Richard Epstein on Citizens United

Here, in Forbes.

"White House Plans to Shift Efforts at Civil Rights Division"

The NY Times offers this important report, which begins: "Seven months after taking office, Attorney General Eric H. Holder Jr. is reshaping the Justice Department's Civil Rights Division by pushing it back into some of the most important areas of American political life, including voting rights, housing, employment, bank lending practices and redistricting after the 2010 census."

The entire article is a must-read for election law junkies.

"Citizens United Sparks Pitched Battle"

Eliza's latest.

"Partisan Rivals Unite to Modernize Voter Registration System"

This press release announces the emergence of this new organization, The Committee to Modernize Voter Registration, headed by Marc Elias and Trevor Potter. The announcement appears timed to the release of this new report on voter registration modernization from the Pew Center on the States.

UPDATE: See also this WaPo editorial.

"IJ and Independence Institute Ask High Court To Strike Down Unconstitutional Regulation Of Issue-Oriented Organizations"

See this press release about this cert. petition.

One More Judicial Elections Symposium

This one is in New York on Sept. 17.

Wisconsin Judicial Elections Program Sept. 17

This program looks interesting. As I've mentioned, I'll be attending a similar panel in Seattle on September 14.

"Federal Judge Throws Out Connecticut's Landmark Campaign Finance Law"

The Hartford Courant offers this report about this decision which I blogged about on Friday. The opinion will be appealed to the Second Circuit.

Opinions about the ruling: Norwich Bulletin, Hartford Courant, Public Campaign, Brennan Center (and Richard Winger's response), Center for Competitive Politics.

Opinion on the Mass. Temporary Senate Replacement Controversy

Washington Post, Providence Journal, Rob Richie.

The latest on the possible candidates in the special election to replace Senator Kennedy is here.

"U.S. Meetings With Lobbyists Go Unreported"

The Washington Post offers this report, which begins: "President Obama ordered federal officials to disclose their contacts with lobbyists trying to influence how the government doles out money to jump-start the economy. Yet few such communications have been reported even though lobbyists say they are busier than ever with the multibillion-dollar stimulus."

"Caperton v. Massey returns to W.Va. Supreme Court"

The Charleston Gazette offers this report.

Citizens United Audio?

Will the Supreme Court release audio of the oral argument on Sept. 9 right after the argument concludes, as it has done in other recent high profile cases, including NAMUDNO? If the audio is released, I plan to "live"-blog (or is the better term "tape-delayed live blog"?) the argument, as I did with NAMUDNO.

"State Board of Elections OKs registration changes for college students"

The Roanoke Times (Va.) offers this report.

"Supreme Court to Revisit 'Hillary' Documentary"

The NY Times offers this front-page report.See also this WSJ oped by Hans von Spakovsky.

Should the FEC Post Opposing Party Briefs, Etc. on Its Website?

This item was on the recent agenda, but I understand it has been put over to a future meeting.

Spargo Controversy Lives On

See here.

"RNC Attorney Faces Skeptical Judges In Bid to End 'Soft Money' Restrictions"

BNA offers this report ($), which begins: "An attorney spearheading the Republican Party's challenge of Federal Election Commission limits on 'soft money'' funding for political parties faced skeptical questioning from a federal court panel during a lengthy court hearing Aug. 27 (Republican National Committee v. Federal Election Commission, D.D.C., No. 08-1953, hearing 8/27/090)."

Regular blog readers may recall that that same attorney, Jim Bopp, faced skeptical questioning (and even laughter) from a different three-judge panel when Citizens United was first argued before a different three-judge court. It may be Jim that gets the last laugh.

"Connecticut Public Funding Law Held Unconstitutional Because it Discriminates Severely Against Minor Parties & Independent Candidates"

Ballot Access News offers this report (via CT News Junkie about this 138-page federal district court decision issued yesterday.

"How Should Senator Kennedy's Seat Be Filled? Constitutional Considerations"

Vik Amar explores.

"Who gets Ted Kennedy's campaign funds?"

Politico ponders.

"Race, Region, and Vote Choice in the 2008 Election: Implications for the Future of the Voting Rights Act"

Nate Persily, Steve Ansolabehere, and Charles Stewart have posted this draft on SSRN. Here is the abstract:

The election of an African American as President of the United States has raised questions as to the continued relevance and even constitutionality of various provisions of the Voting Rights Act (VRA). Barack Obama's apparent success among whites in 2008 has caused some to question the background conditions of racially polarized voting that are key to litigation under Section 2 of the VRA. His success in certain states, such as Virginia, has also raised doubts about the formula for coverage of jurisdictions under Section 5 of the VRA. This Article examines the data from the 2008 primary and general election to assess, in particular, the geographic patterns of racial differences in voting behavior. The data suggest that significant differences remain between whites and racial minorities and between jurisdictions that are covered and not covered by Section 5 of the VRA. These differences remain even when controlling for partisanship, ideology and a host of other politically relevant variables. The Article discusses the implications of President Obama's election for legal conceptions of racially polarized voting and for decisions concerning which jurisdictions Section 5 ought to cover.

I read an earlier draft of this important piece. Highly recommended.

"FEC: Club for Growth Permitted to Contact Specter Donors"

See here. More here and here.

The opinion adopted on a 4-2 vote is here.

IMLA Conference on Voting Rights December 10

This event looks quite interesting.

"Democrats Vow to Return Money from Financier"

The Washington Post offers this report. See also this earlier Politico story and this one.

"ACLU Charges Unconstitutional Arkansas Rule Illegally Bars Green Party From Ballot"

I have just received via email a press release that begins: "The American Civil Liberties Union and the ACLU of Arkansas filed a lawsuit today in a federal court in Arkansas challenging Arkansas Secretary of State Charlie Daniels' decertification of the Green Party of Arkansas as a political party. The lawsuit, filed on behalf of Arkansas voters and the Green Party, charges that the decision violates state law and the free speech rights of third parties." You can find the complaint here.

"Patrick backs push to appoint successor"

The Boston Globe offers this report, which begins: "Governor Deval L. Patrick, breaking his silence on the future of Edward M. Kennedy's Senate seat, yesterday embraced Kennedy's request that the governor be given the power to appoint someone to the seat until voters can choose a permanent successor in a special election." I earlier expressed skepticism that this change would come through given the earlier cool response of state legislative leaders, but now news reports talk of momentum for this change in the state. Stay tuned.

