"Hattiesburg city wards upheld"

The Hattiesburg American offers this report, which begins: "Hattiesburg didn't hurt minority participation on the city council when it counted university students as city residents while redrawing ward lines, a federal appeals panel ruled Tuesday."

You can find the 5th Circuit opinion here.

"Supreme Court Term 09: Paul M. Smith on Citizens United and Court 'Activism'"

ACS video interview here.

"A Critique of the National Popular Vote Plan for Electing the President "

John Samples has posted this draft on SSRN. Here is the abstract:

The National Popular Vote plan (NPV), introduced in more than 40 states, and adopted by 4, proposes an interstate compact to bring about direct election of the president of the United States. The proposal eliminates states as electoral districts in presidential elections by creating a national electoral district for the presidential election, thereby advancing a national political identity for the United States. States with small populations and states that are competitive may benefit from the electoral college. Few states clearly benefit from direct election of the president. NPV brings about this change without amending the Constitution, thereby undermining the legitimacy of presidential elections. It also weakens federalism by eliminating the role of the states in presidential contests. NPV nationalizes disputed outcomes and cannot offer any certainty that states will not withdraw from the compact when the results of an election become known. NPV will encourage presidential campaigns to focus their efforts in dense media markets where costs per vote are lowest; many states now ignored by candidates will continue to be ignored under NPV. For these reasons, states should not join the National Popular Vote compact.

Fred Wertheimer on the Emily's List Case

Here. Brad Smith on whether the case will be appealed is here.

"Diebold Inc.'s sale of voting machines unit doesn't quiet critic"

The Cleveland Plain Dealer offers this report.

"ACLU Challenges Illegal Voter Disfranchisement In Georgia"

The ACLU has issued this press release.

" FEC Ruling on LLCs May Pave New Way for Donors"

Roll Call offers this report ($) on the Black Rock AO, which has now been issued. You can read it here. Footnote 1 says that the commission could not reach consensus on whether or not to apply the Emily's List case, given that it is not final, a good indication that there will not be four votes within the Commission to appeal that case further. (What the SG might do, however, is another matter.)
UPDATE: See also this post at WSJ's "Washington Wire."

"The Politics of (In)Justice"

Hans von Spakovsky has written this piece for NRO on the DOJ's section 5 policies.

"Why Citizens United May Not Be Like NAMUDNO"

Barry Friedman has this post on Balkinization. I've raised some similar issues here.

"Election Commission Decisions Deadlocking on Party Lines"

The NY Times offers this report.

"Leadership PACs Provide a Ticket to Luxury Lawmaking"

The Washington Post offers this report.

"Corporate Political Spending & Shareholders' Rights: Why the U.S. Should Adopt the British Approach""

Ciara Torres-Spelliscy has posted this draft on SSRN, to be presented at this conference.

"Overtime Chapter 4: In Minnesota's Coleman vs. Franken U.S. Senate race, the system worked. But here's how to make it better."

The Pioneer Press concludes its series on Coleman-Franken with a look at possible reforms.

The Other Questions Chief Justice Roberts Could Have Asked in Caperton

Many have noted Chief Justice Roberts' 40-question dissent in Caperton v. Massey. It came in for a lot of criticism at the recent conference on judicial elections I attended in Seattle, with one speaker (not me!) calling the dissent "sophomoric."

Well now John Elwood, writing in The Green Bag, lets us in on some additional questions (not heretofore seen) in the Chief's dissent: "The Chief's dissent listed 40 questions not answered by the majority opinion, ranging from 'How much money is too much?' to 'How many days after a date should you wait before calling?' and 'What color socks are you supposed to wear with khakis and oxblood loafers, anyway?'"

Suffice it to say, Justice Kennedy did not answer these questions in the opinion for the majority.

"Mass. judge rejects bid to delay Kennedy successor"

AP offers this report.

"Democrats are Jarred by Drop in Fundraising"

The Washington Post offers this report.

"A Belated Comment on Bauer's Critique of Justice Kennedy"

Steve Hoesting blogs.

GOP Seeks Injunction to Block Senator Kirk in MA

See here.

FEC Commissioners Speak Out

Chairman Walther has issued this statement on a possible appeal of the Emily's List case.

BNA reports ($) on interview with Commissioner McGahn: "A key Republican member of the Federal Election Commission said Sept. 24 that he feels vindicated by a new federal appeals court decision declaring that contributions to independent political groups are constitutionally protected and cannot be limited by the FEC."

I would not expect Commissioner McGahn to vote to appeal the Emily's List ruling. Indeed, it is hard for me to imagine 4 votes to do so. So we may be looking more closely at the question of the SG's ability to seek en banc review without a vote of a majority of the commission. From what I can tell from the input of others on the election law listserv, the SG has the ability to file a cert. petition without the approval of the FEC. But that may not be a wise move.

"Prosecutors Find Allies in Campaign Contributions Case Against Attorney"

The National Law Journal offers this report.

"ACLU Argues In Federal Court That South Carolina School Board Election Process Resulted In Racial Discrimination"

The ACLU has issued this press release.

Light Blogging the Next Few Weeks

I am drowning in work right now, mostly with reading assignments (including this). Blogging will be lighter than usual. For those on the election law listserv, two points: (1) my news and commentary may not appear, or may be late, some days. (2) if you pitch a link to me and I don't include it on the blog, you can always send it to the list yourself if you think it is of general interest.

Oh, and if you are going to write me an ode, next time please make it more ode-worthy and not simply an attack on Adam Winkler.

UPDATE: The "ode" post no longer appears at the Center for Competitive Politics site (but you can find it here cached by Google); it has been replaced with this post.

Quote of the Day

"I have previously communicated to ACORN my dissatisfaction with their lax supervision of employees and volunteers. The fact that people who were improperly registered to vote did not actually cast ballots in no way excuses the organization's failure to exercise better control in this way. Further, the motivation of those who went to ACORN offices and initiated the discussions involving prostitution are wholly irrelevant to the fact that ACORN's employees' actions were outrageous and further indication of an organization that is at best poorly run in many regards. The defense against sting operations is not to ban them, but to behave properly so that they do not reveal as they did in this case clear evidence of gross impropriety."

Rep. Barney Frank, a former supporter of the organization. ACORN now fights for its survival.

Covington's Latest Political Law Update

It is here, and includes a discussion of the "Emily's List" case.

Note to political law firms: if you produce an election-law-related newsletter that you want me to link to, send me a link to the document on your website and not a pdf. I will link to these, but won't post them myself.

"Like Hollywood, U.S. should update its voting system"

Blair Bobier has written this USA Today oped.

"Election Lawyers Cite D.C. Circuit Ruling In Calling for Resolution of Black Rock AO"

BNA offers this interesting report which notes how the Emily's List decision is already being felt at the FEC. The report notes that a new letter in the Black Rock AO controversy "came from prominent election lawyers, including some linked to Democratic candidates, unions, and liberal nonprofits generally supportive of Democrats. Signers included Michael Trister, Holly Schadler, and Laurence E. Gold of the firm Lichtman, Trister & Ross; Joseph Sandler, Neil Reiff, and James Lamb of Sandier, Reiff, & Young; and Patricia Fiori, Eric Kleinfeld, Margaret McCormick, Lyn Utrecht, and Karen Zeglis of Utrecht & Phillips. The letter from the lawyers identified with Democratic causes and candidates noted that their position was at odds with that taken in earlier comments filed by the national committees of the Democratic Party, as well as the reform groups Democracy 21 and Campaign Legal Center. The letter also noted concerns that the appeals court decision in the EMILY'S List case could provide much greater fund-raising clout to independent groups by allowing them to fund their activities with unlimited 'soft money.' Meanwhile, political parties continue to be governed by rules requiring them to use limited “hard money” contributions to finance their activities."

You can find the letter here.

UPDATE: I understand that these links are not working (this is often a problem with the structure of the FEC website). To find these materials go to www.fec.gov, then go to "Law and Regulations" on the left side, then choose "Advisory Opinions," and then choose "pending Advisory Opinions" near the bottom of the Advisory Opinions page. Black Rock (AO-2009-13) is at the top, and the letter I've referred to is currently the second to final item listed.

DOJ Appeals Euclid Decision

See here.

Institute for Justice Campaign Finance Cert. Petition to Be Considered Next Week

Here.

CORRECTION: IJ has sent out a correction that the case is NOT scheduled to be considered by the Court next week.

The Latest on the Mass. Senate Replacement Issue

Here.

Vote Nears on Temporary Replacement Senator in Mass.

See here.

"Ohio SOS Brunner rules State Sen. Husted is not a resident of his elected district"

The Examiner reports.

"The Rights of Corporations"

The NY Times offers this editorial.

"Judicial Campaign Speech Case May Be Destined for Supreme Court; Wisconsin justice faces sanctions for ad that may have gone too far."

The National Law Journal offers this report.

Winkler: Three Misconceptions in Citizens United

Following up on my invitation to some historians of corporate campaign finance limits to post on the historical record relevant in Citizens United, Adam Winkler sends along this guest post. It begins:

Thanks to Rick Hasen for inviting me to weigh in on the Citizens United case and the history of limits on corporate political spending. I've spent several years researching and writing on corporate political speech. In this post, I discuss three misconceptions about such limits that have been voiced during the Court's consideration of the corporate electioneering restrictions in Citizens United.

Read Adam's important post.

"Voting Machine Monopoly Threatens Elections"

Eliza's latest.

