Monthly Archives: February 2015
“Argument preview: Who, exactly, is ‘the legislature’?”
Lyle Denniston previews the Arizona redistricting case at SCOTUS.
“Justice Department ramps up scrutiny of candidates and independent groups”
WaPo:
The Justice Department is stepping up scrutiny of the increasingly cozy ties between candidates and their outside allies, a move that could jolt the freewheeling campaign-finance atmosphere ahead of the 2016 elections….Anthony Herman, another former FEC general counsel, said it appears that federal prosecutors “view themselves as filling a role — to the extent that they think the FEC is not on the job, they think part of their job is to fill that gap.”
Even so, pursuing coordination cases and securing convictions is not easy without inside information. The few known cases in which federal prosecutors have investigated illegal coordination were driven by tips they received while pursuing other alleged crimes.
“It is going to be very difficult to bring these kinds of cases and to ferret out instances of unlawful coordination,” said Herman, a senior counsel at Covington & Burling.
Nick Confessore: “WaPo piece on illegal coordination probes is basically a big Justice Department beg for whistleblowers. Hard to make these cases.”
“Lawmakers seek reform for Maine’s Clean Election law”
“Wake judge allows case on voter ID law to proceed to trial”
A Wake County judge has refused to dismiss a challenge to North Carolina’s voter ID law, saying in a ruling issued Friday that most of the claims in the lawsuit are strong enough to take to trial.
“GOP Lawmakers Seek to Jump-Start Long-Running IRS Investigation; Concerns raised at House hearing about possible IRS wrongdoing during congressional probe”
WSJ:
The new Republican-controlled Congress is trying to pump fresh life into a long-running probe of alleged targeting of conservative groups by the Internal Revenue Service.
Seeking to jump-start the stalled inquiry, GOP lawmakers raised concerns at a House hearing on Thursday night about possible IRS wrongdoing during the course of the probe.
The hearing by the Oversight and Government Reform Committee revealed few new details, however, and Democrats accused Republicans of airing the allegations prematurely, before all the evidence has been gathered….
Investigators from the IRS inspector general’s office also suggested some unnamed IRS officials might have withheld crucial information about the backup tapes. “There is potential criminal activity,” said deputy inspector general Timothy Camus, in response to a question by Rep. Jim Jordan (R., Ohio).
Mr. Camus and his boss, IRS inspector general J. Russell George, cautioned repeatedly that their investigation isn’t yet complete, and Mr. Camus acknowledged that suspicions of withholding evidence might prove unfounded.
“New IRS Rules on Dark Money Likely Won’t Be Ready Before 2016 Election”
“Fifty Years After Bloody Sunday in Selma, Everything and Nothing Has Changed”
Then you can preorder his book, “Give Us the Ballot: The Modern Struggle for Voting Rights in America.”
“The Difficulties of Reconciling Citizens United with Corporate Law History”
“The Common Cause Report On the ‘Crusade’ Against Campaign Finance Regulation”
“Why Silicon Valley is the new revolving door for Obama staffers”
Alabama Files Supplemental Reply Brief in #SCOTUS Redistricting Case
I have posted the brief here. It addresses a one person, one vote issue that plaintiffs claim have now become ripe.
Where have the federalists gone? Obamacare, King, and the Court
The Obamacare case, King v. Burwell, which the Court will hear next week, has deep importance not only for health care but also for law. I have previously detailed why the case is textualism’s big test. Today, in Politico, I explain why the case is also fundamentally about state rights. The question is whether the Court’s federalism doctrines–which, let’s not forget, the Court applied against the Government in the last Obamacare case–whether these federalism doctrines, like the Court’s textualist rules, are sufficiently legitimate and objective such they will apply regardless of which side they happen to support, even in a case as politicized as this one. After all, isn’t that the point of have a rule of law in the first place?
Here is an excerpt and a link.
The issue in King is whether the ACA penalizes states that opt out of setting up their own health insurance exchanges and, instead, let the federal government do it for them. The challengers have seized on four words in this 2,000-page law that, they contend, contain a dramatic consequence for the 34 states that have made this choice and allowed the federal government to step in: the loss of critical insurance subsidies that make health insurance affordable and sustain the insurance markets under the law. Without the subsidies—which are estimated at $25 billion across the 34 states—more than eight million Americans will likely lose their insurance. And, as a result, the insurance markets in those states will face near-certain collapse.
The challengers maintain that the case is simply about reading plain language. (I have detailed elsewhere why their hyper-literal reading of four words out of context is anything but plain and is not how the Supreme Court usually reads statutes.) But King is about a lot more than this. The case is about federalism—the role of states in our national democracy. The reason the challengers don’t want anyone to realize that is because the very text-oriented justices to whom they are appealing are the exact same justices who have consistently interpreted federal laws to protect states’ rights. And the challengers would read the ACA in the opposite way—as having devastating implications for the states.
The challengers’ interpretation turns Congress’s entire philosophy of states’ rights in the ACA upside down. Congress designed the exchanges to be state-deferential—to give the states a choice. But under the state-penalizing reading that challengers urge, the ACA—a statute that uses the phrase “state flexibility” five times—would be the most draconian modern statute ever enacted by the U.S. Congress that included a role for the states. What’s more, if interpreted as the challengers hope, the ACA would have been debated, enacted and implemented for two whole years under intense public scrutiny, including the scrutiny trained on it during the last major constitutional challenge in the Supreme Court in 2012, without anyone—no state, congressman or blogger—noticing these consequences or objecting to them.
A brief filed by Virginia and more than 20 other states attests that any clue of the dramatic penalty the challengers have read into the statute was entirely lacking. In the end, King is about whether an invented narrative that only emerged for purposes of this case should be permitted to work the greatest bait and switch on state governments in history.
“New Charges for Group That Disrupted Supreme Court”
AP:
Prosecutors took a hard line Thursday with demonstrators who participated in a rare disruption inside the U.S. Supreme Court, adding additional charges against them and saying disrupting the high court is different from other protests in the nation’s capital.
The demonstrators, five women and two men, were arrested last month after standing in succession inside the court and shouting protests against the court’s 2010 Citizens Unitedcampaign finance ruling. Each person stood and spoke after the court’s justices took the bench but before oral arguments began on Jan. 21, the fifth anniversary of the court’s Citizens United decision. The decision freed corporations and labor unions to spend unlimited amounts on Congressional and presidential elections.
Pretty clear they are worried about further disruptions.