[EL] ELB News and Commentary 7/18/12

[Rick Hasen]

    What Matt Bai's Missing in His Analysis of Whether Citizens United
    is Responsible for the Big Money Explosion
    <http://electionlawblog.org/?p=37108>

Posted on July 18, 2012 10:41 am <http://electionlawblog.org/?p=37108> 
by Rick Hasen <http://electionlawblog.org/?author=3>

The other day I linked <http://electionlawblog.org/?p=37057> to Matt 
Bai's iece upcoming in Sunday's /NY Times Magazine/ 
<http://www.nytimes.com/2012/07/22/magazine/how-much-has-citizens-united-changed-the-political-game.html?_r=1&pagewanted=all>, 
"How Much Has /Citizens/ /United/ Changed the Political Game. The 
article discusses (though inexplicably does not link to) my recent Slate 
article 
<http://www.slate.com/articles/news_and_politics/politics/2012/03/the_supreme_court_s_citizens_united_decision_has_led_to_an_explosion_of_campaign_spending_.html>, 
"The Numbers Don't Lie."   I promised a response to the article (I gave 
Matt an extensive interview in his writing of the piece), and here it is.

The relevant question is whether /Citizens United/ and its aftermath 
(namely, the decision in /SpeechNow/ from the DC Circuit, and two FEC 
rulings) is responsible for the explosion of outside money since 
/Citizens United/. Here's Matt's reaction to my /Slate/ piece claiming 
that it is responsible:

    Richard L. Hasen, an expert on campaign finance at the University of
    California at Irvine, recently wrote an article for Slate titled,
    "The Numbers Don't Lie," in which he showed that total outside
    spending, as measured through March 8 of every election season,
    seemed to explode after the Citizens United decision, reaching about
    $15.9 million in 2010 (compared with $1.8 million in the previous
    midterm cycle) and $88 million this year (compared with $37.5
    million at the same point in 2008). "If this was not caused by
    Citizens United," he wrote, "we have a mighty big coincidence on our
    hands."

    But there are alternate ways to interpret this data. The level of
    outside money increased 164 percent from 2004 to 2008. Then it rose
    135 percent from 2008 to 2012. In other words, while the sheer
    amount of dollars seems considerably more ominous after Citizens
    United, the percentage of change from one presidential election to
    the next has remained pretty consistent since the passage of
    McCain-Feingold. And this suggests that the rising amount of outside
    money was probably bound to reach ever more staggering levels with
    or without Citizens United. The unintended consequence of
    McCain-Feingold was to begin a gradual migration of political might
    from inside the party structure to outside it.

    And in his examination of raw numbers, Hasen managed to ignore what
    is probably the most relevant bit of data during this period: 2010
    and 2012 were the first election cycles since the enactment of
    McCain-Feingold in which a Democrat occupied the White House. Rich
    conservatives weren't inspired to invest their fortunes in 2004,
    when Bush ran for the second time while waging an unpopular war, or
    in 2008, when they were forced to endure the nomination of McCain.
    But now there's a president and a legislative agenda they bitterly
    despise (much as Soros and his friends saw the Bush presidency as an
    existential threat to the country), so it's not surprising that
    outside spending by Republicans in 2010 and 2012 would dwarf
    everything that came before. What we are seeing --- what we almost
    certainly would have seen even without the court's ruling in
    Citizens United --- is the full force of conservative wealth in
    America, mobilized by a common enemy for the first time since the
    fall of party monopolies.

A few reactions, beginning with the most important.

1. As I told Matt, and what's missing from this piece, is the 
realization that there was considerable legal risk in giving to a 527 
before /Citizens United /and its aftermath. As one reader to commented 
to me, "Matt's article suggests that not much has changed post-Citizens 
United because even prior to the CU decision, "you would have been free 
to write a check for any amount to a 527 . . . ."  This is untrue and 
all three groups Matt cites were determined by the FEC to have violated 
federal law during the 2004 cycle.  ACT paid a $775,000 fine 
(http://www.fec.gov/press/press2007/20070829act.shtml). SwiftVets paid a 
$299,500 fine (http://www.fec.gov/press/press2006/20061213murs.html). 
Club for Growth paid a $350,000 fine 
(http://www.fec.gov/press/press2007/20070905cfg.shtml)."

