[EL] ballot labels

Wed Jun 29 16:00:59 PDT 2011

The small sliver of the electorate that follows politics very closely presumably understands the precise ideological signal conveyed by the Libertarian Party or Green Party endorsement.  But for the great mass of voters, who don't pay much attention to politics (and who tend to be pretty centrist in their beliefs), the major party cues are uniquely helpful because they allow the voter to link candidates for office to the voter's stray observations about current elected officials (who are usually affiliated one one of the major parties) and the government's performance when one or the other party has been in charge.

Or put it this way: minor party cues are helpful to voters who study party platforms.  Major party cues are helpful to anyone who has an inchoate sense of who is (or has been) in charge, how they're doing, and which "side" they're affiliated with.  And who wants to vote for a candidate with a decent shot of winning (assuming plurality-winner elections).

Chris

Christopher S. Elmendorf
Professor of Law
University of California at Davis
400 Mrak Hall Drive
Davis, CA 95616
tel: 530.752.5756
________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Dan Meek [dan at meek.net]
Sent: Wednesday, June 29, 2011 3:31 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] ballot labels

I would think that minor party labels are more informative than major party labels.  Listing a candidate on the ballot as a Libertarian or Green conveys very significant information about the candidate's views, since a party with definite views has seen fit to nominate that candidate.

Listing a candidate as a Democrat or Republican means less, as the nominees of those parties are typically chosen in primaries, not by party leaders (or at party conventions likely to be attended by hard-core party adherents), and are thus less likely to be ideologically predictable.  Further, the major parties sometimes run candidates with views not typically associated with the party (the "big tent" approach), thus further reducing the informational value of the major party label.

Daniel Meek
Attorney

10949 S.W. 4th Avenue
Suite 1000
Portland, OR 97219
503-293-9021 phone
866-926-9646 fax
dan at meek.net<mailto:dan at meek.net>

On 6/29/2011 8:43 AM, Richard Winger wrote:
But Dart v Brown said, "The candidate is a vehicle for a party.  He or she represents the ideals of a group of persons and is, once elected, the person whom members of the group expect to implement their political ideas."  (page 1499).

Because of the US Supreme Court decision in 2000 (17 years after Dart v Brown) California Democratic Party v Jones, the defends of top-two systems are madly arguing just the opposite.  They must, if top-two is to survive.  They are telling the court the party label means nothing about the party itself and its supporters.  So the logic of Dart v Brown can't be applied in the top-two cases.

--- On Wed, 6/29/11, Elmendorf, Christopher <cselmendorf at ucdavis.edu><mailto:cselmendorf at ucdavis.edu> wrote:

From: Elmendorf, Christopher <cselmendorf at ucdavis.edu><mailto:cselmendorf at ucdavis.edu>
Subject: RE: ballot labels
To: "richardwinger at yahoo.com"<mailto:richardwinger at yahoo.com> <richardwinger at yahoo.com><mailto:richardwinger at yahoo.com>, "BradSmith" <BSmith at law.capital.edu><mailto:BSmith at law.capital.edu>, "law-election at department-lists.uci.edu"<mailto:law-election at department-lists.uci.edu> <law-election at department-lists.uci.edu><mailto:law-election at department-lists.uci.edu>
Date: Wednesday, June 29, 2011, 8:36 AM

Dart v. Brown, 717 F.2d 1491 (5th Cir. 1983), upheld a similar restriction in the context of Louisiana's jungle primary.  The court reasoned, correctly in my view, that the major-party labels are more broadly informative than minor party labels and that the state interest in avoiding voter confusion justified the restriction (particularly given the proliferation of candidates on the jungle primary ballot).

Chris

Christopher S. Elmendorf
Professor of Law
University of California at Davis
400 Mrak Hall Drive
Davis, CA 95616
tel: 530.752.5756
________________________________
From: Richard Winger [richardwinger at yahoo.com<mailto:richardwinger at yahoo.com>]
Sent: Tuesday, June 28, 2011 5:31 PM
To: BradSmith; law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>; Elmendorf, Christopher
Subject: ballot labels

Since this discussion about the Arizona case has moved into discussion of labels on ballots, I am curious if anyone wants to express an opinion about California's Prop. 14, which says candidates for Congress and partisan state office can have their party of registration printed on the ballot, but only if they are registered in a qualified party.  Candidates registered in an unqualified party must have "no party preference" printed on the ballot next to their names.  Prop. 14 also sets new higher standards for party qualification, so that it is likely the Libertarian and Peace & Freedom Parties will be removed from the ballot and their members won't be able to list their party label on the ballot.

