice Department?"

The LA Times offers this editorial.

Posted by Rick Hasen at 07:22 AM

July 07, 2010

"New Breed of GOP Groups Rises to Party's Challenges"

AOL News offers this report.

Posted by Rick Hasen at 10:09 PM

Push for FENA Coming from Common Cause and Public Campaign

See here and here.

I'm sure I'll get lots of email from unhappy readers for saying this, but if Congress is struggling on campaign finance disclosure, and the President is not behind FENA, and we are in an era of budget woes, who really thinks that FENA could get through Congress right now?

Posted by Rick Hasen at 10:05 PM

"Rick Scott sues to block public funds from going to rival campaigns"

The St. Petersburg Times offers this report.

Posted by Rick Hasen at 09:58 PM

"Governor seeks AG opinion on Byrd replacement process"

West Virginia Public Broadcasting reports.

Posted by Rick Hasen at 03:44 PM

"Opinion: Byrd Was Third in Line for the Presidency?"

Joshua Spivak offers this perspective at AOL News.

Posted by Rick Hasen at 01:48 PM

"New Mexico Settles Lawsuit, Agrees to Implement 'Motor Voter' Law"

Project Vote has issued this press release.

Posted by Rick Hasen at 01:00 PM

Is DOJ "engaged in a massive coverup of its politicization of voting rights cases"?

That's John Fund's incendiary charge based upon the allegation that DOJ official Julie Fernandes stressed using DOJ resources to further minority access rather than pursue NVRA suits against states for not purging their voter rolls.
Even if true, this seems to be the usual kind of shift of emphasis that comes from a change in Administrations with differing philosophies on voting rights, rather than an effort at "covering up" "politicization."

Posted by Rick Hasen at 12:20 PM

"Tanner: Why voter ID won't fly in Texas"

This oped by John Tanner in the Austin-American Statesman is well worth reading.

Posted by Rick Hasen at 09:43 AM

"ACLU Intervenes In Georgia Voting Rights Act Challenge"

See this press release.

Posted by Rick Hasen at 08:21 AM

"Unions outspending corporations on campaign ads despite court ruling"

The Washington Post offers this report. See also this Time magazine article on CU, Brad Smith criticizing Senator Schumer on DISCLOSE, Ciara Torres-Spelliscy on CU and the Kagan confirmation, and this interesting post on transparency and campaign finance by Alix Vance at the Scholarly Kitchen.

Posted by Rick Hasen at 08:16 AM

July 06, 2010

NYT Covers Black Panther/Christian Adams Case

Here.

Posted by Rick Hasen at 08:56 PM

"Doe v. Reed a Disappointment on Several Fronts"

Dale A. Oesterle has written this commentary for Election Law@Moritz.

Posted by Rick Hasen at 08:50 PM

"Secret donors make [Justice] Thomas's wife's group tea party player"

Fascinating read at Politico, especially when juxtaposed with Justice Thomas's views about anonymity in political activity.

Posted by Rick Hasen at 08:42 PM

"Is Online Voter Registration the Future?"

David Orr, the Cook County (IL.) Clerk, blogs at Huffington Post.

Posted by Rick Hasen at 08:39 PM

"GOP Moves Toward West Virginia Suit"

Hotline On Call reports.

Posted by Rick Hasen at 08:36 PM

DISCLOSE Act Heading to Senate Filibuster?

A Roll Call report ($) entitled "Democrats Upbeat on Campaign Finance Bill," says: "Schumer, former Democratic Senatorial Campaign Committee chairman and author of the Senate version of the bill, and Reid told House Democratic brass in a bicameral leadership huddle Tuesday that they are committed to forcing a vote on the measure, whether or not it has the support to clear a filibuster, sources familiar with that session said."

As I've said before, I don't see the path to how this clears the Senate, unless, at the very least, a few moderate Republicans agree to come on board (perhaps in exchange for some changes in the bill).

Posted by Rick Hasen at 07:54 AM

"The New Black Panther Case: A Conservative Dissent; Never mind this one-off stunt by fringe radicals; the DOJ is engaged in much more important voting-rights mischief."

This must-read column by Abby Thernstrom makes two important points: (1) the Black Panther case seems much ado about nothing; (2) the important action in the DOJ voting rights section will come when it must approve redistricting requests under section 5 of the VRA, under new proposed regulations that are flying below the radar. (I haven't studied the proposed rules to see if I agree that they make much change in the current system. But certainly this has not gotten any media attention I've seen.)