"Kennedy's Death Raises Issues of Succession"

The NY Times offers this report. As I've indicated, I don't expect the succession law to be changed despite Senator Kennedy's letter. This means the seat is likely to be vacant until the special election set at least 145 days from now.

On a personal note, I offer my condolences to the Kennedy family and the Senator's friends. I met Senator Kennedy once, when I testified before the Senate Judiciary Committee about the renewal of section 5 of the Voting Rights Act. Even though I was testifying for the other side, Senator Kennedy made it a point to come over, shake my hand, and engage in some friendly talk. He was not just a great Senator, capable of forging truly bipartisan compromises, but a gracious and generous individual. He will be missed.

"Citizens United Attracts Many 'Friends'"

The First Amendment Center offers this report.

"Next Year's Census Count Promises to Rejigger Political Map"

The Wall Street Journal offers this report.

"Pregaming (Once Again) the 'Hillary: The Movie' Argument"

The WSJ Law Blog offers this report.

Texas Democratic Party Loses Summary Judgment Hearing on Preclearance and Texas Two-Step

You can find the order of the three-judge court here [corrected link]. The court concludes:

Our decision does not mean that political parties must preclear every minute change in their operating procedures. Instead, we closely follow Morse in concluding that political parties must seek preclearance for a change that affects voting that the party promulgates under the explicit or implicit authority of a covered jurisdiction and that presents no significant First Amendment concerns. We therefore hold that Morse controls, that the TDP has provided no specific explanation as to how a requirement that it preclear its delegate allocation formula impacts its associational freedoms, and that this case is justiciable. Accordingly, we DENY the TDP's motion for summary judgment.

Thanks to the readers who have sent this along.

"Nominating the President: Evolution and Revolution in 2008 and Beyond" Now Available

This new volume edited by Jack Citrin and David Karol is now available. See the table of contents. It includes my chapter, "The Changing Nature of Campaign Financing for Primary Candidates." I posted an earlier draft version of this chapter here.

"State GOP leaders in DC to challenge McCain-Feingold campaign finance law"

This post appears at the SF Chronicle political blog.

More Krist Novoselic on the Washington "Top Two" Litigation

See here.

When You Can't Get the Support of the NYT Editorial Page....

This editorial begins: "Senator Edward M. Kennedy has asked the Massachusetts Legislature to change state law to let the governor, currently a fellow Democrat, fill vacant Senate seats. Abandoning the current system, in which voters choose, would be undemocratic, even at the request of such a respected lawmaker."

Ashby Jones: "It's not every day that the writers of the New York Times's daily editorials see eye-to-eye with the writers of the Wall Street Journal's daily takes on the world."

"Is the Supreme Court Determined to Expand Corporate Power?"

Robert Monks and Peter Murray have written this opinion piece for the Harvard Law School Forum on Corporate Governance and Financial Regulation.

Texas Observer Feature on Irving, Texas Voting Rights Litigation

Read it here.

SpeechNow.org Appeals Denial of Preliminary Injunction

Press release here. See the original request for a preliminary injunction. [Note: This post has been edited for clarity.]

Constitutional Convention Talk in California, New York

On California, see Rick Hertzberg in the New Yorker. On New York, see this NYT piece.. Sandy Levinsion comments. Thanks to this and this, expect to hear much more about a California constitutional convention from me over the next year.

WSJ Editorial on Kennedy Senate Replacement Proposal

Here.

"Nonpartisan appeal may not have enough time"

Following up on this post, ENC Today reports that "Murphy said he’s been contacted by a foundation in Washington, D.C., that specializes in Section 5 (of the Voting Rights Act of 1965) appeals pro bono."

"It's predictable: Supreme Court gunning for McCain-Feingold"

Melvin Urofsky has written this opinion piece for the National Law Journal.

"Breaching a Leaking Dam: Corporate Money and Elections"

Lloyd Mayer has posted this Citizens United preview (forthcoming, Charleston Law Review) on SSRN.

Motion to Dismiss on Voter Confusion Claims Denied in Washington State Top-Two Primary

Via Richard Winger comes a link to this order of the trial court in the Washington State Grange case on remand from the U.S. Supreme Court and the 9th circuit. (More here.)

I don't think Richard is correct (in his headline) that this order necessarily means there will be a trial on the voter confusion issues. (The court, in my view correctly, dismissed the ballot access and trademark claims brought in the case.) Following a motion to dismiss, it is possible that these issues could be resolved in a summary judgment proceeding. That is, at this motion to dismiss stage, the court did not consider any evidence on the question of voter confusion caused by the top two primary. It just determined that the issue was properly before the court on remand, and the case may go forward.

Disclosure: I've served as a consultant for various ballot measure efforts in California to get a top two system on the ballot.

"Irving, attorneys near elections deal"

The Dallas Morning News offers this report

"Holder's Black Panther Stonewall"

John Fund has written this WSJ column.

"Reform, Taxpayer, and Business Groups Urge Judiciary Committee to Hold Hearings on Redistricting Reform Bill"

The Campaign Legal Center has issued this press release. More here.

"Black candidate for Euclid school board to test new voting system"

The Cleveland Plain Dealer offers this report.

Bauer Comes to the Government's Defense in Reading Austin Anti-Distortion as Shareholder Protection

Following up on this post Bob Bauer offers these thoughts.

New Jim Bopp Suit Challenging Vermont Campaign Finance Laws

Read the complaint and preliminary injunction brief.

"Leaders cool to Kennedy request"

The Boston Globe offers this report, which begins: "A personal plea from Senator Edward M. Kennedy to grant the governor power to appoint an interim successor in the Senate drew little public support from Massachusetts lawmakers yesterday, with the state’s Democratic leaders publicly silent on the proposal and most Republicans attacking it as a partisan power grab." Meanwhile, FairVote opposes the proposal, and advocates instead a shorter election period with one-round voting using instant runoff voting.

My prediction: this law will not be changed in the near future.

"Court Rejects Ravitch Appointment"

The NY Times reports that NY "Gov. David A. Paterson's naming of Richard Ravitch last month to the vacant lieutenant governor’s post was ruled illegal on Thursday by a state appeals court panel that deemed Mr. Paterson had violated the State Constitution."

