[EL] ballot labels
Larry Levine
larrylevine at earthlink.net
Wed Jun 29 16:51:04 PDT 2011
Re; MAJOR PARTY LABELS - There is plenty of evidence of the determinative
influence of major party labels on the outcome of partisan general
elections. It lies in examples of members of a party who are able to win
easy election and re-election in areas dominated by voters of the opposite
party as long as they are running for non-partisan office with no party
label on the ballot and then seek partisan office, are forced to include a
partisan label and then lose. A recent example is the Republican district
attorney of Los Angeles, who dominated in a non-partisan re-election
campaign in 2008 and then lost in the identical jurisdiction by 14.5% when
seeking partisan office two years later with no intervening factor other
than the partisan label. There are numbers of other examples.
Re: MINOR PARTY LABELS - In California there still exists the American
Independent Party, a holdover from the old George Wallace party creation.
However, the historical meaning of the party is lost and today most people
who register with this party do so because it is the only designation
available that includes the word Independent. In one recent year 90% of the
new registrations in this party were under the age of 50.
Larry
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Elmendorf, Christopher
Sent: Wednesday, June 29, 2011 4:01 PM
To: Dan Meek; law-election at department-lists.uci.edu
Subject: Re: [EL] ballot labels
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
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
<mailto:cselmendorf at ucdavis.edu> <cselmendorf at ucdavis.edu> wrote:
From: Elmendorf, Christopher <mailto:cselmendorf at ucdavis.edu>
<cselmendorf at ucdavis.edu>
Subject: RE: ballot labels
To: <mailto:richardwinger at yahoo.com> "richardwinger at yahoo.com"
<mailto:richardwinger at yahoo.com> <richardwinger at yahoo.com>, "BradSmith"
<mailto:BSmith at law.capital.edu> <BSmith at law.capital.edu>,
<mailto:law-election at department-lists.uci.edu>
"law-election at department-lists.uci.edu"
<mailto:law-election at department-lists.uci.edu>
<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]
Sent: Tuesday, June 28, 2011 5:31 PM
To: BradSmith; 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
<mailto:cselmendorf at ucdavis.edu> <cselmendorf at ucdavis.edu> wrote:
From: Elmendorf, Christopher <mailto:cselmendorf at ucdavis.edu>
<cselmendorf at ucdavis.edu>
Subject: Re: [EL] McComish & "triggers"
To: "Smith, Brad" <mailto:BSmith at law.capital.edu> <BSmith at law.capital.edu>,
<mailto:law-election at department-lists.uci.edu>
"law-election at department-lists.uci.edu"
<mailto:law-election at department-lists.uci.edu>
<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]
Sent: Tuesday, June 28, 2011 4:07 PM
To: Elmendorf, Christopher; 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
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]
Sent: Tuesday, June 28, 2011 2:41 PM
To: Elmendorf, Christopher; 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 on behalf of Elmendorf,
Christopher
Sent: Tue 6/28/2011 3:43 PM
To: Daniel Meek, Attorney; 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
[law-election-bounces at department-lists.uci.edu] On Behalf Of Daniel Meek,
Attorney [dan at meek.net]
Sent: Monday, June 27, 2011 7:48 PM
To: 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
<http://electionlawblog.org/?p=19748> "New York City as a Model?"
Posted on <http://electionlawblog.org/?p=19748> June 27, 2011 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 <http://electionlawblog.org/?p=19745> June 27, 2011 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 <http://electionlawblog.org/?p=19740> June 27, 2011 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 <http://electionlawblog.org/?p=19737> June 27, 2011 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 <http://electionlawblog.org/?p=19734> 's Opinion Mean for
NYC and FENA?
Posted on <http://electionlawblog.org/?p=19734> June 27, 2011 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
<http://electionlawblog.org/?p=19731> "Chief Justice Roberts to Arizona:
Take Your Thumb Off the Scale!"
Posted on <http://electionlawblog.org/?p=19731> June 27, 2011 by Rick Hasen
<http://electionlawblog.org/?author=3>
Hoersting
<http://www.nationalreview.com/bench-memos/270581/chief-justice-roberts-ariz
ona-take-your-thumb-scale-stephen-m-hoersting> at Bench Memos.
Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
Off
<http://electionlawblog.org/?p=19727> "Is the Court Energized by Its
Critics?"
Posted on <http://electionlawblog.org/?p=19727> June 27, 2011 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
<http://electionlawblog.org/?p=19725> "The Arizona Campaign Finance Law:
The Surprising Good News in the Supreme Court's New Decision"
Posted on <http://electionlawblog.org/?p=19725> June 27, 2011 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_s
dt=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=wisconsi
n+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 <http://electionlawblog.org/?p=19722> June 27, 2011 by Rick Hasen
<http://electionlawblog.org/?author=3>
Campaign Finance Institute
<http://www.cfinst.org/Press/PReleases/11-06-27/CFI_Statement_on_McComish_De
cision.aspx> ; Demos
<http://www.demos.org/press.cfm?currentarticleID=D1F2E593-3FF4-6C82-551601FC
FF7BAE2A> .
Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
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IJ Wins, with Links Galore on Arizona Case
<http://electionlawblog.org/?p=19719>
Posted on <http://electionlawblog.org/?p=19719> June 27, 2011 by Rick Hasen
<http://electionlawblog.org/?author=3>
See here
<http://www.makenolaw.org/blog/8-government/205-free-speech-wins-ij-a-goldwa
ter-score-major-supreme-court-victory> .
Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
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Timely <http://electionlawblog.org/?p=19716>
Posted on <http://electionlawblog.org/?p=19716> June 27, 2011 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%20Spec
ial%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 <http://electionlawblog.org/?p=19712> June 27, 2011 by Rick Hasen
<http://electionlawblog.org/?author=3>
<http://www.nytimes.com/2011/06/28/us/politics/28campaign.html> NY Times;
AP
<http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_CAMPAIGN_FINANCE?SI
TE=AP&SECTION=HOME&TEMPLATE=DEFAULT> ;
<http://www.sfexaminer.com/blogs/beltway-confidential/2011/06/supreme-court-
overturns-arizona-campaign-finance-law> SF Examiner; CCP
<http://www.campaignfreedom.org/newsroom/detail/supreme-court-strikes-down-m
atching-funds-provision> ; Brennan Center
<http://www.brennancenter.org/content/resource/supreme_court_strikes_down_tr
igger_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.htm
l>
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
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My Thoughts on Today <http://electionlawblog.org/?p=19709> 's Ruling are
Coming
Posted on <http://electionlawblog.org/?p=19709> June 27, 2011 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
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Justice Kagan <http://electionlawblog.org/?p=19706> 's Response on the
Website Point
Posted on <http://electionlawblog.org/?p=19706> June 27, 2011 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
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More Gold from J. Kagan <http://electionlawblog.org/?p=19702>
Posted on <http://electionlawblog.org/?p=19702> June 27, 2011 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
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And this from J. Kagan <http://electionlawblog.org/?p=19699>
Posted on <http://electionlawblog.org/?p=19699> June 27, 2011 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
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The Dissent <http://electionlawblog.org/?p=19696> 's Ouch!
Posted on <http://electionlawblog.org/?p=19696> June 27, 2011 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
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Ouch! <http://electionlawblog.org/?p=19693>
Posted on <http://electionlawblog.org/?p=19693> June 27, 2011 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 <http://electionlawblog.org/?p=19690> 's
Freedom PAC v. Bennett (McComish) Decided
Posted on <http://electionlawblog.org/?p=19690> June 27, 2011 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
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