[EL] ATP v. Bullock

[Daniel Tokaji]

Thanks.  Will add. I looked at your site a bit earlier and didn't see
anything at the time.

On Mon, Jun 25, 2012 at 1:00 PM, Smith, Brad <BSmith at law.capital.edu> wrote:

>  Another on ATP v. Bullock:
> http://www.campaignfreedom.org/2012/06/25/the-supremacy-clause-its-a-thing/
> ****
>
> ** **
>
> *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 *Tokaji,
> Daniel
> *Sent:* Monday, June 25, 2012 12:51 PM
> *To:* law-election at uci.edu
> *Subject:* [EL] ELB News and Commentary 6/25/12****
>
> ** **
>
> *Early Roundup on ATP v. Bullock <http://electionlawblog.org/?p=36178> ***
> **
>
> Posted on June 25, 2012 9:45 am <http://electionlawblog.org/?p=36178> by Dan
> Tokaji <http://electionlawblog.org/?author=5> ****
>
> Reports on today’s summary affirmance and dissents<http://www.supremecourt.gov/opinions/11pdf/11-1179h9j3.pdf>from the Billings
> Gazette<http://billingsgazette.com/news/state-and-regional/montana/u-s-supreme-court-strikes-state-ban-on-corporate-donations/article_ddb5f485-1c06-5a33-8f06-846134e11a75.html>
> , Bloomberg<http://www.businessweek.com/news/2012-06-25/corporate-campaign-spending-rights-affirmed-by-high-court>,
> The Hill<http://thehill.com/blogs/blog-briefing-room/news/234515-supreme-court-reaffirms-citizens-united>,
> LAT<http://www.latimes.com/news/politics/la-pn-supreme-court-strikes-down-montana-ban-on-corporate-spending-20120625,0,1240460.story>
> , MSNBC<http://nbcpolitics.msnbc.msn.com/_news/2012/06/25/12398475-high-court-affirms-corporations-right-to-political-spending?lite>,
> NPR<http://www.npr.org/blogs/itsallpolitics/2012/06/25/155707295/supreme-court-says-montana-cannot-ignore-citizens-united-ruling>,
> NYT<http://www.nytimes.com/2012/06/26/us/supreme-court-declines-to-revisit-citizens-united.html?_r=1>
> , Politico <http://www.politico.com/news/stories/0612/77788.html>, Reuters<http://www.reuters.com/article/2012/06/25/us-usa-campaign-court-idUSBRE85O0P520120625>,
> USA Today<http://content.usatoday.com/communities/onpolitics/post/2012/06/supreme-court-montana-citizens-united-/1>,
> WaPo<http://www.washingtonpost.com/politics/supreme-court-throws-out-montana-ban-on-corporate-campaign-spending/2012/06/25/gJQAZjUx1V_story.html>
> , WSJ<http://online.wsj.com/article/SB10001424052702304870304577488472813472062.html>.
> Reaction from ATP<http://www.kxlh.com/news/atp-praises-u-s-supreme-court-on-campaign-financing-calls-on-mt-officials-to-resign/>,
> Cato<http://www.cato-at-liberty.org/citizens-united-lives-for-another-day/>
> , Huffpost<http://www.huffingtonpost.com/2012/06/25/supreme-court-reversed-citzens-united-montana_n_1605355.html>,
> Jennifer Rubin<http://www.washingtonpost.com/blogs/right-turn/post/first-amendment-2-obama-0/2012/06/25/gJQAMDpt1V_blog.html>,
> and Justice at Stake<http://www.justiceatstake.org/newsroom/press-releases-16824/?supreme_court_decision_fails_to_address_threat_to_state_courts&show=news&newsID=13606>,
> in addition to the posts below from Rick Hasen<http://electionlawblog.org/?p=36150>and Rick
> Pildes <http://electionlawblog.org/?p=36136>.****
>
> [image: Description: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D36178&title=Early%20Roundup%20on%20ATP%20v.%20Bullock&description=>
> ****
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
> Court <http://electionlawblog.org/?cat=29> | Comments Off ****
>
>  ****
>
> *Another Alaska Redistricting Dispute<http://electionlawblog.org/?p=36173>
> *****
>
> Posted on June 25, 2012 9:04 am <http://electionlawblog.org/?p=36173> by Dan
> Tokaji <http://electionlawblog.org/?author=5> ****
>
> Today’s Juneau Empire has this report<http://juneauempire.com/local/2012-06-25/justices-dissent-highlights-dispute-over-redistricting>on a dissent from two of the five state supreme court justices, arguing
> that the maps to be used this year violate the state constitution.  The
> order and dissenting opinions may be found here<http://courts.alaska.gov/ops/sp-ord78.pdf>.