By contrast, Washington state, which has a similar election system for Congress and state office, lets all candidates dream up any party label, and that label will be printed on the ballot if it isn't too long and is not obscene.

--- On Tue, 6/28/11, Elmendorf, Christopher <cselmendorf at ucdavis.edu><mailto:cselmendorf at ucdavis.edu> wrote:

From: Elmendorf, Christopher <cselmendorf at ucdavis.edu><mailto:cselmendorf at ucdavis.edu>
Subject: Re: [EL] McComish & "triggers"
To: "Smith, Brad" <BSmith at law.capital.edu><mailto:BSmith at law.capital.edu>, "law-election at department-lists.uci.edu"<mailto:law-election at department-lists.uci.edu> <law-election at department-lists.uci.edu><mailto:law-election at department-lists.uci.edu>
Date: Tuesday, June 28, 2011, 4:44 PM

Brad,

(1)  Your explanation of partisan ballots may be true historically but nowadays any state that chooses to switch from nonpartisan to partisan elections is almost surely doing it for informational reasons.  The variety of other information provided on the ballot and in state-published voter guides--everything from the fiscal impact of ballot initiatives to the occupation of candidates--is designed to inform voter choice.  These regulatory decisions make some voting considerations more salient than others, based on a substantive conception of "good voting."

(2)  Among other problems, I would think your "$100,000 reward for the good campaigner" program is unconstitutional b/c of indeterminate standards and the risk of discretion/bias in implementation.

Let me be clear: I am in complete agreement with you that it's a "dangerous business" (to quote Justice Alito) for the government to try to influence the character of campaigning and voting.  But I think it's a business the government is already in--pervasively--and probably should be in, to some extent, despite the dangers.  So the courts need something more nuanced than "it's not the government's business" in order to distinguish the permissible from the impermissible within the class of regulations meant to shape campaigning and voting.

--Chris

Christopher S. Elmendorf
Professor of Law
University of California at Davis
400 Mrak Hall Drive
Davis, CA 95616
tel: 530.752.5756
________________________________
From: Smith, Brad [BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>]
Sent: Tuesday, June 28, 2011 4:07 PM
To: Elmendorf, Christopher; law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: RE: [EL] McComish & "triggers"

It's not just that it puts them at a disadvantage - it is that the system is designed specifically to put non-participating candidates at a disadvantage, and will be altered (it doesn't really matter that it is altered by a pre-arranged trigger) when needed to assure that the favored candidate retains that advantage. Rather than saying, here are two options, you might do better under A, you might do better under B, take your pick, it says "you might do better under A, and we will work to make sure that you do not do better under B." Under current precedent, that's a significant difference, enough to find Regime B unconstitutional.  If we want to look beyond current precedent, well, as I said, in fact the Court should ultimately overrule Buckley on this question.

Meanwhile, let me make my hypo a bit more real.  Two months before the election, the government doesn't randomly give $100K to just one candidate. Rather, it gives it to the candidate who, in the government's opinion, has run the most "responsible" or "most informative" campaign. Constitutional? Isn't that what Regime B does?

The comparison to non-partisan elections is not persuasive. The tradition of ballot designation comes from the state taking over the traditionally private ritual of printing ballots. In doing so, the state deprived the candidates of the ability to identify themselves on ballots by party. Thus, the state is simply minimizing this impact of its interference into the traditional method of voting. Beyond that, there may be problems if the state discriminates in allowing candidates to designate their party on the ballot, and indeed there has been much litigation on this, with at least some such discrimination found to be constitutionally defective. Finally, while it is true that having partisan or non-partisan races can affect a candidate's viability, the state must make some choice there - races are either partisan, or non-partisan. It is not required to make a choice on whether and how a candidate campaigns. It is true that one could adopt an extreme position and hold that no information can go on any ballot other than a candidate's name, but I see no reason that that is required.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp

________________________________
From: Elmendorf, Christopher [mailto:cselmendorf at ucdavis.edu]
Sent: Tue 6/28/2011 6:30 PM
To: Smith, Brad; law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: RE: [EL] McComish & "triggers"

Brad,

Your comments are helpful but I'm not convinced that Regime B (public financing with release) is necessarily unconstitutional "because it places the nonparticipating candidate at a disadvantage compared to the participating candidate."

