[EL] Texas reply brief, W. Va. maps struck, and more

[Michael McDonald]

Jim,

Can you explain how raising contribution limits solves this issue? The Romney campaign has sufficient resources to run their own television ads, which have been overwhelmingly positive. As a strategic decision, the Romney campaign is allowing Restore Our Future, Inc. to run the negative ads. And with anonymous donors and the prohibition on coordinating as a shield, Restore Our Future, Inc. cannot be tied directly to Romney’s campaign. Any smart campaign in the future, knowing that their former veteran campaign staff are at the helm of an affiliated Super PAC, will use this campaign model regardless if campaign contribution limits are raised. When we get to the general election, it would be foolish to believe that the Obama campaign will not follow this model. To curb this "problem," raising contribution limits must be accompanied by a ban or further regulation of Super PACs, which is something I don't think you'd approve of.

I am quite shocked that you would even say that this is a "problem" (with scare quotes noted) that can be fixed. We've been hearing for months on the list serve from those that defend the new campaign finance regime that only the message is important and that the public does not need to know the source of the message. If that is the case, there is no "problem" whatsoever that needs to be fixed. The only sad part for Gingrich is that he did not have the resources and wealthy friends to set up a Super PAC to attack Romney with the same vigor. 

-Mike

============
Dr. Michael P. McDonald
Associate Professor, George Mason University
Non-Resident Senior Fellow, Brookings Institution

                             Mailing address:
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From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of JBoppjr at aol.com
Sent: Tuesday, January 03, 2012 4:32 PM
To: rhasen at law.uci.edu; law-election at UCI.EDU
Subject: Re: [EL] Texas reply brief, W. Va. maps struck, and more

My suggestion is to simply fix the cause of this "problem," raise contribution limits. Jim Bopp
 
“Welcome to the Super PAC Nation” 
 
Posted on January 3, 2012 12:06 pm by Rick Hasen 
Greg Sargent:
So in sum: We are going to see hundreds and hundreds of millions of dollars worth of ads bombarding millions of voters for months on end, with no knowledge of who is paying for them, no accountability at all for the candidates who are directly benefiting from them, and no meaningful effort to rebut the countless lies, distortions and sleazy attacks they’ll be leveling on a daily basis — ones that will directly impact who controls Congress and the White House next year.
Welcome to Super PAC Nation
 
In a message dated 1/3/2012 4:14:17 P.M. Eastern Standard Time, rhasen at law.uci.edu writes:
“Much Commentary on Virginia Ballot Access Shows Utter Ignorance of History of Ballot Access Litigation” 
Posted on January 3, 2012 1:12 pm by Rick Hasen 
Richard Winger comments.

Posted in ballot access | Comments Off 
“Three-judge federal panel says W.Va. Congressional redistricting is not constitutional.” 
Posted on January 3, 2012 1:11 pm by Rick Hasen 
See this opinion (via the Charleston Daily Mail).

Posted in redistricting | Comments Off 
Texas on Defensive in SCOTUS Redistricting Reply Brief 
Posted on January 3, 2012 1:08 pm by Rick Hasen 
You can read the brief here (Texas Redistricting is posting all the reply briefs as they come in). I was struck in reading the Texas brief how much less persuasive it seemed than the earlier filings (the stay requests and opening brief), which I thought were quite strong.  Texas made a strategic decision to try to blow off the significance of the D.C. court opinion explaining the denial of summary judgment, and that seemed to me to be a mistake.  The problem is that the opening brief put a lot of weight on the the question whether Texas was likely to succeed on the merits in the underlyling preclearance dispute before the D.C. court, and the DC opinion which came later really seemed to undermine that argument.
Also noteworthy in this brief is that Texas alludes the the potential unconstitutionality of section 5, an issue not squarely presented in the case: “If any argument in this case is ‘extreme,’ NAACP Br. 24, or ‘absurd,’ Rodriguez Br. 28, it is Appellees’ argument (fully endorsed by the Texas court) that a district court has carte blanche to rewrite a duly enacted state law—and order elections to be conducted under that judicially drawn map—solely because the preclearance process is taking too long, without any finding that those alterations are necessary to remedy a likely violation of law and narrowly tailored to do so. If that is really what Section 5 requires, then the doubts about its constitutionality are even graver than this Court feared in Northwest Austin.”
Finally, in talking about who was responsible for the delay in the preclearance process, Texas describes the state of the current administrative preclearance request of its voter identification law: “Texas’ decision to seek administrative preclearance of its recently enacted voter identification law further illustrates this point. Texas sought administrative preclearance from DOJ on July 25, 2011, less than a week after filing its judicial preclearance action for its redistricting maps. On September 23, 2011, at the very end of the 60-day review period, DOJ requested additional information. Nearly two months after that, on November 16, 2011, DOJ asserted that the State’s submission was insufficient. Over 160 days have now elapsed since Texas submitted its Voter ID law for preclearance, and DOJ still has not made a final decision about whether it will interpose objections.”