Posted by Rick Hasen at 07:45 AM

Quote of the Day

"If Citizens United is considered by the Federal Election Commission to be a press entity exempt from all campaign finance laws, it's difficult to imagine a political advocacy organization that wouldn't be exempt in the eyes of the current FEC."
--Paul Ryan, quoted in Eliza Newlin Carney's column today.

Posted by Rick Hasen at 07:40 AM

"Angle sends cease and desist letter to Reid over website"

This article begins: "Sharron Angle's campaign sent a cease and desist letter to Sen. Harry Reid's campaign last week after a copy of her pre-primary election website was relaunched as www.therealsharronangle.com, which was later taken down." More from Political Wire.

As usual in such cases, Ben Sheffner provides some context.

Posted by Rick Hasen at 07:35 AM

July 05, 2010

"Lobbyists are Sen. Murray's biggest donors"

The Seattle Times offers this report.

Posted by Rick Hasen at 10:18 PM

"Six Alarcon staffers ordered to testify; County grand jury is looking into allegations that the city councilman lives outside his Valley district."

See this LA Times report.

Posted by Rick Hasen at 10:11 PM

" Obama and Supreme Court may be on collision course"

This LA Times article talks about the CU/SOTU controversy.

Posted by Rick Hasen at 10:07 PM

"William and Mary law student fatally struck by D.C. Metro train"

Tragic news about Joe Doyle, who was vice president of the William & Mary Election Law Society. I had the pleasure of spending time with some of the wonderful students from this group a few years ago. My condolences to his family and friends.

Posted by Rick Hasen at 10:04 PM

"Keeping Tax-Subsidized Corporate Money Out of Politics"

My Loyola colleague Ted Seto has written this article for Tax Analysts. Here is the abstract:

    Citizens United poses a special threat to the integrity of the U.S. tax system. The article identifies the special nature of the problem and proposes a possible solution. Specifically, it proposes that listed tax subsidies be disallowed to C corporations that spend more than some de minimis amount (e.g., $1 million per year) on nondeductible lobbying and/or political activities.

The 2-page article is well worth reading by anyone thinking about creative, constitutional ways Congress could deal with CU.

Posted by Rick Hasen at 07:35 AM

NYT Editorial on Roberts Court Focuses on His Concurring Opinion in CU

See here. I've discussed that opinion in detail in this article.

Posted by Rick Hasen at 07:28 AM

"Companies Find Ways to Bypass Ban on Earmarks"

An ironic celebration of American ingenuity on the 4th of July.

Posted by Rick Hasen at 07:24 AM

"Ruling widens the meaning of 'media'"

The Boston Globe has this article on the FEC's treatment of CU's request for a media exemption.

Posted by Rick Hasen at 07:20 AM

July 02, 2010

New Lawsuit Says Michigan's $500 Individual Contribution Limits to Legislators Unconstitutionally Low

See here.

Posted by Rick Hasen at 05:17 PM

"Supreme Court ruling may not have major effect on campaigns"

McClatchy offers this report.

Posted by Rick Hasen at 05:14 PM

Independent Redistricting Commission Coming to ND?

See here.

Posted by Rick Hasen at 05:11 PM

Will the Christian Adams DOJ Allegations Go Mainstream?

Media Matters suggests yes, but for the wrong reasons.

Posted by Rick Hasen at 05:08 PM

"Tennant wants Manchin to call special session for Byrd replacement"

The latest from West Virginia.

Posted by Rick Hasen at 05:04 PM

"TX Supreme Court says Greens can certify candidates"

This is not a final decision on the merits.

Posted by Rick Hasen at 01:39 PM

"SEC UNANIMOUSLY ADOPTS PAY-TO-PLAY RULE"

Covington and Burling has issued this e-Lert about an important development at the SEC. They also recently issued this e-Lert, which begins: "Notwithstanding the Supreme Court's landmark decision in Citizens United, our clients are finding that the election law landscape is increasingly subject to more -- not less -- regulation."

Posted by Rick Hasen at 11:30 AM

"House Votes 408-4 to Bar Campaign Money From Those Lobbying for Foreign Nationals"

BNA reports.

IMPORTANT UPDATE: A knowledgeable reader writes that this story is incorrect:The bill, H.R. 5609, was substantially amended before it was brought to the floor (to Rep. Lungren's great frustration!) so that it no longer amends FECA, and is no longer about campaign finance issues, but instead is confined to a new prohibition of lobbying for terrorist supporting states in the Lobbying Disclosure Act. You can see the amended text of the bill in the Congressional Record on pages H 5336-37 from yesterday.

