[EL] ELB News and Commentary 7/13/11
JBoppjr at aol.com
JBoppjr at aol.com
Wed Jul 13 07:44:56 PDT 2011
Regarding the following post, we have confirmed with the 8th Circuit that
both rulings of the 3 judge panel are vacated and are subject of the en
banc argument. We are seeking supplemental argument today to address the
ruling in the Virginia district court striking down the ban on corporate
contributions to candidates where we will argue that Beaumont is not binding
precedent on this point. Jim Bopp
_Eighth Circuit Grants Rehearing En Banc in Swanson Case; Scope of En Banc
Review Unclear_ (http://electionlawblog.org/?p=20294)
Posted on _July 12, 2011_ (http://electionlawblog.org/?p=20294) by _Rick
Hasen_ (http://electionlawblog.org/?author=3)
The Eighth Circuit just issued_ this order_
(http://electionlawblog.org/wp-content/uploads/swanson-enbanc-order.pdf) in MCCL v. Swanson:
Appellant’s petition for rehearing en banc has been considered by the Court
and is granted. The opinion and judgment of this Court filed on May 16,
2011, are vacated.
The en banc argument will be scheduled for Wednesday, September 21, 2011,
in St. Louis, Missouri.
Swanson had two holdings: (1) the state ban on corporate contributions to
candidates remains constitutional even after Citizens United and (2) the
state’s rules for disclosure of certain political activity are
constitutional.
MCCL (through their attorney Jim Bopp) sought review only on the disclosure
issue and not on the corporate contribution to candidate issue. See _this
post_ (http://electionlawblog.org/?p=18580) , with a link to the petition.
What is unclear from the Eighth Circuit’s en banc order is whether the full
Eighth Circuit sua sponte plans to review issue (1) as well. The order
does make it clear that the panel opinion is vacated and cannot be cited as
precedent, on point (1) or point (2).
[Disclosure: I am one of the attorneys representing the City of San Diego
where a _similar issue_ (http://electionlawblog.org/?p=19601) to issue (1)
is pending in a Ninth Circuit case brought by Jim Bopp; Bopp's request for
rehearing en banc there is pending.]
In a message dated 7/13/2011 12:33:39 A.M. Eastern Daylight Time,
rhasen at law.uci.edu writes:
_“6 fake Democrats fall, setting stage for GOP recalls”_
(http://electionlawblog.org/?p=20314)
Posted on _July 12, 2011_ (http://electionlawblog.org/?p=20314) by _Rick
Hasen_ (http://electionlawblog.org/?author=3)
More _news_ (http://www.jsonline.com/news/statepolitics/125464393.html)
from Wisconsin.
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=20314&title=“6%20fake%20Democrats%20fall,%20setting%20stage%20for%20GOP%20recalls
”&description=)
Posted in _recall elections_ (http://electionlawblog.org/?cat=11) |
Comments Off
_Janice Hahn Wins CA-36 Special Election under Top Two_
(http://electionlawblog.org/?p=20312)
Posted on _July 12, 2011_ (http://electionlawblog.org/?p=20312) by _Rick
Hasen_ (http://electionlawblog.org/?author=3)
I guess it was _not enough_
(http://rrcc.co.la.ca.us/elect/11070592/rr0592pa.html-ssi) to tell McCain-Feingold to _suck it_
(http://electionlawblog.org/?p=19210) .
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=20312&title=Janice%20Hahn%20Wins%20CA-36%20Special%20Election%20under%20Top%20Two
&description=)
Posted in _campaign finance_ (http://electionlawblog.org/?cat=10) ,
_primaries_ (http://electionlawblog.org/?cat=32) | Comments Off
_“Newly Released FEC Documents Provide Insight Into Legal Issues in
Clinton Audit”_ (http://electionlawblog.org/?p=20309)
Posted on _July 12, 2011_ (http://electionlawblog.org/?p=20309) by _Rick
Hasen_ (http://electionlawblog.org/?author=3)
_BNA_
(http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=21292525&vname=mpebulallissues&fn=21292525&jd=a0c8j4f8v5&split=0) : “Staff auditors
and attorneys for the Federal Election Commission raised questions about
millions of dollars in contributions to Hillary Clinton’s 2008 presidential
campaign, but the FEC commissioners unanimously dismissed the staff concerns,
according to a 2010 _memorandum_
(http://www.fec.gov/audits/Hillary_Clinton_for_President/OfficeofGeneralCounsel-CommissionDirective69Memoranda1175259.pd
f) recently made public by the FEC.”