"Illinois Undervote Notification Law Rankles Local Election Official"

The lead strory in this week's Electionline Weekly, which also links to this AP story on the indictment of former New Mexico Secretary of State Rebecca Vigil-Giron.

Rehearing En Banc Sought in Fourth Circuit in "Real Truth About Obama" Case

You can read the petition here.

Second Edition of Goldfeder's NY Election Law Now Available

Details here. The new edition includes all the major election law-related cases from NY and many federal cases since the first edition in 2007. It also has two new chapters -- a comprehensive analysis of the NYC Campaign Finance Law, and an historical and legal analysis of the constitutional issues relating to presidential elections.

"State Judicial Independence--A National Concern"

Seattle University's law school has put together this interesting symposium for September 14. Justice O'Connor will be the featured speaker (giving a speech and serving on two panels). I'll be on the first panel, with Bert Brandenberg, Kathleen Sullivan, and Andrew Siegel talking about the Caperton case.

A Request for "As Long as One Minute" to Participate in Oral Argument in Citizens United

See here.

"Kennedy, looking ahead, urges that Senate seat be filled quickly"

The Boston Globe offers this report, which begins: "Senator Edward M. Kennedy, in a poignant acknowledgment of his mortality at a critical time in the national health care debate, has privately asked the governor and legislative leaders to change the succession law to guarantee that Massachusetts will not lack a Senate vote when his seat becomes vacant." Senator Kennedy's letter is here. Adam Bonin offers these comments.

The FEC's Supplemental Reply Brief in Citizens United: Subtly Distorting the Distortion Rationale

The simultaneous reply briefs in Citizens United v. FEC are now available. Via SCOUTSBlog, you can find the government's brief here. I have posted Citizens United's brief here. The CU brief pounds the government for its failure in its opening supplemental brief to defend the anti-distortion rationale of Austin (a point I raised originally here). It says the government has "abandoned" this rationale. For its part, the government's supplemental reply brief brief tries very hard to recast the Austin anti-distortion/equality rationale into a shareholder protection rationale. I don't think the attempt succeeds, because the language of Austin is not susceptible to this reading.

To understand this point, let me begin with the relevant background. When the government filed its opening supplemental brief in Citizens United v. FEC, I characterized the brief as "remarkable." I wrote:

There is much to like about the government's brief, and I have more about that below. But let me begin with the most interesting feature of the brief: the government does not even mention the central holding of Austin, much less defend it.... The key passage in Austin is the following:

The Chamber argues that this concern about corporate domination of the political process is insufficient to justify restriction on independent expenditures. Although this Court has distinguished these expenditures from direct contributions in the context of federal laws regulating individual donors, Buckley, 424 U. S., at 47, it has also recognized that legislature might demonstrate a danger of real or apparent corruption posed by such expenditures when made by corporations to influence candidate elections, Bellotti, supra, at 788, n. 26. Regardless of whether this danger of "financial quid pro quo" corruption, see NCPAC, supra, at 497; post, at 702-705 (KENNEDY, J., dissenting), may be sufficient to justify restriction on independent expenditures, Michigan's regulation aims at a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas. See supra, at 658-659. The Act does not attempt "to equalize the relative influence of speakers on elections," post, at 705 (KENNEDY, J., dissenting); see also post, at 684 (SCALIA, J., dissenting); rather, it ensures that expenditures reflect actual public support for the political ideas espoused by corporations. We emphasize that the mere fact that corporations may accumulate large amounts of wealth is not the justification for s54; rather, the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures. Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions. We therefore hold that the State has articulated a sufficiently compelling rationale to support its restriction on independent expenditures by corporations.
(my emphasis)

Though the Austin Court spoke of a "different type of corruption (like the "other white meat"), the anti-distortion rationale is better thought of as a type of equality argument, rejecting "disproportionate" corporate spending that can "unfairly influence elections." (I've written more on this "barometer equality" argument here.) As I expected, CU's brief goes right against this anti-distortion rationale in its supplemental brief. The brief opens: "For the proper disposition of this case, the Court should rejected the anti-distortion rationale for suppressing corporate political speech formulated in Austin and relied upon in McConnell..." But the government brief does not mention the rationale, even in passing as it did in its original brief ... On the one hand, it is no surprise that the government does not want to emphasize Austin anti-distortion. After all, as I detail here, this equality rationale has already been undermined by the Court'' recent opinion in FEC v. Davis, and the equality rationale is not likely to find a receptive audience in either "swing" voters on the question in Citizens United, Chief Justice Roberts and Justice Alito. On the other hand, the government surely anticipated that Ted Olson and company in CU would be all over the Austin rationale. I suppose that the government figured it would just save its points on this question for its August 19 supplemental reply brief. The closest the government comes in this brief is to stress that corporations are not natural persons (p. 10.) But in passing on discussing the equality/anti-distortion rationale, the government puts a great deal of effort into an argument that only Justice Stevens has embraced (in his Austin concurrence): that the government can justify limits on corporate independent spending to prevent quid pro quo corruption of candidates. ... The other point the government makes, which is perhaps a bit more promising, is that corporate spending limits in elections are necessary to protect shareholders, a point Justice Brennan emphasized in his Austin concurrence. But that theory is in great tension with Bellotti, which rejected it in the context of ballot measure elections.

In its supplemental brief, the government does mention "distortion," bit it tries to recast the distortion rationale as the shareholder protection rationale (pp. 6-7 of the brief):

A business corporation's use of treasury funds for electoral advocacy distorts the political process because the communication does not correspond to the electoral preferences of the individuals whose money is used to fund it. Dissenting in McConnell, Justice Scalia alluded to the signers of the Declaration of Independence, who pledged their "Fortunes" alongside their "sacred Honor." 540 U.S. at 255. But John Hancock pledged his own fortune; when the CEO of John Hancock Financial uses corporate-treasury funds for electoral advertising, he pledges someone else's. Corporate electoral spending is thus distortive because it converts the resources of individuals into political expression with which they may well disagree--or, otherwise said, because such spending fails to "reflect actual public support for the political ideas espoused by corporations." Austin, 494 U.S. at 660.3
Even before Austin, this Court had recognized the government's interest in protecting corporate shareholders "from having [their] money used to support political candidates to whom they may be opposed."...

