[EL] ELB News and Commentary 12/20/11

Tue Dec 20 19:50:48 PST 2011

Eugene—I am glad to learn of your forthcoming UPenn Law Review article trying to settle the meaning of the “press” clause, which sounds fascinating and important indeed, and I look forward to reading it.  (And I actually hope you are right because I have always believed that “the people” have rights coextensive with that of the institutional press, which is why, for example, the Supreme Court’s internal rule allowing reporters, but not mere citizens, to take notes in the chamber is presumptively unconstitutional and should be invalidated.)  But, as to the issue at hand, even assuming the complete truth of your argument as you describe it, how does it prove the only point of relevance to the discussion gripping America and that we are having on this listserv: whether for-profit corporations are properly understood to have the right to spend corporate treasury funds on political campaigns as though they were part of “the people” and spending their own money?  The originalist work you need to do in order to prove the affirmative of that proposition is that the First Amendment was written and understood to apply to business corporations as well as people.  But most of the historical evidence and Supreme Court authority that I know of is quite to the contrary.  Do you have such evidence?  Did you come across any in your historical examination of the press clause? I would love to see it because that is all that really counts in this discussion.  At best, your excellent findings about the press clause presumably show that all rights-bearing individuals under the First Amendment, whoever they are, have a right to use the printing press (or contemporary equivalent, I assume, ie the Web) for the purposes of pamphleteering, newspapers and so on, along with the separate right to speak, but the argument tells us nothing about the political campaign spending rights attendant to “artificial” corporate entities chartered by the state and endowed with the special legal status and privileges that have been emphasized by Supreme Court justices from Chief Justice John Marshall to Justice White to Justice Rehnquist.  Meantime, nothing you have quoted from my Yale Law and Policy Review piece remotely supports your claim that I “would support restricting the ability of private individuals to spend their own money to speak about candidates.”  I believe, with huge numbers of professors and citizens (including you, I imagine), that parts of the Buckley decision are poorly reasoned, but I have never advocated or supported restrictions on the campaign expenditures of actual people.  My argument in that piece (I wrote the first half) was on behalf of the superiority of voluntary public financing regimes to private financing regimes in which dramatic background inequalities come to reproduce themselves in electoral politics and government.  This is essentially the position of the national ACLU, which has long advocated for public financing of electoral campaigns without curtailing any person’s right to spend.  

Well,  I am afraid I have to discipline myself and get back to doing my syllabus and working on a brief right now, so I will allow you to answer the foregoing without exercising any rights of rebuttal I may have tonight.  But, since I have tried to address your hard questions, please answer mine along the way: if the “identity of the speaker” is wholly irrelevant to the rights of campaign spending and all that matters is the character of the speech itself (is it political?), do the following cases of clearly political speech enjoy First Amendment protection in your view and, if not, why not?  A. The city council of Boston appropriates one million dollars from its municipal treasury to spend in a statewide referendum on progressive taxation in order to counter the corporate spending of First National Bank of Boston and Baybanks.  The Commonwealth of Massachusetts tries to stop it from doing so.  Does the municipal corporation of Boston have a free speech right to spend in this way?  B. If the private corporations are spending money independently to run ads on behalf of Scott Brown for Senator on the theory that he will favor them, can municipal corporations spend money independently to run ads on behalf of Elizabeth Warren on the theory that she will favor them?   C. Let us say Massachusetts decides through its proper legislative channels to allow such campaign expenditures and indeed to make some of its own, should that be protected speech?  D. Harvard University, the United Way and the United Church of Christ all decide to get in the act and spend several million dollars in the referendum campaign and on behalf of Senator Brown or Professor Warren.  When it is objected that they are non-profits enjoying special tax privileges, they observe that this is an obsolete form of reasoning since the special privileges attendant to business corporations (limited liability, perpetual life, etc.) no longer deprive their political speech of constitutional protection.  All that matters is that the entity is a vehicle for political speech.  Are they right?  Do non-profit corporations have the same political rights as for-profit corporations or is one class constitutionally favored over the other? On what basis?  E. What about business corporations that are 100% foreign-owned, 50% foreign-owned or 25% foreign-owned?  Do they get Citizens United protection in spending freely in our politics?   (Should this landmark decision be followed logically by Non-Citizens United?)  I hate to trouble you with these questions but I assume the answers are easy since the “identity of the speaker” is totally “irrelevant” and we just want to enable all the ideas to get out there.  

And to all a good night. . .

