[EL] Truth to power?

Tue Feb 21 15:21:27 PST 2012

I'm curious about a different aspect of the statement from Justices
Ginsburg and Breyer in the Montana stay order.  Specifically, wasn't it
a mistake for those justices to frame their concerns with reference to
the "huge sums" being spent in this cycle via superPACs and other
independent expenditure efforts?  

Maybe that was meant as an allusion to Caperton, but either way it still
seems to me that, at least in Justice Kennedy's eyes, the door to using
the *hugeness* of the sums, per se, as a basis for regulation has been
pretty thoroughly slammed shut and triple-deadbolted.  Whereas the
question of the "independence" of functionally single-candidate IE
committees for which the candidate him- or herself directly solicits
funds (while conspicuously not anointing any other IE efforts with
similar solicitations) seems still relatively open for discussion.  

Not open as a matter of a Part 109 analysis, necessarily, but more in
the sense that this does not appear to be the kind of "independence"
reflected in the facts of the actual case before the Court in Citizens
United, nor in the section of Justice Kennedy's opinion in which the
Court "conclude[s] that independent expenditures, including those made
by corporations, do not give rise to corruption or the appearance of
corruption."  (Nor in Buckley's holding on the FECA IE limit, nor in
Colorado Republican's holding on IE's by party committees, nor in any
other holding I'm aware of.)

Point being that, in my opinion, Ginsburg and Breyer seem to have picked
a strange basis for their observation if the subtext of it was meant to
invite Justice Kennedy to candidly evaluate whether the premises he
offered for that conclusion have borne out in reality.
Thoughts/agree/disagree?

________________________________
Joseph M. Birkenstock, Esq.
Caplin & Drysdale, Chtd.
One Thomas Circle, NW
Washington, DC 20005
(202) 862-7836
www.capdale.com/jbirkenstock
*also admitted to practice in CA

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Smith, Brad
Sent: Tuesday, February 21, 2012 1:16 PM
To: law-election at uci.edu
Subject: [EL] Truth to power?

"Justice Ginsburg is ready to speak truth to power, I argue in this
Slate commentary published on President's Day"

Umm, Justice Ginsburg is a member of the Supreme Court of the United
States. She is power. Truth? What truth was there in her little Western
Tradition Partnership concurrence? Didn't she just offer an opinion,
slandering both donors and candidates, without any facts at all?
Traditionally, when we say one is speaking truth to power, we think of
one taking a courageous stand that will impose on them real personal
costs. What courage is there in sheepishly following conventional
wisdom, with no examination of the facts, on campaign finance, to align
oneself with the New York Times and the Washington Post and all the
organs of power that will sing your accolades? And what would Justice
Ginsburg's position do, if adopted? It would increase the power of her
employer, the Federal government, and decrease the First Amendment
freedoms of American citizens. 

If that's called speaking truth to power, give me some lies. 

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault 

  Designated Professor of Law

Capital University Law School

303 East Broad Street

Columbus, OH 43215

(614) 236-6317

bsmith at law.capital.edu

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 Rick
Hasen
Sent: Tuesday, February 21, 2012 11:05 AM
To: law-election at uci.edu
Subject: [EL] ELB News and Commentary 2/21/12

ICYMI: Dems May Exaggerate Voter ID Effects, But Laws Should Still Be
Opposed <http://electionlawblog.org/?p=30264>  

Posted on February 21, 2012 7:59 am
<http://electionlawblog.org/?p=30264>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Last week, Yale University Press released a sneak preview from my
forthcoming book, The Voting Wars <http://amzn.to/y22ZTv> .  The preview
is The Fraudulent Fraud Squad: Understanding the Battle Over Voter ID
<http://www.amazon.com/Fraudulent-Fraud-Squad-Understanding-ebook/dp/B00
795X5XI/ref=zg_bs_157417011_9> .