Footnote 3 from the first excerpted paragraph reads:

Austin's reference to "public support" is best understood to refer, not to popularity within the community at large (see U.S. Chamber Supp. Br. 13-14), but to support among those in whose name the message is propagated---i.e., the shareholders whose resources are funding the electioneering.

With this footnote, the government tries valiantly to read Austin's use of the word "public" as "shareholder." I don't think that reading works in the context of the Austin quote. If the Austin Court were really talking about shareholders in that quote, it never would have added: "Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures..." It is the public whose elections are "unfairly influenced" under the Austin reasoning, not shareholders. And the fact that corporations "amass large treasuries" is related to the public's concern over elections, not shareholders. A shareholder of a corporation with a small treasury would be even more upset by the corporation spending corporate resources on political campaigns.
I cannot fault the government for trying. The real anti-distortion/equality rationale of Austin will be hard to sell to five members of this Court. Perhaps Seth Waxman, arguing on the government's side for the BCRA sponsors, will be able to defend the Austin rationale for what it is: a recognition that "''there is no good reason to allow disparities in wealth to be translated into disparities in political power. A well-functioning democracy distinguishes between market processes of purchase and sale on the one hand and political processes of voting and reason-giving on the other.' Sunstein, Political Equality and Unintended Consequences, 94 Colum. L.Rev. 1390 (1994). " FEC v. Davis, 128 S.Ct. at 2782 (Stevens, J., dissenting).

Simultaneous Reply Briefs Due in Citizens United Today

When I get copies of the briefs or links to them, I will post them.

"Justice Department rejects non-partisan voting"

News from North Carolina: "In a letter sent to City Attorney Jim Cauley late Monday, acting Assistant Attorney General Loretta King stated 'the elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice.'"

"No Limits on Gifts or Questions"

This very interesting piece on Virginia's campaign financing rules appears in the Washington Post.

"RNC Takes McCain-Feingold to Court"

CQ Politics offers this report.

Welcome to the Blogosphere to Snitching.org

My Loyola colleague Sasha Natapoff, author of the new book, Snitching: Criminal Informants and the Erosion of American Justice, has started a blog on (you guessed it), snitching.

Visit Snitching.org and check out this post on the unusual Troy Davis case at the Supreme Court.

Two Panels Previewing Citizens United Oral Argument

Both look great: ACS and CATO.

"The Dignity of Voters --- A Dissent"

Jim Gardner has posted this draft on SSRN (forthcoming, University of Miami Law Review election law symposium issue). I am writing a brief response to this very interesting paper of Jim's. Here is the abstract:

Since the waning days of the Burger Court, the federal judiciary has developed a generally well-deserved reputation for hostility to constitutional claims of individual right. In the field of democratic process, however, the Supreme Court has not only affirmed and expanded the applications of previously recognized rights, but has also regularly recognized new individual rights and deployed them with considerable vigor. The latest manifestation of this trend appears to be the emergence of a new species of vote dilution claim that recognizes a constitutionally grounded right against having one's vote "cancelled out" by fraud or error in the casting and counting of ballots. I argue here that an important reason for the Court's anomalous commitment to a robust regime of individual rights in the democratic arena is its conception of the dignity of voters. Rather than approach issues involving democratic process as problems of power or of the proper functioning of a system of representative democracy, the Court instead approaches such issues as problems of the maltreatment of individual voters. This, I shall argue, is a serious mistake in two ways. First, the Court has failed to distinguish among different kinds of rights, and it therefore misuses them. Second, the Court ought not to conceive of voters as bearers of a kind of dignity equivalent to the dignity that all people enjoy in virtue of their humanity-- the traditional basis for recognizing individual rights. Instead, I argue, voters are better treated for some constitutional purposes as public officials discharging a public duty, and as therefore entitled either to no particular dignitary rights, or to dignitary rights that are greatly diminished.

Corporate Justice Blog on Citizens United

See here.

"Afghan election fraud is unearthed"

A sobering report from the BBC.

LA Times Editorial on Citizens United

See here.

"INSIDE WASHINGTON: Election regulators strained"

AP offers this report.

"Is Your 401(k) Used to Influence Congress?"

Ciara Torres-Spelliscy has written this Roll Call oped, which begins: "Thanks to the Supreme Court, corporate-funded political ads may be about to make a big comeback. And ordinary shareholders -- including everyone with a 401(k) account -- will foot the bill."

"The Citizens United Case: Will the Supreme Court Return America to the 19th Century?"

This post appears at the Democracy 21 website.

"Handel Asks Permission to Re-Disenfranchise Voters"

Creative Loafing offers this post on Georgia's renewed preclearance request.

Latest Holtzman Vogel "Law and Policy" Update Now Available

Here.

"Cleveland Councilman Zack Reed's 're-election' signs must go, elections commission rules"

Interesting false campaign speech controversy noted here. Thanks to Jonathan Adler for the pointer.

Abby Thernstrom Guest Blogging this Week at Volokh

Here is her first post.

"Election Financing Shake-up Possible"

The Chicago Tribune offers this report on Citizens United.

Floyd Abrams Gets His 10 Minutes in Expanded Citizens United Oral Argument

Following up on this post, SCOTUSBlog reports on the following order of the Supreme Court: "The motion of Senator Mitch McConnell for leave to participate in oral argument as amicus curiae and for divided argument is granted. The motion of the Solicitor General for divided argument is granted. A total of 80 minutes is allocated for oral argument and the time is divided as follows: 30 minutes to appellant, 10 minutes to Senator Mitch McConnell, 30 minutes to appellee, and 10 minutes to Senator John McCain, et al."

More Indiana Controversy Over Government Issued IDs

The Indiana Law Blog sorts it out.

"FEC Dismisses Complaint That McCain Illegally Solicited for Presidential Race"

BNA reports on the unanimous decision.

Library of Congress Posts Comparative Campaign Finance Information

The countries compared are Australia, France, Germany, Israel, and the U.K.

"Squabble Over Argument Time in Citizens United Case"

At the BLT, Tony Mauro follows up on my post yesterday about Floyd Abrams seeking divided argument on behalf of Sen. McConnell in Citizens United.