> The dispute hinges on whether departure from the state’s compactness and
> contiguity requirements was required to comply with Section 5 of the VRA,
> which is the subject of another case <http://electionlawblog.org/?p=36120> in
> which the state reportedly intends to challenge the statute’s
> constitutionality.****
>
> [image: Description: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D36173&title=Another%20Alaska%20Redistricting%20Dispute&description=>
> ****
>
> Posted in redistricting <http://electionlawblog.org/?cat=6>, Voting
> Rights Act <http://electionlawblog.org/?cat=15> | Comments Off ****
>
>  ****
>
> *$5000 in FEC Fines Against Rep. Roscoe Bartlett<http://electionlawblog.org/?p=36169>
> *****
>
> Posted on June 25, 2012 8:45 am <http://electionlawblog.org/?p=36169> by Dan
> Tokaji <http://electionlawblog.org/?author=5> ****
>
> The Baltimore Sun reports here<http://www.baltimoresun.com/news/maryland/politics/bs-md-bartlett-fec-20120624,0,1147556.story> on
> the fines against the Maryland Congressman, noting that its “review of FEC
> data … found that Bartlett has received 25 letters from the agency for
> incomplete reports since 2009 — more than any other current member of the
> House of Representatives.”****
>
> [image: Description: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D36169&title=%245000%20in%20FEC%20Fines%20Against%20Rep.%20Roscoe%20Bartlett&description=>
> ****
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off ****
>
>  ****
>
> *SCOTUS Affirms Decision Upholding Maryland Law on “Prison Gerrymandering”<http://electionlawblog.org/?p=36166>
> *****
>
> Posted on June 25, 2012 8:30 am <http://electionlawblog.org/?p=36166> by Dan
> Tokaji <http://electionlawblog.org/?author=5> ****
>
> The summary disposition<http://www.supremecourt.gov/orders/courtorders/062512d4f1zor.pdf>in
> *Fletcher v. Lamone* affirms a three-judge district court ruling<http://www.demos.org/sites/default/files/publications/MD_Fletcher_Lamone_Final_Opinion.12.23.pdf>upholding the state’s “No Representation Without Population Act,”  which
> requires that, for redistricting purposes, prisoners be counted at their
> legal home addresses rather than where they’re incarcerated. Demos’ press
> release heralding the ruling is here<http://www.demos.org/press-release/supreme-court-upholds-maryland-law-ending-prison-based-gerrymandering-huge-victory-fai>
> .****
>
> *Update*:  The Baltimore Sun has this story<http://www.baltimoresun.com/news/maryland/politics/blog/bal-supreme-court-upholds-md-congressional-map-20120625,0,7235641.story>on the ruling, and the AP this
> one<http://www.washingtonpost.com/politics/supreme-court-wont-hear-challenge-to-md-congressional-redistricting/2012/06/25/gJQAW52s1V_story.html>
> .****
>
> [image: Description: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D36166&title=SCOTUS%20Affirms%20Decision%20Upholding%20Maryland%20Law%20on%20%E2%80%9CPrison%20Gerrymandering%E2%80%9D&description=>
> ****
>
> Posted in felon voting <http://electionlawblog.org/?cat=66>, redistricting<http://electionlawblog.org/?cat=6>
> | Comments Off ****
>
>  ****
>
> *Canadian Court Hearing Motions to Overturn Election Results Because of
> Robocalls <http://electionlawblog.org/?p=36163> *****
>
> Posted on June 25, 2012 8:19 am <http://electionlawblog.org/?p=36163> by Dan
> Tokaji <http://electionlawblog.org/?author=5> ****
>
> According to this report<http://www.canada.com/news/Federal+Court+hears+motions+overturning+elections+because+robocalls/6835918/story.html>:
> “The Federal Court is hearing preliminary motions today in the Council of
> Canadians’ bid to have the federal election results overturned” in seven
> ridings, on the ground that “misleading or harassing phone calls in those
> ridings kept some people from voting and may have affected the outcomes.”*
> ***
>