If Sheldon Adelson really was planning on giving $100 million 
<http://www.usnews.com/news/articles/2012/06/14/sheldon-adelson-willing-to-spend-100-million-to-beat-obama> 
to 527s before the Citizens United revolution to support a presidential 
candidate, you can bet that there would be a criminal investigation and 
very serious charges considered. i have serious doubts Adelson or anyone 
else would have risked this (much less corporations giving considerable 
sums to 501c4s for election-related activity).  Now we can debate (and I 
have debated with others) whether the law barring contributions greater 
than $5,000 to independent expenditure committees would have fallen even 
if CU had come out the other way.  But that's a different point than the 
one Matt was making.

There's no reason to think we'd see this explosion of outside money if 
CU did not start this cascade of events.

2. Matt seems to suggest that the amounts were rising pretty evenly 
since McCain-Feingold passed. Bu that's what the data show.  As Paul 
Blumenthal explains 
<http://www.huffingtonpost.com/2012/07/17/huffpost-fundrace----sena_n_1680957.html>: 
"The problem with Bai's argument is *he glosses over the 2006 election, 
which saw both no soft money to parties and little independent group 
spending*. The rise in outside spending in 2008 back to 2004 levels came 
after the Supreme Court's ruling in Wisconsin Right to Life v. Federal 
Election Commission (FEC) loosened McCain-Feingold restrictions on 
independent spending and a subsequent FEC rule created a loophole for 
groups to avoid disclosure. The real culprit would be the change in the 
Court's tentatively pro-reform majority with Sandra Day O'Connor's 
departure." That's right.  Justice Alito changed everything, and the 
move toward loosening things up started with WRTL, as Nate Persily 
explained, 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2010/01/the_floodgates_were_already_open.html> 
and accelerated dramatically with CU.  But we can blame the Court and 
not McCain-Feingold for the explosion of outside money.

3. Finally, as far as Matt's point that I "managed to ignore" the 
presence of a Democrat in the White House---that's not quite right.  We 
have a highly polarized electorate and we can expect every presidential 
election for the foreseeable future to be closely fought and very well 
funded.  I see no reason to believe that wealthy Republicans would 
provide less money in the 2016 election (assuming Obama wins 2012) to 
fill the presidency with a non-incumbent or (assuming Romney wins) to 
keep Romney in office against a Democratic challenger. Where's Matt's 
evidence to support that claim?

In the end, Matt tells a (less) plausible alternative story of the rise 
of outside money, which we will be able to test by the next presidential 
election (where I take it his theory would have less outside money in 
that election).  I eagerly await the results of 2016 election. In the 
meantime, I see nothing in this analysis to convince me that we'd be 
facing this explosion in 2012 if we had the same rules in place in 
2008.  Matt's biggest error is ignoring the effects of the law on 
political behavior.

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    Big IE Spend by U.S. Chamber to Avoid Disclosing Contributors
    <http://electionlawblog.org/?p=37104>

Posted on July 18, 2012 9:00 am <http://electionlawblog.org/?p=37104> by 
Rick Hasen <http://electionlawblog.org/?author=3>

iWatch explains 
<http://www.iwatchnews.org/2012/07/18/9838/daily-disclosure-chamber-commerce-spends-big-four-state-ad-blitz>.

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    "Disclosure Vote Leaves Trail of Broken Republican Vows"
    <http://electionlawblog.org/?p=37101>

Posted on July 18, 2012 8:56 am <http://electionlawblog.org/?p=37101> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Effective Bloomberg View editorial 
<http://www.bloomberg.com/news/2012-07-17/disclose-vote-leaves-trail-of-broken-republican-vows.html>with 
streams of quotes from Republican officials praising disclosure.

More reactions to the latest failure of the DISCLOSE Act fromSunlight 
<http://sunlightfoundation.com/blog/2012/07/17/disclose-act-failed-on-party-lines-yesterday-another-vote-expected-this-afternoon/>, 
Democracy 21 
<http://www.democracy21.org/index.asp?Type=B_PR&SEC=%7B91FCB139-CC82-4DDD-AE4E-3A81E6427C7F%7D&DE=%7B53728478-0A48-47EB-911C-68D293868023%7D>, 
more to come [please send me links to official statements if I have not 
already linked].

UPDATE: Jason Riley has written Faux Campaign Finance Reform 
<http://online.wsj.com/article/SB10001424052702303933704577532953641304334.html> 
for WSJ's Political Diary.