UPDATE: SCOTUSblog, in this post, links to McConnell's motion and Citizen United's opposition. Here's a nice little tidbit from the opposition: "Though it is true Citizens United did not participate in the oral argument before this Court in McConnell, Senator McConnell could not fault Citizens United for that. Senator McConnell opposed Citizens United's motion to participate in that oral argument stating that 'oral argument is not necessary on [Citizen United's] claims because they 'may readily be resolved on the briefs.'" Tit for tat.

Is the Democratic Party "A Political Subdivision" under Section 5 of the VRA?

This Houston Chronicle story about oral argument over LULAC's "Texas two step" challenge suggests that maybe NAMUDNO is going to cause some rethinking of political party coverage under section 5. Hard to tell from this short discussion.

"An Official Right to Vote"

Adam Fogel has written this letter to the editor of the NY Times.

New Section 5 Suit Against South Carolina Over Fusion Candidacies and Filing Deadlines

See this complaint.

"The Battle Between Small Donors and Big Spenders"

Lisa Gilbert has written this blog post on Citizens United.

"FEC split on targeting Specter donors"

Politico offers this report.

"Watchdog Groups Release Database Detailing Earmarks and Campaign Contributions"

See this press release.

Floyd Abrams Wants a Part of the Citizens United Argument, and Apparently Ted Olson Does Not Want to Share

I was checking the Supreme Court docket in the Citizens United case to see if there had been a ruling on the government's motion to divide oral argument time with the BCRA Proponent's lawyer (and former SG) Seth Waxman. (There is no ruling on this motion noted in the docket.)

But I did see these two interesting entries:

Jul 31 2009 Motion of Senator Mitch McConnell in support of appellant for leave to participate in oral argument as amicus curiae and for divided argument filed.
Aug 3 2009 Opposition of appellant to motion of Senator McConnell for divided argument.

Floyd Abrams is representing Sen. McConnell. The amicus brief is here, and it argues that both Austin and McConnell should be overruled.

I find it unusual that an amicus would ask to argue a case when uninvited by the side it is supporting--especially when there is no substantive difference between the position of the party and its amicus ("with amici like these....").

I would very much like to see Citizen United's opposition to the motion. (Already this case has had its share of lawyerly intrigue, with Ted Olson replacing the very capable Jim Bopp after Jim filed a jurisdictional statement and the court noted probable jurisdiction and set the case for argument.)

"LULAC Challenges Texas Two-Step"

Texas Public Radio reports.

"Florida Election Laws May Adapt to New Media Demands"

The News Service of Florida offers this report.

"Get Me Rewrite! Does California Need a New Constitution?"

Bob Stern and Molly Milligan have written this piece for California Lawyer.

Latest Covington Political Law Update Now Available

You can read it here.

"K Street Files: Meet Fred Wertheimer 2.0"

Roll Call offers this report ($), which begins: "Not five years ago, Daniel Weeks was a college student in New Haven, Conn. But these days, the 26-year-old says he's attempting to 'bring a new burst of energy' to the campaign finance reform community -- and appears well on his way to establishing himself alongside veterans like Democracy 21 founder Fred Wertheimer."

Potter on "The Potter Exception"

In this recent post on the McCain-Feingold proposal to revamp the FEC, I linked to this CCP post, which discussed which former FEC commissioners would not have been subject to term limits and therefore could serve on the proposed new commission: "There are currently eight living former commissioners who were never subject to term limits while on the Commission. Six of them are octogenarians who have been out of public life for years, and the others are Tom Josefiak and Trevor Potter, the latter of whom is John McCain's campaign counsel. Hmm... does that explain anything?"

Trevor Potter responds via email:

I read your post referring to the so-called "Potter exception" with some surprise--surprise that Scott Thomas and Dave Mason are octogenarians despite looking so young. Who would have thought it!

"Wall Street Journal Fact Checking Blunder"

Doug Johnson comments on the WSJ census oped.

Beth Garrett Appointed to California FPPC by Secretary of State Debra Bowen

You can find the press release here (thanks to Dan Smith for the pointer).

Congratulations, Beth!

"Accounting for the Census Clause"

Myrna Perez has written this blog post for the Brennan Center blog, responding to a WSJ oped (linked here).

Georgia asks for DOJ Reconsideration of Preclearance Decision on Voter Verification Process

See here.

More on Senator Martinez's Spending

Following up on this post, a reader sends along the following comments:

That Miami Herald article is extremely misleading. A candidate is allowed to keep the funds that he has obtained for the Primary election up until the date that he announces he is no longer seeking re-election. At that point, any General election contributions received must be returned, and any primary funds received after that date must be returned. Any funds for the Primary accepted before that point can be kept and used in a way that is consistent with 11 CFR 113.2. That Miami Herald article says nothing about that provision, and instead sounds like a "Gotcha" article that comes across as very misleading with regards to what Senator Martinez is doing with his campaign funds.

That said, one would think that Ms. Watkins would have said something to that effect instead of the (what come across as defensive) comments regarding personal use of campaign funds.

Finally, in order to terminate the Senator's committee, it must first dispose of the cash that is has remaining, which is listed at $456,220 as of the July Quarterly Report. The committee is entitled to use the money on hand to fulfill any remaining obligations, as well as any winding down costs of the committee (such as paying employees, rent/utilities, etc. that are incurred during the normal course of business).

Just my two cents.

"Campaign Support, Conflicts of Interest, and Judicial Impartiality: Can the Legitimacy of Courts Be Rescued by Recusals?"

Jim Gibson and Gregory Caldeira have posted this draft on SSRN. Here is the abstract:

Many legal scholars and observers perceive elected state courts in the U.S. as under siege by the politicization of judicial elections - by candidates for judicial office making policy pronouncements and promises, using ads attacking their opponents (often scurrilously), and, most important, by accepting campaign contributions and support from organizations litigating before the very judges these groups helped elect. Since no form of political capital is more valuable to courts than institutional legitimacy, the hypothesis that campaign activities undermine judicial legitimacy must be taken quite seriously.