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, December 20, 2011 5:20 PM
To: law-election at uci.edu
Subject: Re: [EL] ELB News and Commentary 12/20/11

                Jamie:  I tried to canvass the history of the “freedom ... of the press” in a good deal of detail – some might say too much detail – in my forthcoming University of Pennsylvania Law Review article on the subject, http://www.law.ucla.edu/volokh/press.pdf, and it seemed to me that from the Framing onwards, the “freedom ... of the press” was seen as protecting the press as technology (which is to say the printing press and its technological heirs) and not as offering any protection for the press as industry.  Indeed, the Supreme Court and state courts have routinely made this quite explicit, long before Citizens United.  The evidence struck me as quite overwhelmingly in favor of the view that (to quote Justice Brennan) there is a “fundamental First Amendment principle that ‘[t]he inherent worth of ... speech in terms of its capacity for informing the public does not depend upon the identity of the source, whether corporation, association, union, or individual’” (a statement Justice Brennan made in specifically rejecting the suggestion that the institutional media get more First Amendment protection than other speakers).  Do you happen to have any contrary evidence, either about the Framing era or about the Supreme Court since the 1930s?   I’ve asked the list before, while my article was still being edited, for such contrary evidence, and didn’t see any responses.

                Beyond this, I would think that the logic of your CEO objection would apply to media corporations as well.  After all, CEOs of newspaper- and magazine-owning corporations – or the CEOs’ editor employees – are likewise “tak[ing] money out of their corporate treasuries to spend” on publishing editorials, on tailoring their coverage to support a particular candidate or ballot measure, and so on.

                As to your endorsing restrictions on private individuals’ spending money to speak about candidates – restrictions that would, as FECA did, outlaw people placing such ads in newspapers – I drew that from your 1993 Yale Law & Policy Review piece, http://www.nvri.org/library/cases/Public%20Education/BonYale.shtml, where you and your coauthor wrote, “we believe that Buckley was wrongly decided,” “The antidemocratic assumptions of the 1976 decision are so ingrained in our thinking about private money in politics that the case cannot be ignored[; i]n the following section, then, we will review Buckley and argue that a reconsideration of that ruling is long overdue,” “Buckley does not hold up,” “The very premise of Buckley, that money equals speech, is quite dubious,” and more.  It sounds to me, then, that you have favored reading the First Amendment to allow the government to “restrict[] the ability of private individuals to spend their own money to speak about candidates.”  Or am I missing something?

                Eugene

From: Jamin Raskin [mailto:raskin at wcl.american.edu] 
Sent: Tuesday, December 20, 2011 12:41 PM
To: Volokh, Eugene; law-election at uci.edu
Subject: RE: [EL] ELB News and Commentary 12/20/11

                Eugene--I can’t imagine that anyone is interested in rehearsing these arguments for the umpteenth time on the listserv (I was just making a “point of personal privilege,” as we say), but here goes: (1) the First Amendment protects the “freedom . . . of the press,” which is why, yes, the New York Times and Wall Street Journal and National Review and the Nation have the right to endorse candidates for office, but it does not follow that their publishers may take money out of their corporate treasuries to spend on behalf of political campaigns or to give directly to candidates (which, of course, I see as the inescapable logic of your argument, no?), much less that the CEOs of McDonald’s or BP or AIG or  Massey Coal should enjoy such “free speech” rights to spend other people’s money.   (2) I have never favored “restricting the ability of private individuals to spend their own money to speak about candidates,” so you do misread me there.  I strongly favor voluntary public financing as a way to replace what I’ve called our “wealth primary”  and I have repeatedly voted for public financing as a senator in Maryland.  I have lots of disagreement with the Court’s First Amendment doctrine but it almost all has to do with the Court trampling the free speech and political association rights of citizens, including third party candidates who seek to participate in government-run debates or to have an equal place on the ballot, workers who seek to organize in the workplace, public employees who don’t want to be disciplined for taking political positions, students who seek to express themselves at school, and so on.  So, no, I don’t know what other “restrictions on speech” you imagine, but I do not favor them. . .yours, Jamie    

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, December 20, 2011 2:42 PM
To: law-election at uci.edu
Subject: Re: [EL] ELB News and Commentary 12/20/11

                But, Jamie, you don’t just support restricting the ability of nonmedia business corporations to speak about candidates using their money.  You also use arguments that would equally apply to media business corporations’ speech about candidates using the corporations’ money (since “private for-profit corporations do not enjoy the political free speech rights of the people”).  And, unless I misread your scholarship, you would support restricting the ability of private individuals to spend their own money to speak about candidates, so that buying a newspaper ad to express one’s views could be made a crime (as would be the case if Buckley were reversed), right?