Robert Mutch on Citizens United the Prof. Hayward Brief, and the History of the Tillman Act

There was a great deal of interest expressed at oral argument in the Citizens United case over the history of Congressional regulation of corporations. The Chief Justice made specific reference to Allison Hayward's amicus brief during oral argument:

CHIEF JUSTICE ROBERTS: One of the amicus briefs, I'm not -- maybe it's professor Hayward, if I am getting that right -- suggested the history of this 1947 provision was such that it really wasn't enforced because people were concerned about the First Amendment interests and that the courts to the extent cases were brought did everything they could to avoid enforcing the limitations.

Seth Waxman also referred to the "sober minded Elihu Root," reflecting the reference to Root in the McConnell opinion.
I'm no expert on this history, but I wondered if some of what is in the Hayward brief is contested, and if more light could be shed on the historical record. So I've invited a few historians of the era to weigh in with some thoughts. I am very pleased that Robert E. Mutch, one of the leading historians of this history, has agreed to weigh in with a guest post.

To ease readibility, I've posted his thoughts at this link. It is a fascinating read. His contribution begins:

Rick has asked me to comment on Allison Hayward's amicus brief in Citizens United, in which she dissects the history of campaign finance law that Justice Frankfurter gave us in U.S. v U.A.W.

Allison is right to say that the history is flawed. It errs in getting historical facts wrong and in presenting a comforting, and misleading, vision of a politically unified Congress using calm reason to draft and amend campaign finance laws. Allison might also be right to say that the Court's extensive reliance on U.A.W. has obscured acts of political opportunism that occurred in the writing of those laws. But I can't go along with her when she says that the history of campaign finance regulation is one of partisans passing laws only as political weapons. The history of those laws is more complex and more interesting.

"Prisons Can Inflate Districts' Influence"

Tulsa World offers this report.

Richard Winger on the "Top Two" Primary in Sacramento Bee

See here.

Indiana Bar Association Not Happy with Gov. Daniels' Comments About Judge Deciding Voter ID Case

Following up on this post, see here.

"Action Seen on State Rules After Caperton But Impact of High Court Ruling Still Unclear"

BNA offers this report ($).

Washington Times Profiles Bob Bauer

Matt Mosk has written this extensive profile, which was likely completed before Bob won the "Emily's List" case, raising some very interesting issues for Pres. Obama and the Democrats.

More on Emily's List Decision

Coverage in

the NY Times

Washington Post

AP

CQ Politics

Washington Times

The Hill

Roll Call ($)

BNA ($)

Campaign Legal Center

Center for Competitive Politics.

The New DC Circuit Opinion in Emily's List, Citizens United, and the Role of Political Parties

At the oral argument in the Citizens United case last week, Justice Breyer asked the following question of Ted Olson:

JUSTICE BREYER: If that is so -- this is a point that is concerning me. I don't know the answer precisely. But suppose you are right. Suppose we overrule these two cases. Would that leave the country in a situation where corporations and trade unions can spend as much as they want in the last 30 days on television ads, et cetera, of this kind, but political parties couldn't, because political parties can only spend hard money on this kind of expenditure? And therefore, the group that is charged with the responsibility of building a platform that will appeal to a majority of Americans is limited, but the groups that have particular interests, like corporations or trade unions, can spend as much as they want?

It was an important question to ask, as the Court considers striking down limits on corporate and union spending. And today the stakes got even higher. In today's Emily's List decision of a D.C. Circuit panel, Judge Kavanaugh, for 2 of 3 judges on the case, enthusiastically follows the Supreme Court's deregulatory lead in crafting an opinion that essentially will allow individuals (and, I predict, eventually corporations and unions) to make unlimited contributions to political committees to fund independent expenditure campaigns. (The main reason we've seen the rise of 527s is that political committees, by statute, cannot accept more than $5,000 from individuals (and nothing from corporations and unions) to fund their federal candidate advocacy. If this ruling stands, there won't be much need for 527s anymore.).
If this opinion stands, coupled with an overruling of Austin and McConnell in Citizens United, political parties will be at a serious disadvantage. The Emily's List Court recognizes this point, and its response is--predictably---the need for more deregulation:

As some commentators point out, it might seem incongruous to permit non-profits to receive and spend large soft-money donations when political parties and candidates cannot. See Samuel Issacharoff & Pamela S. Karlan, The Hydraulics of Campaign Finance Reform, 77 TEX. L. REV. 1705, 1715 (1999). But this perceived anomaly has existed to some extent since Buckley, which recognized that contribution limitations "alone would not reduce the greater potential voice of affluent persons and well-financed groups, who would remain free to spend unlimited sums directly to promote candidates and policies they favor in an effort to persuade voters." Buckley, 424 U.S. at 26 n.26. And McConnell similarly took note of the fact that, even after that decision upholding regulations on contributions to parties, "[i]nterest groups . . . remain free to raise soft money to fund voter registration, GOTV activities, mailings,” and advertisements. McConnell v. FEC, 540 U.S. 93, 187 (2003).

If eliminating this perceived asymmetry is deemed necessary, the constitutionally permitted legislative solution,as the Court stated in an analogous situation in Davis, is "to raise or eliminate" limits on contributions to parties or candidates. 128 S. Ct. at 2774. But it is not permissible, at least under current Supreme Court precedents, to remove the incongruity by placing these limits on spending by or donations to non-profits.

This kind of situation, where parties are left back, is not going to stand before Congress, which will then relax the soft money rules. This is why I've recently referred to the "campaign finance end-game" that comes from the Supreme Court's unraveling of campaign finance law:

Even if the court restrains itself in Citizens United, the writing is on the wall: if the court's members remain the same, the corporate limits eventually will fall. After that, the court could strike down contribution limits to PACs and the ban on party soft money.

We are moving toward a deregulated federal campaign finance system, where money flows freely and perhaps only disclosure laws remain. It is a world in which those with more money use their considerable funds to elect candidates of their choice and to have disproportionate influence over public policy. The unlevel playing field awaits.

As with the reargument order in Citizens United, the decision today was an act of anti-avoidance. Judge Brown in her Emily's List concurrence notes that the issue can be disposed of without reaching the constitutional questions. The main opinion, however, shows a real desire to move this change in the law quickly, not incrementally. (For true campaign finance junkies, the most important part of the majority opinion is footnote 13, which in turn parses McConnell's footnote 48, about which I written extensively).

D.C. Circuit Decides Emily's List Case in 74 Page Opinion

You can find it here. When I've had a chance to read it, I will post some thoughts.

"Campaign Money And The Chief Justice"

Stuart Taylor this National Journal column.

"Indiana Court Strikes Down Voter ID Law"

The NY Times offers this report.

FEC Unanimously Dismisses Action Against Alaska Group, Citing as One Reason the Pending Citizens United Case

See here. (This was a 6-0 vote.)

"TREASURY DEPARTMENT ISSUES NEW POLICY FOR COMMUNICATIONS ABOUT TARP FUNDS"

A Covington e-Lert.

More Reactions to Indiana Voting Decision

Via email:

Today, Indiana Attorney General Greg Zoeller issued the following statement about the Indiana Court of Appeals' ruling in the Voter ID case:

"The Office of the Indiana Attorney General is appealing this case and will seek transfer to the Indiana Supreme Court. The State's long-held view is that the Voter ID law is constitutional, and we will vigorously defend the statute in arguing that position before the Indiana Supreme Court."

Governor Daniels "called the ruling 'transparently partisan', and promised an appeal. He said, 'It's a preposterous decision, an extreme decision and cam in this case from a judge who's been reversed before and I expect it to happen again.' The governor went on to call the ruling an act of judicial arrogance."

"Internet Voting: Formulating Structural Governance Principles for Elections Cybersecurity"

Candice Hoke has posted this draft on SSRN. Here is the abstract:

In Europe, the U.S., and Asia, political and market forces seek regulatory approval for Internet-based voting and electoral administrative tasks. Governmental responses have differed, but commonly governments omit Internet and computer security experts from exercising decisive weight in such policy decisions. Given its current architecture and engineering, the Internet provides neither high assurance data security and integrity, nor reliable information transmission protected from denial of service and other attacks. Nevertheless, pressures to expand Internet-based election functions continue. This paper proceeds from the premise that democratic nations have not yet posed the question of what foundational features should be required in an elections governance system that is using (or is pressured to deploy) computer and network technologies. The paper submits that election administrative policy decisions are gravely affected by an information gap regarding both Internet security risks and the availability of effective mitigations for these risks. The paper recommends disaggregating election tasks so that nuanced policy decisions can issue approving the Internet and other computer technologies for specific electoral tasks. It presents seven core understandings that election policymakers must master for capacity to evaluate the relative risks and benefits of proposed computer-based election technologies, including the Internet. It reviews exemplar vendor claims and marketing strategies that misinform policymakers, leading to porous balloting and the possibility of skewed or fraudulent election results. The risks to and profound need to safeguard democratic legitimacy where critical functions are conducted on computers or the Internet thus warrant transnational elections regulatory reassessment. The paper concludes by recommending that revised governance structures incorporate three fundamental principles: expertise in computer and network engineering and security, as well as election administration; transparency and public accountability, in order that the election system and reported results have legitimacy; and transnational cooperation among democratic republics, to facilitate prompt mitigations and criminal prosecution for attacks on election information systems.

"Indiana Secretary of State Todd Rokita Comments on Indiana League of Women Voters v. Rokita"

See here.