If that's the constitutional standard, then *any* public financing regime in which some candidates opt to participate and others do not is unconstitutional.  Those who participate presumably do so because they think they will do better in the regime than out of it; they enjoy an ex ante advantage (relative to the libertarian baseline) on account of it.

Also, analogizing Regime B (public financing with release) to a system in which the state simply awards $100,000 to one candidate two months before the election is inapt.  In your hypo, the award is arbitrary at best.  Under Regime B, the award incentivizes a type of campaigning--building a broad base of support, then debating the issues rather than fundraising--deemed normative.  Of course, one can argue that the state has no business trying to influence the character of campaign, the information provided to voters, etc.  But if you take that position, doesn't it also follow that all elections must be conducted using nonpartisan ballots?  There is no intervention in the political process that has a greater effect on outcomes than the decision to print (or not to print) party labels on the ballot.  So if party labels are okay, how can it be said that state efforts to shape the character of campaigning are per se impermissible?

Chris

Christopher S. Elmendorf
Professor of Law
University of California at Davis
400 Mrak Hall Drive
Davis, CA 95616
tel: 530.752.5756
________________________________
From: Smith, Brad [BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>]
Sent: Tuesday, June 28, 2011 2:41 PM
To: Elmendorf, Christopher; law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: RE: [EL] McCommish & "triggers"

Under the first hypothetical, everybody will take the money. Why not? Even if you don't make the qualifying numbers, nothing lost.

But the second still attempts to limit speech. It says, if you spend over this limit, then we (the state) will work to make sure that you don't win. We will try to disadvantage you, by altering our agreement. It amounts to a $100,000 penalty for the candidate who decides that more should be spent. To take advantage of his "right" to spend more, he has to face a 1-way subsidy that benefits only his opponent, while placing no restraints on that opponent. That's the problem here.

You can think about this way: Suppose there is no spending limit, and each candidate is raising money.  Two months before the election, the government just gives one candidate, but only 1 candidate, $100,000, no strings attached. Constitutional? I don't think so.

As I see it, Regime A, under the usual reading given Buckley, is OK.  So would be a new Regime A1 - you get your $100,000, and agree not to spend more than $110,000 K, and your opponent can spend whatever (essentially the original matching fund schemes that the Court ruled on in Buckley).  But Regime B is not. Regime B always places the non-participating candidate at a disadvantage compared to the participating candidate. Either the candidate must limit his spending, which by definition appears not to be in his interest (or he would be a participating candidate), or the candidate will be penalized through a 1 way subsidy to his opponent, that comes with no trade off for that opponent. That is not a "voluntary" system.

Eventually, however, I do think that the Court will have to realize that Burger's dissent in Buckley was correct.  Having the government pay for campaigns is certainly not wise precisely because of the ability of legislators and reformers to cook up endless variations that will help the type of candidate they prefer. It is not incompatible with a generally free and democratic society, at least not over the short and mid-term, but it is ultimately incompatible with the type of accountability and dynamic democracy that our Constitution envisions.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp

________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> on behalf of Elmendorf, Christopher
Sent: Tue 6/28/2011 3:43 PM
To: Daniel Meek, Attorney; law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: Re: [EL] McCommish & "triggers"

Let me state the “release” hypothetical more precisely.  (This is, in a sense, a variant on the hypo Kagan gave on pp. 17-18 of the slip opinion.  But it’s even more arresting I think.)

Regime A: Unconditional Lump Sum Awards for Grassroots Candidates.  Under this regime, any candidate who raises, let us say, $10,000 in contributions of $10 or less is offered a lump sum grant from the state of $100,000.  Accepting the $100,000 grant does not oblige the candidate to abide by any expenditure limitation or restriction on fundraising, other than restrictions (such as ordinary contribution limits) that apply to all candidates.  The grant of funds is unconditional.

Regime B:  Lump Sum Award for Grassroots Candidates, Subject to Expenditure Limit and Release.  This regime is identical to Regime A, except that in order to receive the $100,000 grant, the candidate must also agree to limit her total expenditures to $110,000.  However, if a nonparticipating candidate spends more than $110,000, the expenditure limit for the participating candidate is waived, and she may raise and spend additional funds on the same terms as all other candidates.