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=20309&title=“
Newly%20Released%20FEC%20Documents%20Provide%20Insight%20Into%20Legal%20Issues%20in%20Clinton%20Audit”&description=)
Posted in _campaign finance_ (http://electionlawblog.org/?cat=10) |
Comments Off
_“Still Other People’s Money: Reconciling Citizens United with Abood and
Beck”_ (http://electionlawblog.org/?p=20306)
Posted on _July 12, 2011_ (http://electionlawblog.org/?p=20306) by _Rick
Hasen_ (http://electionlawblog.org/?author=3)
Jeremy Mallory has posted _this draft _
(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1879493) on SSRN (Cal Western Law Review). Here is the
abstract:
Citizens United has already taken its place as a landmark decision of the
2009 Term of the Roberts Court. Its story is not complete, however: while it
overturned Austin v. Michigan Chamber of Commerce and rejected the
equalization of voice in politics as a valid justification for constraints on
spending, it did not excise deeper concerns – both congressional and judicial –
about the corrupting misuse of “other people’s money,” in Louis Brandeis’
s memorable phrasing. A line of cases regarding the use of union dues for
political purposes (primarily Communications Workers of America v. Beck and
Abood v. Detroit Board of Education) and the legislative findings of the
Tillman Act present a coherent description of political corruption that
Citizens United left standing, but never seriously reckoned with. Given that
these legislative and judicial convictions retain their vitality even after
Citizens United, the Court must modify the Citizens United regime to
accommodate this view of corruption. Permitting shareholders to opt their
investments out of political use would be a sufficient protection for their right
not to have their money used for political speech with which they disagree
while protecting the corporation’s right to political speech articulated in
Citizens United.
This article draws out the difficulty recognized in the union-dues cases –
having one’s money used for political speech with which one disagrees –
and applies it to the new Citizens United world. Because Citizens United
presented a legal rule with little guidance as to implementation, this article
opens a much-needed discourse on how to work with the new world that has
taken hold in campaign finance.
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=20306&title=“Still%20Other%20People’
s%20Money:%20Reconciling%20Citizens%20United%20with%20Abood%20and%20Beck”&description=)
Posted in _campaign finance_ (http://electionlawblog.org/?cat=10) |
Comments Off
_“Ruling on bias has Supreme Court judges bickering again”_
(http://electionlawblog.org/?p=20303)
Posted on _July 12, 2011_ (http://electionlawblog.org/?p=20303) by _Rick
Hasen_ (http://electionlawblog.org/?author=3)
_Milwaukee Journal-Sentinel_
(http://www.jsonline.com/news/statepolitics/125432173.html) :
State Supreme Court justices can’t kick each other off cases for alleged
bias, the court ruled Tuesday in a bitterly divided decision along
now-familiar 4-3 lines.
_The decision_
(http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=67832) prompted a fresh round of tough words for one
another, with the dissenters saying Justice Patience Roggensack had forsaken a “
bedrock principle of law” to supply the deciding vote in the matter. They
said Roggensack should not have participated in deciding whether she was
ethically constrained from staying on the case.
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=20303&title=“
Ruling%20on%20bias%20has%20Supreme%20Court%20judges%20bickering%20again”&description=)
Posted in _conflict of interest laws_ (http://electionlawblog.org/?cat=20)
, _judicial elections_ (http://electionlawblog.org/?cat=19) | Comments
Off
_California Court of Appeal Decides Legislator Residency Case; Notes “Off
Pink” Bedding in Legislator’s Purported Residence_
(http://electionlawblog.org/?p=20299)
Posted on _July 12, 2011_ (http://electionlawblog.org/?p=20299) by _Rick
Hasen_ (http://electionlawblog.org/?author=3)
See _here_ (http://www.metnews.com/sos.cgi?0711/B232709) .
