[EL] ELB News and Commentary 12/19/11

Mon Dec 19 10:54:37 PST 2011

A Judge in New Jersey recently voided a Republican primary for
Freeholder because of a failure to disclose a last-minute contribution
by the father of the winning candidate. The Republican Committee then
named the losing candidate as its nominee in the General Election.... In
addition, the State Election Law Enforcement Commission challenged the
Judge's authority to void the election, claiming that only the
Commission had that authority under the law.  FRANK ASKIN

Prof. Frank Askin
Distinguished Professor of Law       and Director
Constitutional Litigation Clinic
Rutgers Law School/Newark
(973) 353-5687>>> "Bill Sherman" <lists at shermanleary.com> 12/19/2011
1:43 PM >>>
With regard to the Cut Taxes PAC/Moxie Media case in Washington state
(involving allegations of campaign finance disclosure violations): 
until
the settlement, the State (and the losing candidate) had been seeking
a
court order voiding the election results, on the theory that the
campaign
finance violation affected the outcome of the election, which was
decided by
some 120 votes.

Washington isn’t the only state that allows a court to throw out an
election for campaign finance violations only.  However, I don’t know
that
this remedy has ever actually been applied, and I’m curious about
the
circumstances in which it would.  So here’s my attempt at
crowdsourcing:
To your knowledge, has any election ever been voided for violation of
campaign finance law?

Bill Sherman

The Sherman Law Firm, PLLC

 <mailto:bill at billsherman.org> bill at billsherman.org 

www.billsherman.org 

1111 Third Ave., Suite 2230

Seattle, WA 98101

phone: 206.552.9607

fax: 206.426.5414

From: law-election-bounces at department-lists.uci.edu 
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Rick
Hasen
Sent: Monday, December 19, 2011 9:49 AM
To: law-election at UCI.EDU 
Subject: [EL] ELB News and Commentary 12/19/11

“RNC Moves Voter Data Outside to Compete With Democrats”
<http://electionlawblog.org/?p=26753>

Posted on  <http://electionlawblog.org/?p=26753> December 19, 2011 9:47
am
by Rick Hasen <http://electionlawblog.org/?author=3>

ClickZ reports
<http://www.clickz.com/clickz/news/2133246/rnc-moves-voter-outside-compete-d

emocrats> (via Bob Biersack
<https://twitter.com/#%21/rbiersack/status/148820461789253632> ).

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3Fp%3D26753&title=%E2%80%9CRNC%20Moves%20Voter%20Data%20Outside%20to%20Compe
te%20With%20Democrats%E2%80%9D&description=> Share

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Slow Blogging Through New Year’s Day/AALS Panels
<http://electionlawblog.org/?p=26751>

Posted on  <http://electionlawblog.org/?p=26751> December 19, 2011 9:44
am
by Rick Hasen <http://electionlawblog.org/?author=3>

With grading, family travel and holidays, expect less frequent updates
from
me through New Year’s.  Updates to the listserv also will be
intermittent.
For those of you in DC attending the AALS annual conference, I’ll be
speaking on January 5 on two panels:

9:00 am - 12:00 pm
Crosscutting Program - The Law and Science of Trustworthy Elections:
Facing
the Challenges of Internet Voting and Other E-Voting Technologies
The Law and Science of Trustworthy Elections: Facing the Challenges of
Internet Voting and Other E-Voting Technologies

1:30 - 2:45 PM

Blogs and Social Media

Concurrent Session (Communications Track)

Details of each program below the fold.

Continue reading  <http://electionlawblog.org/?p=26751#more-26751> →

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First Round of Texas Redistricting Briefs Due at SCOTUS Wednesday
<http://electionlawblog.org/?p=26749>

Posted on  <http://electionlawblog.org/?p=26749> December 19, 2011 9:35
am
by Rick Hasen <http://electionlawblog.org/?author=3>

See here. <http://txredistricting.org/?e9a5fb10>

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%

3Fp%3D26749&title=First%20Round%20of%20Texas%20Redistricting%20Briefs%20Due%
20at%20SCOTUS%20Wednesday&description=> Share

Posted in redistricting <http://electionlawblog.org/?cat=6> , Supreme
Court
<http://electionlawblog.org/?cat=29> , Voting Rights Act
<http://electionlawblog.org/?cat=15>  | Comments Off

