Monthly Archives: April 2016

“Former Alabama governor Don Siegelman sent to solitary confinement”


Former Alabama governor Don E. Siegelman was sent to solitary confinement this week at the Louisiana facility in which he is imprisoned on political corruption charges, according to his son Joseph Siegelman.

Siegelman, 70, was quoted extensively in a Washington Post article this week on former Virginia governor Robert F. McDonnell, whose 2014 conviction on public corruption charges was reviewed by the Supreme Court on Wednesday.

Siegelman was transferred to solitary confinement at the federal correctional institution at Oakdale, La., on Monday after the story was posted online, according to his son, who said he found the timing suspicious.

But Bureau of Prison officials, who refused to confirm that the former governor was in solitary confinement, said that there was no link.

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President Obama Talks Gerrymandering, Voting Wars, Money in Politics at Student Journalist Press Conference


Q    Hi, Mr. President.  Earlier today, we spoke about —

THE PRESIDENT:  What’s your name?

Q    Patrick Forrest (ph) from the Fresno City College Rampage.

THE PRESIDENT:  From the what?

Q    Fresno City College, the Rampage.

THE PRESIDENT:  Fresno City College.  Fantastic.

Q    Earlier today, one thing we talked about was civic engagement, and a line was used in the State of the Union address of “don’t give into the cynicism of the day.”  A poll released by Reuters yesterday shows that nearly half of Americans feel that the elections are rigged in some way.  Is there any goal or plan of the administration to help revitalize the faith in democracy that seems to be lacking?

THE PRESIDENT:  Well, you know what, this is something that I’ve tried to do ever since I got into public office.  As you know, I came into this work as a community organizer and strongly believed that our democracy only works when people participate.

There are a lot of forces that feed cynicism.  And there’s no dispute that our democracy is not working as well as it should.  I can tell you some of the reasons for that.  One of it is that we have set up a system for electing state legislatures and members of Congress that involve the drawing of district lines that are gerrymandered.  For those of you who are unfamiliar with the phrase, it basically means that those who are already in power draw the maps in such a way where they can be assured that these are either going to be Democratic seats or Republican seats.  And what that’s done is it’s made very few seats competitive.

So, for example, in the last election, in 2012, Democrats actually cast substantially more votes in congressional elections, but ended up with substantially fewer seats.  And the reason for that is, in 2010, when the census was done and re-districting of congressional and House legislative seats were drawn, Republican governors and Republican majorities were responsible for drawing most of the seats.

Now, I want to be clear, Democrats aren’t blameless on this, either.  But California, for example, has gone to a process of nonpartisan districting.  The advantage there is not only do you make more seats competitive, but it also means that politicians have to compete for everybody’s votes because they’re not in safe seats, they’re not in a safely Republican district or a Democratic district.  And what that does is it means they’ve got to not just appeal to the extremes of their party.

Part of the reason we’ve seen polarization and gridlock here in Washington is because there’s been this great sorting, and Democrats have moved much further — have moved left.  Republicans have just gone way to the right.  And it’s harder, then, to compromise, because members of Congress — and the same thing is true in state legislatures — are always looking over their shoulder seeing if somebody in their own party might challenge them.  And then the system doesn’t work.

So that’s a big chunk of why people are cynical — because they feel like their votes don’t count.  And if you draw districts that are ironclad one party or another, then they’re not entirely wrong.

Another reason that people are cynical is money in politics.  The Supreme Court issued a ruling — Citizens United — that allowed super PACs and very wealthy individuals to just finance all these ads that you guys see on TV all the time.  Half the time nobody knows who’s funding them.  And that makes you cynical partly because most of this money is spent on negative ads.  So you’re just hearing constantly how horrible everybody is.  That will make you feel pretty bad about the political process.

And I’m a strong believer in finding ways in which we can make the financing of campaigns more democratic.  Now, we’ve seen some interesting work being done.  You’ve got to give Bernie Sanders, for example, credit, building off some of the work that I did.  I, in turn, built off the work that Howard Dean did for smaller donations, grassroots donors to be able, in small contributions, to allow candidates to be competitive.

But I think that — we don’t want to leave that to chance.  And that’s much harder to do for members of Congress who are lower profile so they don’t get the sort of viral presence that allows them to raise that kind of money to compete.  So we’re going to have to solve money in politics.

You as journalists are going to have a role to play in reducing cynicism.  It is very hard to get good stories placed.  People will assign you stories about what’s not working.  It’s very hard for you to write a story about, wow, this thing really works good.

And just to take the federal government as an example, every day I’ve got 2 million people who work for the federal government — whether in our military, our law enforcement, our environmental protection, et cetera — and they’re doing great work.  And you rely on it in all kinds of ways, including when you check the weather, because you can thank the National Weather Service for putting satellites up so your smartphones tell you whether to bring an umbrella or not.  But we just take that for granted.