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=20299&title=California%20Court%20of%20Appeal%20Decides%20Legislator%20Residency%2
0Case;%20Notes%20“Off%20Pink”%20Bedding%20in%20Legislator’
s%20Purported%20Residence&description=)
Posted in _residency_ (http://electionlawblog.org/?cat=38) | Comments Off
_Eighth Circuit Grants Rehearing En Banc in Swanson Case; Scope of En Banc
Review Unclear_ (http://electionlawblog.org/?p=20294)
Posted on _July 12, 2011_ (http://electionlawblog.org/?p=20294) by _Rick
Hasen_ (http://electionlawblog.org/?author=3)
The Eighth Circuit just issued_ this order_
(http://electionlawblog.org/wp-content/uploads/swanson-enbanc-order.pdf) in MCCL v. Swanson:
Appellant’s petition for rehearing en banc has been considered by the
Court and is granted. The opinion and judgment of this Court filed on May 16,
2011, are vacated.
The en banc argument will be scheduled for Wednesday, September 21, 2011,
in St. Louis, Missouri.
Swanson had two holdings: (1) the state ban on corporate contributions to
candidates remains constitutional even after Citizens United and (2) the
state’s rules for disclosure of certain political activity are
constitutional.
MCCL (through their attorney Jim Bopp) sought review only on the disclosure
issue and not on the corporate contribution to candidate issue. See
_this post_ (http://electionlawblog.org/?p=18580) , with a link to the
petition.
What is unclear from the Eighth Circuit’s en banc order is whether the full
Eighth Circuit sua sponte plans to review issue (1) as well. The order
does make it clear that the panel opinion is vacated and cannot be cited as
precedent, on point (1) or point (2).
[Disclosure: I am one of the attorneys representing the City of San Diego
where a _similar issue_ (http://electionlawblog.org/?p=19601) to issue (1)
is pending in a Ninth Circuit case brought by Jim Bopp; Bopp's request for
rehearing en banc there is pending.]
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=20294&title=Eighth%20Circuit%20Grants%20Rehearing%20En%20Banc%20in%20<i>Swanson</
i>%20Case;%20Scope%20of%20En%20Banc%20Review%20Unclear&description=)
Posted in _Uncategorized_ (http://electionlawblog.org/?cat=1) | Comments
Off
_“Spider-Man, Stephen Colbert and the Shareholder Protection Act”_
(http://electionlawblog.org/?p=20291)
Posted on _July 12, 2011_ (http://electionlawblog.org/?p=20291) by _Rick
Hasen_ (http://electionlawblog.org/?author=3)
Ciara Torres-Spelliscy and Lisa Gilbert have written _this post_
(http://thehill.com/blogs/congress-blog/politics/170947-spider-man-stephen-colbert-and
-campaign-finance) on “The Hill’s Congress Blog.”
(http://www.addtoany.com/share_save#url=
http://electionlawblog.org/?p=20291&title=“
Spider-Man,%20Stephen%20Colbert%20and%20the%20Shareholder%20Protection%20Act”&description=)
Posted in _Uncategorized_ (http://electionlawblog.org/?cat=1) | Comments
Off
_“Change in State Supreme Court Elections: Is Voting Becoming More
Partisan?”_ (http://electionlawblog.org/?p=20286)
Posted on _July 12, 2011_ (http://electionlawblog.org/?p=20286) by _Rick
Hasen_ (http://electionlawblog.org/?author=3)
Herbert Kritzer has posted_ this draft_
(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1879952) on SSRN. Here is the abstract;
Judicial elections, particularly elections to state supreme courts, have
generated substantial commentary over the last decade. Observers have
asserted that elections have become more hotly contested, nastier, more
expensive, and more divisive. This paper focuses on the question of whether
elections are increasingly partisan. Using a data set of all statewide partisan and
nonpartisan elections since 1946 plus a subset of retention elections from
that same period, patterns of partisanship in voting are examined. The
results of the analysis show that in some circumstances voting patterns in
state supreme court elections have become more partisan. Elections that are
explicitly partisan have not changed. The change has occurred in a subset of
the states employing nonpartisan elections. The states that have
experienced this change are those where the state supreme court has been called upon
to decide questions where the issues align with partisan divisions (death
penalty, same-sex marriage, abortion, property rights, tort reform). Where
strong partisan patterns have occurred in retention elections these patterns
typically arise in the wake of a controversial decision dealing with one
of the partisan-aligned issues. The paper concludes by observing that if
courts deal with issues that activate partisan divisions, it is not surprising
that voters, given the opportunity, will respond in a way that reflects
those same partisan divisions. Importantly, the retention elections
associated with the so-called “merit” system do not escape this pattern when the
justices of the courts who must stand for retention decide divisive issues.