In connection with the release, I wrote two blog posts:

How many voters actually deterred by new Republican voting laws?
<http://electionlawblog.org/?p=29665> 

and

Why Tough State Voter ID Laws Should Be Opposed-Even If Effects of Law
on Turnout May Be Small and Claims Exaggerated
<http://electionlawblog.org/?p=30177> .

Jonathan Adler discussed
<http://volokh.com/2012/02/18/for-and-against-voter-id-exaggeration-all-
around/>  the chapter on Volokh, and there are now 178 comments
posted-many of which illustrate the intensity of partisan feeling in The
Voting Wars.  Similarly, there are 78 strong comments to Eric Black's 
MinnPost article
<http://www.minnpost.com/eric-black-ink/2012/02/whos-and-against-voter-p
hoto-id-and-why> on my chapter.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D30264&title=ICYMI%3A%20Dems%20May%20Exaggerate%20Voter%20ID%20
Effects%2C%20But%20Laws%20Should%20Still%20Be%20Opposed&description=> 

Posted in election administration <http://electionlawblog.org/?cat=18> ,
fraudulent fraud squad <http://electionlawblog.org/?cat=8> , The Voting
Wars <http://electionlawblog.org/?cat=60> , voter id
<http://electionlawblog.org/?cat=9>  | Comments Off 

ICYMI: Occupy the Super PACs <http://electionlawblog.org/?p=30262>  

Posted on February 21, 2012 7:49 am
<http://electionlawblog.org/?p=30262>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Justice Ginsburg is ready to speak truth to power, I argue in this Slate
commentary
<http://www.slate.com/articles/news_and_politics/politics/2012/02/justic
e_ruth_bader_ginsburg_is_ready_to_speak_out_on_the_danger_of_super_pacs_
.html?wpisrc=slate_river>  published on President's Day.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D30262&title=ICYMI%3A%20Occupy%20the%20Super%20PACs&description
=> 

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

"Voter ID coming to North Carolina?"
<http://electionlawblog.org/?p=30260>  

Posted on February 21, 2012 7:47 am
<http://electionlawblog.org/?p=30260>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

The latest
<http://www.southernstudies.org/2012/02/voter-id-coming-to-north-carolin
a.html>  from Facing South.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D30260&title=%E2%80%9CVoter%20ID%20coming%20to%20North%20Caroli
na%3F%E2%80%9D&description=> 

Posted in election administration <http://electionlawblog.org/?cat=18> ,
The Voting Wars <http://electionlawblog.org/?cat=60> , voter id
<http://electionlawblog.org/?cat=9>  | Comments Off 

"WISCONSIN SUED OVER RACIALLY DISCRIMINATORY VOTER LAW"
<http://electionlawblog.org/?p=30258>  

Posted on February 21, 2012 7:45 am
<http://electionlawblog.org/?p=30258>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

The following press release arrived via email:

	WISCONSIN SUED OVER RACIALLY DISCRIMINATORY VOTER LAW

	FIRST SUIT TO SPECIFICALLY CHARGE RACIAL DISCRIMINATION

	 78 PERCENT OF YOUNG BLACK MEN COULD BE BARRED FROM THE POLLS

	 Milwaukee, WI -   Advancement Project, joined by the League of
Young Voters and the Milwaukee Area Labor Council, will file the first
lawsuit based on a claim of racial discrimination against Wisconsin
Governor Scott Walker and members of the Government Accountability Board
charging that a newly enacted restrictive voter identification law
specifically discriminates against African American and Latino voters.

	 The lawsuit, to be filed Thursday February 23, challenges
Wisconsin Act 23 under Section 2 of the Voting Rights Act, which
prohibits the institution of any electoral procedures that deny or
abridge the rights of citizens to vote on account of race or color.

	 "This law is a part of the largest legislative effort to turn
back the clock on voting rights in our nation in over a century and
shows how essential the Voting Rights Act is to allow all Americans
their right to vote," states Advancement Project co director Judith
Browne Dianis, one of the nation's leading civil rights litigators. "If
this bill is allowed to stand it will undermine the basic fabric of our
nation's democracy."

