I have just received a copy of this white paper from a committee opposing the passage of Prop. 77. The Chairman of “No on 77” is Dan Lowenstein and the committee’s campaign consultant is Berman & D’Agostino Campaigns.
I should add that I have not taken a position on 77 and I’m not sure how I will vote on it. Though Dan and I have a lot of projects together (a casebook, the election law listserv, and the Election Law Journal), we often disagree about both political and legal issues.
Maybe it is my head cold that is clouding my judgment, but if Brad Smith is offering 80:20 odds on the Supreme Court upholding spending limits in candidate campaigns in the Vermont case I’d be willing to wager a substantial sum on the other side.
I agree with Marty Lederman’s read of the Court from his earlier post today. I count at most four votes to uphold spending limits even under a much more narrowly tailored (and less draconian) law than Vermont’s—-and I would be quite unsure as to whether to put Justice Souter in there as the fourth vote.
Is Brad suggesting that either Chief Justice Roberts or Justice O’Connor’s replacement would provide a fifth vote in this direction? I find this incredibly hard to believe, given the Chief’s recent answer to Judiciary Commitee questions that he joined the Reagan and Bush II administrations because he generally agreed with their policies. People who generally agree with those administration’s policies are not even likely to vote to uphold contribution limits, and are fairly likely (but for respect for existing precedent) to strike down longstanding spending limits in the corporate and union context. But to uphold candidate spending limits? I cannot see it happening with this change of the Court (even though, like Brad, I predicted a move in that direction if the current Court stayed the same, with the big question being whether Justice O’Connor would come along for the ride).
Why would the Court have granted cert if a majority liked the spending limits? Rather, if you are Gingburg, Breyer, or Stevens, you don’t want this case heard, and you want things to percolate in the states for a while, showing that spending limits can indeed work. My guess is that the votes to grant cert. came from Kennedy, Scalia, Thomas and O’Connor, with the first three gambling that the new Chief and O’Connor’s replacement are likely to vote with them, even if those two would not go even further (as Thomas and Scalia and possibly Kennedy would) in striking down contribution limits as well.
It is indeed an odd day when Brad wants to play Bonifaz, Eugene is offering NVRI advice, and I’m saying I’d like to be in Jim Bopp’s shoes.
UPDATE: Brad Smith clarifies that he is not making his 80:20 prediction based upon current court personnel. I apologize for misreading his original remark.
See here. The source is the Carter-Baker commission report.
Dan Tokaji has posted Early Returns on Election Reform (forthcoming George Washington Law Review) on SSRN. Here is the abstract:
The United States was fortunate to avoid another protracted post-election fight in 2004. Although the Help America Vote Act of 2002 (HAVA) promised substantial changes in the way that elections are conducted in the United States, these changes in federal law did not prevent serious problems from occurring in Ohio and other states. The only reason that these problems did not lead to another contested election is because the margin of victory exceeded the margin of litigation. This Article examines how the changes commonly referred to as election reform contributed to the difficulties that emerged in 2004, focusing especially on Ohio’s experience with respect to voting equipment, voter registration, provisional voting, ID requirements, challenges to voter eligibility, and polling place operations. The article then considers what should be done to deal with the problems that the 2004 election revealed, drawing five lessons for the future: (1) while HAVA’s changes with respect to voting equipment have had a beneficial effect, there is a continuing need for improvement in those states that have not yet upgraded their technology; (2) pre-election litigation challenging election administration practices should be brought as far in advance of election day as practicable; (3) courts should act swiftly in issuing injunctive relief where it is appropriate; (4) states should prescribe clear rules governing the administration of elections, as far in advance of election day as possible; and (5) courts should take a skeptical view of election administration rules that are promulgated unilaterally by partisan election officials, as opposed to those enacted by the legislature or by some other bipartisan or nonpartisan body.
A.P. offers this report from Connecticut, which begins: “Gov. M. Jodi Rell is calling state legislators back to the Capitol next month to vote on a plan for reforming Connecticut’s campaign financing system.” Thanks to Dewey Dow for the pointer.
Responding to the Rose Institute report, Rob Richie offers these thoughts on the election law listserv. He suggests that we would see much less competitiveness than suggested by the report.
John Myers has this post on Capital Notes, which begins: “The state Republican Party has accused Assembly Speaker Fabian Nunez (D-LA) and five other Democrats of breaking campaign finance rules, by shifting large sums of money from candidate controlled committees to a ballot measure committees.”
Roll Call offers this fascinating report (paid subscription required). So far I have seen very little talk about how expected shifts in population could make Louisiana a more solid Republican state, with national implications for Congress.
The position of the New York Times editorial board on the two campaign finance cases the Supreme Court will hear is unsurprising; the board has been a big supporter of the constitutionality of campaign finance regulation. But I was struck by this passage in today’s editorial:
[The Vermont case] may be one of the first indications of what kind of chief justice John Roberts will be. At his confirmation hearings, he expressed his commitment to “judicial modesty” and his respect for established precedent. If he is true to those principles, deference to Vermont’s Legislature and respect for Buckley should lead him to resist any entreaties by Justices Scalia and Thomas to dismantle the campaign finance law.
The point about deference to the legislature is fine (though I have my own views on when such deference is appropriate that I’ve written about in detail elsewhere). But to say that respect for Buckley v. Valeo should lead the new Chief to uphold spending limits applied to candidates is ludicrious. If the judge wishes to respect precedent, he should vote to strike down the spending limits. Buckley held that candidate spending limits are unconstitutional, and it would take a change in the law to uphold the Vermont limits. We can debate whether such a change is warranted; but it is incorrect to view Buckley the way the Times editorial does.
The real argument for respecting established precedent, and the real test of the new Chief Justice, as I have written, will come in the Wisconsin case. Suppose (as I think is a reasonable assumption) the new Chief believes limits on spending by corporations and unions in elections violate the First Amendment. Does he vote then to overrule the 1990 Austin case and the 2003 McConnell (McCain-Feingold) case to reach this result?
See this letter to the editor in the New York Times. Meanwhile, Spencer Overton’s Roll Call oped on Carter-Baker is available without a subscription here.
Tony Mauro offers this analysis for the First Amendment Center.
You can find the table of contents here.
See here. Justice Kennedy? No chance.