Will the 2012 Elections Be Hacked?
<http://electionlawblog.org/?p=26746>

Posted on  <http://electionlawblog.org/?p=26746> December 19, 2011 9:30
am
by Rick Hasen <http://electionlawblog.org/?author=3>

Oy
<http://blog.lib.umn.edu/cspg/peea/2011/12/we_are_legion_expect_us.php?utm_s

ource=feedburner&utm_medium=twitter&utm_campaign=Feed%3A+HHHElections+%28Pro
gram+for+Excellence+in+Election+Administration%29> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%

3Fp%3D26746&title=Will%20the%202012%20Elections%20Be%20Hacked%3F&description
=> Share

Posted in election administration <http://electionlawblog.org/?cat=18>
,
voting technology <http://electionlawblog.org/?cat=40>  | Comments Off

“Corporate Politics, Governance, and Value Before and After Citizens
United” <http://electionlawblog.org/?p=26742>

Posted on  <http://electionlawblog.org/?p=26742> December 18, 2011
11:00 am
by Rick Hasen <http://electionlawblog.org/?author=3>

John Coates has posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1973771>  on SSRN. 
Here
is the abstract:

This paper explores corporate politics, governance and value in the S&P
500
before and after Citizens United. In regulated and
government-dependent
industries (e.g., banking, telecommunications), political activity is
nearly
universal, and uncorrelated with measures of shareholder power,
managerial
agency costs, or value. But 11% of CEOs in 2000 who retired by 2011
obtained
political positions after retiring, and in a majority of industries
(e.g.,
apparel, retail), political activity is common but varied, and
correlates
negatively with measures of shareholder power (concentration, rights),
positively with signs of managerial agency costs (corporate jet use by
CEOs), and negatively with shareholder value (industry-relative
Tobin’s q).
The negative politics-value relationship is stronger in firms making
large
capital expenditures, suggesting that politics may lead firms to
pursue
value-destroying projects, and the relationship is also stronger in
regressions with firm and time fixed effects, which rule out many
potential
omitted variables. After the exogenous shock of Citizens United,
corporate
lobbying and PAC activity jumped, in both frequency and amount, and
firms
that were politically active in 2008 had lower value in 2010 than
other
firms, consistent with politics at least partly causing and not merely
correlating with lower value. Overall, the results are inconsistent
with
politics generally serving shareholder interests, and support proposals
to
require disclosure of political activity to shareholders.

Looking forward to reading this!

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3Fp%3D26742&title=%E2%80%9CCorporate%20Politics%2C%20Governance%2C%20and%20V
alue%20Before%20and%20After%20Citizens%20United%E2%80%9D&description=>
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“GOP Riders Block Contribution Disclosure In Process of Bidding for
Federal
Contracts” <http://electionlawblog.org/?p=26740>

Posted on  <http://electionlawblog.org/?p=26740> December 18, 2011
10:59 am
by Rick Hasen <http://electionlawblog.org/?author=3>

BNA
<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=23835688&vname=mpe

bulallissues&fn=23835688&jd=a0d0a2p2y1&split=0> : “Congressional
Republicans have succeeded in tacking amendments onto major defense
and
appropriations bills barring disclosure of political contributions by
companies that bid on government contracts, apparently prevailing in a
months-long effort to turn back an Obama administration proposal to
require
such disclosure.”

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%

3Fp%3D26740&title=%E2%80%9CGOP%20Riders%20Block%20Contribution%20Disclosure%
20In%20Process%20of%20Bidding%20for%20Federal%20Contracts%E2%80%9D&descripti
on=> Share

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“Moxie Media Settles Lawsuit Over Shady Campaign Tactics
<http://electionlawblog.org/?p=26737> -Ordered to Pay $290K”

Posted on  <http://electionlawblog.org/?p=26737> December 18, 2011
10:49 am
by Rick Hasen <http://electionlawblog.org/?author=3>

The Seattle Weekly reports
<http://blogs.seattleweekly.com/dailyweekly/2011/12/moxie_media_settles_laws

uit_ov.php> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%

3Fp%3D26737&title=%E2%80%9CMoxie%20Media%20Settles%20Lawsuit%20Over%20Shady%
20Campaign%20Tactics%E2%80%93Ordered%20to%20Pay%20%24290K%E2%80%9D&descripti
on=> Share