                Now of course there are perfectly plausible arguments in favor of such views, though I don’t agree with those arguments.  And there’s nothing wrong with the winner of the ACLU Edgerton award taking such a view, though I take it the ACLU (at least the national ACLU) has disagreed with this view.  It just seems to me that your disagreement with the Court’s First Amendment doctrine, and your willingness to see restrictions on speech, go considerably beyond your views on Citizens United, no? 

                Eugene

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Jamin Raskin
Sent: Tuesday, December 20, 2011 11:10 AM
To: Steve Hoersting; Rick Hasen
Cc: law-election at UCI.EDU
Subject: Re: [EL] ELB News and Commentary 12/20/11

Friends--I’m not quite sure how I got dragged into this particular skirmish, but I can’t let stand in cyberspace the unprovoked and misleading cheap shot that I intend to “alter[] the First Amendment.”   Having just received the 2011 Henry Edgerton Civil Liberties Award from the ACLU of the Nation’s Capital and fought joyfully for the free speech rights of everyone from pro-life picketers to Quaker peace activists and environmentalists to right-winger Ralph Forbes to Ross Perot and the SEIU to Ralph Nader and high school students facing censorship, I will yield to none of today’s self-righteous crusaders for corporate political power who have convinced themselves that they are civil libertarians, including Steve Hoersting, in my championship of First Amendment rights for all.  (If Steve would like to compare his record of First Amendment advocacy and his position on essential free speech issues with mine,  I would be only too delighted to engage.)  Of course, I absolutely reject the Supreme Court’s 5-4 ruling that CEO’s have a First Amendment right to take money out of corporate treasuries to spend on political advocacy to promote politicians who will enrich the corporate bottom line (the only kind of political spending consistent with corporate law), and I absolutely favor a constitutional amendment to restore two centuries of understanding that private for-profit corporations do not enjoy the political free speech rights of the people.  But it was the five justices who reached out to decide a question not before them in Citizens United who altered the First Amendment--not me--and they gave no individual citizen a political right to do anything with his or her own money that he or she could not already do.  In any event, I look forward to  seeing Steve at future ACLU conferences as we work on issues of common interest like strengthening the free speech rights of public school students, stopping the flag desecration amendment to the Constitution,  and defending the separation of church and state against people like New Gingrich who want federal marshals to haul federal judges in before Congress to account for strong First Amendment decisions like the Ninth circuit decision in Elk Grove v. Newdow (2002).    I hope this sets the record straight and wish happy holidays to all.  --Jamie

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Steve Hoersting
Sent: Tuesday, December 20, 2011 1:17 PM
To: Rick Hasen
Cc: law-election at UCI.EDU
Subject: Re: [EL] ELB News and Commentary 12/20/11

I'll repeat this in response to your latest.  "But, really, I see no evidence that the Romney campaign has any intent to secure the Republican nomination by pledging to reintroduce McCain-Feingold, or to join Jamin Raskin in altering the First Amendment."

Thanks,

Steve

On Tue, Dec 20, 2011 at 1:13 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

I see now that I posted the wrong link to the 1994 Romney speech on campaign finance.  It is here and worth watching:
http://www.youtube.com/watch?v=RsSGcFZQazQ&feature=player_embedded

A snippet: "But these kinds of associations between money and politics in my view are wrong.  And for that reason I would like to have campaign spending limits. And to say we are not going to spend more than this in certain campaigns, in a campaign for Senator or U.S. Representative and so forth because otherwise I think you have money playing far too important a role. I also would abolish PACs. You probably have one. I don't like them.  I don't like the influence of money whether it is business, labor, or any other group-- I do not like them."

On 12/20/2011 10:00 AM, Steve Hoersting wrote: 

Really, Rick: it was an extemporaneous comment on ancillary interview topic.  

I suppose Romney might have used the word "irrelevant" if he spoke on campaign finance issues as often as you do -- to take away the possibility of conveying that he advocates legal methods for "get[ting] rid" of SuperPACs, after the Supreme Court and DC Circuit have settled the matter.  I suppose...   

But, really, I see no evidence that the Romney campaign has any intent to secure the Republican nomination by pledging to reintroduce McCain-Feingold, or to join Jamin Raskin in altering the First Amendment.

Steve

On Tue, Dec 20, 2011 at 12:47 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

That would be "let's make these Super PACs irrelevant," not "let's get rid of the Super PACs", no?