"Potential sale of Premier to ES&S raises antitrust questions, other concerns"

That's the lead story in this week's Electionline Weekly.

"Expand the House?"

The NY Times offers this report on a new lawsuit claiming that one person, one vote constitutional requirements require expanding the size of the U.S. House of Representatives.

I do not believe such a suit has any realistic chance of success.

Breaking News: Indiana Court of Appeal Strikes Down State Voter Identification Law as Unconstitutional

After the United States Supreme Court upheld Indiana's strict photo identification law for voting against a constitutional (equal protection) facial challenge, challengers to the law brought a new suit in state court.

Today, in a 29-page unanimous opinion, the Indiana Court of Appeals held the law invalid under the state constitution's provision guaranteeing equal privileges and immunities. The League of Women Voters, opposing the law, raised arguments relating to: "(1) the disparate treatment between mail-in absentee voters and in-person voters; (2) the disparate treatment between voters who reside at state licensed care facilities that by happenstance are polling places and elderly and disabled voters who do not reside at state licensed care facilities that also happen to be polling places; and (3) the requirements that an identification contain an expiration date and photograph is not reasonably related to the purpose of the statute."

The court concluded:

All qualified voters must be treated uniformly and impartially. We fail to see how the Voter I.D. Law's exception of those residing in state licensed care facilities, which happen to also be a polling place, would be a uniform or impartial regulation. Furthermore, the Voter I.D. Law treats in-person voters disparate from mail-in voters, conferring partial treatment upon mail-in voters.

It seems that the inconsistent and impartial treatment favoring voters who reside at state care facilities which also happen to be polling places could be excised from the Voter I.D. Law without destroying the primary objectives of the Law. However, the same cannot be said for the inconsistent and partial treatment favoring absentee voters who choose to mail their votes without destroying the opportunity for mailing votes. There may be different ways in which the inconsistent and partial treatment of the Voter I.D. Law could be cured, but it is not our task to form suggestions for legislation. See State ex rel. Indiana State Bd. of Finance v. Marion County Superior, 272 Ind. 47, 52, 396 N.E.2d 340, 344 (1979) ("Our constitution is clear that the judicial department cannot exercise any of the functions of either the legislative department or executive . . . ."). Therefore, we must reverse and remand, with instructions to the trial court that it enter an order declaring the Voter I.D. Law void.

I don't know much about Indiana courts, so I have no idea how this question will fare when, as I expect, Secretary Rokita appeals the decision to the state Supreme Court (because this raises only state constitutional issues, I very much doubt this case will end up at the U.S. Supreme Court). But if this ruling stands, it does show--as we saw a few years ago in Missouri, that the best chance of challenging voter identification laws appears to be in the state courts, under state constitutions, rather than in federal courts. Reverse parity, anyone?

"Dukakis ducks question of filling Kennedy seat"

The Boston Globe reports.

Wertheimer Responds to Will

Here, in the WaPo letters to the editor section.

"Sotomayor Issues Challenge to a Century of Corporate Law"

The Wall Street Journal offers this interesting report on a comment Justice Sotomayor made at the Citizens United reargument.

An Absolute Must-Read for those following Citizens United: the Untold Drafting History of Austin

I just came across Beth Garrett's article (52 How. L.J. 655 (2009)) in Howard Law Journal's symposium on the life and jurisprudence of Justice Marshall. Beth's article begins on p. 163 of the pdf and runs through p. 198. There has been a great deal of debate on this blog, on the election law listserv, and elsewhere over the "distortion" rationale offered for corporate spending limits in Austin v. Michigan Chamber of Commerce. Briefly, I and many others read it as an equality rationale, but SG Kagan specifically distanced herself from this rationale at the Citizens United oral argument, and tried to recast the argument as a shareholder protection rationale or something else.

Beth was Justice Marshall's clerk when he wrote Austin, and though I have pressed her for years for details about Austin's drafting, she has been pretty tight lipped. Until now. Footnote 70 of the article reads: ""I was the clerk with primary responsibility to work with Justice Marshall on this opinion. This description of the negotiations about the various drafts is based on my recollections and personal notes, as well as on documents available from the Marshall papers at the Library of Congress." The drafting history of Austin runs from pdf 177 to 186 in this draft. Here are just a few highlights:

As I will discuss below, and as others have pointed out, this idea of corruption caused by the potentially "corrosive" and "distorting" effects of campaign expenditures of corporations from their general treasury funds is hard to understand sensibly as anything other than an equality argument. However, the Justice had no choice but to draft the opinion as he did, even if he might have been comfortable with more openly embracing equality of access as the compelling interest, for two related reasons. Before describing those reasons, let me be clear: I am not claiming that the Justice considered, and then rejected, writing an opinion finding the Michigan law constitutional because it furthered the legitimate democratic interest in equality of opportunity to participate in the political process, regardless of a person's economic resources.70 Rather, I am arguing that the Justice would not have been disturbed by the observation that the corruption rationale in Austin was merely the wolf of equality dressed in sheep's clothing. Moreover, had Marshall thought that Austin might someday lead the Court to embrace an equality of opportunity rationale explicitly--a development that has yet to occur and seems less likely with the current Court--he would likely have approved....
While assisting the Justice with this opinion and others from that term, I grew to admire Marshall's political skill and ability to make pragmatic changes in opinions to preserve his majority. Austin was an example of this; Justice Marshall would have viewed it as irresponsible to write an opinion that boldly staked out a rationale based on equality that no one other than perhaps Justice White would have even considered joining. But, as often occurs when compromise is necessary to achieve a result, the rationale of the opinion which ultimately garnered six votes is unsatisfactory and at times incoherent. To understand why this is so, it is necessary to probe the reasoning supporting the political corruption that Marshall's opinion introduced into the campaign finance jurisprudence.

Marshall's majority opinion identified a "different type of corruption" from Buckley's quid pro quo corruption: "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."90 It is interesting -- and not coincidental91 -- that "corrosive" and "distorting" were adjectives used several times by Judge J. Skelly Wright in his often-cited article Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?92 Wright's argument was unabashedly egalitarian. ...The Austin opinion does not cite Wright and eschews the enhancement theory also rejected in Buckley, but the adjectives used throughout Marshall's opinion draw from Wright's article and seem best suited to describe reform efforts designed to provide equality of access to the political arena for all citizens, regardless of their wealth. Thus, Marshall appropriated the language used to describe an egalitarian justification for campaign finance regulation, but he expressed that state interest in the acceptable corruption terminology....
In short, in Austin Marshall valiantly tried to articulate a state interest supporting the regulation of corporate expenditures in candidate elections that was somewhat consistent with the traditional quid pro quo corruption accepted by a majority of the Court. Close examination of the Austin corruption rationale demonstrates that it is not
persuasive on its own terms, but it is coherent if understood as an argument supporting regulation to better ensure equality of participation in campaigns for all Americans, no matter what their economic resources. Marshall masked this equality principle in order to maintain his majority, but it clearly animated his decision, and it flowed naturally from his conviction that the preeminent constitutional value was equality of opportunity.

Read the whole thing. Thank you Beth.

Government Appeals Pierce O'Donnell Case

The National Law Journal story is here.

The government's brief is here.

My earlier coverage is here.

Has Austin Been Overruled?

A website dedicated to the answer (and apparently nothing else).

Colbert on Citizens United

In the interest of equal time, listen to Colbert's "The Word" about Citizens United (about 4 minutes into the video).

C.E. Petit on Redistricting (and the Champaign County Clerk)

Here, at "Scivener's Error."

"Votes are lined up to appoint a senator"

The Boston Globe offers this report.

When You Lose Jon Stewart....

The Daily Show on ACORN. Stewart: "ACORN appears to be a corrupt organization that aids and abets criminals and gets millions of dollars in taxpayer money."

It is hard for me to see ACORN remaining a major player in voter registration issues going forward, even though this controversy has nothing to do with voter registration.

Champaign County Clerk Continues Blogging Against Democracy Index

The latest installment is here. I understand there will a series of posts over the next few weeks for those interested (I don't plan on further linking at this point).

"Charges dropped against city councilman"

Readers who've been following the travails of the Clarksburg, West Virginia city council candidate arrested before the election and charged with distributing anonymous campaign literature will be interested to know that the charges were just dismissed, though without prejudice to refile. "Reached afterward, the Marion County assistant prosecutor said he had made the motion [to dismiss] based on his 'interpretation of the statutory language, the fact no expressed advocacy was contained in the language (of the newsletter) itself. And, I think we were going to have a difficult time with the prosecution of the case.'" The Exponent article also quotes the candidate as saying: "sometimes it's wise to let the prosecuting attorney people look into the facts before arresting someone the night before the election."

Thanks to Robbin Stewart for keeping on top of this story.

von Spakovsky in Faux Movie Review of CU Oral Argument: SG Kagan's Performance "Lacked Depth and Sophistication"

See here.

"Election Task Force Members Warn of Problems with State's Help America Vote Act Implementation"

Demos offers this press release.