Posted in campaign finance <http://electionlawblog.org/?cat=10> ,
campaigns
<http://electionlawblog.org/?cat=59> , chicanery
<http://electionlawblog.org/?cat=12>  | Comments Off

“Supreme Court’s 2012 Decisions Could Sway Presidential
Election”
<http://electionlawblog.org/?p=26734>

Posted on  <http://electionlawblog.org/?p=26734> December 18, 2011
10:45 am
by Rick Hasen <http://electionlawblog.org/?author=3>

Adam Winkler writes
<http://www.thedailybeast.com/articles/2011/12/16/supreme-court-s-2012-decis

ions-could-sway-presidential-election.html>  for The Daily Beast.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%

3Fp%3D26734&title=%E2%80%9CSupreme%20Court%E2%80%99s%202012%20Decisions%20Co
uld%20Sway%20Presidential%20Election%E2%80%9D&description=> Share

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“Redistricting creating chaos in 2012 primary”
<http://electionlawblog.org/?p=26731>

Posted on  <http://electionlawblog.org/?p=26731> December 18, 2011
10:37 am
by Rick Hasen <http://electionlawblog.org/?author=3>

AP reports <http://www.elpasotimes.com/texas/ci_19574159>  from Texas.

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3Fp%3D26731&title=%E2%80%9CRedistricting%20creating%20chaos%20in%202012%20pr
imary%E2%80%9D&description=> Share

Posted in redistricting <http://electionlawblog.org/?cat=6> , Supreme
Court
<http://electionlawblog.org/?cat=29> , Voting Rights Act
<http://electionlawblog.org/?cat=15>  | Comments Off

“Judge: Former FEC members might testify for Edwards”
<http://electionlawblog.org/?p=26729>

Posted on  <http://electionlawblog.org/?p=26729> December 18, 2011
10:35 am
by Rick Hasen <http://electionlawblog.org/?author=3>

The Raleigh News & Observer reports
<http://www.newsobserver.com/2011/12/17/1715873/judge-former-fec-members-mig

ht.html#storylink=misearch> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%

3Fp%3D26729&title=%E2%80%9CJudge%3A%20Former%20FEC%20members%20might%20testi
fy%20for%20Edwards%E2%80%9D&description=> Share

Posted in campaigns <http://electionlawblog.org/?cat=59> , ethics
investigations <http://electionlawblog.org/?cat=42> , John Edwards
<http://electionlawblog.org/?cat=17>  | Comments Off

Richard Winger Flags Ridiculously Early (May 14) Presidential Filing
Deadline in Texas, Thanks to The Three Judge Court’s Order Today
<http://electionlawblog.org/?p=26725>

Posted on  <http://electionlawblog.org/?p=26725> December 16, 2011 4:28
pm
by Rick Hasen <http://electionlawblog.org/?author=3>

See comments 4 and 5 here
<http://www.ballot-access.org/2011/12/16/texas-primary-to-be-april-3/#commen

ts> . Maybe someone will seek to intervene in the Texas case and make
the
constitutional argument this is too early.

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3Fp%3D26725&title=Richard%20Winger%20Flags%20Ridiculously%20Early%20%28May%2
014%29%20Presidential%20Filing%20Deadline%20in%20Texas%2C%20Thanks%20to%20Th
e%20Three%20Judge%20Court%E2%80%99s%20Order%20Today&description> Share

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Comments Off

Brennan Center Blog Post on Felon Disenfranchisement
<http://electionlawblog.org/?p=26722>

Posted on  <http://electionlawblog.org/?p=26722> December 16, 2011 1:41
pm
by Rick Hasen <http://electionlawblog.org/?author=3>

Here.
<http://thehill.com/blogs/congress-blog/civil-rights/199871-the-other-five-m

illion>

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3Fp%3D26722&title=Brennan%20Center%20Blog%20Post%20on%20Felon%20Disenfranchi
sement&description=> Share

Posted in election administration <http://electionlawblog.org/?cat=18> 
|
Comments Off

Open Secrets Talks with Lessig About Money in Politics
<http://electionlawblog.org/?p=26719>

Posted on  <http://electionlawblog.org/?p=26719> December 16, 2011 1:38
pm
by Rick Hasen <http://electionlawblog.org/?author=3>

Here
<http://www.opensecrets.org/news/2011/12/money-talks-opensecretsorgs-intervi

.html> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%

3Fp%3D26719&title=Open%20Secrets%20Talks%20with%20Lessig%20About%20Money%20i
n%20Politics&description=> Share

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Houston, We Have a Deal. <http://electionlawblog.org/?p=26716>

Posted on  <http://electionlawblog.org/?p=26716> December 16, 2011 1:35
pm
by Rick Hasen <http://electionlawblog.org/?author=3>

Primary election schedule approved
<http://txredistricting.org/post/14321656213/court-approves-deal-on-election

-schedule>  by the three-judge court in Texas.