On 12/20/2011 9:36 AM, Steve Hoersting wrote: 

There's no better compliance shop than Patton Boggs; Romney's long-serving campaign counsel.  And Jim Bopp was a policy adviser on the 2008 campaign, if memory serves, as was my colleague Brad Smith.

I haven't seen the whole snippet, either.  What Romney said for sure is Lift the restrictions on campaigns and get rid of these SuperPACs.

My post told you what are those restrictions on campaigns: the soft money ban and low contribution limits.  There is no dispute there.

As to the "get rid of these SuperPACs," even I can tell you, having counseled party committees and litigated for would-be SuperPACs, that if the party committee soft-money ban were repealed SuperPACs would almost certainly see a decrease in funding.

Best, Rick,

Steve

On Tue, Dec 20, 2011 at 12:27 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

Who has advised Romney over the years on campaign finance?
Also, I did not see the entire Romney interview, just the snippet in the Politico link.  From that snippet, it did not sound like he was talking about getting rid of the soft money ban.  He said he wanted to "get rid" of super pacs.  So if you have a longer transcript or snippet to show how in context "getting rid" of Super PACS does not mean getting rid of them, I'd like to see it.

Thanks.

Rick

On 12/20/2011 9:21 AM, Steve Hoersting wrote: 

If you look at who has advised Romney over the years on campaign finance, and listen again to the Morning Joe interview, you have to know Romney means that the soft-money ban on party committees and restrictions on campaign committees are the problems in campaign finance.  And if I'm reading his take correctly, he's right: the soft money ban should be lifted, and contribution limits to candidates increased.

A lot of good people have done a lot of good work to bring forth the Super PAC (if I do say so myself) -- which is to say, have partially restored the First Amendment.  Of the dozens who've spent years working on it, I don't know a one who would keep the party committee soft-money ban.

Romney's "Get rid of these SuperPACs," which actually was "and get rid of these SuperPACs," has to be understood in context.  The big cycles of McCain-Feingold were 2006 ... and 2008.  Who thinks this is lost on Romney?

Romney must also understands that, as the soft money ban and low limit to campaign committees remains, it will only be SuperPACs that can save him from a media megaphone going all all-out to tout his opponent, directly or impliedly.  Indeed, those who doubt this should watch Romney presenting Letterman's (writers') Top Ten list.  The host could barely let his guest finish the bit without taking the liberty of making editorial comments surely no one expected from the writers.

Happy Holidays all,

Steve Hoersting

On Tue, Dec 20, 2011 at 11:55 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

“69% Say Photo ID Voting Laws Are Not Discriminatory” <http://electionlawblog.org/?p=26815>  

Posted on December 20, 2011 8:47 am <http://electionlawblog.org/?p=26815>  by Rick Hasen <http://electionlawblog.org/?author=3>  

New <http://www.rasmussenreports.com/public_content/politics/general_politics/december_2011/69_say_photo_id_voting_laws_are_not_discriminatory>  Rasmussen poll.

  <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26815&title=%E2%80%9C69%25%20Say%20Photo%20ID%20Voting%20Laws%20Are%20Not%20Discriminatory%E2%80%9D&description=> 

Posted in election administration <http://electionlawblog.org/?cat=18> , voter id <http://electionlawblog.org/?cat=9>  | Comments Off 

“Americans Elect wins third-party spot on California ballot” <http://electionlawblog.org/?p=26811>  

Posted on December 20, 2011 8:44 am <http://electionlawblog.org/?p=26811>  by Rick Hasen <http://electionlawblog.org/?author=3>  

The LA Times offers this report <http://www.latimes.com/news/nationworld/nation/la-na-california-americans-elect-20111220,0,4555258.story> .  A snippet about the group’s refusal to disclose its donors: “Sragow said some donors prefer anonymity because they fear retribution for trying to ‘open the doors to the political process.’”  As I’ve explained, the retribution argument used by Americans Elect is laughable <http://www.politico.com/news/stories/1111/67965.html> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26811&title=%E2%80%9CAmericans%20Elect%20wins%20third-party%20spot%20on%20California%20ballot%E2%80%9D&description=> 

Posted in campaign finance <http://electionlawblog.org/?cat=10> , third parties <http://electionlawblog.org/?cat=47>  | Comments Off 

“FEC Republicans’ Statement on Merkley Ads Highlights Unanimous Vote on Coordination” <http://electionlawblog.org/?p=26808>  