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    "Obama Campaign Detectives Hunt for Foreclosed Florida Voters"
    <http://electionlawblog.org/?p=37099>

Posted on July 18, 2012 8:51 am <http://electionlawblog.org/?p=37099> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Interesting Bloomberg report. <http://bloom.bg/NvS8Rt>

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    "Rock, Paper, Local (cont.): Looming Struggles Over Non-Citizen
    Voters" <http://electionlawblog.org/?p=37093>

Posted on July 18, 2012 8:39 am <http://electionlawblog.org/?p=37093> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Doug Chapin: "Both of these storylines reinforce the fact that even when 
federal and state officials resolve their differences (or have a court 
resolve them), there is still the equally significant and potentially 
more difficult matter of convincing local election officials to go along 
as well. At the risk of understatement, this promises to be a fractious 
fall."

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    "Minnesota Supreme Court vigorously questions Photo ID supporters
    and opponents --- but doesn't tip hand"
    <http://electionlawblog.org/?p=37091>

Posted on July 18, 2012 8:38 am <http://electionlawblog.org/?p=37091> by 
Rick Hasen <http://electionlawblog.org/?author=3>

MinnPost reports. 
<http://www.minnpost.com/politics-policy/2012/07/minnesota-supreme-court-vigorously-questions-photo-id-supporters-and-opponen>

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    "Study: Many Could Face Obstacles In Voter ID Laws"
    <http://electionlawblog.org/?p=37088>

Posted on July 17, 2012 9:14 pm <http://electionlawblog.org/?p=37088> by 
Rick Hasen <http://electionlawblog.org/?author=3>

NPR 
<http://www.npr.org/2012/07/18/156935624/study-many-could-face-obstacles-in-voter-id-laws?ft=1&f=1014&sc=tw>: 
"A new report by the Brennan Center for Justice 
<http://www.brennancenter.org/content/resource/the_challenge_of_obtaining_voter_identification> 
finds that more than 10 million potential voters in states that require 
photo ID at the polls live more than 10 miles from offices that issue 
such ID. Nearly 500,000 of these voters don't have access to a car or 
other vehicle. Many of these people presumably already have a photo ID, 
but for those who don't, the new laws pose a special challenge, 
according to the Brennan center. The report, which details the obstacles 
to getting government-issued photo ID, is the latest volley in the 
battle over the impact of new state voting laws."

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    Remember that Kinston, NC Voting Rights Act Case, LaRoque v. Holder?
    [corrected] <http://electionlawblog.org/?p=37085>

Posted on July 17, 2012 9:12 pm <http://electionlawblog.org/?p=37085> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Federal grand jury indicts state Rep. LaRoque on eight counts 
<http://projects.newsobserver.com/under_the_dome/federal_grand_jury_indicts_rep_laroque>.

[Corrected post: The original post mistakenly identified Kinston as a 
county, not a city.]

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    Alternet and the FEC <http://electionlawblog.org/?p=37082>

Posted on July 17, 2012 8:56 pm <http://electionlawblog.org/?p=37082> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Yesterday Alternet posted an article 
<http://www.alternet.org/story/156329/revealed%3A_key_files_on_big_ticket_political_donations_vanish_at_federal_election_commission>, 
"Revealed: Key Files on Big-Ticket Political Donations Vanish at Federal 
Election Commission;Top money and politics researchers discover that the 
FEC is quietly deleting information on fat-cat funders."  "We have 
discovered that sometime after January of this year, the FEC deleted a 
whole set of contributions totaling millions of dollars made during the 
2007-2008 election cycle. The most important of these files concern what 
is now called "dark money" -- funds donated to ostensible charities or 
public interest groups rather parties, candidates or conventional 
political action committees (PACs). These non-profit groups -- which 
Washington insiders often refer to generically as 501(c)s, after the 
section of the federal tax code regulating them -- use the money to pay 
for allegedly educational "independent" ads that run outside 
conventional campaign channels. Such funding has now developed into a 
gigantic channel for evading disclosure of the donors' identities and is 
acutely controversial."

The FEC press office sent along this response, which the FEC shared with 
the authors and editors of the article:

    A recent blog raised concerns that the FEC may have deleted certain
    data with respect to large contributions during a certain timeframe
    in the recent past.
    (http:www.alternet.org/story/156329/revealed%3A_key_files_on_big_ticket_political_donations_vanish_at_federal_election_commission
    <http://electionlawblog.org/www.alternet.org/story/156329/revealed%3A_key_files_on_big_ticket_political_donations_vanish_at_federal_election_commission>).
    The suggestion is incorrect.

    The data have always been available to the public on the FEC website
    through the Report Image Search and also through our Public
    Disclosure Office. At no time was this or any other campaign finance
    information removed from the public record.