It’s hard for me to see how Regime B could possibly be said to burden the speech of opponents of the participating candidate more than Regime A.  The only difference between the two regulatory systems is that, in the second regime, the participating candidate agrees to self-muffle unless someone speaks very loudly (expensively) against her, whereas under Regime A, there is no self-muffling that goes with an acceptance of public funds.  It is a bizarre jurisprudence which holds that the regime that features self-muffling creates a *greater* burden on the speech people who *oppose* the provisionally muffled candidate than the regime without self-muffling.

(If Regime B is not per-se unconstitutional, then one can argue with a straight face for certain other trigger/matching fund arrangements, along the lines of what I suggested yesterday.)

Chris

Christopher S. Elmendorf
Professor of Law
University of California at Davis
400 Mrak Hall Drive
Davis, CA 95616
tel: 530.752.5756
________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Daniel Meek, Attorney [dan at meek.net<mailto:dan at meek.net>]
Sent: Monday, June 27, 2011 7:48 PM
To: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: Re: [EL] McCommish & "triggers"

The McComish (AFECFCPAC) appears to forbid any trigger which depends on the amount of money raised or spent by an opponent.  Both of your models change the requirements applicable to the participating candidate when the non-participating candidate exceeds a certain amount in spending.  Thus, your models would appear to be vulnerable under McComish.

There could be a trigger that in no way depends on the amount of money raised or spent by a non-participating candidate.  For example, the program could provide supplemental funding to any participating candidate who is opposed by one or more non-participants and is shown by professional polls (say 30 days before the election) to be not more than say 10% of the vote away from winning the seat.  This would focus the supplemental funds on participating candidates who are likely to be able to use the additional funds to win and thus allow each supplemental fund grant to be larger than otherwise.

Five justices believe that individuals and groups have a First Amendment right to spend unlimited sums on campaigns and a First Amendment right not to be penalized (relative to a publicly-funded candidate) for the level of those expenditures.  I have seen no case which holds that anyone has a First Amendment right to win an election or to preserve a lead in the polls.

10949 S.W. 4th Avenue
Suite 1000
Portland, OR 97219
503-293-9021 phone
866-926-9646 fax
dan at meek.net

Daniel Meek
Attorney

On 6/27/2011 1:46 PM, Elmendorf, Christopher wrote:
Here's a question for the list, germane to Rick's "New York City as a Model" post:  Are "triggers" necessarily dead after McCommish?  Consider two scenarios.

1.  The "Release" Model.  In this model, the state or city with a public financing program simply releases participating candidates from the expenditure cap if spending by a nonparticipating candidate exceeds the cap for participating candidates.  In some sense this "penalizes" speech by the nonparticipating candidate, but the penalty is nothing but the restoration of the libertarian or quasi-libertarian status quo that would have obtained absent the public financing program.  Unconstitutional?

2.  The "Matching Funds & Tightened Contribution Limit" Model.   If such a "release" from the applicable expenditure limit is not unconstitutional, then how about the following variant, which makes use of matching funds.  Assume a spending limit of $100,000 for participating candidates, and a contribution limit of $1000, which applies to all candidates.  In the event that a nonparticipating candidate spends more than $100,000, the spending limit for the participating candidate is raised in an amount equal to the "excess" spending by the nonparticipating candidate, provided, however, that the new spending must come from contributions of $200 or less, which contributions are matched 2:1 with public funds.

Is scenario #2 per-se unconstitutional, because the state is not merely releasing the participating candidate from spending limits (restoring the libertarian baseline), but rather is subsidizing speech antagonistic to the speech of the nonparticipating candidate exercising her First Amendment rights?  But what if it's actually much more difficult under scenario #2 for participating candidates to combat the speech of nonpaticipating candidates than in scenario #1?  In that case, it's hard to see how the "burden" placed on constitutionally protected speech under scenario #2 could rise to the level of constitutional significance, assuming that there's no constitutional objection to scenario #1.  (On the other hand, it would be no easy task for the courts to make this relative burden judgment . . .)

Thoughts?