Posted on December 20, 2011 8:41 am <http://electionlawblog.org/?p=26808>  by Rick Hasen <http://electionlawblog.org/?author=3>  

BNA <http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=23887584&vname=mpebulallissues&fn=23887584&jd=a0d0a7h9h2&split=0> : “The Federal Election Commission’s three Republican commissioners have released a new statement <http://eqs.nictusa.com/eqsdocsMUR/11044310145.pdf>  on a two-year-old enforcement case regarding political advertising that featured Sen. Jeff Merkley (D-Ore.)….Though the Merkley case itself is history, the new statement about it highlights a key issue that the FEC continues to grapple with: the circumstances in which political ads are considered independent of a candidate’s campaign. The FEC commissioners deadlocked along party lines on the same issue in a vote at the commission’s Dec. 1 meeting. The vote came on an advisory opinion (AO 2011-23) requested by American Crossroads (3152 Money & Politics Report, 12/2/11 <http://news.bna.com/mpdm/display/link_res.adp?fedfid=23887584&fname=a0c9v9f9p0&vname=mpebulallissues> ).”

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26808&title=%E2%80%9CFEC%20Republicans%E2%80%99%20Statement%20on%20Merkley%20Ads%20Highlights%20Unanimous%20Vote%20on%20Coordination%E2%80%9D&description=> 

Posted in campaign finance <http://electionlawblog.org/?cat=10>  | Comments Off 

“Romney: ‘Get rid of these super PACs’” <http://electionlawblog.org/?p=26805>  

Posted on December 20, 2011 8:38 am <http://electionlawblog.org/?p=26805>  by Rick Hasen <http://electionlawblog.org/?author=3>  

I’d love to know more <http://www.politico.com/blogs/burns-haberman/2011/12/romney-get-rid-of-these-super-pacs-108150.html>  from Mitt Romney as to how he’d like to “get rid” of Super-PACs.  Does anyone know if he has any position papers or statements on campaign finance reform?

UPDATE:  Here <http://www.rasmussenreports.com/public_content/politics/general_politics/december_2011/69_say_photo_id_voting_laws_are_not_discriminatory> ‘s a 94 video with Romney showing strong support for campaign finance reform.  He advocates campaign spending limits, and wants to abolish PACs.

But his position today is unclear <http://campaignmoney.org/blog/2011/12/20/watchdog-group-calls-romney-clarify-position-money-politics> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26805&title=%E2%80%9CRomney%3A%20%E2%80%98Get%20rid%20of%20these%20super%20PACs%E2%80%99%E2%80%9D&description=> 

Posted in campaign finance <http://electionlawblog.org/?cat=10>  | Comments Off 

“Gableman voted with law firm after receiving free legal services; He cast key vote in collective bargaining case” <http://electionlawblog.org/?p=26802>  

Posted on December 20, 2011 8:29 am <http://electionlawblog.org/?p=26802>  by Rick Hasen <http://electionlawblog.org/?author=3>  

The hits just keep on coming <http://www.jsonline.com/news/statepolitics/gableman-voted-with-law-firm-after-receiving-free-legal-services-o53gc01-135904063.html>  at the Wisconsin Supreme Court.

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26802&title=%E2%80%9CGableman%20voted%20with%20law%20firm%20after%20receiving%20free%20legal%20services%3B%20He%20cast%20key%20vote%20in%20collective%20bargaining%20case%E2%80%9D&description=> 

Posted in conflict of interest laws <http://electionlawblog.org/?cat=20> , ethics investigations <http://electionlawblog.org/?cat=42>  | Comments Off 

“R.I. Rep. Cicilline gets help in contentious redistricting battle” <http://electionlawblog.org/?p=26799>  

Posted on December 20, 2011 8:26 am <http://electionlawblog.org/?p=26799>  by Rick Hasen <http://electionlawblog.org/?author=3>  

The Fix reports <http://www.washingtonpost.com/blogs/the-fix/post/ri-rep-cicilline-gets-help-in-contentious-redistricting-battle/2011/12/19/gIQAEWwz6O_blog.html> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26799&title=%E2%80%9CR.I.%20Rep.%20Cicilline%20gets%20help%20in%20contentious%20redistricting%20battle%E2%80%9D&description=> 

Posted in redistricting <http://electionlawblog.org/?cat=6>  | Comments Off 

“Lobbying Your True Love: The True Cost of Twelve Days of Christmas, 2011 Edition” <http://electionlawblog.org/?p=26797>  

Posted on December 20, 2011 8:26 am <http://electionlawblog.org/?p=26797>  by Rick Hasen <http://electionlawblog.org/?author=3>  