Posted in Department of Justice, redistricting, Supreme Court, Voting Rights Act | Comments Off 
“Welcome to the Super PAC Nation” 
Posted on January 3, 2012 12:06 pm by Rick Hasen 
Greg Sargent:
So in sum: We are going to see hundreds and hundreds of millions of dollars worth of ads bombarding millions of voters for months on end, with no knowledge of who is paying for them, no accountability at all for the candidates who are directly benefiting from them, and no meaningful effort to rebut the countless lies, distortions and sleazy attacks they’ll be leveling on a daily basis — ones that will directly impact who controls Congress and the White House next year.
Welcome to Super PAC Nation.

Posted in campaign finance | Comments Off 
“Wisconsin: No Roger, No Rerun, No Recall? Barrett and the unusual nature of the recall Rematch/Rerun” 
Posted on January 3, 2012 12:02 pm by Rick Hasen 
This item appears on the Recall Elections Blog.

Posted in recall elections | Comments Off 
“Like 6 Double Barrel Blast From Big Sky Country: Montana Rejects Citizens United “ 
Posted on January 3, 2012 11:24 am by Rick Hasen 
Ciara Torres-Spelliscy blogs.

Posted in campaign finance | Comments Off 
“Iowa’s Other Peculiar Institution” 
Posted on January 3, 2012 9:38 am by Rick Hasen 
David Schoenbaum on Iowa redistricting at the NYT “Campaign Stops” blog.

Posted in redistricting | Comments Off 
“Is Privacy Act Violated as Voting War’s GOP Hit Man is Fed Leaks By Justice Department Mole?” 
Posted on January 3, 2012 9:03 am by Rick Hasen 
AlterNet: “A crusading GOP critic of the Obama Justice Department’s Voting Section, Hans von Spakovsky, has admitted to having Department sources that are leaking apparently confidential and highly personal information that he is using to viciously attack Voting Section staff and to smear the Department at large.”

Posted in chicanery, Department of Justice | Comments Off 
Mitt Romney Almost Certainly is Not a Liar About His Super PACs 
Posted on January 3, 2012 8:56 am by Rick Hasen 
Newt Gingrich accused Mitt Romney of lying about whether he is coordinating with pro-Romney Super PACs.  These PACs have been pummeling Gingrich with negative ads in Iowa, which many believe has let to Gingrich’s big fall in the Iowa polls.
Here is the relevant exchange between Gingrich and CBS’s Norah O’Donnell:
Norah O’Donnell: “You scolded Mitt Romney, his friends who are running this Super PAC that has funded that, and you said of Mitt Romney, ‘Someone who will lie to you to get to be president will lie to you when they are president. I have to ask you, are you calling Mitt Romney a liar?”
Gingrich: “Yes.”
O’Donnell: “You’re calling Mitt Romney a liar?”
Gingrich: “Well, you seem shocked by it! This is a man whose staff created the PAC, his millionaire friends fund the PAC, he pretends he has nothing to do with the PAC — it’s baloney. He’s not telling the American people the truth.”
I have no inside information on any communications between Mr. Romney and supportive super PACs.  But Mr. Romney seems like a very intelligent and cautious person.  If he had any communications with the Super PACs, he could be in very serious legal trouble—not to mention that the political fallout from a potential criminal violation of campaign finance laws would be enormous.
And there is absolutely no upside to illegal coordinating.  As Mr. Gingrich himself explains, the people running the pro-Romney Super PAC know Mitt Romney well, understand his campaign strategy, and have deep pockets.  They can simply follow Romney’s lead—and be much more negative than Romney, leaving the candidate unsullied and his opponents beaten up—without risking any legal liability.
It is irresponsible for Mr. Gingrich to accuse Mr. Romney of lying without a shred of evidence. The crime here is not that Romney is coordinating.  It is the system of superPACs which threatens the integrity of our legislative and electoral process.
UPDATE:  To be clear, Mr. Gingrich seems to be accusing Mr. Romney of illegal coordination.  Romney is allowed to have some contact with donors to the super PAC, etc., without violating the FEC rules (such as they are) on what counts as coordination.

-- 
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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