Posted by Rick Hasen at 08:27 AM

"We need a constitutional amendment for special elections"

Rob Richie has written this letter to the editor in the Washington Post. He also sends along a link to a story on IRV from Maine.

Posted by Rick Hasen at 08:23 AM

"Kagan Reminds Senators: Legislation Is Your Job"

This NYT article discusses, among other things, SG's defense of CU.

Posted by Rick Hasen at 08:18 AM

July 01, 2010

"Campaign Finance Shaped 2009-10 Term"

This USA Today article begins: "After nine months and 73 decisions, the Supreme Court's newly concluded 2009-10 term is defined by single case whose continuing political ramifications were on display this week in Senate hearings for Elena Kagan. Citizens United v. Federal Election Commission, which stripped away federal limits on corporate and union spending in political campaigns, was invoked repeatedly -- by Democrats and Republicans -- during the questioning of high court nominee Kagan. Reverberations are likely into the fall elections and the next term."

Posted by Rick Hasen at 09:30 PM

"Lawyer bashes Obama officials over Philadelphia voter-intimidation case"

The Pittsburgh Tribune-Review offers this report.

Posted by Rick Hasen at 09:25 PM

What is Dan Schnur Thinking?

The Sacramento Bee offers FPPC Considering Tougher Regulation of Independent Campaign Spending. Not sure what this might entail in the post-CU era.

Posted by Rick Hasen at 09:21 PM

NYT Profile of "Superlobbyist" Tony Podesta

See Lobbyist Says It's About Information, Not Influence.

Posted by Rick Hasen at 09:17 PM

Tenth Circuit Issues Post-CU Opinion Reading Narrowly New Mexico's "Major Purpose" Test for Political Committees

The opinion in New Mexico Youth Organized v. Herrera is here. From a James Madison Center press release (I cannot find a link on their website): "The Tenth Circuit's holding is significant, because it limits government's ability to regulate organizations as full-fledged political committees, thereby imposing on them all the burdens - - including registration, extensive recordkeeping requirements, and extensive reporting requirements - - that go along with being a political committee. As the Supreme Court has explained, these burdens are so onerous that many organizations, rather than complying with them, will just forego their political speech. This is at odds with the Supreme Court’s repeated holdings that political speech is at the very core of what the First Amendment protects."

Posted by Rick Hasen at 02:56 PM

"The Deregistration Dilemma: Are Lobbyists Quitting the Business as Federal Disclosure Rules Tighten?"

The Center for Responsive Politics has this release about this new report.

Posted by Rick Hasen at 02:51 PM

Ugly Dispute in Wisconsin Supreme Court: Justices Divide 3-3 Over Whether Claim Against Seventh Justice Over False Campaign Ad Should Go To Trial

All the material on this rounded by up Howard deserves reading. One snippet from the Milwaukee Journal Sentinel article: "In one last sign of how unusual the Supreme Court's disagreement over the Gableman case has become, Abrahamson wrote in her opinion that the opposing trio of justices did not even want their separate opinion to carry the same citation number. Abrahamson called that 'a complete break from our usual practice.'"

The first reader comment on the site says: "I don't care how you think this case should have been decided, this decision and its dynamics are embarrassing for this state. What a dysfunctional court. "

Posted by Rick Hasen at 02:46 PM

Champaign County Clerk Responds to Possibility to Second U.S. Senate Eleciton in Illinois in November

See here.

Posted by Rick Hasen at 09:13 AM

Question Answered

Back in April, I wrote Hushed Money:Could Karl Rove's new 527 avoid campaign-finance disclosure requirements?.

Today Politico reports that the money started coming in only after American Crossroads created a related 501(c)(4):

    Though American Crossroads will be required to disclose to the IRS its donors and expenditures for June in about three weeks, Law would not immediately reveal the precise fundraising division between it and Crossroads GPS, which he said was incorporated about four weeks ago under section 501(c)4 of the IRS code. That section of the code requires far less disclosure and allows groups to withhold information on individual donors, which Law conceded was appealing for some of GPS's donors. "I wouldn't want to discount the value of confidentiality to some donors," said Law.

Posted by Rick Hasen at 08:03 AM

"Eisen Slated to Move to Embassy Post; Unclear If Obama to Name New Ethics Czar"

BNA reports.

Posted by Rick Hasen at 07:54 AM

"Voter law upheld, but is the fight over?"

The Indianapolis Star offers this report.

Posted by Rick Hasen at 07:49 AM