[EL] Brown/Warren effort to monopolize debate

Tue Jan 24 04:15:34 PST 2012

This sounds an awful lot like the matching funds system that was struck down in Arizona.  Under that system, if an independent expenditure was made in support of a privately funded candidate (i.e., one not taking government money), all of that candidate's publicly funded opponents were often eligible for matching funds.  The difference is that the Brown-Warren agreement is voluntary and not forced on candidates by the government.  The similarity is that it will be gamed, just like Arizona's system was.  Let the strategery begin!

Dave

________________________________

From: BSmith at law.capital.edu
To: law-election at uci.edu
Date: Mon, 23 Jan 2012 23:49:24 +0000
Subject: [EL] Brown/Warren effort to monopolize debate

Here <http://thehill.com/video/campaign/205725-brown-warren-agree-to-anti-super-pac-pledge>  are the details, along with some reasons <http://www.washingtonpost.com/blogs/plum-line/post/elizabeth-warren-and-scott-brown-deserve-major-props-for-campaign-finance-truce/2012/01/23/gIQAYQRVLQ_blog.html>  for serious skepticism. And how long will it take for the Colbert Super PAC to come up with an advertisement which will push this to absurdity? For example, how about an ad "attacking" Warren (causing Brown to have to pay a penalty) by painting her in a Colbertian way as a defender of consumers?

- I've been suggesting that for years, as I did earlier today in my post on this historic truce. 
http://www.campaignfreedom.org/blog/detail/brown-warren-reach-deal-on-super-pacs-but-heres-a-better-idea

"I'm not quite sure what they'll do if I ever get that Smith Super PAC off the ground and run ads saying, "Brown (or maybe I'll use Warren), wants to cut your social security benefits. Isn't it about time we had someone stand up to the greedy Seniors lobby? Vote for Brown."

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________

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, January 23, 2012 5:18 PM
To: law-election at uci.edu
Subject: [EL] more news 1/23/12

Texas, in Important Development, Sues DOJ Over Voter ID Law and Suggests Voting Rights Act Unconstitutional <http://electionlawblog.org/?p=28515> 

Posted onJanuary 23, 2012 2:16 pm <http://electionlawblog.org/?p=28515>  by Rick Hasen <http://electionlawblog.org/?author=3> 

Following J. Christian Adams' advice <http://electionlawblog.org/?p=27005> , Texas has stopped waiting for DOJ to decide on whether to preclear Texas's voter id law and has insteadfiled suit <http://www.statesman.com/blogs/content/shared-gen/blogs/austin/politics/entries/2012/01/23/abbott_sues_doj_over_voter_id.html> in Washington, D.C. to get preclearance. The complaint itself <http://alt.coxnewsweb.com/shared-blogs/austin/politics/upload/2012/01/abbott_sues_doj_over_voter_id/Abbott%20sues%20DOJ.pdf>  is very important and extremely savvy, for reasons that take a bit of explaining.

The Voting Rights Act section 5 prevents states with a history of discrimination from making any changes in their voting laws without first getting approval from DOJ or a three-judge court in D.C. The covered jurisdiction has the burden of proving the law will not have the purpose or effect of making minority voters worse off or the law will not be approved. DOJ recently objected to South Carolina's similar voter identification law, on grounds that minority voters were less likely than white voters to be able to obtain the requisite voter identification. DOJ has been very slow in acting on Texas's request for preclearance, but most of us expect DOJ will file an objection to Texas's law as well.

In a recent Slate piece <http://www.slate.com/articles/news_and_politics/jurisprudence/2011/12/the_obama_administration_s_risky_voter_id_move_threatens_the_voting_rights_act.html> , I explained how South Carolina might file suit-and expedite it to the Supreme Court-arguing that section 5 of the VRA is no longer constitutional because it intrudes on state sovereignty. (In 2009 the Courtstrongly hinted <http://www.law.cornell.edu/supct/html/08-322.ZS.html>  that a majority of the Court would take that position unless Congress changed the act, or demonstrated that covered jurisdictions present a greater danger of intentional race discrimination than other states to justify the strong preclearance requirement. Congress did not act,but needs to. <http://campaignstops.blogs.nytimes.com/2011/11/17/disenfranchise-no-more/?ref=opinion> ) As some evidence <http://electionlawblog.org/?p=27761>  South Carolina is considering going down that road, they've hired Supreme Court ace lawyer Paul Clement.

Today's filing by Texas takes a slightly different tack. It offers two ways for courts to preclear the voter identification law without striking down section 5 of the Voting Rights Act. First, as TPMexplains <http://tpmmuckraker.talkingpointsmemo.com/2012/01/texas_sues_feds_over_voter_id_law_says_lack_of_voter_data_meant_to_make_electorial_process_colorblind.php> , Texas argues that the VRA's established "nonretrogression standard" (i.e., are minorities worse off) should not apply outside the context of redistricting. Second, Texas argues, in multiple ways and across numerous pages, that the Court can avoid the "grave constitutional doubts" raised if section 5 is read to bar Texas's voter id law by reading section 5 in some narrow way so as to avoid the constitutional problem. The 2009 case,NAMUDNO, was a very questionable application <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1436669>  of the "constitutional avoidance" doctrine, and this looks like an attempt for a repeat performance.

The question is whether the conservative majority on the Court wants to kill the Voting Rights Act outright, or let it die the death of 1,000 cuts. South Carolina may offer the Court the former, and Texas the latter.

