Monthly Archives: July 2009

DOJ Considered RICO Charges Against ACORN Affiliate Project Vote in 2004

Buried in Appendix 2 of this minority report issued by Republicans on the House Oversight committee (see also this press release) is this nugget (p. 82 of the pdf): “In 2004, Asheesh Agarwal, a Justice Department attorney, was assigned to write a memorandum (‘Agarwal Memo’) analyzing whether the Justice Department could prosecute Project Vote under the civil provisions of the Racketeer Influenced Corrupt Organization Act (‘RICO’). The Agarwal Memo concluded, “such a claim would face a very high hurdle in satisfying the ‘business or property’ element of a [civil] RICO claim. We could probably get by a Rule 11 motion, but probably not a motion to dismiss.”
The memo itself was not released with the report, “Is ACORN Intentionally Structured as a Criminal Enterprise?” But it would not surprise me if it gets released once this report gets more publicity.

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Supplemental Amicus Briefs in Citizens United; Thoughts on BCRA Sponsors’ Brief

Here’s what I have so far (in addition to the Former Republican FEC Commissioners’ brief already linked):
BCRA Sponsors (McCain, Feingold, Shays, and Meehan)
Brennan Center
Campaign Legal Center, etc.
Institute for Justice
League of Women Voters (and see this blog post)
Reporters’ Committee for Freedom of the Press
Scholars Brief (Hayward, Dimino, Jones, LaRaja, Miylo, Munger, New, Primo, Samples) (more Hayward on CU here)
UPDATE: More briefs:
Center for Competitive Politics
American Independent Business Alliance (Demos)
California Broadcasters Association, etc.
Justice at Stake (on the effect of overruling Austin on judicial elections—as with the BCRA sponsors’ brief, perhaps calculated to sway Justice Kennedy)
Brief of 26 States (This brief goes heavy on the constitutional avoidance argument, opening with NAMUDNO on this point.)
I won’t link to any more of these briefs as the FEC has set up this page linking to even more supplemental amicus briefs.
All supplemental amicus briefs on both sides of the case are due today. Supplemental party reply briefs are due August 19.
The BCRA sponsors brief is going to be especially important, not only because it comes from the sponsors of the legislation, but also because Seth Waxman, their attorney, is likely to get 10 minutes to argue in favor of the law, and Seth, a former SG, is highly respected on the Court.
This brief is somewhat understated on the Austin distortion point, though not to the extreme extent of the government’s brief. The BCRA sponsors’ brief does not mention “distortion” or “corruption,” but does make arguments against corporate dominance of the electoral process. (The brief does so in a much more subtle way than the brief filed by the Campaign Legal Center, Democracy 21, etc., who had jointly worked on the initial amicus brief filed by the BCRA sponsors in this case.) But most of the BCRA sponsors’ brief is dedicated to the question of stare decisis. And, in a point that makes me very happy, the brief cites Ashwander and makes a brief constitutional avoidance argument. Still, it is striking that the two most important briefs supporting Austin do their best to keep away from Austin equality arguments—just a testament to the writer knowing his/her audience.

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State Court in Colorado Bars Enforcement of Major Provisions of Campaign Finance Initiative, Amendment 54, on First Amendment Grounds

I have posted the opinion in Dallman v. Ritchie here. According to the opinion “Amendment 54 prohibits contributions to any candidate for any elected office of the state, the counties, municipalities and special districts and to any political party made by the holder of ‘sole source government contracts’ valued in the aggregate at more than $100,000. The amendment also prohibits contributions to promote or influence a ballot issue election by a person who wants to qualify for a sole source government contract relating to the ballot issue.”

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New Rove Testimony and Email About the U.S. Attorney Firings and Voter Fraud Allegations in New Mexico

Interesting reading in the Washington Post and the NY Times. Rove claims he was just a “conduit” for allegations of others. “He also said he had expressed an interest in the issue of voter fraud as a policy matter but did not ask the Justice Department about specific cases, although he sometimes passed on reports of voting irregularities to the White House counsel’s office.” UPDATE: More from TPM.

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A Saturday Iowa Caucus for 2012?

It could happen. Though I think parties have great latitude in setting rules for primaries or caucuses (subject to potential congressional override), I think there’s a reasonable chance a Saturday caucus (without the possibility of a proxy or absentee vote) could be successfully challenged on constitutional grounds by orthodox Jews and others whose religion would prevent them from voting in the caucuses.

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