"Documenting Disfranchisement: Voter Identification at Indiana's 2008 General Election "

Mike Pitts and Mathew Neumann have posted this draft (forthcoming, Journal of Law and Politics) on SSRN. Here is the abstract:

This article presents and examines previously unavailable data regarding the extent to which Indiana's photo identification requirement prevented prospective voters from casting a countable ballot at the 2008 general election. The article presents research that shows more than a thousand persons went to the polls and cast a provisional ballot due to a lack of valid identification and that the vast majority of those provisional ballots went uncounted. Thus, this research helps fill a gap in the plaintiffs' case in Crawford v. Marion County Election Bd, 128 S. Ct. 1610 (2008) where the plaintiffs challenging photo identification were criticized for their failure to generate firm evidence of disfranchisement. In addition, when viewed in conjunction with previous research from Indiana’s 2008 primary election, this research provides the first opportunity to search for trends in the operation of photo identification. Moreover, the research presented here allows for a comparison of the impact of Indiana's voter identification law with the impact of voter identification laws in other States and shows Indiana to be among the Nation’s leaders in rejecting provisional ballots for lack of valid identification. Finally, the research presented here has implications for the larger debate generated by Yale’s Heather Gerken about creating a Democracy Index that leads to data-driven election reform because it demonstrates the barriers to gathering data about photo identification and, therefore, highlights what might be a significant hurdle to creating a viable, credible Democracy Index.

"How Liberals Can Win by Losing at the Roberts Court"

I have written this piece for Slate. It begins:

At the recent Supreme Court oral argument in the Citizens United case, about the constitutionality of limits on corporate spending in elections, new Solicitor General Elena Kagan gave a refreshingly honest answer to a question by Chief Justice John Roberts: "If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes."

Across liberal public interest law firms, in the Department of Justice, and at civil rights organizations, that answer surely resonated. The fact is that since Justice Sandra Day O'Connor's departure, as the court has moved sharply to the right, the question for liberals with cases before the Supreme Court often is not whether the left will lose but how it will lose. It turns out that some ways of losing are worse than others. In short: Broad, constitutional holdings that shut down entire lines of cases in all federal and state courts are much worse than narrower rulings that leave open future litigation and put off larger questions for another day. So among liberal advocates, countless hours are spent strategizing over how to lose well at the court.

"Finance Case Renews Focus On Precedent; Roberts, Alito Pledged Deference; Activists After All?"

The Los Angeles Daily Journal offers this very interesting report ($) on Citizens United and the stare decisis attitudes of Chief Justice Roberts and Justice Alito. UPDATE: Courtesy of How Appealing, you can now read this article without a subscription here.

"Sandra Day O'Connor: End judge elections in Wash."

AP offers this report about Justice O'Connor's comments at a very interesting Seattle University event that I attended yesterday on judicial selection mechanisms. It was particularly interesting to hear the perspectives not only of Justice O'Connor, but of Chief Justice Alexander (of Washington State), Chief Justice Abrahamson (Wisconsin), and Chief Justice Wallace Jefferson (Texas). (I had to miss the last session, which featured more jurists and others to catch the last flight home to Burbank.) I hope the video of this event gets posted soon, and if it does, I will link.

I was on a panel with Bert Brandenburg, Andrew Siegel, and Kathleen Sullivan talking about the Caperton case. (My prepared comments are here.) It was a somewhat surreal experience to sit next to Kathleen (usually an ardent opponent of campaign regulations aside from disclosure) to hear Kathleen call for consideration of a ban for everyone on independent spending in judicial campaigns, and to hear me play the Kathleen role in raising incumbency protection and other first amendment issues in questioning that call. In any case, it was a great discussion.

Kudos to the organizers of this terrific event.

"Congress Can Better Voter Registration"

Marc Elias and Trevor Potter have written this piece originally appearing in Roll Call.

There is at least one dissenter from the call for modernization.

Not Everyone is Happy with Diebold Sale of Voting Machine Business

Senator Schumer wants a DOJ investigation.

Hart Intercivic has filed an antitrust action.

And Ohio ponders life with a single voting machine vendor.

"Electoral Laws and Turnout: 1972-2008"

Jan Leighley and Jonathan Nagler have posted this draft on SSRN. Here is the abstract:

In this paper we examine the impact of electoral laws on overall turnout, and class bias in the electorate. We look at the impact of changes in registration laws on who votes, with particular attention to the discriminatory impact of legal changes on persons at different segments of the income distribution. By aggregating turnout for different demographic groups - persons with different levels of education and income - by state, and then pooling those state level turnout rates over time, we can use cross sectional time series analysis to estimate the impact of electoral reforms. This gives us much more powerful estimates of these effects than were previously available. We do not suffer from the problems of cross-sectional analyses which rely on the assumption that the choice of electoral regime is independent of the likelihood of voting. And by using all presidential elections from 1972 thru 2008 we have much more statistical power than has been provided by previous analyses simply looking at difference of means tests across two elections. We consider the impact of: the number of days prior to election day that registration closes; the availability of election day registration; the availability of early voting, and the availability of absentee voting.

Brown, Garrett, Karlan, and Olson on the Upcoming Supreme Court Term

This event at USC Law looks like it would be a lot of fun.

Jonathan Adler on Citizens United, New Supreme Court Term

Here, at NRO.

"District Judge Expected to Find Facts, Pass SpeechNow.org Case to D.C. Circuit"

BNA offers this report ($).

"Senate Votes to Bar Funding for Acorn"

This item appears at the NYT's "The Caucus" blog.

Justice Scalia, Faux Judicial Restraint, and Real Judicial Restraint in Citizens United

I have always been a fan of Justice Scalia's opinions, even when I don't agree with them. They are witty and well-argued, though they can be caustic. The best feature is that the Justice calls them as he sees them. In his dissent in the 1990 Austin case, he began: "'Attention all citizens. To assure the fairness of elections by preventing disproportionate expression of the views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate: ___' In permitting Michigan to make private corporations the first object of this Orwellian announcement, the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe."

Similarly, in his concurrence in the Wisconsin Right to Life case, Justice Scalia denounced Chief Justice Roberts' opinion as effectively overruling the McConnell case without saying so. "This faux judicial restraint is judicial obfuscation."

So I was somewhat surprised to hear Justice Scalia's repeated line of argument at the Citizens United reargument (transcript) that the requirement that corporations pay for federal-election related expenditures is not flat-out unconstitutional (as Justice Scalia has repeatedly said in the past) but perhaps merely "overbroad," because it includes non-wealthy corporatons. Ned Foley thinks this line of argument is promising, because it will allow for new line-drawing by Congress and state legislatures in the event Austin is overturned.

Contrary to Ned, I believe a ruling overturning Austin on the "narrow" grounds of overbreadth would be, to use Justice Scalia's own words, faux judicial restraint that obfuscates what the Court is really doing. Its purpose would be to blunt the force of an overruling of Austin through the claim that it is a mere remand to Congress to rewrite the statute more narrowly. Nonsense. In the event that Congress overcomes the political obstacles to passing a new 441b targeted only at wealthy corporations, there's little doubt that the revised statute would then be struck down as unconstitutional, because targeting wealthy corporations would run afoul of what the Court majority would see as an improper attempt to equalize spending on elections in violation of the First Amendment. If that's what the majority thinks now, it should say it now and not obfuscate with a point about overbreadth. It should have to pay the political price for such a drastic holding.

If Justice Scalia were serious about real judicial restraint, he should consider application of the doctrine of constitutional avoidance to this case. and hold that video-on-demand is not covered by the McCain-Feingold law (thereby avoiding ruling on the constitutional issue). What does that doctrine require in Citizens United? Consider these words:

the canon of constitutional avoidance "is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts....If [one of two plausible statutory constructions] would raise a multitude of constitutional problems, the other should prevail---whether or not those constitutional problems pertain to the particular litigant before the Court.

And this:

The doctrine of constitutional doubt does not require that the problem-avoiding construction be the preferable one--the one the Court would adopt in any event. Such a standard would deprive the doctrine of all function. "Adopt the interpretation that avoids the constitutional doubt if it is the right on" produces precisely the same result as "adopt the right interpretation." Rather, the doctrine of constitutional doubt comes into play when the statute is 'susceptible of' the problem-avoiding interpretation--when that interpretation is reasonable, though not necessarily the best.

The author of these statements? Justice Scalia. If he takes these statements seriously, this is an easy case. The constitutional issue should not be reached.

"Free Speech, Now that Speech is Free"

L. Gordon Crovitz has written this WSJ oped.

"Census Bureau Cuts Off ACORN for 2010"

Time offers this report, which is related to this controversy described in the Washington Post. See also ACORN's response [though ACORN's website for now appears down].

"Commentary: Justice Department change is a welcome one"

Paul Butler has written this piece for McClatchy.

"Irving council district plan has a ways to go before it's absolutely settled"

The Dallas Morning News offers this report.

"PAPERLESS ELECTRONIC ELECTION UPHELD BY GERMAN SUPREME COURT"

William Kelleher has this column at Op-Ed News.

Jeff Rosen on Citizens United, Chief Justice Roberts, and CJ Earl Warren

This NY Times column from today's newspaper reminds me of this Linda Greenhouse NYT oped from January. Different case, similar argument. Who knows? It worked before.

Yes, You Too Can (Apply to) Redistrict the California Legislature!

Read all about it. It helps you if you know how to use sophisticated computer programs and have not been engaged in political activities. Maybe we should just use a computer to redistrict, as Sam Issacharoff suggested years ago.

BLT on CU

See Justice Stevens and the NRA and The Citizens United Argument, By the Numbers. (Has anyone done these calculations for NAMUDNO?)

