Monthly Archives: May 2004

Brad Smith: Person of Principle?

Back in this post, I linked to a New York Times story in which Democracy 21’s Fred Wertheimer was quoted as saying that FEC Chair Brad Smith “was acting out of principle, too” in failing to go along with new regulations of 527 organizations.
Today, Werthheimer has this letter to the editor in which he retracts his earlier statement: Smith’s vote “not a real act of principle but rather a failure to properly enforce the campaign finance laws he has sworn to uphold.”
In my view, Wertheimer had it right the first time and went too far the second time. The 527 issue, as readers of this blog know, raises complex statutory and constitutional questions. Brad Smith resolved the 527 issue against regulation, taking a respectable position on the issue that is certainly in line with his own ideology not to reach out and do more than the Supreme Court and Congress have required. It is the same position taken by other members of the FEC, and it is a position that put Smith, a Republican, at odds with the RNC and others.
Back when Smith was up for nomination to the FEC, I took a position against his nomination. I agreed with others that Smith is honest and a person of principle, but thought his ideological position should disqualify him from the job. (I believe we had a debate on the listserv over whether ideology should be relevant for nomination to the FEC.)
The Werheimer statement shows how personal and bitter the campaign finance debate has become in Washington. It should still be possible to take a position on a campaign finance issue contrary to others without having one’s personal integrity attacked.

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A judicially manageable standard for Texas redistricting?

Mitchell Berman offers an oped in today’s Los Angeles Times, Putting Fairness on the Map. A snippet: “This difference between the Texas and Pennsylvania gerrymanders serves up precisely what the Vieth case didn’t: a judicially manageable standard. The court should declare that mid-decade redistricting is unconstitutional when adopted by a single-party-dominated legislature, unless narrowly tailored to achieve a compelling interest.”
For reasons I gave yesterday, I don’t expect Justice Kennedy to bite.

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Penalty for Private Spending by Presidential Candidates During General Election

Following up on this post and particularly on Trevor Potter’s reply, a blog reader writes:

    Trevor says, “The FEC audits all publicly funded Presidential campaigns, and this issue has come up in those audits with some frequency, with a repayment of public funds required where such prepayment has occurred.”
    Am I all that wrong to interpret that as meaning that you can’t pre-“pay” the expenses, but for all practical purposes you can LOAN your campaign the money from the funds raised before the convention? After all, that’s what a loan is, money given to you when you need it, that you have to pay back later.
    It’s a question I’ve often wondered about: When the penalty for accepting an illegal donation is to return it, generally long after the urgent need for the money has passed, how’s that different from a loan? Do they require that you pay back extra, so that it’s at least not an interest free loan?

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Will Kerry Ask FEC for an Exception to the Rules on Fundraising?

See this Boston Globe report, which states: “One idea under consideration within the Kerry campaign is petitioning the FEC for permission to continue raising and spending private funds until Bush receives his federal allotment in early September, according to campaign spokesman Michael Meehan. The FEC has not indicated how it would rule on Kerry’s campaign spending options. But Republicans are almost certain to oppose a rules change in the midst of a campaign.” I’ll be interested to hear what the statutory basis would be for such an exception to the rule that prevents party nominees accepting public financing in the general election from soliciting or spending private funds for their own campaigns.

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The Next Partisan Gerrymandering Cases Before the Supreme Court

Following the Vieth decision (for my post on the decision, see here and for my Roll Call oped, see here), at least two partisan redistricting cases are pending before the Supreme Court. Colorado General Assemby v. Salazar has been listed four times for conference, and we may know something as early as Monday on this case. Over at SCOTUSBlog, Tom Goldstein writes:
“When cases are relisted that many times, the most likely outcomes are (a) a dissent from the denial of cert., and (b) a summary reversal. The question in this case involves the responsibility under the U.S. Constitution of the Colorado Legislature to design congressional districts. It has the feel of many of the issues presented by Bush v. Gore. Because that sounds like an unlikely candidate for summary reversal (including because we believe most members of the Court would strongly prefer to avoid revisiting issues related to Bush v. Gore), we predict a dissent from the denial of cert. by one or two Justices.”
The Texas redistricting cases (here’s a link to the docket sheet for one of the cases, Jackson v. Perry) are scheduled for conference on June 3. Following Vieth, the appellees declined to file a response. So the Supreme Court could summarily affirm, set the case for argument next term, or ask for a response from the appellees. Or, as with the Colorado case, the case could be put over.
Given that Vieth was a 5-4 decision, a dissent in the Texas case should there be a majority vote for summary affirmance seems fairly likely. In that case, we could see the case relisted after June 3 and therefore we won’t see an order in the Texas case on June 7.
Putting aside the possibility that the Justices are interested in the Voting Rights Act claims in the Texas case, the outcome of the Texas case will depend wholly on Justice Kennedy. There are already four votes on the Court that partisan gerrymandering cases are wholly non-justiciable. In Vieth, Justice Kennedy held the door open ever so slightly for someone to come forward with a manageable standard that would separate the unconstitutional partisan gerrymander from acceptable partisan politics. He suggested a possible claim under the First Amendment.
Justice Kennedy was surely aware of the Texas case when he wrote his Vieth opinion (indeed, the plurality in Vieth cited the lower court opinion in the Texas case, in which the three-judge panel virtually begged the Supreme Court to establish a standard for partisan gerrymandering that it could apply to the case), yet he gave no indication that even the Texas facts would constitute a partisan gerrymander. Remember that Kennedy joined that part of the plurality in Vieth rejecting the Bandemer standard, the plaintiffs’ proposed standard, and the alternative standards for gerrymandering proposed separately by Stevens, Souter, and Breyer.
My prediction: unless the Voting Rights Act issues grab the Justices, we’ll see a summary affirmance in the Texas cases with a dissent joined by up to four Justices.
UPDATE: I have also been reminded that the Georgia one person, one vote case Larios v. Cox will be considered at the Supreme Court’s June 10 conference. See here.
UPDATE 2: Over on the election law listserv, Rick Pildes notes that it takes only four justices to vote probable jurisdiction to get the Texas case heard, and that this would prevent a summary affirmance by a 5-4 vote. Interesting procedural point. If at the conference it is clear that Justice Kennedy will vote with the Vieth plurality to affirm, would it make any sense for the four Vieth dissenters to nonetheless set the case for argument? They may get an even worse result in a full hearing (i.e., Kennedy explicitly agreeing that the Texas facts are not sufficiently egregious to constitute an unconstitutional partian gerrymander).
UPDATE 3: More thoughtful posts on whether four justices may dissent from a summary affirmance by J.J. Gass and Pam Karlan. And Jeff Wice notes that another redistricting case is working its way onto the Supreme Court’s plate, Rodriguez v. Pataki out of New York (notice of appeal filed May 14, 2004).

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