Our purpose in this paper is to investigate citizen perceptions of the impartiality and legitimacy of courts. We focus on the residents of West Virginia, because that state has recently been a battleground for intense conflict over campaign support and perceived conflicts of interest and loss of impartiality. We employ an experimental vignette embedded within a representative sample of West Virginians to test hypotheses about several factors that might affect perceived judicial impartiality: (1) campaign contributions and support; (2) the size of such support; (3) whether the judge accused of holding a conflict of interest withdraws from the case; and (4A) if not, whether that judge's vote was crucial to the outcome, and (4B) if so, whether the party providing the campaign support wins or loses the lawsuit. Our theoretical objectives in this paper are to assess the determinants of citizens' views of judicial impartiality, following earlier research on how campaigning affects such perceptions. More practically, we test the hypothesis that recusals can rehabilitate a judge and/or court from perceptions of a conflict of interest. In almost every respect, our findings are not as expected. Perhaps most important, contributions offered but rejected by the candidate have similar effects to contributions offered and accepted. And, although recusal can rehabilitate a court/judge to some degree, the effect of recusal is far from the complete restoration of the impartiality and legitimacy of the institution. We are also surprised that about one-third of the respondents are unfazed by the most conflicted circumstance our vignette imagines. We attribute that finding to the "reservoir of goodwill" enjoyed by courts and to the framing effects flowing from pre-existing loyalty to the judiciary. The processes by which citizens form and update their opinions of judges and courts are certainly complicated, but seem at least to involve pre-existing attitudes, expectations of judges, and perceptions of contextual factors, as our analysis of conditional influences demonstrates. Finally, our findings indicate that several of the assumptions of the majority in the recently decided Caperton v. Massey are empirically inaccurate, at least from the viewpoint of the citizens of West Virginia.

"Sen. Martinez not running, but still spending campaign funds"

The Miami Herald offers this report.

"Should the Supreme Court Alter Its Approach to Campaign Finance Regulation?"

Michael Dorf has written this Findlaw column.

Richard Epstein and Larry Lessig Debate Campaign Finance Reform

Here.

The Latest on the Firing of U.S. Attorney Iglesias

Washington Post: " Miers told investigators that Rove called her in September 2006, 'agitated' about the slow pace of public corruption cases against Democrats and weak efforts to pursue voter fraud cases in the state. In the call, Miers said that Rove had described Iglesias as a 'serious problem' and said he wanted 'something done' about it. Miers testified that she called then Deputy Attorney General Paul McNulty to pass along the concerns."

A Clarification on the McCain-Feingold FEC Replacement Proposal

In this post, I stated that under the proposed new FEA, appointed commissioners "could not have served on the FEC." As a reader informed me, this is not accurate. Only those FEC commissioners who have been subject to term limits (i.e., more recent FEC commissioners) would be ineligible to serve. (UPDATE: CCP calls it "the Potter exception".) Here is the relevant provision:

`SEC. 352. COMPOSITION OF THE FEDERAL ELECTION ADMINISTRATION.

``(a) In General.--The Administration shall be composed of 3 members, 1 of whom shall serve as the Chair of the Administration. No member of the Administration shall--

``(1) be affiliated with the same political party as any other member of the Administration while serving as a member of the Administration; or

``(2) have been affiliated with the same political party as any other member of the Administration at any time during the 5-year period ending on the date on which such individual is nominated to be a member of the Administration.

``(b) Appointment.--

``(1) IN GENERAL.--Each member of the Administration shall be appointed by the President, by and with the advice and consent of the Senate.

``(2) CHAIR.--The President shall, at the time of nomination of the first 3 members of the Administration, designate 1 of the 3 to serve as the Chair. Any individual appointed to succeed, or to fill the unexpired term of, that member (or any member succeeding that member) shall serve as the Chair.

``(3) QUALIFICATIONS.--

``(A) An individual who is appointed under paragraph (1) shall--

``(i) possess demonstrated integrity, independence, and public credibility; and

``(ii) shall have not less than 5 years professional experience in law enforcement, including such experience gained--

``(I) in service as a member of the judiciary;

``(II) as a member or an employee of a Federal, State, or local campaign finance or ethics enforcement agency; or

``(III) as a law enforcement official in a Federal or State enforcement agency or office.

``(B) An individual may not be appointed under paragraph (1) if--

``(i) such individual is serving or has served as a member of the Federal Election Commission subject to a term limit; or

``(ii) at any time during the 4-year period ending on the date of the nomination of such individual, the individual was--

``(I) a candidate, an employee of a candidate, or an attorney for a candidate;

``(II) an elected officeholder, an employee of an elected officeholder, or an attorney for an elected officeholder;

``(III) an officer or employee of a political party or an attorney for a political party; or

``(IV) employed in a position in the executive branch of the Government of a confidential or policy-determining character under Schedule C of subpart C of part 213 of title 5 of the Code of Federal Regulations.

"Around the state: Clerks, public oppose early voting"

AP offers this news from Wisconsin.

"A Century-Old Principle: Keep Corporate Money Out of Elections"

Adam Cohen has written this Editorial Observer column for the NY Times on Citizens United. Though the column speaks of the ban on corporate treasury "contributions" to candidates, as I've explained, what's at issue are independent corporate spending limits in candidate elections, not direct corporate contributions to candidates. But Cohen is right that the Court is pushing an issue through oral argument that it could easily avoid.

"Obama Picks Foley Hoag Bundler for Ambassador to Norway"

BLT reports on the nomination of Barry White. My first thought: Can't Get Enough of Your Love, Babe.

Sens. McCain and Feingold Suggest Alternative to FEC

Via the Center for Competitive Politics, which hates the idea, comes news that Senators McCain and Feingold have proposed scrapping the FEC for a new 3-member body, with a 10-year chair and two other members with staggered six-year terms, with no more than any one member from any political party. As I read the key provision (section 352(a)), at least one member (not necessarily the chair) would have to be either registered as an independent or as a third party member for the five years before serving on the commission. In addition, all three members would have to have a background in "law enforcement," as defined in section 352(b)(3)(A)(ii), and could not have served on the FEC.

I'll have to think more about this proposal, but my first reaction is not to like these selection mechanisms. For the chair, I'd prefer something like a system whereby the President nominates and the Senate confirms two members from different parties (presumably one Democrat and one Republican), and those two choose a proposed third member to be chair (that person could have any or no party affiliation). That chair would then be nominated by the President and confirmed by the Senate. I also don't like the idea of limiting the members of the Commission to having "law enforcement" experience. That is certainly valuable, but it does not seem like an indispensable job qualification. I guess the Senators were thinking that such a person would be a strict enforcer of the law, but there seem other, more precise ways to achieve that goal.