> [image: Description: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D36163&title=Canadian%20Court%20Hearing%20Motions%20to%20Overturn%20Election%20Results%20Because%20of%20Robocalls&description=>
> ****
>
> Posted in chicanery <http://electionlawblog.org/?cat=12> | Comments Off **
> **
>
>  ****
>
> *“With Cuomo, a New Group Will Push for Publicly Financed Elections”<http://electionlawblog.org/?p=36160>
> *****
>
> Posted on June 25, 2012 8:15 am <http://electionlawblog.org/?p=36160> by Dan
> Tokaji <http://electionlawblog.org/?author=5> ****
>
> The NYT reports<http://www.nytimes.com/2012/06/25/nyregion/with-cuomo-new-group-will-push-for-publicly-financed-elections-in-new-york.html> that:
> “Frustrated with Albany’s tepid reaction to the idea of publicly financed
> elections, the Facebook co-founder Chris Hughes and his fiancé<http://www.nytimes.com/2012/05/06/fashion/chris-hughes-and-sean-eldridge-are-the-new-power-brokers.html>are financing a new campaign to press the issue in coordination with Gov. Andrew
> M. Cuomo<http://topics.nytimes.com/top/reference/timestopics/people/c/andrew_m_cuomo/index.html?inline=nyt-per>
> .”****
>
> [image: Description: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D36160&title=%E2%80%9CWith%20Cuomo%2C%20a%20New%20Group%20Will%20Push%20for%20Publicly%20Financed%20Elections%E2%80%9D&description=>
> ****
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off ****
>
>  ****
>
> *“SuperPACs as a Check on the Special Interests and the Lobbyists”<http://electionlawblog.org/?p=36157>
> *****
>
> Posted on June 25, 2012 8:11 am <http://electionlawblog.org/?p=36157> by Dan
> Tokaji <http://electionlawblog.org/?author=5> ****
>
> The perspective of Tim Carney<http://washingtonexaminer.com/article/2500303>in the Washington Examiner.
> ****
>
> [image: Description: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D36157&title=%E2%80%9CSuperPACs%20as%20a%20Check%20on%20the%20Special%20Interests%20and%20the%20Lobbyists%E2%80%9D&description=>
> ****
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, lobbying<http://electionlawblog.org/?cat=28>
> | Comments Off****
>
> *“Suddenly, Elections Supervisor Becomes a Tempting Job”<http://electionlawblog.org/?p=36154>
> *****
>
> Posted on June 25, 2012 7:58 am <http://electionlawblog.org/?p=36154> by Dan
> Tokaji <http://electionlawblog.org/?author=5> ****
>
> From Florida comes this very interesting story<http://htpolitics.com/2012/06/21/suddenly-elections-supervisor-becomes-a-tempting-job/>on “seasoned political players are looking to parlay their years of
> experience in partisan battles into an advantage in becoming elections
> overseers” at the county level.  Thanks to David Kimball<http://www.umsl.edu/~kimballd/>,
> who’s done some excellent work on partisanship in state and local election
> administration, for the pointer.****
>
> [image: Description: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D36154&title=%E2%80%9CSuddenly%2C%20Elections%20Supervisor%20Becomes%20a%20Tempting%20Job%E2%80%9D&description=>
> ****
>
> Posted in election administration <http://electionlawblog.org/?cat=18> | Comments
> Off ****
>
>  ****
>
> *A Few Reactions About the Montana Decision<http://electionlawblog.org/?p=36150>
> *****
>
> Posted on June 25, 2012 7:30 am <http://electionlawblog.org/?p=36150> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> 1. Justice Breyer’s very short dissent<http://www.supremecourt.gov/opinions/11pdf/11-1179h9j3.pdf>is very restrained.  It does not contain the stronger rhetoric of Justice
> Ginsburg’s earlier statement in the case in connection with the stay.  So
> no speaking “truth to power”<http://www.slate.com/articles/news_and_politics/politics/2012/02/justice_ruth_bader_ginsburg_is_ready_to_speak_out_on_the_danger_of_super_pacs_.html>as I had suggested the dissenting Justices might want to do in this case.