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3Fp%3D26716&title=Houston%2C%20We%20Have%20a%20Deal.&description=>
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Posted in redistricting <http://electionlawblog.org/?cat=6> , Voting
Rights
Act <http://electionlawblog.org/?cat=15>  | Comments Off

“Citizens United as Corporate Law Narrative”
<http://electionlawblog.org/? 
p=26713>

Posted on  <http://electionlawblog.org/?p=26713> December 16, 2011
11:58 am
by Rick Hasen <http://electionlawblog.org/?author=3>

Reza Dibadj has posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1735775> on SSRN
(forthcoming Chapman’s Journal of Law and Policy: Symposium Issue). 
Here
is the abstract;

In a 5-4 opinion, decided January 21, 2010, Citizens United struck down
§
203 of the Bipartisan Campaign Reform Act of 2002 which prohibited
corporations and unions from using general treasury funds for
“electioneering communications” - defined as broadcast, cable or
satellite
communications that are publicly distributed, within 30 days of a
primary
election and 60 days of a general election, and advocate for or against
a
particular candidate in a federal election. This Essay analyzes
Citizens
United through two lenses - constitutional law and corporate law. It
suggests that while the majority’s opinion is breathtaking as a piece
of
constitutional law, it is actually unremarkable when considered as a
narrative in corporate law.

The argument is structured into two principal sections. Part I argues
that
the opinion is truly unusual from a constitutional perspective. To
begin
with, it eschews the principle of constitutional avoidance, refuses to
consider § 203 as a time, place and manner restriction, and pays
precious
little attention to stare decisis. Beyond these technical concerns,
the
majority’s opinion presents deeper constitutional issues: its bold
rhetoric
is divorced from First Amendment doctrines, other relevant
constitutional
provisions are ignored, and untested assumptions are proffered about
money
and speech, corruption, and corporate constitutional rights. By
contrast,
Part II suggests that the opinion is entirely unremarkable when viewed
through the narrative of corporate law. By giving corporations the
ability
to use general treasury monies to fund political speech, the majority
in
Citizens United is privileging a class of corporate insiders in a
manner
consistent with corporate doctrines such as the business judgment
rule.
Moreover, the opinion’s depiction of voters as autonomous, rational,
well-informed participants in political discourse has striking
parallels to
the manner in which corporate law idealizes shareholders.

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3Fp%3D26713&title=%E2%80%9CCitizens%20United%20as%20Corporate%20Law%20Narrat
ive%E2%80%9D&description=> Share

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Read the Reply Brief in Shelby County Appeal Challenging
Constitutionality
of Section 5 of Voting Rights Act
<http://electionlawblog.org/?p=26709>

Posted on  <http://electionlawblog.org/?p=26709> December 16, 2011
11:56 am
by Rick Hasen <http://electionlawblog.org/?author=3>

Here
<http://electionlawblog.org/wp-content/uploads/12-15-2011-ShelbyCountyReplyB

rief.pdf> .  The briefing is now complete.  Oral argument before a
D.C.
Circuit panel is Jan. 19.

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3Fp%3D26709&title=Read%20the%20Reply%20Brief%20in%20Shelby%20County%20Appeal
%20Challenging%20Constitutionality%20of%20Section%205%20of%20Voting%20Rights
%20Act&description=> Share

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“Rep. Eshoo Hails Campaign Finance Disclosure Language in Omnibus
Spending
Bill” <http://electionlawblog.org/?p=26706>

Posted on  <http://electionlawblog.org/?p=26706> December 16, 2011
11:36 am
by Rick Hasen <http://electionlawblog.org/?author=3>

The following press release arrived via email:

Rep. Eshoo Hails Campaign Finance Disclosure Language in Omnibus
Spending
Bill

 Washington, D.C.-Rep. Anna G. Eshoo (D-Palo Alto) praised the
inclusion of
improved campaign finance disclosure language in the $900 billion
“omnibus” spending bill that will fund federal government agencies
through
the end of 2012.  The 2012 omnibus legislation removes riders attached
to
previous bills that specifically prohibited any disclosure for
government
contractors. This compromise language allows President Obama to move
forward
with disclosure requirements for contract recipients.