    On April 15, 2012, the FEC transferred some files that are used to
    transmit large data sets to researchers from an older database to a
    more modern database. During this process, it appears that a
    transaction code from the data files was inadvertently overlooked.
    As a result, some data reported on the FEC Form 5, the Report of
    Independent Expenditures Made and Contributions Received, were not
    transmitted to the newer database. This technical problem will be
    corrected by tomorrow night.

    As part of an ongoing effort to improve our systems, the FEC is
    currently in the process of implementing a new Data Warehouse.  This
    and other initiatives spurred by public input will assist the
    public, press, and researchers to access campaign finance data in a
    more efficient and user-friendly manner. The FEC encourages
    researchers and reporters to raise issues such as this with our
    press or public information officers in order to avoid inaccurate
    reporting and resolve technical issues as expeditiously as possible.

    Judith Ingram
    Press Officer
    Federal Election Commission

UPDATE: Alternet responds 
<http://www.alternet.org/news/156368/response_to_the_fec_on_missing_big_ticket_money_data>.

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    "Second judge rejects state voter ID law Requirement will not be in
    place for fall elections" <http://electionlawblog.org/?p=37078>

Posted on July 17, 2012 8:42 pm <http://electionlawblog.org/?p=37078> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Milwaukee Journal Sentinel: 
<http://www.jsonline.com/news/statepolitics/second-judge-rejects-state-voter-id-law-ea65kqh-162799866.html> 
"In March, Flanagan issued an injunction temporarily blocking the law 
because the plaintiffs -- the Milwaukee branch of the National 
Association for the Advancement of Colored People and the immigrant 
rights group Voces de la Frontera -- were likely to succeed in their 
arguments. Flanagan made that injunction permanent in the 20-page 
decision he issued Tuesday."

I have posted the opinion here 
<http://electionlawblog.org/wp-content/uploads/Flanagan-Permanent-Injunction.pdf>. 
The court found no evidence in the record presented of impersonation 
voter fraud which would support an i.d. requirement.  The court found 
credible cases of people who would have difficulty getting voter i.d. 
under the Wisconsin law, which the court called the strictest in the 
nation.  What is not clear is how many people would have the difficulty 
getting the i.d. and whether the Wisconsin Supreme Court, when it gets 
the eventual appeal in this case, will decide that the class of people 
facing such general difficulties could bring an as-applied challenge to 
the law (as the U.S. Supreme Court did in the Crawford case considering 
the constitutionality of the Indiana voter id law against federal 
constitutional challenge).  The judge's decision in this case was under 
the Wisconsin state constitution.

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    View the Archived Webcast of the UCI Law Supreme Court Term in
    Review <http://electionlawblog.org/?p=37075>

Posted on July 17, 2012 8:28 pm <http://electionlawblog.org/?p=37075> by 
Rick Hasen <http://electionlawblog.org/?author=3>

At this link 
<http://msweb.merage.uci.edu/Mediasite/Play/86d79b6f0d904bb8be16c7c52e263d331d>.  
It was an interesting, provocative, and entertaining afternoon.  Thanks 
to Jess Bravin, Jennifer Chacon, Erwin Chemerinsky, Marcia Coyle, and 
Bob Pushaw for their great commentary, and the UCI Law staff for their 
great support!

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    "Obama campaign sues Ohio over early voting restrictions"
    <http://electionlawblog.org/?p=37068>

Posted on July 17, 2012 10:46 am <http://electionlawblog.org/?p=37068> 
by Rick Hasen <http://electionlawblog.org/?author=3>

News 
<http://www.ohio.com/news/break-news/obama-campaign-sues-ohio-over-early-voting-restrictions-1.320837>from 
Ohio: "President Barack Obama's campaign filed a lawsuit in Columbus 
this afternoon, seeking to restore the three days of early voting prior 
to Election Day that the GOP-controlled legislature eliminated, the 
campaign announced in an exclusive interview with the Beacon Journal 
today. The suit, filed in federal court, was the first filed by Obama's 
campaign of this election.:

I'll be very interested in seeing this complaint.

UPDATE: Here isthe complaint 
<http://electionlawblog.org/wp-content/uploads/OFA-Complaint-as-Filed.pdf> 
and motion for preliminary injunction 
<http://electionlawblog.org/wp-content/uploads/OFA-PI-Motion-as-Filed.pdf>. 
Bush v. Gore and the 6th Circuit Hunter case play an important role.

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-- 
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
Pre-order The Voting Wars: http://amzn.to/y22ZTv
www.thevotingwars.com

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