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

Mon Jun 27 09:17:50 PDT 2011

In the "for what it's worth" department, I don't find either opinion out of bounds in the rhetoric department.  Maybe I'm a heathen dolt, but I like emphatic writing, and I think both opinions exhibit that.  I disagree with Kagen's argument - make no mistake - but the tone in hers as well as Roberts's is IMO fine, and appropriate to the issue.  

I'd probably feel differently if this was a FRCP interpretation decision, as then it would seem unjustified.  

A.

On Jun 27, 2011, at 11:34 AM, Gerken, Heather 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
> 
> Posted on June 27, 2011 by Rick Hasen
> “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.”
> 
> <image001.png>
> Posted in campaign finance | Comments Off
> More Gold from J. Kagan
> 
> Posted on June 27, 2011 by Rick Hasen
> “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.”
> 
> <image001.png>
> Posted in campaign finance | Comments Of
> 
> On 6/27/2011 8:05 AM, Rick Hasen wrote:
> And this from J. Kagan
> 
> Posted on June 27, 2011 by Rick Hasen
> “If an ordinary citizen, without the hindrance of a law degree, thought this result an upending of First Amendment values, he would be correct.”
> 
> <image001.png>
> Posted in campaign finance | Comments Off
> The Dissent’s Ouch!
> 
> Posted on June 27, 2011 by Rick Hasen
> 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.”
> 
> <image001.png>
> Posted in campaign finance | Comments Of
> 
> On 6/27/2011 7:52 AM, Rick Hasen wrote:
> Ouch!
> 
> Posted on June 27, 2011 by Rick Hasen
> 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 (quotinghttp://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.”
> 
> <image001.png>
> Posted in campaign finance | Comments Of
> 
> On 6/27/2011 7:37 AM, Rick Hasen wrote:
> Arizona Free Enterprise Club’s Freedom PAC v. Bennett (McComish) Decided
> 
> Posted on June 27, 2011 by Rick Hasen
> The opinion is here. It is 5-4, as expected, striking down the matching funds provision.
> 
> More to come after I’ve read and analyzed the 68 pages.
> 
> <image001.png>
> Posted in campaign finance | 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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