Monthly Archives: July 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.

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“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.

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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.

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“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.'”

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