And if, out of those 2 million employees, one person screws up somewhere — which every day you can count on somebody out of 2 million people probably doing something they shouldn’t be doing — that’s what’s going to get reported on.  Now, that helps keeps government on its toes and accountable.  But one of the things we have to think about is how do we tell a story about the things we do together that actually work so that people don’t feel so cynical overall.

But look, here’s the bottom line, is that — let’s take the political process.  As cynical as everybody is, and everybody is always trying to come up with these radical new plans to try to fix our democracy, and we need to do this and we need to do that — the truth is, is that part of the reason why our government doesn’t work as well is because in a good presidential year, slightly more than half the people vote who are eligible, and the other half don’t.  And during an off-year election, when the President is not at the top of the ticket, and people aren’t getting as much attention, 40 percent of the people vote.

Now, this system doesn’t work if people opt out.  And the easiest cure, the simplest cure for what ails our democracy is everybody voting.  Now, it’s true that there are some states that purposely make it hard for people to vote.  We’re the only major democracy in the world that actively makes it hard for people to vote.  And so you should be, particularly in your student newspapers, as you go back to your home states, you should be asking why is it that we have laws that are purposely making it harder for people to vote, purposely making it harder for young people to vote.

And there’s a political agenda there.  The people in power don’t want things to change.  They want cynicism, because obviously the existing system, as frustrating as it is for everybody else, works for them.  Well, if you want to upend that, we’ve got to vote.

But even in those states that purposely make it harder to vote, the truth of the matter is, on your college campuses, half the folks, maybe two-thirds of the folks who don’t vote don’t vote because they’re just not paying attention.  They don’t consider it important.  And they’re not willing to take the 15 minutes or half hour that it takes to make sure that you’re registered and make sure you actually vote.

Well, if you care about climate change, you care about college costs, you care about career opportunities, you care about war and peace and refugees, you can’t just complain.  You’ve got to vote.  And what’s interesting is, is young people as a voting bloc are the least likely to vote, but when you do vote, have the biggest impact on elections.

During a presidential year, young people account for like 19 percent of the total vote.  During an off-year election, when folks aren’t paying as much attention, they account for 12 percent.  And that means that the kinds of candidates that get elected and the priorities that they reflect are entirely different, just based on whether or not you guys are going to the polls.

So don’t let people tell you that what you do doesn’t matter.  It does.  Don’t give away your power.  That should be the main message that you deliver all the time.  And it doesn’t matter whether you’re a Republican, Democratic, independent; whether you’re conservative on some issues, liberal on others.  If you participate and you take the time to be informed about the issues, and you actually turn out and your peers turn out, you change the country.  You do.  It may not always happen as fast as you’d like, but you’ll change it.

So I’ll keep on talking about this even after I leave the presidency.  You got me started.  I went on a rant, didn’t I?  (Laughter.)

All right.  So I’m counting on you guys.  Don’t let me down, all right?  Don’t let the country down.  You guys are going to be delivering the message to your peer group that this is the greatest country on Earth, but only because we have great citizens who are willing to invest their time and energy and effort to become informed on the issues, to argue about it in a respectful way, and to try to collectively solve the many challenges that we face.

The good news is, is that there are no challenges, as JFK said, that “man creates that man can’t solve.”  I would add women to that.  (Laughter.)

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Breaking: #SCOTUS Denies Emergency Relief in Texas Voter ID Case, But Signals Full Decision in Time for November Elections

The Supreme Court has just issued this order:

The application to vacate the stay entered by the United States Court of Appeals for the Fifth Circuit on October 14, 2014, presented to Justice Thomas and by him referred to the Court is denied. The Court recognizes the time constraints the parties confront in light of the scheduled elections in November, 2016. If, on or before July 20, 2016, the Court of Appeals has neither issued an opinion on the merits of the case nor issued an order vacating or modifying the current stay order, an aggrieved party may seek interim relief from this Court by filing an appropriate application. An aggrieved party may also seek interim relief if any change in circumstances before that date supports further arguments respecting the stay order.

This is full application of the Purcell Principle in action: giving the 5th Circuit a time frame so that the issue can be resolved when it is not the last minute before the election.

I was very, very skeptical of the benefits of seeking this emergency order, but putting the 5th Circuit on a set schedule prevents not only dawdling but intentional foot-dragging so as to allow the law to remain in effect for the November election. So this is a bit of good news for opponents of Texas’s law.

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WI John Doe Cert. Petition Raises Substantial Questions, But #SCOTUS May Not Bite

I have posted a copy of the redacted petition for cert. in the John Doe Wisconsin case. Never before have I seen a cert. petition with even parts of the questions presented redacted.  The redactions make it difficult to fully assess the claims, as is the fact that this was not written by Supreme Court specialists—because the Wisconsin Supreme Court, in more than a bit of chutzpah, denied the ability of Reed Smith to work pro bono on this cert petition. (The petition contains a dig at this point: “The state supreme court denied the request, refusing to recognize the right of the district attorneys to be represented by counsel. The court wrote that no need had been shown by the petitioners, whose appellate experience is limited to traffic and misdemeanor matters in the state court of appeals.”)

