[EL] McComish (and let's stop calling it that) Decided

Mon Jun 27 08:50:29 PDT 2011

Indeed, this continues the caustic language we have seen in election law
cases, from the Rahm Emanuel case in the Illinois Supreme Court to Citizens
United to now this.  As I wrote in my recent Essay (
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1871280), this sort of
language contributes to our overall negative discourse surrounding
elections, especially when repeated in the media.  Looks like I'll have to
revise my paper to include examples from this case...

On Mon, Jun 27, 2011 at 11:34 AM, Gerken, Heather
<heather.gerken at yale.edu>wrote:

>  Rick has been citing a bunch of the heated language from the opinions.
> I, too, was struck by the vituperative language.  It may be because of a
> nascent rivalry between Chief Justice Roberts and Justice Kagan.  But I
> think it has more to do with the current state of campaign finance doctrine.
>  We are not witnessing a doctrinal framework moving gradually toward the
> middle ground.  We are witnessing a doctrinal death match, and the language
> of the opinions reflects that fact.  For those interested, the post is here:
> ****
>
> ** **
>
>
> http://balkin.blogspot.com/2011/06/campaign-finance-and-doctrinal-death.html
> ****
>
> ** **
>
> *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, June 27, 2011 11:15 AM
> *To:* law-election at uci.edu
> *Subject:* Re: [EL] McComish (and let's stop calling it that) Decided****
>
> ** **
>  Justice Kagan’s Response on the Website Point<http://electionlawblog.org/?p=19706>
> ****
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19706> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> “Finally, the Court remarks in a footnote that the Clean Elections
> Commission’s website once stated that the ‘‘Act was passed by the people of
> Arizona . . . to level the playing field.’ Ante, at 24, n. 10. I can
> understand why the majority does not place much emphasis on this point.Some
> members of the majority have ridiculed the practice of relying on subsequent
> statements by legislators to demonstrate an earlier Congress’s intent in
> enacting a statute. See, e.g., Sullivan v. Finkelstein, 496 U. S. 617,
> 631–632 (1990) (SCALIA, J., concurring in part); United States v. Hayes, 555
> U. S. 415, 434–435 (2009) (ROBERTS,
> C. J., dissenting). Yet here the majority makes a much stranger claim: that
> a statement appearing on a government website in 2011 (written by
> who-knows-whom?) reveals what hundreds of thousands of Arizona’s voters
> sought to do in 1998 when they enacted the Clean Elections Act by
> referendum. Just to state that proposition is to know it is wrong.”****
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19706&title=Justice%20Kagan%E2%80%99s%20Response%20on%20the%20Website%20Point&description=>
> ****
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off ****
>  More Gold from J. Kagan <http://electionlawblog.org/?p=19702> ****
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19702> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> “Pretend you are financing your campaign through private donations. Would
> you prefer that your opponent receive a guaranteed, upfront payment of
> $150,000, or that he receive only $50,000, with the *possibility*—a
> possibility that you mostly get to control—of collecting another $100,000
> somewhere down the road? Me too.”****
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19702&title=More%20Gold%20from%20J.%20Kagan&description=>
> ****
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Of
>
> On 6/27/2011 8:05 AM, Rick Hasen wrote: ****
>  And this from J. Kagan <http://electionlawblog.org/?p=19699> ****
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19699> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> “If an ordinary citizen, without the hindrance of a law degree, thought
> this result an upending of First Amendment values, he would be correct.”**
> **
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19699&title=And%20this%20from%20J.%20Kagan&description=>
> ****
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off ****
>  The Dissent’s Ouch! <http://electionlawblog.org/?p=19696> ****
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19696> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> Justice Kagan: “So they are making a novel argument: that Arizona violated
> *their* First Amendment rights by disbursing funds to *other* speakers
> even though they could have received (but chose to spurn) the same financial
> assistance. Some people might call that *chutzpah*.”****
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19696&title=The%20Dissent%E2%80%99s%20Ouch%21&description=>
> ****
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Of
>
> On 6/27/2011 7:52 AM, Rick Hasen wrote: ****
> Ouch! <http://electionlawblog.org/?p=19693> ****
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19693> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> A fn. in CJ Roberts’ opinion: “Prior to oral argument in this case, the
> Citizens Clean Elections Commission’s Web site stated that “ ‘The Citizens
> Clean Elections Act was passed by the people of Arizona in 1998 to level the
> playing field when it comes to running for office.’ ” AFEC Brief 10, n. 3
> (quoting http://www.azcleanelections.gov/about-us/get-involved.aspx); Tr.
> of OralArg. 48. The Web site now says that “The Citizens Clean Elections
> Actwas passed by the people of Arizona in 1998 to restore citizen
> participa-tion and confidence in our political system.”****
>
> [image: Share]****
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Of
>
> On 6/27/2011 7:37 AM, Rick Hasen wrote: ****
> Arizona Free Enterprise Club’s Freedom PAC v. Bennett (McComish) Decided<http://electionlawblog.org/?p=19690>
> ****
>
> Posted on June 27, 2011 <http://electionlawblog.org/?p=19690> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> The opinion is here<http://www.supremecourt.gov/opinions/10pdf/10-238.pdf>.
> It is 5-4, as expected, striking down the matching funds provision.****
>
> More to come after I’ve read and analyzed the 68 pages.****
>
> [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D19690&title=Arizona%20Free%20Enterprise%20Club%E2%80%99s%20Freedom%20PAC%20v.%20Bennett%20%28McComish%29%20Decided&description=>
> ****
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off ****
>
> --
> Rick Hasen
> Visiting Professor
> 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
>
> William H. Hannon Distinguished Professor of Law
> Loyola Law School
> http://electionlawblog.org****
>
> ** **
>
> --
> Rick Hasen
> Visiting Professor
> 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
>
> William H. Hannon Distinguished Professor of Law
> Loyola Law School
> http://electionlawblog.org****
>
> ** **
>
> --
> Rick Hasen
> Visiting Professor
> 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
>
> William H. Hannon Distinguished Professor of Law
> Loyola Law School
> http://electionlawblog.org****
>
> ** **
>
> --
> Rick Hasen
> Visiting Professor
> 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
>
> William H. Hannon Distinguished Professor of Law
> Loyola Law School
> http://electionlawblog.org****
>
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>

-- 
Joshua A. Douglas
Assistant Professor of Law
University of Kentucky College of Law
620 S. Limestone
Lexington, KY 40506
(859) 257-4935
joshuadouglas at uky.edu
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