Schlozman Not to Be Prosecuted for Perjury

The following release from Senator Schumer's office just arrived via email:

U.S. Senator Charles E. Schumer (D-NY) released the following statement Friday after the Justice Department declined to overturn a decision by the previous administration not to prosecute former Justice Department official Bradley Schlozman for perjury. Under questioning by Schumer at a 2007 Senate hearing about politicized hiring at the Justice Department, Mr. Schlozman provided responses that an independent investigation later determined were untruthful. In spite of that finding, the Bush administration declined to prosecute Schlozman, prompting Schumer to request in January of this year that the matter be reviewed.

"This is a very disappointing decision. Perjury is often a close call, but in this case it wasn't. Mr. Schlozman was way over the line."

--U.S. Senator Charles E. Schumer

"When an Election is Not Just an Election: Caperton and the Future of Judicial Election Regulation"

On Monday I will be speaking on a panel about Caperton v. Massey at a Seattle University School of Law conference, "State Judicial Independence--A National Concern."

Here are my prepared remarks.

Don't Modernize My Voting System, and Don't Give Me Data I Don't Want

Mark Shelden, the Champaign County (IL) Clerk, comes out hard against voter modernization and the Democracy Index.

Black Panther Voter Intimidation Issue Continues to Percolate

Via Jonathan Adler comes this Washington Times report, which begins: "The Justice Department's Office of Professional Responsibility has begun an official inquiry into the dismissal in May of a civil complaint against the New Black Panther Party and two of its members who disrupted a Philadelphia polling place during the November general elections."

"Judge shields signatures in gay-rights referendum"

The Seattle Times offers this report about this ruling of the federal district court. Eugene Volokh is unpersuaded:

That reasoning strikes me as unpersuasive, for the same reasons I mentioned in late July; I don't think that secrecy of signatures is constitutionally mandated by the First Amendment, just as I don't think that a secret ballot is constitutionally mandated by the First Amendment. True, the anonymous speech precedents bar the government from requiring that people sign their political statements. But political statements are just speech. Signing an initiative, referendum, or recall petition is a legally operative act -- it helps achieve a particular result not just because of its persuasiveness, but because it is given legal effect by the state election law.

Pioneer Press Running Extensive Series Called "Overtime" on Coleman-Franken Race

You can find the beginning of Part I here and the beginning of Part II here.

This looks like it might be a serialized version of a book, but it is unclear from the newspaper's website.

Very Interesting Results of Some Election Reform Survey Questions in Latest PPIC Survey

The survey is here. Some selected questions and answers in this new survey of California voters:

22. Some people have proposed changing California's state primary elections from a partially closed system to a system where registered voters could cast ballots for any candidate in a primary and the top two votegetters-- regardless of party--would advance to the general election. Do you think this is a good idea or a bad idea?
70% good idea
23 bad idea
7 don't know
... 25. On another topic, overall, do you think public policy decisions made through the initiative process by California voters are probably better or probably worse than public policy decisions made by the governor and state legislature?
56% probably better
28 probably worse
5 same (volunteered)
11 don't know
...

Reforms have been suggested to address issues that arise in the initiative process. Please say whether you would favor or oppose each of the following reform proposals.

26. How about increasing public disclosure of funding sources for signature-gathering and initiative campaigns?

81% favor

14 oppose

5 don't know


27. How about a period of time in which the initiative sponsor and the legislature could meet to see if there is a compromise solution before initiatives go to the ballot?

80% favor

15 oppose

5 don't know


28. Next, as you may know, the state currently operates under a constitution adopted in 1879 that has been amended many times since then through ballot propositions passed by the voters. Overall, do you think
the California Constitution needs major changes or minor changes or is it fine the way it is?

33% major changes

36 minor changes

24 fine the way it is

7 don't know

"Corporations Aren't People"

Jamie Raskin has written this piece for NPR.org. UPDATE: I've just learned of Brad Smith's counterpoint to this piece.

"Skeptical SCOTUS in finance hearing"

Politico offers this report.

"The Nation's First Democracy Index"

Following up on this post, Heather Gerken blogs at Balkinization.

"If California Republican Party Excludes Independents from Voting in its Primaries, Voting Rights Act May Interfere"

Richard Winger has this interesting post at Ballot Access News.

Dahlia Lithwick's "Supreme Court Dispatch" from Citizens United

Don't miss it.

Democracy Index, Weekend Voting, Universal Voter Registration: Coming to NYC?

See here.

Call for Papers: "Voting 45 Years After the Voting Rights Act"

The Saint Louis University Public Law Review asked me to post this call for papers.

"Kerry Joins the Call for Interim Senator"

The Boston Globe offers this report.

"The Business of Voting Machines"

The NY Times offers this editorial.

Top Two in California Update

With word that some prominent California Democrats are going to support the 2010 ballot measure establishing a top two primary in California, comes additional news that the state GOP is now considering closing their primary to independents (technically "decline to state") voters.

Abel Moldanado, the state Republican legislator who required the legislature put the "top two" measure on the ballot as a price for his support for last spring's budget deal, sent this letter to AG Brown on the subject.

More Citizens United News and Commentary

Roll Call

Ned Foley (I am swamped preparing for my next conference, etc., but I really want to write a response to Ned and hope to do so in the next few days)

BNA ($)

Text and History

Orin Kerr

Adam Bonin

The Economist

CQ Politics

USA Today

LA Times

NPR

WSJ (and see here)

Transcript, Audio, News Stories, Press Releases

Here is the transcript of today's reargument. Here is the audio.

NYT

WaPo

SCOTUSBlog (expanded discussion)

The Hill

BLT

Washington Times

To the Point.

AP

CQ

Institute for Justice

Center for Competitive Politics

More to come.

Answering Citizens United Questions at Politico's Arena

Starting in 15 minutes here. UPDATE: You can read the archived chat here.

Initial Thoughts on the Re-Argument in Citizens United

As I noted, I cannot with confidence make predictions about the outcome of the Citizens United case based on oral argument questions, given the recent experience in NAMUDNO in which CJ Roberts and Justice Kennedy seemed sure votes to overturn section 5 of the Voting Rights Act but did not. But there was absolutely nothing in the Citizens United oral argument questions of the two likely "swing justices" in this case to give any comfort to those who believe that Congress should have the power to limit corporate spending in candidate elections.

It was a hot bench, with every Justice besides Justice Thomas asking numerous questions. (Justice Thomas is the Justice taking most deregulatory position in campaign finance jurisprudence, so his vote is not in doubt.) From oral argument, the Court lines up 5-4. Justices Breyer, Ginsburg, Sotomayor and Stevens were looking for a way to decide this case without reaching the constitutional question. There are at least three possibilities here: (1) expand the MCFL exemption; (2) construe BCRA so that the Snowe-Jeffords amendment applies; or (3) as Justice Sotomayor suggested, construe the statute on one of the statutory bases to avoid the constitutional question. (One possibility---the one I think most likely for at least some Justices--is to say that McCain-Feingold does not apply to video-on-demand.)

On the other side, we have the three Austin dissenters---Justices Kennedy, Thomas, and Scalia---who gave no reason to believe they would switch their votes now to save Austin [CORRECTION: Thanks to a reader for pointing out that Justice Thomas was not on the Court in Austin. He dissented on Austin's vitality in the McConnell case.]. Chief Justice Roberts and Jutice Alito's questions were uniformly hostile toward the government. One could almost hear the gears turning in the Chief Justice's head, as he got the government basically to admit it was abandoning the Austin distortion argument and relying on two new arguments which had never been accepted by the Court in the context of independent corporate spending: shareholder protection and preventing quid pro quo corruption. As I've written, I believe the concession is a strategic error. It would allow the Chief now to write an opinion that does not address the equality question head on, and make it clear what the Court is doing. He can simply say that the government has abandoned the issue and so the Court need not address it. Still Waxman pushed it a bit, so hopefully the Court will at least address it in its opinion. (If the Court overturns Austin, I would like a clear statement from the Court---so the public understands---that the public lacks the power to say that the vast inequalities in wealth in this country (particularly corporate wealth) which are a necessary part of the free market allow for limits on corporate candidate-election-related spending so that disparities in electoral power don't translate into inequalities of political power.) Justice Alito too, who has expressed a desire to have a full airing about whether stare decisis should apply to Supreme Court precedents, did not seem too bothered by overruling a 1990 and 2003 case. He bristled when being told he would be overruling 50 or 100 years of precedent. The Chief also did not see a reason to go with expanding MCFL over an overruling of Austin. I did not hear him, or Justice Scalia who mentioned constitutional avoidance, give any kind of indication as to why the constitutional avoidance doctrine should not apply to a case like this, as it did in NAMUDNO. If the Court ultimately backs away from the constitutional holding, it could well do so on avoidance grounds.

A few notes about the oral advocates. All four did an excellent job. I think Abrams and Waxman were somewhat less effective because they had only 10 minutes to make their points and they got bogged down by the hot bench. Olson was outstanding as I expected, especially on rebuttal. He was able to use the government's concessions---necessary on the book banning issue because of the earlier oral argument---to his advantage, by raising the specter of a government censor that changes its positions at its whim. Kagan was also outstanding. I was concerned about this being her first argument, as this case is exceptionally difficult, even for election law cases. But she proved to be a natural advocate. She had a great conversational style and was effective but respectful.

Finally, Justice Sotomayor asked the questions I would have asked, and seems likely to be a very strong replacement for Justice Souter on campaign finance issues. She too sounded like she was a seasoned veteran on the Court.

Regardless of how this case comes out, this was an excellent argument all around and a joy to listen to.