	Studies in Wisconsin have confirmed that racial minorities,
especially African American and Latino voters, are far less likely to
have a Wisconsin-issued ID, finding that roughly half of the state's
African Americans and Latinos lack a valid driver's license.
Specifically, a 2005 study determined that 55% of Black males and 46% of
Hispanic males - as compared with only 16% of white males - lack a
driver's license.  Among females, 49% of African Americans and 59% of
Latinas lacked a driver's license as compared to 17% of Whites.

	 When age and race are considered together, the disparities
become far more pronounced: an astounding 78% of African-American males
(as compared with 36% of White males) aged 18-24 lack a driver's
license, and 66% of African-American females (as compared with 25% of
White females) aged 18-24 lack a driver's license.  The study also found
a disparate impact on Latino voters:  57% of young Latino males age
18-24 lack a driver's license, as compared to 36% of White males age
18-24.

	 One of the lead plaintiffs is Bettye Jones, 77, who was born at
home in Tennessee and had no birth certificate filed of her birth. She
has voted in every election since 1956 and advocated as a civil rights
activist for the Voting Rights Act.  Despite being a registered voter,
and having a valid and current ID from another state, she will not be
allowed to vote. She has tried in vain to get a voter ID and will be
disenfranchised in April's primary elections as a result.

	 Wisconsin's law, the strictest voter identification law in the
nation, requires citizens to present limited forms of current,
government-issued photo identification before receiving a ballot.
Commonly held forms of identification like state or federal employee
IDs, veterans' cards, most college and university identification cards,
and out-of-state or expired driver's licenses are not allowed. 

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D30258&title=%E2%80%9CWISCONSIN%20SUED%20OVER%20RACIALLY%20DISC
RIMINATORY%20VOTER%20LAW%E2%80%9D&description=> 

Posted in The Voting Wars <http://electionlawblog.org/?cat=60> , voter
id <http://electionlawblog.org/?cat=9> , Voting Rights Act
<http://electionlawblog.org/?cat=15>  | Comments Off 

"Ending secret money in politics" <http://electionlawblog.org/?p=30255>

Posted on February 21, 2012 7:41 am
<http://electionlawblog.org/?p=30255>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

A WaPo editorial.
<http://www.washingtonpost.com/opinions/ending-secret-money-in-politics/
2012/02/16/gIQAOIq5NR_story.html> 

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D30255&title=%E2%80%9CEnding%20secret%20money%20in%20politics%E
2%80%9D&description=> 

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

"The Other Side of Inaccuracy: More Than 50 Million Unregistered"
<http://electionlawblog.org/?p=30253>  

Posted on February 21, 2012 7:40 am
<http://electionlawblog.org/?p=30253>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

A ChapinBlog.
<http://blog.lib.umn.edu/cspg/peea/2012/02/the_other_side_of_inaccuracy_
m.php?utm_source=feedburner&utm_medium=twitter&utm_campaign=Feed%3A+HHHE
lections+%28Program+for+Excellence+in+Election+Administration%29> 

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D30253&title=%E2%80%9CThe%20Other%20Side%20of%20Inaccuracy%3A%2
0More%20Than%2050%20Million%20Unregistered%E2%80%9D&description=> 

Posted in election administration <http://electionlawblog.org/?cat=18> ,
voter registration <http://electionlawblog.org/?cat=37>  | Comments Off 

"Romney Benefits From Campaign, SuperPAC Funds"
<http://electionlawblog.org/?p=30249>  

Posted on February 21, 2012 7:33 am
<http://electionlawblog.org/?p=30249>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Peter Overby reports
<http://www.npr.org/2012/02/21/147176912/romney-outspends-gop-field-comb
ined-in-january>  for NPR.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D30249&title=%E2%80%9CRomney%20Benefits%20From%20Campaign%2C%20
SuperPAC%20Funds%E2%80%9D&description=> 

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

"Billionaire Sheldon Adelson Says He Might Give $100M To Newt Gingrich
Or Other Republican" <http://electionlawblog.org/?p=30247>  