The Open Secrets Blog reports <http://www.opensecrets.org/news/2011/12/lobbying-your-true-love-christmas-2011.html> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26797&title=%E2%80%9CLobbying%20Your%20True%20Love%3A%20The%20True%20Cost%20of%20Twelve%20Days%20of%20Christmas%2C%202011%20Edition%E2%80%9D&description=> 

Posted in election law "humor" <http://electionlawblog.org/?cat=52> , lobbying <http://electionlawblog.org/?cat=28>  | Comments Off 

“Iowa GOP worried by hacker threat to caucus vote” <http://electionlawblog.org/?p=26794>  

Posted on December 20, 2011 8:17 am <http://electionlawblog.org/?p=26794>  by Rick Hasen <http://electionlawblog.org/?author=3>  

AP reports <http://hosted.ap.org/dynamic/stories/U/US_IOWA_CAUCUSES_HACKING?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2011-12-19-18-28-32> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26794&title=%E2%80%9CIowa%20GOP%20worried%20by%20hacker%20threat%20to%20caucus%20vote%E2%80%9D&description=> 

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

“Avoiding the Florida Nightmare in 2012″ <http://electionlawblog.org/?p=26792>  

Posted on December 20, 2011 8:15 am <http://electionlawblog.org/?p=26792>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Sundeep Iyer and Lawrence Norden have written this Roll Call oped <http://www.rollcall.com/issues/57_77/sundeep_iyer_lawrence_norden_avoiding_florida_vote_nightmare_2012-211184-1.html?pos=oopih> . It concludes: “The Help America Vote Act was an important opening salvo in the effort to prevent lost votes. But now is not the time to be complacent about that accomplishment. We must be cognizant of how recent voting changes might lead to lost votes, and we must take all feasible steps to ensure that every vote counts in 2012.”

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26792&title=%E2%80%9CAvoiding%20the%20Florida%20Nightmare%20in%202012%E2%80%B3&description=> 

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

Why Tuesday? Talks To Republican Candidates in Iowa <http://electionlawblog.org/?p=26790>  

Posted on December 20, 2011 8:13 am <http://electionlawblog.org/?p=26790>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Jacob Soboroff <http://www.whytuesday.org/2011/12/20/why-tues-ask-the-candidates/> : “Newt Gingrich and Rick Santorum don’t know why we vote on Tuesday. Mitt Romney thinks good candidates will increase voter turnout. And Michele Bachmann stands on an apple box when speaking at the podium. Those are a few things I learned after three days on the ground in Iowa, home of our first-in-the-nation Iowa Caucuses.”

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26790&title=Why%20Tuesday%3F%20Talks%20To%20Republican%20Candidates%20in%20Iowa&description=> 

Posted in voting <http://electionlawblog.org/?cat=31>  | Comments Off 

“The Texas Redistricting Case and the Likely Continued Erosion of the Section 5 Process” <http://electionlawblog.org/?p=26786>  

Posted on December 19, 2011 3:24 pm <http://electionlawblog.org/?p=26786>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Mike Pitts offers some insightful analysis <http://www.concurringopinions.com/archives/2011/12/the-texas-redistricting-case-and-the-likely-continued-erosion-of-the-section-5-process.html> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26786&title=%E2%80%9CThe%20Texas%20Redistricting%20Case%20and%20the%20Likely%20Continued%20Erosion%20of%20the%20Section%205%20Process%E2%80%9D&description=> 

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

“From Citizenship to Voting: Improving Registration for New Americans” <http://electionlawblog.org/?p=26784>  

Posted on December 19, 2011 3:23 pm <http://electionlawblog.org/?p=26784>  by Rick Hasen <http://electionlawblog.org/?author=3>  

New Demos publication <http://www.demos.org/publication/citizenship-voting-improving-registration-new-americans> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26784&title=%E2%80%9CFrom%20Citizenship%20to%20Voting%3A%20Improving%20Registration%20for%20New%20Americans%E2%80%9D&description=> 

Posted in voter registration <http://electionlawblog.org/?cat=37>  | Comments Off 

“Wager on Elections? You Bet” <http://electionlawblog.org/?p=26781>  

Posted on December 19, 2011 2:23 pm <http://electionlawblog.org/?p=26781>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Politico reports <http://www.politico.com/news/stories/1211/70624.html#.Tu-2OFL0lZE.twitter> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26781&title=%E2%80%9CWager%20on%20Elections%3F%20You%20Bet%E2%80%9D&description=> 