Share <http://www.addtoany.com/share_save#url%3dhttp%3a//electionlawblog.org/%3fp%3D28515%26title%3dTexas%2c%20in%20Important%20Development%2c%20Sues%20DOJ%20Over%20Voter%20ID%20Law%20and%20Suggests%20Voting%20Rights%20Act%20Unconstitutional%26description%3d> 
Posted inelection administration <http://electionlawblog.org/?cat=18> , Supreme Court <http://electionlawblog.org/?cat=29> , Voting Rights Act <http://electionlawblog.org/?cat=15>  | Comments Off 

"A 63rd Seat Has No Leg To Stand On" <http://electionlawblog.org/?p=28512> 

Posted onJanuary 23, 2012 1:48 pm <http://electionlawblog.org/?p=28512>  by Rick Hasen <http://electionlawblog.org/?author=3> 

Joshua Spivak has written this oped <http://www.cityandstateny.com/63rd-seat-leg-stand/> .

Share <http://www.addtoany.com/share_save#url%3dhttp%3a//electionlawblog.org/%3fp%3D28512%26title%3d%E2%80%9CA%2063rd%20Seat%20Has%20No%20Leg%20To%20Stand%20On%E2%80%9D%26description%3d> 
Posted inUncategorized <http://electionlawblog.org/?cat=1>  | Comments Off 

"Conference Board Review Article Alerts Companies to Today's Watergate-type Political Spending Threats, How to Manage Them" <http://electionlawblog.org/?p=28510> 

Posted onJanuary 23, 2012 1:47 pm <http://electionlawblog.org/?p=28510>  by Rick Hasen <http://electionlawblog.org/?author=3> 

The Center for Public Accountability has issued this press releas <http://www.politicalaccountability.net/> e about this new article <http://www.politicalaccountability.net/index.php?ht=a/GetDocumentAction/i/6057>  by Bruce Freed and Karl Sandstrom.

Share <http://www.addtoany.com/share_save#url%3dhttp%3a//electionlawblog.org/%3fp%3D28510%26title%3d%E2%80%9CConference%20Board%20Review%20Article%20Alerts%20Companies%20to%20Today%E2%80%99s%20Watergate-type%20Political%20Spending%20Threats%2c%20How%20to%20Manage%20Them%E2%80%9D%26description%3d> 
Posted incampaign finance <http://electionlawblog.org/?cat=10>  | Comments Off 

"Citizens Urge President Obama to Sign Executive Order Requiring Government Contractors to Disclose Political Spending" <http://electionlawblog.org/?p=28508> 

Posted onJanuary 23, 2012 1:46 pm <http://electionlawblog.org/?p=28508>  by Rick Hasen <http://electionlawblog.org/?author=3> 

Public Citizen has issued this press release <http://www.citizen.org/pressroom/pressroomredirect.cfm?ID=3509> .

Share <http://www.addtoany.com/share_save#url%3dhttp%3a//electionlawblog.org/%3fp%3D28508%26title%3d%E2%80%9CCitizens%20Urge%20President%20Obama%20to%20Sign%20Executive%20Order%20Requiring%20Government%20Contractors%20to%20Disclose%20Political%20Spending%E2%80%9D%26description%3d> 
Posted incampaign finance <http://electionlawblog.org/?cat=10>  | Comments Off 

Will the Warren-Scott Deal on Super PACs Hold Up? Think Colbert. <http://electionlawblog.org/?p=28503>  

Posted onJanuary 23, 2012 1:32 pm <http://electionlawblog.org/?p=28503>  by Rick Hasen <http://electionlawblog.org/?author=3> 

Here <http://thehill.com/video/campaign/205725-brown-warren-agree-to-anti-super-pac-pledge>  are the details, along withsome reasons <http://www.washingtonpost.com/blogs/plum-line/post/elizabeth-warren-and-scott-brown-deserve-major-props-for-campaign-finance-truce/2012/01/23/gIQAYQRVLQ_blog.html>  for serious skepticism. And how long will it take for the Colbert Super PAC to come up with an advertisement which will push this to absurdity? For example, how about an ad "attacking" Warren (causing Brown to have to pay a penalty) by painting her in a Colbertian way as a defender of consumers?

Share <http://www.addtoany.com/share_save#url%3dhttp%3a//electionlawblog.org/%3fp%3D28503%26title%3dWill%20the%20Warren-Scott%20Deal%20on%20Super%20PACs%20Hold%20Up%3f%20%20Think%20Colbert.%26description%3d> 
Posted incampaign finance <http://electionlawblog.org/?cat=10>  | Comments Off 

"Science of elections: The problem with turnout" <http://electionlawblog.org/?p=28500> 

Posted onJanuary 23, 2012 8:13 am <http://electionlawblog.org/?p=28500>  by Rick Hasen <http://electionlawblog.org/?author=3> 

BBC News reports <http://www.bbc.co.uk/news/magazine-16681575> .

Share <http://www.addtoany.com/share_save#url%3dhttp%3a//electionlawblog.org/%3fp%3D28500%26title%3d%E2%80%9CScience%20of%20elections%3a%20The%20problem%20with%20turnout%E2%80%9D%26description%3d> 
Posted inelection administration <http://electionlawblog.org/?cat=18>  | 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 <http://electionlawblog.org/> 

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