“After President Obama’s draft Executive Order requiring disclosure
of
political spending by companies doing business with the federal
government
was leaked, big business and lobbyists were up in arms,” said Rep.
Anna
Eshoo. “In response, House Republicans repeatedly added riders to
appropriations bills to block any new disclosure requirements over
unified
Democratic opposition.

“Today’s compromise omnibus spending bill leaves the President free
to
require disclosure from any company receiving taxpayer dollars. We
should
all agree that with public dollars come public responsibilities.  In
the
aftermath of the Citizens United decision, it’s even more important
for us
to stand up for transparency and disclosure.  I hope the President
takes
this opportunity to finally issue his long-awaited Executive Order.”

In February, Eshoo offered an amendment to H.R. 1 that mirrors the
President’s Draft Executive Order which became public in April. On
July 28,
2011, Rep. Eshoo sent a letter
<http://www.washingtonpost.com/r/2010-2019/WashingtonPost/2011/07/28/Nationa

l-Politics/Graphics/2011-7-28%20Disclosure%20Letter%20to%20President%20Obama
.pdf>  to President Obama, signed by 62 Members of Congress, urging him
to
finalize his Draft Executive Order on Contractors. The letter reads,
in
part:

 “Disclosure will not politicize the procurement process - it will
improve
it.  Political expenditures are already well-known to those that make
them
and to the officials who benefit.  With disclosure, the public will
have
access to this information as well, allowing them to judge whether
contracts
were awarded based on merit.”

In reaction to the Rep. Eshoo’s proposal and the President’s Draft
Executive Order, Republicans attached four riders to appropriations
bills to
prohibit any disclosure requirements whatsoever. Each time, Eshoo led
the
opposition to the riders, and offered her own amendment to require
campaign
disclosure. Each time, Republicans blocked the amendment from even
being
voted on.

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3Fp%3D26706&title=%E2%80%9CRep.%20Eshoo%20Hails%20Campaign%20Finance%20Discl
osure%20Language%20in%20Omnibus%20Spending%20Bill%E2%80%9D&description=>
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Commissioner Weintraub Statement on FEC’s Failure to Improve
Disclosure
Rules <http://electionlawblog.org/?p=26703>

Posted on  <http://electionlawblog.org/?p=26703> December 16, 2011
10:45 am
by Rick Hasen <http://electionlawblog.org/?author=3>

Here
<http://www.fec.gov/members/weintraub/statements/ELW_CU_Statement_12-16-11.p

df> :

The next election promises to be the most expensive in history.
Hundreds of
millions of dollars will be spent by outside groups. More and more of
these
dollars come from organizations that do not disclose information about
their
donors. As in the last cycle, most of this money likely will be
concentrated
on races in a few key states and districts. In some of these races,
outside
spending may dominate the debate. And money from outside groups likely
will
go disproportionately to fund negative advertisements.
Such a proliferation of anonymous, negative speech cannot be good for
our
democracy. Nor is it consistent with the view of eight Justices of the
Supreme Court, who ruled that “effective disclosure” is what
“enables the
electorate to make informed decisions and give proper weight to
different
speakers and messages.” Moreover, as Justice Scalia recently noted
in
another case: “Requiring people to stand up in public for their
political
acts fosters civic courage, without which democracy is doomed. . . .
[A]
society which . . . campaigns anonymously . . . hidden from public
scrutiny
and protected from the accountability of criticism . . . does not
resemble
the Home of the Brave.” I remain hopeful that the Commission will one
day
take this insight to heart.

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3Fp%3D26703&title=Commissioner%20Weintraub%20Statement%20on%20FEC%E2%80%99s%
20Failure%20to%20Improve%20Disclosure%20Rules&description=> Share

Posted in campaign finance <http://electionlawblog.org/?cat=10> ,
federal
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--
Rick Hasen
Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu 
http://law.uci.edu/faculty/page1_r_hasen.html 
http://electionlawblog.org 