Posted in campaigns <http://electionlawblog.org/?cat=59>  | Comments Off 

If You Wanted to Draft a Constitutional Amendment to Overturn Citizens United, What Would It Look Like? <http://electionlawblog.org/?p=26778>  

Posted on December 19, 2011 2:00 pm <http://electionlawblog.org/?p=26778>  by Rick Hasen <http://electionlawblog.org/?author=3>  

12 questions <http://www.ourfuture.org/blog-entry/2011125119/how-choose-so-many-constitutional-amendments> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26778&title=If%20You%20Wanted%20to%20Draft%20a%20Constitutional%20Amendment%20to%20Overturn%20Citizens%20United%2C%20What%20Would%20It%20Look%20Like%3F&description=> 

Posted in campaign finance <http://electionlawblog.org/?cat=10>  | Comments Off 

“Judge refuses to dismiss charges against White” <http://electionlawblog.org/?p=26776>  

Posted on December 19, 2011 1:59 pm <http://electionlawblog.org/?p=26776>  by Rick Hasen <http://electionlawblog.org/?author=3>  

AP <http://content.usatoday.net/dist/custom/gci/InsidePage.aspx?cId=indystar&sParam=38177659.story> : “A judge on Monday denied Indiana Secretary of State Charlie White’s bid to avoid a trial on voter fraud and other criminal charges that could lead to his removal from office.”

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26776&title=%E2%80%9CJudge%20refuses%20to%20dismiss%20charges%20against%20White%E2%80%9D&description=> 

Posted in SOS White <http://electionlawblog.org/?cat=13>  | Comments Off 

“Walker says lawsuit will protect integrity of recall process” <http://electionlawblog.org/?p=26772>  

Posted on December 19, 2011 1:56 pm <http://electionlawblog.org/?p=26772>  by Rick Hasen <http://electionlawblog.org/?author=3>  

The latest <http://www.jsonline.com/blogs/news/135868053.html>  from Wisconsin.

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26772&title=%E2%80%9CWalker%20says%20lawsuit%20will%20protect%20integrity%20of%20recall%20process%E2%80%9D&description=> 

Posted in direct democracy <http://electionlawblog.org/?cat=62> , recall elections <http://electionlawblog.org/?cat=11>  | Comments Off 

Will President Obama Make A Recess Appointment of Cordray (and Others?) After All? <http://electionlawblog.org/?p=26770>  

Posted on December 19, 2011 1:55 pm <http://electionlawblog.org/?p=26770>  by Rick Hasen <http://electionlawblog.org/?author=3>  

It <http://t.co/LjPWmEER>  may <http://www.politico.com/politico44/perm/1211/echoes_of_tr_17634fb9-21bd-49a0-a20e-0294c2165210.html>  happen <http://online.wsj.com/article/SB10001424052970204058404577106872046993652.html> .  Maybe some judges in there too?  So what’s the downside for President Obama?  More partisan divide in the Senate?

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26770&title=Will%20President%20Obama%20Make%20A%20Recess%20Appointment%20of%20Cordray%20%28and%20Others%3F%29%20After%20All%3F&description=> 

Posted in legislation and legislatures <http://electionlawblog.org/?cat=27>  | Comments Off 

“Candidate Venture Capital” <http://electionlawblog.org/?p=26767>  

Posted on December 19, 2011 12:54 pm <http://electionlawblog.org/?p=26767>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Tom Donnelly has posted this draft <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1935376>  on SSRN (University of Cincinnati Law Review).  Here is the abstract:

	Candidate venture capital contributions are large donations given to candidates near the beginning of campaigns in order to provide them with sufficient resources to test their ideas in the campaign marketplace. These contributions can take the form of either large private donations or public grants. Although election law scholars and political scientists disagree a great deal over the aggregate effects of money in politics (and the utility of various reform proposals), they generally agree that early money is particularly valuable to political newcomers — especially when challenging incumbents. While both campaign finance reformers and anti-reformers often pay lip service to the value of early campaign cash, both sides usually offer prescriptions that deal with campaign contributions in an undifferentiated manner. This Article offers a different approach, focusing exclusively on how our campaign finance system might be altered to promote the value of early campaign cash in its own right. Rather than seeking undifferentiated contribution limits (like the typical reformer) or the complete deregulation of private contributions (like the typical anti-reformer), this Article suggests that policymakers might instead tailor campaign finance regulations to reflect the changing value of campaign cash over the course of the typical election cycle. Central to such an approach is a campaign finance system that increases the overall flow of candidate venture capital. In the end, this Article is an attempt to place the element of time at the center of the debate over campaign finance.