Live Blogging the Audio Release of the Citizens United Re-Argument

[UPDATE: With the argument broadcast now complete, you can read my Initial Thoughts on the Citizens United oral argument here.]

I will update this post throughout the morning as the audio is released. Refresh your browser or click here to see the updated post.

A few thoughts/notes in advance of the argument.

1. The argument is scheduled for 80 minutes. If it ends on time, it concludes at about 8:20 am Pacific, and the audio will be released probably within 15 minutes or so of the end of argument. It will be on C-SPAN. When I can find a better link, I will post it.

2. My "resources and roundup" post from yesterday with relevant background is here. My NYT "Room for Debate" post from last night is here. Howard Bashman has an updated roundup this morning.

3. Even though Chief Justice Roberts and Justice Alito are the swing justices in this case, I will not predict that Austin and McConnell will be overruled no matter how hostile these Justices' questions are. Most election law observers who heard the oral argument in NAMUDNO predicted that section 5 of the VRA would be struck down based upon CJ Roberts' and Justice Kennedy's comments at oral argument. And we know that's not what happened at all. I think that the Chief sees oral argument as an opportunity to air some issues and get out his true thoughts---writing an opinion for the Court, however, is another matter entirely. We'll have to wait for the opinion. (By way of reference, McConnell was argued in early September 2003 and the opinion issued early December 2003. That case had many more issues and was much more complicated, however.)

4. What to listen for? Expect Ted Olson to raise the "book banning" issue that came up in the last argument. Listen for how SG Kagan responds. We'll have to see how much Justice Sotomayor is willing to mix it up on her first day of oral argument. I'm especially interested to see how much play the Austin distortion rationale gets: will Seth Waxman bring it up? Will Kagan distance herself from the classic understanding of Austin?

5. After the live-blogging ends I am scheduled to be on PRI's To the Point and then answering reader questions at noon Pacific (3 Eastern) at Politico's Arena.

And now we await the main event....

Please forgive any typos and errors that will follow.

8:20 You can watch here an earlier ACS forum on Citizens United. This should be the same link for the oral argument release.

8:24 While we are waiting, here are Michael Kang's thoughts on the case.

8:25 AP reports that "In the arguments Wednesday morning, newly seated Justice Sonia Sotomayor jumped right into the questioning."

8:37 Still waiting for audio release. Not clear if arguments are over yet.

8:43 C-SPAN 3 is still showing pictures of Justice Sotomayor's ceremony yesterday.

8:44 C-SPAN 3 reports that the arguments wrapped up about 5 minutes ago (not clear if they went over the 80 minutes allotted or whether things started late). They still promise audio soon.

HERE WE GO.

8:50 Olson is up. He mentions the distortion rationale. He says that the government abandoned the idea, which would allow the banning of books. He's wrapped both themes in his introduction.

8:54 Justice Ginsburg probes about corporate first amendment rights. She pushes hard on whether or not there are foreign owned corporations. Olson says that the first amendment applies, and then the question is applying strict scrutiny. This was a good answer by Olson

Justice Scalia asks if Congress can prevent foreign individuals from spending? Olson says he has not studied it. Justice Stevens pushes corporate/person issue. "Can there be any case?" Olson would not rule that out.

Justice Alito asks about whether media corporations owed by foreign owners would have different first amendment rights than those owned by U.S. owners? (This is a very telling question from Justice Alito, suggesting he is not bothered by the foreign spending in the election context.)

8:59 Justice Ginsburg pushes back against Olson saying that corporations are "banned" from spending. She talks about the PAC requirement.

Justice Breyer asks about the constitutionality of contribution limits. Breyer then says that the anti-corruption interest which applies to limit contributions applies as well to limit corporate spending on electioneering communications.
Olson responds by citing Buckley's statement that independent expenditures cannot corrupt and violate the First Amendment.

Justice Kennedy: Government wants to water down distinction between contributions and expenditures. He asks whether as a practical matter independent corporate spending supporting a candidate works the same as a contribution.

9:05 Lyle Denniston, who has heard the entire argument at the Court (93 minutes long), writes at SCOTUSblog: "If supporters of federal curbs on political campaign spending by corporations were hoping that Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., would be hesitant to strike down such restrictions, they could take no comfort from the Supreme Court’s 93-minute hearing Wednesday on that historic question. Despite the best efforts of four other Justices to argue for restraint, the strongest impression was that they had not convinced the two members of the Court thought to be still open to an exercise in modesty. At least the immediate prospect was for a sweeping declaration of independence in politics for companies and advocacy groups formed as corporations."

9:06 Question (from CJ Roberts?) on Bellotti/Austin distinction.

9:10 More discussion about Austin/Bellotti/magic words.

CCP has issued this statement.

9:12 J. Breyer: Would overruling Austin and McConnell leave us in a situation where corporations and unions can spend whatever it wants, but that political parties cannot? (I think the answer that the conservatives will give, as I suggest here that the next step will be for the court to strike down the soft money rules.) J. Breyer says that this would make a "hash" of the statute, to keep soft money limits in place, but to get rid of corporate limits.

9:15 Justice Sotomayor's first question, and it is my favorite so far: Why not avoid the constitutional question through statutory interpretation? Further, why reach the constitutional issue when the constitutional issue was not fully explored below?

9:15 Olson is finishing up. J. Stevens wants to hear on rebuttal about theNRA's brief. C.J. Roberts gives more time. Olson says any line drawing puts the speaker in peril.

9:19 Abrams is up.

9:21 Abrams leans heavily on NYT v. Sullivan as a first amendment precedent. J. Ginsburg goes to stare decisis. J. Scalia separates two ssues: (1) avoiding constitutional questions and (2) stare decisis (respect for precedent). Abrams argues on stare decisis that Austin was the outlier, so it should be overruled.

9:26 J. Sotomayor: legislatures have been trying to strike a difficult balance in this area. Once we apply strict scrutiny, would be be cutting off that future democratic process? You are suggesting that the courts, which created corporations as persons, could be doing more harm than good in a case that doesn't involve business corporations, and not even a typical non-profit, but an advocacy corporation.

9:30 SG Kagan is up. Kagan says that the Court had many opportunities to overturn corporate limits, but it has never done it. J. Scalia pushes back on this point. "We only disapprove of something when someone asks us to." Kagan: many litigants brought such cases, but the Court has not overruled. J. Kennedy says: this is an expenditure case, so the 100 years of contribution limits, doesn't help.

Kagan said she had three points. The justices won't let her get out of the first. Stevens: what about Snowe-Jeffords? Kagan: this is an atypical plaintiff. This is an ideological plaintiff. CJ Roberts asks if this is abandonment of argument that MCFL does not apply? Kagan: MCFL as written does not apply, but Court could adjust MCFL. (Mickey Kaus would be happy.) But this would require a remand.

Kagan: FEC has no objection to expanding MCFL . Roberts: you are giving up your MCFL argument just because we asked for reargument? CJ Roberts: why prefer overruling MCFL over Austin? Kagan gives great answer right back in Roberts' face: go with as-applied over facial challenges. Kagan says, frankly and refreshingly, that if we lose we prefer to lose narrowly.

9:37 Kennedy asks whether to hold that non-profits could be exempted. Would that be substantially overbroad? Kagan worried about conduits.

Stevens wants exception for ads paid for by individuals, even if from corporations. This is stripping Wellstone.

9:40 Mark Ambinder blogs on case.

Here is a key exchange:

9:41 CJ Roberts: You've relied on quid pro quo corruption, an interest that has not been accepted as compelling interest in independent expenditure context. Have you abandoned Austin's distortion? Roberts: Where in your supplemental brief do you support the interest that was articulated by the interest in Austin? Kagan: Shareholder protection and distortion of the shareholder's money. Roberts: This is different in that it distorts the marketplace. Roberts: Am I right that you don't rely on the market distortion issue in your brief. Kagan: we don't take Austin to be about an equalization of the speech argument. We do not rely at all on that. (Wow. This is a big deal for reasons I've suggested. Let's see if Waxman defends it.)

9:44 Scalia: if these are the interests, isn't this vast overbreadth? Think of small corporations, etc.

9:47 J. Alito asks about experience in states with no corporate limits. Are they corrupt? Kagan says that Congress's judgment is more important. J. Scalia says the problem is incumbency protection in Congress.

9:51 Discussion of shareholder protection, overbreadth

9:53 Kagan is very effective as an oral advocate. It is hard to believe this is her first appellate argument in any court. She goes toe-to-toe with Justice Scalia. It is very hot bench. I don't like the choice she made about Austin distortion, but this was a strategic choice, not a blunder. So far, unless I've missed it, she has not been asked the book banning context.

9:55 CJ Roberts asks whether the shareholder rationale assumes that shareholders are stupid. The government, "big brother," must keep an eye on my interests. Kagan: busy shareholders who own stock in mutual funds, does not have time/energy to keep a check on this.

J. Ginsburg says that it is different in the union context, because of the right of union members to get money back. Ginsburg: Should unions be taken out of BCRA for this reason? Kagan: government has an anti-corruption interest here, not a shareholder protection point.

Comments from Senators McCain and Feingold on oral argument quoted here.

9:59 CJ Roberts comes back to understanding what Austin means. Roberts asks for a page citation where in Austin there is shareholder protection? He pushes Kagan very hard on this point. "You are asking us to ... continue the Austin opinion on the basis of two rationales we have never accepted, shareholder protection and quid pro quo corruption." Kagan: What has changed since that time is the BCRA record about quid pro quo. Is that a "yes"?