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=20286&title=“
Change%20in%20State%20Supreme%20Court%20Elections:%20Is%20Voting%20Becoming%20More%20Partisan?”&description=)
Posted in _judicial elections_ (http://electionlawblog.org/?cat=19) |
Comments Off
_Election Day Dirty Tricks_ (http://electionlawblog.org/?p=20284)
Posted on _July 12, 2011_ (http://electionlawblog.org/?p=20284) by _Rick
Hasen_ (http://electionlawblog.org/?author=3)
See _here_
(http://www.dailykos.com/story/2011/07/12/993855/-Out-of-state-robocalls-telling-Wisconsin-Dems-not-to-vote-in-todays-recallprimaries?detail=
hide&via=blog_1) and _here_
(http://www.politico.com/blogs/davidcatanese/0711/CA36_Calls_moving_the_election_to_Wed.html) .
I’ve spent a lot of time recently looking at allegations of voter
suppression, voter intimidation, and dirty tricks since 2000 for a chapter of The
Voting Wars. Unlike allegations of voter fraud, my conclusion is that there
are real attempts at voter suppression and voter intimidation, though some
claims are false and many are exaggerated. However, there is little
evidence that such schemes usually work. (The chapter covers, among other
things, the 2002 New Hampshire phone jamming case, the 2010 “Don’t Vote” ads in
Nevada by “Latinos for Reform,” the effects of new voter identification
laws, claims of hacking of voting machines, and the New Black Panthers
incident.) Some schemes even may be counterproductive.
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=20284&title=Election%20Day%20Dirty%20Tricks&description=)
Posted in _chicanery_ (http://electionlawblog.org/?cat=12) , _election
administration_ (http://electionlawblog.org/?cat=18) | Comments Off
_Fake Primary Day in Wisconsin_ (http://electionlawblog.org/?p=20281)
Posted on _July 12, 2011_ (http://electionlawblog.org/?p=20281) by _Rick
Hasen_ (http://electionlawblog.org/?author=3)
_Here_
(http://politicalticker.blogs.cnn.com/2011/07/12/wisconsin-recall-elections-underway/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+rs
s/cnn_politicalticker+(Blog:+Political+Ticker)) .
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=20281&title=Fake%20Primary%20Day%20in%20Wisconsin&description=)
Posted in _recall elections_ (http://electionlawblog.org/?cat=11) |
Comments Off
_“Darrell Issa questions White House’s 2012 actions”_
(http://electionlawblog.org/?p=20277)
Posted on _July 12, 2011_ (http://electionlawblog.org/?p=20277) by _Rick
Hasen_ (http://electionlawblog.org/?author=3)
_Politico_ (http://www.politico.com/news/stories/0711/58755.html) : “House
Oversight Committee Chairman Darrell Issa is probing what he sees as signs
of an unseemly overlap between President Barack Obama’s official and
political activities.”
MORE: WaPo _profiles_
(http://www.washingtonpost.com/politics/six-months-into-chairmanship-issa-isnt-what-either-side-expected/2011/07/11/gIQA0Ghi9H_sto
ry.html) Rep. Issa’s tenure as chair of the House Oversight and Reform
Committee.
UPDATE: Rep. Issa’s letter is _here_
(http://www.politico.com/static/PPM153_camp.html) .
(http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=20277&title=“Darrell%20Issa%20questions%20White%20House’s%202012%20actions”
&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_ (mailto:rhasen at law.uci.edu)
_http://law.uci.edu/faculty/page1_r_hasen.html_
(http://law.uci.edu/faculty/page1_r_hasen.html)
_http://electionlawblog.org_ (http://electionlawblog.org/)
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