UPDATE: More from BNA($).

"Free Speech and Our Election Laws"

Former Sens. Bob Kerrey and Warren Rudman have written this Boston Globe oped on the Citizens United case.

"Parties Seek To Influence More Than Elections; Campaign Committees Are Increasingly Flexing Their Clout On Issues"

Eliza's latest.

"'Non-responsive' Justice Dept. pressed again on Panthers case"

The Washington Times offers this report.

"The Real Truth About Obama and its meaning for Citizens United"

Brad Smith comments.

"Our Unconstitutional Census"

John S. Baker and Elliott Stonecipher have written this Wall Street Journal oped.

"Where Have You Gone, Joe The Citizen?"

The NY Times offers this interesting report. A snippet: "Mr. Kratovil's experience was part of a phenomenon that swept the country last week, with increasingly ugly scenes of partisan screaming matches, scuffles, threats and even arrests. The traditional town hall meeting, a staple of Congressional constituent relations, had been hijacked, overrun by sophisticated social-networking campaigns -- those on the right protesting so loudly as to shut down public discourse and those on the left springing into action to shut down the shutdowns."

NYT Article on President Obama's Use of Signing Statements

See here.

"The New South and the Voting Rights Act, Post-NAMUDNO"

Michael Kang comments.

Replacing Florida Senator Mel Martinez

With news that Senator Martinez is resigning before his term expires next year, the question is how he will be replaced until the 2010 elections.

Governor Crist, who is a candidate for the seat himself, has plenary power to appoint a temporary Senator to serve until the next term begins. The relevant Florida statute reads: "100.161 Filling vacancy of United States Senators.--Should a vacancy happen in the representation of this state in the Senate of the United States, the Governor shall issue a writ of election to fill such vacancy at the next general election; and the Governor may make a temporary appointment until the vacancy is filled by election."

Politico reports: "National and Florida Republican sources say it's near-certain that Crist will not appoint himself, and instead is expected to appoint a placeholder to fill the seat through the 2010 election."

"Sotomayor Faces Big Workload of Complex Cases"

This Adam Liptak analysis discussed Citizens United.

Bob Bauer Comes Out of Blogging Hibernation to Write About Justice Kennedy, Austin, and Citizens United

Bob's extensive post is here.

Updated ABA Case Preview of Citizens United

Last winter I wrote a preview for the ABA Supreme Court Preview of the Citizens United case. The ABA asked me to write a short update to account for the reargument scheduled for September in the Supreme Court. You can find the update, along with the original preview, here. I wrote the update before any supplemental briefs were filed. You can find my thoughts on the government's supplemental brief here and some brief thoughts on the amicus briefs here.

"First Up For Sotomayor: A Case With Partisan Edge"

NPR.org offers this report on Justice Sotomayor and the Citizens United case.

"Schneider to pay Tarkanian $150,000 to settle lawsuit"

The Las Vegas Sun offers this report, which begins: "State Sen. Mike Schneider today agreed to pay $150,000 in damages to settle a defamation lawsuit brought by his 2004 election challenger, Danny Tarkanian."

Eugene Volokh offers four reasons why such lawsuits by political candidates are rare.

"Jefferson Convicted in Bribery Scheme; Ex-Congressman Guilty of Eleven Counts"

The Washington Post offers this report.

"DOJ Will Not Appeal D.C. Circuit Ruling On Debate-Clause Protection of Lawmaker"

BNA offers this report ($), which begins: "The Justice Department has decided not to appeal a decision by a three-judge federal appeals court panel, which held that the Constitution's speech-or-debate clause protects a lawmaker from having to testify in a DOJ probe related to jailed lobbyist Jack Abramoff (In re: Grand Jury Subpoena, D.C. Cir., No. 08-3056, unsealed 7/9/09)." The D.C. Circuit opinion is here (and see this order).

Change is Coming to U.K. Electoral Finance Regulation---And You Can Comment

See here.

Follow Up on Pelosi-Gingrich Ad Complaint to FEC

Josh Gerstein does the FOIA. UPDATE: You can find the released, redacted FEC documents here.

"Fourth Circuit Court of Appeals Supports Federal Campaign Finance Laws, Rejects Request for Preliminary Injunction in Real Truth About Obama v. Federal Election Commission"

Democracy 21 has issued this press release about this 4th Circuit decision.

"New Mexico Federal Court Curtails State Campaign Finance Reporting Law"

Richard Winger reports on this decision of a federal district court in New Mexico.

"Gulf Coast Worried About 2010 Census"

The Washington Post offers this report.

NYT Editorial on First Circuit Felon Disenfranchisement Case

See here. My earlier thoughts on that case are here.

New Project Vote Memo on Internet Access and Voter Registration

Find it here.

"Federal judge OKs Brinkman lobbying"

The Cincinnati Enquirer offers this report, which begins: "A federal judge declared Tuesday that Ohio's law limiting activities by lobbyists violates the First Amendment rights of a former state legislator from Cincinnati." If anyone has a copy of the opinion, please send it along. UPDATE: The opinion is here.

"First Local Government Seeks Voting Rights Bailout Post Supreme Court Ruling"

Gerry "The Anomaly" Hebert is at it again.

"Citizens United and the Rules of Judicial Craft"

Heather Gerken has written this interesting post at Balkinization.

Election Law Journal 8:3 Now Available; Preview of ELJ 8:4

Issue 8:3 of the Election Law Journal is available at this link (with the table of contents below). Look for ELJ 8:4 in October, featuring Richard Neimi, Michal Hanmer and Thomas Jackson on college student voting and residency; Hanoch Dagan on campaign finance regulation and political theory; Ellen Katz on Obama and Lopez Torres; and book reviews by Frank Anechiarico, Gerry Pomper and Marc Weiner, and Jennifer Steen.