Wow. What a hot bench. The Justices are fighting to get their questions out. Kagan is concluding. Waxman is about to come up?

Ginsburg asks Kagan: what about the book banning? Kagan: The government's answer has changed. BCRA s 203 does not apply. 441b does apply on its face to other media. We took the Court's reactions at the last argument very carefully. The government's view is that 441b as written covers books, but there would be a strong basis for an as-applied challenge in that context. And it has never been at issue before FEC in 60 years. (J. Scalia asks about overbreadth again.)

CJ Roberts: "We don't put our First Amendment rights in our hands of FEC bureaucrats. What about a pamphlet?"

Alito: What if you could view it for free on the Internet? Get it from Netflix? In light of your retraction, I have no idea where the government would draw the line. Which could be covered and which could not?

Scalia: Is your client going to be covered by the fact that he likely won't go to jail if he publishes the book?

Waxman is up, for the BCRA sponsors.

CJ Roberts looks at history of regulation as cited in Allison Hayward's amicus brief.

More talk of history. Waxman only has 10 minutes of argument. He may not be able to get much more out than the reference to the "sober minded Elihu Root."

He's using Root to make the distortion rationale.

Scalia says most corporations are not wealthy.

Waxman: small corporations can try to bring an as-applied challenge in such circumstances.

J. Kennedy: history applies to contributions, not expenditures.

Waxman: Corporations do speak on ballot measure issues, and thanks to WRTL, there's lots that corporations can say in candidate campaigns.

Justice Alito: Saying 100 or 50 years of history is a "sound bite." The only question here is about overruling Austin and McConnell.

Waxman: Main point: "We have here a case in which the Court has asked a question that goes to the bona fides of the interests, whether it is distortion, shareholder protection, etc.

J. Alito: It is no answer that this has never been challenged.

CJ Roberts: When CU abandoned its decision, government complained. Waxman: The evidence went only to as-applied challenges. If you want to reexamine the predicates of Austin, it should be done in a case in which the issue is squarely presented so the government can do what it did in other contexts: provide evidence.

Olson is back up for rebuttal for five minutes.

10:18 The takeaway is "the government's position has changed." Books no, but pamphlets, yes. Ginsburg: statute does not apply here.

Government has also changed its position on what kind of corporations could be covered. (Olson is very effective in showing that this raises the danger of government arbitrary enforcement that will chill First Amendment rights.)

10:22 Ginsburg: Not really an equalization rationale. Olson: Not clear the rationale, but it is overbroad.

Case is submitted. I will write now write a new post with some views on the oral argument.

Richard Epstein in Forbes on Voting Rights

Here: "While pondering motor-voter laws, Mr. Holder should confess error in Northwest Austin Municipal Utility District No. 1 v. Holder."

"Neil Shapiro: Voting Rights Act no longer justified"

See this Monterey Herald column.

"Kennedy succession focus of Mass. public hearing"

AP offers this report.

"The Campaign Finance End Game"

I have written this piece for the NY Times' "Room for Debate" forum. There are also contributions from Joel Gora and Fred Wertheimer. [UPDATE: Michael Waldman's entry is now posted as well.]

My contribution concludes:

Even if the court restrains itself in Citizens United, the writing is on the wall: if the court's members remain the same, the corporate limits eventually will fall. After that, the court could strike down contribution limits to PACs and the ban on party soft money.

We are moving toward a deregulated federal campaign finance system, where money flows freely and perhaps only disclosure laws remain. It is a world in which those with more money use their considerable funds to elect candidates of their choice and to have disproportionate influence over public policy. The unlevel playing field awaits.

DC Circuit Upholds HLOGA Lobbying Disclosure Provisions Against NAM Challenge

Via BLT comes word of this unanimous opinion of a DC Circuit panel.

"Campaign Finance Showdown"

Forbes offers this report.

"Where Floyd Abrams has gone wrong: Hillary's case"

Frank Askin writes at NJ.com.

UPDATE: Jeff Patch responds at the Center for Competitive Politics blog.

ACS on Citizens United

Here's the video of an ACS forum moderated by Joan Biskupic on CU, featuring Bauer, Bopp, Gold, and Wertheimer.

See also this guest post by Brenda Wright.

"An Update on Congressional Continuity"

This event will take place for AEI-Brookings tomorrow.

One Final Pre-Argument Citizens United Resources and Roundup

Tomorrow is the reargument in the Citizens United case. You can read my Slate piece, written the day the Court ordered reargument here and my ABA Supreme Court preview is here. (My forthcoming Supreme Court Review article contrasts the Court's use of constitutional avoidance in NAMUDNO, the recent Voting Rights Act case, with the Court's use of "anti-avoidance" in the Citizens United oral argument order.) Tonight my final pre-argument thoughts about the case will be posted at the NY Times' "Room for Debate" forum. Tomorrow morning I will live blog the audio release of the oral argument at the Election Law Blog. I expect this will be some time between 11:30 and 12 pm Eastern. At 3 pm Eastern tomorrow, I will do a live chat at Politico's Arena. (You can find all of my blog posts on Citizens United case, linking to others news stories and commentaries, here).

Here is a final roundup of news and commentaries on the case:

USA Today

Ted Olson (WSJ) (likely previewing the opening of his comments at oral argument tomorrow)

Doug Kendall (LAT)

Washington Post (on stare decisis and CU)

New York Times (editorial)

Roll Call

Washington Independent

The Hill

Politico's Arena (many opinions)

Politico

Steve Simpson (Institute for Justice)

"Lawmakers Must Cross Aisle On Vote Reforms"

Eliza's latest.

"Sandy Springs wants out of Voting Rights Act"

The Atlanta Journal-Constitution offers this report. Expect more bailout requests to come.

More Citizens United News and Opinion

EJ Dionne

ABA Journal (David Savage)

AP

American Independent Business Alliance

"Give the voters the final say: All senators should be elected"

Rob Richie has this oped in the Miami Herald.

Two Student Notes on NPV

The latest issue of the Northwestern University Law Review features Kristin Feeley, Guaranteeing a Federally Elected President and Nicholas Stabile, An End Run Around a Representative Democracy? The Unconstitutionality of a Ballot Initiative to Alter the Method of Distributing Electors. The latter is a topic I too have tackled.

Abrams and Potter Video/Transcript of Bill Moyers Show Now Available

Here.

"Vigil-Giron's atty asks judge to dismiss charges until impartial prosecutor can be found"

Some very interesting details in this New Mexico Independent report, details lacking from the AP report entitled Vigil-Giron Waives Indictment in Voter Fraud Case.

"Diebold's End: Consolidation of Largest Voting Companies Shows Need to Reform Elections"

Rob Richie blogs.

Citizens United Update

The Supreme Court has announced it will release the oral argument audio right after the Citizens United oral argument concludes on Wednesday (likely around 11:30 or so Eastern). I will tape-delayed live blog the argument.

In advance of the argument we are seeing more preview pieces. Lyle Denniston has written this extensive preview for SCOTUSBlog. Bob Barnes has written this analysis for the Washington Post. Tony Mauro offers this analysis for the National Law Journal. Eliot Spitzer's Slate column on the case is a lot different from mine. Ronald Collins writes about Justice Sotomayor and the case for the First Amendment Center.

And there's more to come....

"Solving the Senate Seat Quandary"

Adam Bonin has written this oped for the Cape Cod Times.

"Burying the Continuing Body Theory of the Senate"

Aaron-Andrew Bruhl has posted this draft on SSRN. Here is the abstract:

In the United States Senate, only a third of the members stand for election every two years, with two thirds of them carrying over from one congressional term to the next. In this regard the Senate differs from the House of Representatives, where all members stand for election every two-year cycle. That much is familiar, but what legal consequences flow from this structural difference? According to some legislators, courts, and commentators, this difference is very important in that it makes the Senate, but not the House, a "continuing body." The continuing body idea is invoked to defend highly controversial aspects of Senate practice. By far the most familiar context in which the idea arises - and the one most likely to generate significant conflict - is the debate over the constitutionality of the filibuster. Under the current Senate rules, it is extremely difficult to restrict or eliminate filibusters, because any attempt to amend the Senate rules can itself be filibustered. Further, precisely because the Senate is considered a continuing body, these nearly unamendable Senate rules never expire but instead remain in effect indefinitely. As a result, the Senate's supermajoritarian rules are entrenched against future majoritarian change. The continuing body idea is thus used to justify an outcome that would otherwise seem to conflict with the usual principle that current legislative majorities are not bound by their predecessors' decisions.

The basic thesis of this Article is that the continuing body notion, though frequently invoked, cannot withstand scrutiny. I offer several arguments in support of that thesis. The arguments question the premises of the continuing body idea, attack its supposed conclusions, and demonstrate that, if taken seriously, the continuing body idea has consequences that few of us would accept. If these arguments succeed, then the most immediate consequence would be the loss of the primary contention in favor of entrenched Senate rules, but there would be other implications for legislative practice as well.

"Irving City Council approves settlement in elections lawsuit"

The Dallas Morning News offers this report.

Extend Prop. 11 to Congressional Redistricting, and Define "Communities of Interest"?

That proposal may make it onto the California ballot.

"Under FEC pressure, Palin's PAC doles out cash"

Politico offers this report.

Monica Youn on RNC v. FEC

Here, at the Huffington Post.

Ciara Torres Spelliscy on Citizens United

Here, in Forbes.