Posted on February 21, 2012 7:31 am
<http://electionlawblog.org/?p=30247>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Wow.
<http://www.forbes.com/sites/stevenbertoni/2012/02/21/billionaire-sheldo
n-adelson-says-he-might-give-100m-to-newt-gingrich-or-other-republican/>

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D30247&title=%E2%80%9CBillionaire%20Sheldon%20Adelson%20Says%20
He%20Might%20Give%20%24100M%20To%20Newt%20Gingrich%20Or%20Other%20Republ
ican%E2%80%9D&description=> 

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

Santorum Gets a Second Super PAC Angel
<http://electionlawblog.org/?p=30244>  

Posted on February 20, 2012 8:35 pm
<http://electionlawblog.org/?p=30244>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Politico reports <http://www.politico.com/news/stories/0212/73095.html>
.  Thought experiment: what would the Republican campaign look like if
we could still enforce the $5,000 individual contribution limit on PACS,
if corporate and labor union treasury funds could not go into PACs, and
if contributions to 527s remained under a legal cloud?

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D30244&title=Santorum%20Gets%20a%20Second%20Super%20PAC%20Angel
&description=> 

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

"Super PACs dominating Republican presidential race"
<http://electionlawblog.org/?p=30237>  

Posted on February 20, 2012 8:27 pm
<http://electionlawblog.org/?p=30237>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Okay, I'm overusing "must-read" today, but you must read Dan Eggen
<http://www.washingtonpost.com/politics/super-pacs-dominating-republican
-presidential-race/2012/02/20/gIQANOaGQR_story.html> : "Super PACs and
other groups dominated the race for the Republican presidential
nomination last month, raising and spending tens of millions of dollars
outside the traditional campaign system and playing a key role in
extending an already tumultuous contest, according to new disclosures
filed Monday."

And more Eggen
<http://www.washingtonpost.com/blogs/election-2012/post/2012/02/20/gIQAG
xoJQR_blog.html> :"Now we know why some Obama supporters may have been
so panicked: Priorities USA Action, the main pro-Obama super PAC, raised
just $58,815.83 in January, according to a report filed late Monday
<http://query.nictusa.com/cgi-bin/dcdev/forms/C00495861/767177/> with
the Federal Election Commission."

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D30237&title=%E2%80%9CSuper%20PACs%20dominating%20Republican%20
presidential%20race%E2%80%9D&description=> 

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

"Financial disclosures show power of super PACs"
<http://electionlawblog.org/?p=30235>  

Posted on February 20, 2012 8:25 pm
<http://electionlawblog.org/?p=30235>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Great USA Today piece
<http://www.usatoday.com/news/politics/story/2012-02-20/filings-presiden
tial-race-money/53180872/1> by Fredreka Schouten.  Clearly, the campaign
finance beat reporters did not take President's Day off.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D30235&title=%E2%80%9CFinancial%20disclosures%20show%20power%20
of%20super%20PACs%E2%80%9D&description=> 

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

"Conservatives push a 'legal assault' on the Voting Rights Act"
<http://electionlawblog.org/?p=30232>  

Posted on February 20, 2012 8:22 pm
<http://electionlawblog.org/?p=30232>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

This item
<http://www.dailykos.com/story/2012/02/20/1063208/-Conservatives-push-a-
legal-assault-on-the-Voting-Rights-nbsp-Act-> appears at Daily Kos.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D30232&title=%E2%80%9CConservatives%20push%20a%20%E2%80%98legal
%20assault%E2%80%99%20on%20the%20Voting%20Rights%20Act%E2%80%9D&descript
ion=> 

Posted in The Voting Wars <http://electionlawblog.org/?cat=60> , Voting
Rights Act <http://electionlawblog.org/?cat=15>  | Comments Off 

"Study: Negative campaign ads much more frequent, vicious than in
primaries past" <http://electionlawblog.org/?p=30229>  