-- Chris

Christopher S. Elmendorf
Professor of Law
University of California at Davis
400 Mrak Hall Drive
Davis, CA 95616
tel: 530.752.5756
________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen [rhasen at law.uci.edu]
Sent: Monday, June 27, 2011 1:12 PM
To: law-election at uci.edu
Subject: [EL] more news 6/27/11

“New York City as a Model?”<http://electionlawblog.org/?p=19748>
Posted on June 27, 2011<http://electionlawblog.org/?p=19748> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this post<http://www.nytimes.com/roomfordebate/2011/06/27/the-court-and-the-future-of-public-financing/new-york-city-as-a-model-for-campaign-finance-laws> for the New York Times’ “Room for Debate” discussion, “Where to Now on Public Financing?”  Other contributors so far are Guy Charles<http://www.nytimes.com/roomfordebate/2011/06/27/the-court-and-the-future-of-public-financing/the-courts-battle-of-ideology>, Brad Smith<http://www.nytimes.com/roomfordebate/2011/06/27/the-court-and-the-future-of-public-financing/the-courts-separation-of-campaign-and-state>, and Zephyr Teachout<http://www.nytimes.com/roomfordebate/2011/06/27/the-court-and-the-future-of-public-financing/matching-funds-what-the-court-didnt-touch>.

My contribution begins:

It wasn’t all bad news for campaign finance reformers in the Supreme Court decision stripping Arizona’s matching funds provision from its law giving public financing for state candidates. Among other things<http://www.tnr.com/article/politics/90834/arizona-campaign-finance-supreme-court>, the court confirmed that whether governments enact public financing is “not our business.” The issue is how the plans provide the financing, and the big question now is whether New York City’s system can become a model for the country.

Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
Meanwhile, in Chicago<http://electionlawblog.org/?p=19745>
Posted on June 27, 2011<http://electionlawblog.org/?p=19745> by Rick Hasen<http://electionlawblog.org/?author=3>

Blagojevich guilty<http://www.nytimes.com/2011/06/28/us/28blagojevich.html?hp>.

Posted in chicanery<http://electionlawblog.org/?cat=12> | Comments Off
Investigation Coming to Wisconsin Supreme Court?<http://electionlawblog.org/?p=19740>
Posted on June 27, 2011<http://electionlawblog.org/?p=19740> by Rick Hasen<http://electionlawblog.org/?author=3>

Howard <http://howappealing.law.com/062711.html#042137> has the update.

Posted in chicanery<http://electionlawblog.org/?cat=12>, judicial elections<http://electionlawblog.org/?cat=19> | Comments Off
Meanwhile, at the FEC<http://electionlawblog.org/?p=19737>
Posted on June 27, 2011<http://electionlawblog.org/?p=19737> by Rick Hasen<http://electionlawblog.org/?author=3>

The Republican Commissioners take another step away<http://electionlawblog.org/wp-content/uploads/11044293607.pdf> from effective disclosure.

Posted in Uncategorized<http://electionlawblog.org/?cat=1> | Comments Off
What Does Today’s Opinion Mean for NYC and FENA?<http://electionlawblog.org/?p=19734>
Posted on June 27, 2011<http://electionlawblog.org/?p=19734> by Rick Hasen<http://electionlawblog.org/?author=3>

Stay tuned.<http://www.nytimes.com/roomfordebate>

Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“Chief Justice Roberts to Arizona: Take Your Thumb Off the Scale!”<http://electionlawblog.org/?p=19731>
Posted on June 27, 2011<http://electionlawblog.org/?p=19731> by Rick Hasen<http://electionlawblog.org/?author=3>

Hoersting<http://www.nationalreview.com/bench-memos/270581/chief-justice-roberts-arizona-take-your-thumb-scale-stephen-m-hoersting> at Bench Memos.

Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“Is the Court Energized by Its Critics?”<http://electionlawblog.org/?p=19727>
Posted on June 27, 2011<http://electionlawblog.org/?p=19727> by Rick Hasen<http://electionlawblog.org/?author=3>

Paul Clement <http://www.slate.com/id/2297410/entry/2297808/> on the Arizona case [Corrected post, original post said that this Breakfast Table entry was written by Dahlia Lithwick].

Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“The Arizona Campaign Finance Law: The Surprising Good News in the Supreme Court’s New Decision”<http://electionlawblog.org/?p=19725>
Posted on June 27, 2011<http://electionlawblog.org/?p=19725> by Rick Hasen<http://electionlawblog.org/?author=3>

I have written this commentary<http://www.tnr.com/article/politics/90834/arizona-campaign-finance-supreme-court> for The New Republic.  It begins:

Campaign finance laws have now gone 0 for 5 in the Roberts Court. Monday’s Supreme Court decision<http://www.supremecourt.gov/opinions/10pdf/10-238.pdf> striking down the matching funds portion of Arizona’s voluntary public financing law—which provided extra public financing for candidates facing free-spending opponents or major outside spending—was no surprise. Indeed, I predicted<http://electionlawblog.org/archives/011095.html> laws like Arizona’s were doomed back in 2008, on the day the Court struck down<http://scholar.google.com/scholar_case?case=5092223370493741422&q=davis+v.+federal+election+commission&hl=en&as_sdt=2,5&as_vis=1> a portion of the McCain-Feingold law which raised contribution limits for candidates facing millionaire opponents. The Roberts Court saw both laws as impermissibly trying to level the electoral playing field. Since 2005, the Court has also struck down<http://scholar.google.com/scholar_case?case=13551506278581494953&hl=en&as_sdt=2&as_vis=1&oi=scholarr> Vermont’s campaign contribution limits as too low, narrowly interpreted<http://scholar.google.com/scholar_case?case=12228748998297097461&q=wisconsin+right+to+life+v+fec&hl=en&as_sdt=2,5&as_vis=1> the McCain-Feingold rules governing corporate campaign spending, and then dealt a death blow to those limits in its most controversial decision to date, Citizens United<http://scholar.google.com/scholar_case?case=6233137937069871624&q=citizens+united+v.+fec&hl=en&as_sdt=2,5&as_vis=1>.

Yet today’s decision brings three pieces of unexpected good news to those of us who believe that reasonable campaign finance regulation is not only constitutional, but essential to prevent corruption and ensure fairness in our democracy.

Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
More Statements on McComish<http://electionlawblog.org/?p=19722>
Posted on June 27, 2011<http://electionlawblog.org/?p=19722> by Rick Hasen<http://electionlawblog.org/?author=3>

Campaign Finance Institute<http://www.cfinst.org/Press/PReleases/11-06-27/CFI_Statement_on_McComish_Decision.aspx>; Demos<http://www.demos.org/press.cfm?currentarticleID=D1F2E593-3FF4-6C82-551601FCFF7BAE2A>.

Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
IJ Wins, with Links Galore on Arizona Case<http://electionlawblog.org/?p=19719>
Posted on June 27, 2011<http://electionlawblog.org/?p=19719> by Rick Hasen<http://electionlawblog.org/?author=3>

See here<http://www.makenolaw.org/blog/8-government/205-free-speech-wins-ij-a-goldwater-score-major-supreme-court-victory>.

Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
Timely<http://electionlawblog.org/?p=19716>
Posted on June 27, 2011<http://electionlawblog.org/?p=19716> by Rick Hasen<http://electionlawblog.org/?author=3>

A Special Edition of Gavel to Gavel looks at: Public Financing of Judicial Campaign<http://www.ncsconline.org/D_Research/gaveltogavel/Public%20Financing%20Special%20Edition.pdf>s.

Posted in campaign finance<http://electionlawblog.org/?cat=10>, judicial elections<http://electionlawblog.org/?cat=19> | Comments Off
News and Reactions on AZ Case<http://electionlawblog.org/?p=19712>
Posted on June 27, 2011<http://electionlawblog.org/?p=19712> by Rick Hasen<http://electionlawblog.org/?author=3>

NY Times;<http://www.nytimes.com/2011/06/28/us/politics/28campaign.html> AP<http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_CAMPAIGN_FINANCE?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT>; SF Examiner<http://www.sfexaminer.com/blogs/beltway-confidential/2011/06/supreme-court-overturns-arizona-campaign-finance-law>; CCP<http://www.campaignfreedom.org/newsroom/detail/supreme-court-strikes-down-matching-funds-provision>; Brennan Center<http://www.brennancenter.org/content/resource/supreme_court_strikes_down_trigger_funds_but_public_financing_laws_remain_i>; Justice at Stake<http://www.gavelgrab.org/?p=22009>; Democracy21<http://bit.ly/meDJWQ>; Heather Gerken<http://balkin.blogspot.com/2011/06/campaign-finance-and-doctrinal-death.html>

More to come.

My New Republic piece is being edited and will be up shortly.

Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
My Thoughts on Today’s Ruling are Coming<http://electionlawblog.org/?p=19709>
Posted on June 27, 2011<http://electionlawblog.org/?p=19709> by Rick Hasen<http://electionlawblog.org/?author=3>

My initial thoughts will appear at The New Republic and I’ll be linking.

I actually see a couple of silver linings.

Stay tuned….

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

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.”

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

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.”

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

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

--
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<http://electionlawblog.org/>

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