There are two meaty issues. First, it seems pretty clear to me that the Wisconsin Supreme Court mangled U.S. constitutional campaign finance law to let elected officials like Gov. Scott Walker coordinate with outside groups on an unlimited basis with groups taking unlimited campaign contributions from whatever source so long as the outside groups avoid express words of advocacy like vote for or vote against. The second issue is whether those Justices on the WI Supreme Court who benefitted from the outside spending by the very groups before the court should have recused themselves from hearing the case. The number of redactions involving the actions of controversial state Supreme Court Justice David Prosser are remarkable in and of themselves.

Either of these arguments are substantial enough, and the case important enough nationally, to merit Supreme Court review, although while Justice Scalia was still on the Court I would be very wary of bringing any campaign finance case to the Supreme Court lest the Supreme Court actually move in the direction of even further deregulation, taking a bad ruling and making it national.  Now, with Scalia gone and a potential 4-4 split on these issues, the calculation is uncertain. There could well be a cert denial on the campaign finance question even if, as I said, the WI Supreme Court surely mangled constitutional law.

There is a better shot on the recusal issue. It could well interest Justice Kennedy, who along with the four liberals formed a majority in Caperton, seeing due process limits on judges deciding cases where they benefitted from very large campaign spending on their behalf. Even Chief Justice Roberts, who dissented in Caperton but who has been concerned about the role of judges in fundraising (see his Williams-Yulee decision) could be interested in this case.

But who knows what this 4-4 Court will do with a hot potato such as this case?


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“The face of American political corruption might be about to change”

CS Monitor:

That makes the Supreme Court case, to be decided later this spring, a crucial test: Where, exactly, does the nation’s highest court want to set the bar for what is corruption and what is not?

Comments from the court and experts suggest that many think the pendulum has swung too far toward aggressive prosecutors and needs to be recalibrated. The court appears poised to do that. How far it will go is the question.

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“Originalist Methodology”

Larry Solum has posted this draft on SSRN:

This essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rely on dictionary definitions to determine the communicative content of the constitutional text. Although dictionaries may play some role, the better approach emphasizes primary evidence such as that provided by corpus linguistics. Another misconception is that originalists do not consider context; to the contrary, the investigation of context plays a central role in originalist methodology.

Part I of this Essay articulates a theoretical framework that draws on ideas from contemporary legal theory and linguistics. Part II investigates methods for determining the constitutional text’s semantic content. Part III turns to methods for investigating the role of context in disambiguating and enriching what would otherwise be sparse semantic meaning. The Essay concludes with a short reflection on the future of originalist methodology.

As Larry would say, download it while it’s hot!!!!

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“Hartford Council Flouts Voters In Keeping Three Registrars”

Hartford Courtant editorial:

Hartford’s city council is flat-out dismissing the will of the voters in refusing to fix the quirky, costly, bumbling, excessive three-registrar problem.

The city council decided Monday against adopting an ordinance that would have authorized the appointment of two registrars — instead of the three the city is now saddled with.

One professional registrar is really all that’s needed. That would save towns and cities like Hartford lots of money and grief. But an archaic state law — a throwback to the patronage politics of yesteryear — stands in the way.

The legislature balked last year at attempts by Secretary of the State Denise Merrill and state Rep. Matt Ritter, D-Hartford, to update that relic of a law and allow the appointment of a single professional registrar in every municipality. So the law continues to require something that no other state does.

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“There’s No Such Thing as a Free Rolex”

Zephyr Teachout NYT oped:

In its Citizens United ruling, the court gutted campaign finance laws. It acknowledged that American politics faced the threat of gift-givers and donors trying to corrupt the system, but it held that campaign finance laws were the wrong way to deal with that problem; bribery laws were the better path. Now, though, the court seems ready to gut bribery laws, saying that campaign finance laws provide a better approach. But if both campaign finance laws and bribery laws are now regarded as problematic, what’s left?

With the Supreme Court apparently imagining that there is some other, simple-to-enforce bribery law, we citizens are left empty-handed. This is the first case since Justice Antonin Scalia’s passing to directly address what corruption is; the issue is a critical test of the court.

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“Why Mayor de Blasio Is Facing So Many Investigations”

NYT reports:

What is Mr. de Blasio’s connection to the investigations?

At the heart of each of the five inquiries is money — in most cases, fund-raising linked to the mayor, his election campaign or a nonprofit group connected with him.

Mr. de Blasio, a Democrat elected in 2013, has made no secret of his attempts to raise significant sums to bolster his agenda through that group, the Campaign for One New York, and through an effort in 2014 to wrest control of the State Senate from the Republicans by supporting several Democratic candidates. Donors to the mayor’s political endeavors include major unions and real estate developers, and many of them have business before the city.

It is not clear how direct a role, if any, the mayor played in some of these matters. The inquiries that seem closest to him focus on two issues: theeffort to help Senate Democrats, and the relationship he had with Nyclass, an animal-rights group that spent heavily in the 2013 mayoral race against Mr. de Blasio’s chief rival, Christine C. Quinn.

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