[EL] ELB News and Commentary 12/19/11
Bill Maurer
wmaurer at ij.org
Mon Dec 19 11:31:09 PST 2011
That's right--there have been two (as I've since been reminded). The Commission imposes the penalty, but there is, of course, a right to appeal, also as I've since been reminded.
In that regard, I think you're right on your second point as well. I would put public financing in a different substantive category than privately financed campaigns because the publicly financed candidates are spending the public's money in their campaigns, although both fall under the general rubric of campaign finance. I think this made the removal of the legislators seem more like a natural consequence of their bad behavior, so there was not too much outcry on the removal of elected officials.
-----Original Message-----
From: Bill Sherman [mailto:lists at shermanleary.com]
Sent: Monday, December 19, 2011 11:08 AM
To: Bill Maurer; 'Frank Askin'; 'Rick Hasen'; law-election at UCI.EDU
Subject: RE: [EL] ELB News and Commentary 12/19/11
I believe there have been a couple such cases in Arizona - although violations under public financing schemes seem different to me, in that they essentially involve embezzling/misusing public funds or fraud in obtaining the funds.
-----Original Message-----
From: Bill Maurer [mailto:wmaurer at ij.org]
Sent: Monday, December 19, 2011 11:05 AM
To: Frank Askin; Rick Hasen; Bill Sherman; law-election at UCI.EDU
Subject: RE: [EL] ELB News and Commentary 12/19/11
There was at least one state legislature removed from office in Arizona for violating the Arizona Citizens Clean Elections Act in his election. If I remember correctly, the Act authorized the Citizens Clean Elections Commission to pursue that remedy, but the ultimate decision had to be made by a judge. But don't quote me on that as it's been a while since I looked at the statute.
Bill
-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Frank Askin
Sent: Monday, December 19, 2011 10:55 AM
To: 'Rick Hasen'; Bill Sherman; law-election at UCI.EDU
Subject: Re: [EL] ELB News and Commentary 12/19/11
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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3Fp%3D26751&title=Slow%20Blogging%20Through%20New%20Year%E2%80%99s%20Day%2FA
ALS%20Panels&description=> Share
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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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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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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.
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
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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20Failure%20to%20Improve%20Disclosure%20Rules&description=> Share
Posted in campaign finance <http://electionlawblog.org/?cat=10> , federal election commission <http://electionlawblog.org/?cat=24> | Comments Off
--
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
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