Monthly Archives: June 2014

Bloomberg BNA Money and Politics Report is Reporting ($)….

In a setback for the Justice Department, Ohio businessman Benjamin Suarez was acquitted of campaign finance charges June 30 by a Cleveland federal court jury (U.S. v. Suarez, N.D. Ohio, Criminal No. 13-420, verdict 6/30/14)….


Campaign Finance
New York State has agreed to pay $360,000 in legal costs to the challengers of the state’s campaign finance law limiting contributions to super political action committees (New York Progress and Protection PAC v. Walsh, S.D.N.Y., No….


Texas Republican Reps. Louie Gohmert and Bill Flores have introduced a bill that offers $1 million reward for the recovery of e-mails belonging to Lois Lerner, former director of Exempt Organizations at the Internal Revenue Service….
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“Secretary of State Candidates Play Down Voter ID”

AP: “The loud cry for voter identification and voter fraud investigations is fading to a whimper as Iowa’s top election official prepares to leave and those running to replace him downplay the politically charged issues. Iowa Secretary of State Matt Schultz decided not to seek for another term, instead making a failed bid for the 3rd congressional district Republican nomination. Schultz was elected in 2010 after a campaign largely focused on promoting voter ID and fighting what he argued was problematic voter fraud.”

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Seven Key Points on the Supreme Court Term

(via Twitter)

1. Supreme Court mostly unanimous on issues people care less about or where they want to punt.

2. On highly ideological issues, Court still divided 5-4, with Kennedy usually as swing Justice.

3. Just because this term did not feature many blockbuster decisions doesn’t mean Court less divided.

4. Biggest civil case:McCutcheon campaign finance case-down slope to more $ in politics …

5. Biggest criminal case is cell phone case which updates 4th Amendment for 21st century.

6. Cases like #Harris queue up Court conservative majority to continue project of overruling lib. precedent

7. The 2016 presidential election likely will determine direction of Court for a long time.


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Citizens United Gets Short Shift in #HobbyLobby Opinion

Even though today’s majority opinion in Hobby Lobby treats a closed corporation as having religious liberty (enough to raise a RFRA objection to contraception coverage), it is notable that the Alito majority opinion does not cite Citizens United, a case holding that corporations have a First Amendment right to spend money in candidate elections.  I’m not saying that CU would be controlling on any question in Hobby Lobby, but given the closeness of the issues I was somewhat surprised by the omission.

The case does appear in Justice Ginsburg’s Hobby Lobby dissent, but it is Ginsburg (for the four liberal dissenters) citing the liberal Justice Stevens’ opinion in Citizens United:

Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 466(2010) (opinion concurring in part and dissenting in part).

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#HobbyLobby: When is Congress “Wise?” When the Court Agrees with Congress’s Wisdom

Near the end of Justice Alito’s majority opinion in the Hobby Lobby case today, he writes that it is not the Court’s job to question the “wisdom” of Congress in using the compelling interest test in RFRA, but the Court applies that RFRA test strongly, and in a way which shows the Court apparently giving great deference to Congress’s judgment about how to balance the government’s interest in generally applicable laws with the accommodations of religious freedoms. It reminded me of Justice Scalia’s pleas in Windsor last term for deference to Congress on the need for the Defense of Marriage Act.

The Court has shown no such deference when it comes to the need for campaign finance regulation or to protect the voting rights of racial minorities and others. The Roberts Court has overturned or limited every campaign finance law it has examined (aside from disclosure laws). It has struck down a key provision of the Voting Rights Act. How much deference did Congress get in those cases? None.

Well when is Congress wise and entitled to deference? When the Court agrees with Congress’s approach. Let’s call that “faux deference,” to go with the “faux-nanimity” of the rest of the term.

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An Anticipatory Overruling of #Abood in #Harris Case?

Justice Alito’s opinion for the Supreme Court in the Harris v. Quinn case gives all kinds of reasons for overturning the key pro-union case of Abood. Yet the Court majority does not pull the trigger.  Why not?  This seems to be a common move of the Roberts Court, as I explained in Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, 61 Emory Law Journal 779 (2012): “Anticipatory overruling occurs when the Court does not overrule precedent but suggests its intention to do so in a future case.” It is one of the tools the Roberts Court uses to appear moderate and minimalist.

For example, the Court did not immediately overturn the preclearance provision of the Voting Rights Act when it had the opportunity to do so in the 2009 NAMUDNO case. Instead it signaled the Act was unconstitutional, and then overturned it in the 2013 Shelby County case. As I’ve explained, the Court in Shelby County relied upon dicta in NAMUDNO as though that earlier case had settled it. Similarly, on the campaign finance side, Chief Justice Roberts and Justice Alito signalled the coming overruling of the ban on corporate general treasury spending in elections in the Wisconsin Right to Life case, and then pulled the trigger with the 3 other conservative Justices in Citizens United.

But just because the Court takes two or three cases to reach its highly ideological decision doesn’t make it any less ideological or any more comporting with principles of judicial minimalism or respect for precedent.


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