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26767&title=%E2%80%9CCandidate%20Venture%20Capital%E2%80%9D&description=> 

Posted in campaign finance <http://electionlawblog.org/?cat=10>  | Comments Off 

“What are the people behind Americans Elect thinking?” <http://electionlawblog.org/?p=26765>  

Posted on December 19, 2011 12:52 pm <http://electionlawblog.org/?p=26765>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Sandy Levinson blogs <http://balkin.blogspot.com/2011/12/what-are-people-behind-america-elects.html> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26765&title=%E2%80%9CWhat%20are%20the%20people%20behind%20Americans%20Elect%20thinking%3F%E2%80%9D&description=> 

Posted in third parties <http://electionlawblog.org/?cat=47>  | Comments Off 

“Gingrich’s sale of mailing list unlawful, watchdog group charges” <http://electionlawblog.org/?p=26762>  

Posted on December 19, 2011 12:20 pm <http://electionlawblog.org/?p=26762>  by Rick Hasen <http://electionlawblog.org/?author=3>  

WaPo reports <http://www.washingtonpost.com/politics/gingrichs-sale-of-mailing-list-unlawful-watchdog-group-charges/2011/12/19/gIQArh3s4O_story.html> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26762&title=%E2%80%9CGingrich%E2%80%99s%20sale%20of%20mailing%20list%20unlawful%2C%20watchdog%20group%20charges%E2%80%9D&description=> 

Posted in campaign finance <http://electionlawblog.org/?cat=10>  | Comments Off 

What Can the EAC Do Without a Quorum of Commisioners? <http://electionlawblog.org/?p=26759>  

Posted on December 19, 2011 12:17 pm <http://electionlawblog.org/?p=26759>  by Rick Hasen <http://electionlawblog.org/?author=3>  

The EAC blog explains <http://www.eac.gov/blogs/work_continues_at_the_eac/> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26759&title=What%20Can%20the%20EAC%20Do%20Without%20a%20Quorum%20of%20Commisioners%3F&description=> 

Posted in election administration <http://electionlawblog.org/?cat=18> , Election Assistance Commission <http://electionlawblog.org/?cat=34>  | Comments Off 

“Super PACs: How We Got Here, Where We Need to Go” <http://electionlawblog.org/?p=26757>  

Posted on December 19, 2011 12:16 pm <http://electionlawblog.org/?p=26757>  by Rick Hasen <http://electionlawblog.org/?author=3>  

A Trevor Potter speech <http://www.clcblog.org/index.php?option=com_content&view=article&id=444:super-pacs-how-we-got-here-where-we-need-to-go> .

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26757&title=%E2%80%9CSuper%20PACs%3A%20How%20We%20Got%20Here%2C%20Where%20We%20Need%20to%20Go%E2%80%9D&description=> 

Posted in campaign finance <http://electionlawblog.org/?cat=10>  | Comments Off 

“A Partisan Lightning Rod is Undeterred” <http://electionlawblog.org/?p=26755>  

Posted on December 19, 2011 10:00 am <http://electionlawblog.org/?p=26755>  by Rick Hasen <http://electionlawblog.org/?author=3>  

NYT must-read interview <http://www.nytimes.com/2011/12/18/us/politics/under-partisan-fire-eric-holder-soldiers-on.html?_r=1&ref=politics>  with AG Eric Holder, just before his voting right speech at the LBJ library.

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26755&title=%E2%80%9CA%20Partisan%20Lightning%20Rod%20is%20Undeterred%E2%80%9D&description=> 

Posted in Department of Justice <http://electionlawblog.org/?cat=26>  | Comments Off 

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

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

ClickZ reports <http://www.clickz.com/clickz/news/2133246/rnc-moves-voter-outside-compete-democrats> (via Bob Biersack <https://twitter.com/#%21/rbiersack/status/148820461789253632> ).

 <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D26753&title=%E2%80%9CRNC%20Moves%20Voter%20Data%20Outside%20to%20Compete%20With%20Democrats%E2%80%9D&description=> 

Posted in campaign finance <http://electionlawblog.org/?cat=10>  | 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

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu
http://department-lists.uci.edu/mailman/listinfo/law-election

-- 
Stephen M. Hoersting

-- 
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

-- 
Stephen M. Hoersting

-- 
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

-- 
Stephen M. Hoersting

-- 
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

-- 
Stephen M. Hoersting

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