Posted on February 20, 2012 8:18 pm
<http://electionlawblog.org/?p=30229>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Must read Farnam analysis
<http://www.washingtonpost.com/politics/study-negative-campaign-ads-much
-more-frequent-vicious-than-in-primaries-past/2012/02/14/gIQAR7ifPR_stor
y.html>  in WaPo.  And the evidence bears out the anecdotal reporting
that Super PACs go more negative because they are unaccountable: "Data
show that super PACs, which have run more advertising than the campaigns
themselves, have spent 72 percent of their money on negative ads. The
figure for campaigns is 27 percent, according to a Washington Post
analysis of data from Kantar Media/Campaign Media Analysis Group, which
tracks television advertising across the country. (For this article, ads
were considered negative if they mentioned another GOP candidate.)"

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D30229&title=%E2%80%9CStudy%3A%20Negative%20campaign%20ads%20mu
ch%20more%20frequent%2C%20vicious%20than%20in%20primaries%20past%E2%80%9
D&description=> 

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

"G.O.P. Campaigns Grow More Dependent on 'Super PAC' Aid"
<http://electionlawblog.org/?p=30227>  

Posted on February 20, 2012 8:16 pm
<http://electionlawblog.org/?p=30227>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Must read Nick Confessore analysis
<http://www.nytimes.com/2012/02/21/us/politics/super-pac-role-grows-for-
republican-campaigns.html?_r=1&hp>  in the NYT.

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D30227&title=%E2%80%9CG.O.P.%20Campaigns%20Grow%20More%20Depend
ent%20on%20%E2%80%98Super%20PAC%E2%80%99%20Aid%E2%80%9D&description=> 

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

"The (Non-)Effects of Campaign Finance Spending Bans on Macro Political
Outcomes: Evidence From the States"
<http://electionlawblog.org/?p=30222>  

Posted on February 20, 2012 12:25 pm
<http://electionlawblog.org/?p=30222>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

Ray La Raja and Brian Schaffner have uploaded this important draft paper
<http://people.umass.edu/schaffne/laraja_schaffner_spendingbans.pdf> .
Here is the abstract:

	This paper seeks to understand the effect of campaign finance
laws on electoral and policy Spurred by the recent Supreme Court
decision, Citizens United v. FEC (2010), which bans on corporate and
union political spending, the study focuses on whether such bans
generate consequences notably different from an electoral system that
lacks such bans. We observe three key outcomes: partisan control of
government, incumbent reelection rates and corporate tax burdens. Using
historical data on regulations in 49 American states between 1935 and
2009 we test alternative models for evaluating the impact of corporate
and union spending bans put in place during this period. The results
indicate that spending bans appear to have limited, if any, effect on
these outcomes.

I very much look forward to reading this paper!  Note that the paper
attempts to measure the effects of spending on electoral outcomes, not
legislative outcomes (and the latter in my view is a bigger problem).

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D30222&title=%E2%80%9CThe%20%28Non-%29Effects%20of%20Campaign%2
0Finance%20Spending%20Bans%20on%20Macro%20Political%20Outcomes%3A%20Evid
ence%20From%20the%20States%E2%80%9D&description=> 

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

"Racism alleged in voter ID campaign"
<http://electionlawblog.org/?p=30220>  

Posted on February 20, 2012 12:22 pm
<http://electionlawblog.org/?p=30220>  by Rick Hasen
<http://electionlawblog.org/?author=3>  

MPR reports
<http://minnesota.publicradio.org/collections/special/columns/polinaut/a
rchive/2012/02/racism_alleged.shtml> .

<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org
%2F%3Fp%3D30220&title=%E2%80%9CRacism%20alleged%20in%20voter%20ID%20camp
aign%E2%80%9D&description=> 

Posted in election administration <http://electionlawblog.org/?cat=18> ,
The Voting Wars <http://electionlawblog.org/?cat=60> , voter id
<http://electionlawblog.org/?cat=9>  | Comments Off 

-- 
Rick Hasen
Chancellor's 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
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org

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