Revised Version of My Paper on Constitutional Avoidance, Citizens United, and NAMUDNO Now Available

I have posted a revised version of Constitutional Avoidance and Anti-Avoidance at the Roberts Court (forthcoming, Supreme Court Review) on SSRN. Here is the abstract:

At the (apparent but not real) end of the October 2008 Supreme Court term, the Court took diametrically opposing positions in a pair of sensitive election law cases. In Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO), the Court avoided deciding a thorny question about the constitutionality of a provision of the Voting Rights Act. The Court did so through a questionable application of the doctrine of "constitutional avoidance." That doctrine (also known as the "avoidance canon") encourages a court to adopt one of several plausible interpretations of a statute in order to avoid deciding a tough constitutional question. In NAMUDNO, however, the Court - without objection from single Justice - embraced a manifestly implausible statutory interpretation to avoid the constitutional question.

A week after NAMUDNO issued, the Court announced it would not be deciding a campaign finance case, Citizens United v. Federal Election Commission, by the Court's summer break as scheduled. Instead, the Court set the case for reargument in September, expressly asking the parties to brief the question whether the Court should overturn two of its precedents upholding the constitutionality of corporate spending limits in candidate elections. The constitutional issue had been abandoned by the law's challengers in the Court below and was not even mentioned in the challengers' jurisdictional statement. Moreover, the constitutional question could easily be avoided through a plausible interpretation of the applicable campaign finance statute. Thus, in Citizens United, the Court gave itself an opportunity to apply a little-noticed principle of anti-avoidance: the Court will eschew a plausible statutory interpretation in order decide a thorny constitutional question. It remains to be seen whether the Court will actually decide the constitutional question when issues its decision. But the reargument order itself embraced the anti-avoidance principle: the Court went out of its way to make a thorny constitutional question more prominent by scheduling briefing and argument on it despite a plausible statutory escape hatch.

What explains the divergent approaches in the two cases, and what does the divergence tell us about the Roberts Court? In this Article, I identify the evidence supporting three competing explanations for the Court's actions, ranging from the most charitable to least charitable reading of the Court's motives.

First, the fruitful dialogue explanation posits that the Court will use constitutional avoidance only when doing so would further a dialogue with Congress that has a realistic chance of actually avoiding constitutional problems through redrafting. Second, the political legitimacy explanation posits that the Court uses the constitutional avoidance doctrine when it fears that full-blown constitutional pronouncement would harm its legitimacy. Third, the political calculus explanation posits that the Court uses constitutional avoidance and similar doctrines to soften public and Congressional resistance as the Court's movement of the law in its preferred policy direction.

While it is impossible to know which of these explanations is correct, the developments of the October 2008 term suggest Court watchers should continue to keep an eye on use of the constitutional avoidance doctrine for broader clues about the Roberts Court. Whether intended or not, the use of constitutional avoidance and anti-avoidance allows the Court to control the speed and intensity of constitutional and policy change.

"Diebold selling US voting machine unit"

AP offers this report, quoting Candice Hoke:

Candice Hoke, an election law professor at Cleveland State University, said the sale raises questions about the consolidation of election services. "It's a massive consolidation of voting-system vendors," she said.

The increased size and influence of ES&S could make it harder for smaller, innovative companies to enter the market, she said. "The market power (of ES&S) will be so significant," she said.

At the same time, Hoke said, ES&S's growth could allow it to spend more on research to develop better voting machines.

Off to APSA

I'll be a discussant on this panel on Election Law Issues in the 2008 elections. I hope to do some blogging over the next few days, but back to full strength after Labor Day.

"Schilling ineligible to run as Republican"

See here. Does this make Schilling a "sore loser?"

"Schilling ineligible to run as Republican"

See here. Does this make Schilling a "sore loser?"

"Justices to Revisit Campaign Finance"

The Wall Street Journal offers this report. See also this BNA report ($).

I understand that CSPAN has put in a request for the release of the oral argument audio immediately after the September 9 Citizen United argument, as the Court has done in some high profile cases. But there's nothing yet on this page, and we are getting close to the argument. So I am not optimistic that the audio will be released. That would be a real shame, given the high public interest in the case.

A transcript, however, will be released some time that afternoon.

"OpenSecrets.org to Conduct Live Web Chat on Landmark Campaign Finance Case"

Details here.

Abrams and Potter on "Bill Moyers Journal" Talking about Citizens United

Via email:

Bill Moyers Journal
Friday, September 4, 2009 at 9PM on PBS (check local listings )

Next week, the Supreme Court reconvenes early for a special hearing on the constitutionality of campaign finance limits for corporations and unions. To hear the arguments, Bill Moyers sits down with Trevor Potter, president and general counsel of The Campaign Legal Center and a former chairman of the Federal Election Commission, and Floyd Abrams, a partner and member of the executive committee at Cahill, Gordon and Reindel. Potter has defended McCain-Feingold in the lower and Supreme Courts, and served as general counsel to Senator John McCain's presidential campaigns in 2000 and 2008. Abrams is a liberal litigator who has defended the First Amendment in several high profile cases, and contends that corporations and unions have the same right to free speech as individuals.

IJ Response

Steve Simpson of the Institute for Justice sends along this reply to my earlier characterization of the IJ press release as "hyperbolic:"

Thanks for posting our press release. I must take issue with your description of it as "hyperbolic," though. As you know, the concern over including books within the bans on corporate-funded express advocacy came from several Justices on the Supreme Court at the first oral argument in Citizens United. Our release simply gives specific examples of the types of books that could easily come within such bans because they do exactly what Hillary: The Movie does--they support or attack candidates based on their character and fitness for office. Indeed, Fred Wertheimer could not bring himself to take book banning off the table in the article Adam Liptak wrote for the New York Times last weekend (here' s the link: http://www.nytimes.com/2009/08/30/us/30scotus.html?pagewanted=1&_r=1&sq=citizens%20united&st=cse&scp=1).

If our release is "hyperbolic" then so is the concern about book banning expressed by several Justices on the Court and the question Adam Liptak put to Fred Wertheimer.

More broadly, the course of campaign finance law over the last three decades makes clear that concerns about including books within bans on corporate-funded express advocacy (or electioneering communications) are not hyperbolic at all. Indeed, just a few years ago, claims that films might be included within the bans could have been described as "hyperbolic," yet look at where we are today. Before that, concerns that Congress might one day ban corporate-funded ads that mention candidates near elections would have been considered "hyberbolic." The Court struck down limits on independent expenditures in Buckley, and yet just a few years ago, Congress considered restrictions on 527s that engage in issue advocacy. And the FEC has taken the position in the SpeechNow.org case that independent expenditures cause corruption and amount to indirect contributions to candidates. It has even argued that SpeechNow.org, an unincorporated association, is no different from a for-profit corporation under Austin. (I'd be happy to forward you the briefs in which they make that case). So even individual independent expenditures could be on the chopping block if the government prevails in CU.

At bottom, the question still stands: if Hillary: The Movie can be included in bans on corporate funded express advocacy (or electioneering communications) then what constitutional principle would prevent the books on our list from being included?

"Let Gov. Deval Patrick fill Ted Kennedy's Senate seat"

Jerry Goldfeder has written this oped for the NY Daily News.

"Reviving Civil Rights"

The NY Times offers this editorial.

And the Oscar Goes to....

Instant Runoff Voting (more here.).

"Could These Books Be Banned?"

The Institute for Justice has published this hyperbolic press release on the Citizens United case.

UPDATE: See also this Brad Smith oped in the NY Post.

"Five Reasons Why Citizens United Is a Truly Momentous Case"

This post appears at the "Text & History" blog.

Updated Election Law Teacher Database Now Available

You can download it here.

Levinson to Krugman: It's the Filibuster, Stupid

Sandy Levinson responds to Paul Krugman's column blaming "our corporate-cash-dominated [political] system" for the stall on health care. Levinson:

The one and only reason anyone takes such denizens as Max Baucus, Kent Conrad, Olympia Snowe, Charles Grassley, Jeff Bingaman, and Michael Enzi at all seriously is because, representing a grand total of 2.77 of the American population (including o% of our most urban populations or what used to be called the "industrial heartland" of America), they comprise 6% of the votes in the Senate. Like the small parties in Israel, they can extort unconscionable terms from prime ministers desperately seeking to build a majority in the Knesset, especially if we add to the other distortions in the Senate the truly pernicious consequences of the filibuster as a normal way of doing business. Were there no filibuster in the Senate, then who would really care what these senators are "demanding" in return for their votes?

"Conn. Campaign Finance System Remains Operating Pending Court Appeal, A.G. Says"

BNA Money & Politics Report offers this report ($).

Interim Mass. Senator Coming?

Boston Globe: "A state legislative committee, meanwhile, will hold a hearing next week on a bill to allow Patrick to appoint an interim senator while the special election is held, a signal that Beacon Hill is moving to accommodate Edward Kennedy's request that Massachusetts maintain two voices in the Senate while voters select his successor. The House and Senate chairmen of the Joint Committee on Election Laws announced they had moved the hearing date from early October to Sept. 9. The bill could come to the floor of both the House and Senate within days after the hearing."

"Bipartisan Group Looks to Reshape Voter Registration"

This item appears at the NYT's "The Caucus" blog. See also this WaPo blog post, this Washington Times report, with the interesting headline: "Bipartisan plan would end ACORN electioneering" (and when did Matt Mosk leave WaPo for the Washington Times?), this report in The Hill, and this Roll Call report.