ELJ 8:3

EDITORIAL
The Party Line
Daniel H. Lowenstein and Richard L. Hasen

ORIGINAL ARTICLES
The Devil We Know? Evaluating the Federal Election Commission as Enforcer
Michael M. Franz

Regulating Canadian Elections in the Digital Age: Approaches and Concerns
Tamara A. Small

THIRD ANNUAL BOOK REVIEW ISSUE
Life of the Parties? Money, Politics, and Campaign Finance Reform
Richard Briffault, reviewing Raymond J. LaRaja, Small Change: Money, Political Parties
and Campaign Finance Reform

Election Administration: Still Broken After All These Years
Bruce E. Cain, reviewing Morgan E. Felchner, ed., Voting in America, Volume 3,
American Voting Systems in Flux: Debacles, Dangers, and Brave New Designs

The Dynamic Role of Interest Groups in the Electoral Process
Susan Clark Muntean, reviewing Michael M. Franz, Choices and Changes: Interest Groups
in the Electoral Process

Partisan Gerrymandering and State Legislative Districts
Richard L. Engstrom, reviewing Jonathan Winburn, The Realities of Redistricting:
Following the Rules and Limiting Gerrymandering in State Legislative Redistricting

Just How Settled Are the Legal Principles that Control Election Disputes?
Steven F. Huefner, reviewing Barry H. Weinberg, The Resolution of Election Disputes:
Legal Principles That Control Election Challenges, 2d ed.

Improving Our Elections: A View from the Front Lines
Ray Martinez III, reviewing Eric A. Fischer, Election Reform and Local Election Officials

A Magnificent Catastrophe Retold
Michael P. McDonald, reviewing Edward J. Larson, A Magnificent Catastrophe:
The Tumultuous Election of 1800, America’s First Presidential Campaign

Finding Election Fraud--Maybe
Lorraine C. Minnite, reviewing R. Michael Alvarez, Thad E. Hall, and Susan D. Hyde, eds.,
Election Fraud: Detecting and Deterring Electoral Manipulation

The Reform-inator--California's Loneliest Post-Partisan
Dan Schnur, reviewing Daniel Weintraub, Party of One: Arnold Schwarzenegger
and the Rise of the Independent Voter

Assessment of Voting Systems
Charles Stewart III, reviewing R. Michael Alvarez and Thad E. Hall, Electronic Elections:
The Perils and Promise of Digital Democracy

Laboratories of Election Reform
Daniel P. Tokaji, reviewing Bruce E. Cain, Todd Donovan, and Caroline J. Tolbert (eds).,
Democracy in the States: Experiments in Election Reform

REVIEW ESSAY
Judging Disputed Elections in Europe
Kieran Williams, reviewing Jean-Pierre Camby, Le Conseil constitutionnel, juge électoral.
Fourth edition; Stéphan Gauthier, Le juge judiciaire, juge électoral. Vers une harmonisation
du contentieux des elections; E. I. Koliushin, Sudebnaia zashchita izbiratel’nykh
prav grazhdan; Pavel Molek and Vojteˇch Sˇimícˇek, Soudní prˇezkum voleb

RECENT CASES AND MATERIALS
Summary 289
In re Sheehan v. Franken, 2009 WL 981934 (No. 62-CV-09-56, Apr. 13, 2009)
(three-judge court)

"A vote for a bigger California Legislature"

Ryan Coonerty has written this LA Times oped.

"The Institutional Turn in Budget Politics and Election Law"

Michael Kang has written this post at "Concurring Opinions," where he will be guest blogging during August.

"For State, Local Office Seekers, Web Ads Present Potential Pitfalls"

The Wall Street Journal offers this report.

"DNC to Supreme Court: Don't limit President Obama money"

Politico offers this provocative take on the DNC's amicus brief in Citizens United, which I linked to earlier.

UPDATE: The headline to this article has been changed to read: "DNC to Supreme Court: Don't discourage small donors."

"EAC Data Collection Project"

Mark Shelden, the Champaign County Clerk, blogs about it.

"Sunlight on Campaign Finance: Supreme Court Should Protect The Public's Right To Know"

See here.

"Disclosure, Privacy, and Principles"

Adam Bonin blogs on the Washington state signature case.

On this Day in History

House approves Voting Rights Act, August 3, 1965.

Two Articles on Citizens United

Marcia Coyle has written two very interesting articles on Citizens United for the National Law Journal. So far, unfortunately, they remain behind the paid subscriber wall. They are Another Big Decision Before the New Term and The Case at the Center Behind Citizens United, about Austin.

Despite the headline of the first article, I do not expect a decision in Citizens United before the start of the new Supreme Court term on the first Monday in October. McConnell v. FEC was argued Sept. 8, 2003 and decided December 10, 2003 (though it was a case with many more issues).

Meanwhile, Bob Bauer for the DNC has authored this amicus brief opposing the overruling of Austin, and making much of constitutional avoidance point in NAMUDNO.

Felon Disenfranchisement Issue Heading to the Supreme Court?

On Friday, a First Circuit Panel split 2-1 in Simmons v. Galvin, a case challenging the disenfranchisement of currently incarcerated Massachusetts felons under section 2 of the Voting Rights Act and the ex post facto clause. The opinions total 104 pages. The majority, in an opinion by Chief Judge Lynch, rejected the arguments. Judge Torruella issued a lengthy dissent, noting the close split within other circuits that have addressed the issue. Judge Torruella's position on the meaning of section 2 is very much like that expressed by Judge Sotomayor in Hayden v. Pakaki.

Judge Sotomayor: "It is plain to anyone reading the Voting Rights Act that it applies to all 'voting qualification[s]." And it is equally plain that s 5-106 disqualifies a group of people from voting. These two propositions should constitute the entirety of our analysis. Section 2 of the Act by its unambiguous terms subjects felony disenfranchisement and all other voting qualifications to itscoverage.
The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created. The majority's “wealth of persuasive evidence” that Congress intended felony disenfranchisement laws to be immune from scrutiny under s 2 of the Act, Maj. Op. at 25, includes not a single legislator actually saying so. But even if Congress had doubts about the wisdom of subjecting felony disenfranchisement laws to the results test of s 2, I trust that Congress would prefer to make any needed changes itself, rather than have courts do so for it. I respectfully dissent."

Judge Torruella: "Rather this is a case about interpreting a clearly worded congressional statute, the Voting Rights Act of 1965 ('VRA'), according to its terms, when there is no persuasive reason to do otherwise."

This case could well go to the Supreme Court on an issue that Judge Sotomayor knows well.

Ned Foley on Citizens United, Stare Decisis and Constitutional Truces

See here.

Ruth Marcus Column on Citizens United Reargument

See here.