> The tone is more of lamenting.  Justice Breyer says that the vote for the
> per curiam reversal signals that the Court is not ready to either
> reconsider Citizens United or at least examine its application in light of
> this case.  So what’s the point of a full hearing he says?****
>
> 2. Justice Breyer’s “what’s the point” statement points to another
> fundamental point about this case.  I view this as a relative victory for
> campaign finance reformers.  How is that possible, when the Court has
> reaffirmed the correctness of Citizens United?  Because taking the case
> would have made things so much worse.  As I have written, I was simply
> baffled by the full court press to get the Court to take the case.  As Rick
> Pildes explains in his post today, <http://electionlawblog.org/?p=36136>there’s
> no reason to believe that the CU majority Justices care about the public
> outcry against the earlier decision. Taking the case would have been an
> opportunity for the majority of Supreme Court justices to make things
> worse, such as by suggesting that limits on direct contributions to
> candidates are unconstitutional.  The best way to win before the Roberts
> Court if you are a campaign reformer (aside from on disclosure issues) is
> not to play.****
>
> 3. Justice Kagan’s position is the most interesting. Before she was
> confirmed, there was a major question about whether she would have sided
> with the majority or dissent in CU, because she had written critically of
> the Austin case (which CU overturned) while a law professor.  I wrote an extensive
> piece in Slate<http://www.slate.com/articles/news_and_politics/jurisprudence/2010/05/the_big_ban_theory.html>on her views during the nomination process.  And although she wrote a
> strong dissent in the Arizona Free Enterprise case last year involving
> Arizona’s campaign finance law, that was all about corruption, and it was
> not clear how far she would go on the more direct question of ban on direct
> spending from corporate treasuries.  But today, Justice Breyer, joined in
> full by Justice Kagan, endorses Justice Stevens’ dissent in CU, which
> argued for both anticorruption and egalitarian reasons for limiting
> corporate spending. (Here’s my explanation
> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1737938>of Justice
> Stevens’ muddle on these points.)  But whatever Stevens meant, Justice
> Kagan appears to be signing on here.  That means a strong and solid four
> justices ready to overturn Citizens United.****
>
> 4. This brings me to my final point.  The 2012 election will matter too if
> the next president gets to appoint one or more Justices to the Court to
> replace either Justice Scalia or Kennedy.  We don’t know if that will
> happen, but it is more likely to happen if it is President Romney than
> Obama.  Decisions like these (and a health care reversal, if that comes),
> makes it more likely for Obama to make an issue of the Supreme Court, as I
> suggested in Scalia’s Retirement Party.<http://www.slate.com/articles/news_and_politics/jurisprudence/2010/04/scalias_retirement_party.html>
> ****
>
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> ****
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
> Court <http://electionlawblog.org/?cat=29> | Comments Off ****
>
>  ****
>
> *Breaking News: The Montana Campaign Finance Decision, the Supreme Court,
> and “Public Opinion” <http://electionlawblog.org/?p=36136> *****
>
> Posted on June 25, 2012 7:09 am <http://electionlawblog.org/?p=36136> by Richard
> Pildes <http://electionlawblog.org/?author=7> ****
>
> In holding Montana’s ban on corporate electioneering unconstitutional
> today, the Supreme Court stuck to its guns about *Citizens United *and
> put the lie to shallow, but frequently repeated, theories about how much
> public opinion constrains the Court. According to these theories, the
> Court’s decisions do not and will not stray far from “mainstream public
> opinion” because political institutions or “the public” will punish the
> Court if its decisions do so. Savvy to this dynamic, the Court factors the
> “anticipation” of this potential punishment into its decisions and hence
> avoids from the start decisions that will inflame large majorities. Thus,
> these large structural forces supposedly constrain the Court to issue only
> opinions that are well within the mainstream of public opinion on even the
> most controversial issues. Rather than decisions reflecting a mix of
> jurisprudential, philosophical, ideological, and legal understandings, the
> decisions should be understood more like weathervanes in which the Court
> tilts toward the direction in which the most dominant popular forces happen
> to be blowing. Journalists are drawn to these theories, since they can take
> readers outside the more legalistic issues within the opinion to speculate
> more broadly (even if without any foundation) for why the Court “really”
> decided a case the way it did. ****
>
> In recent years, the biggest embarrassment to these theories — which I
> have criticized in depth in my academic writing<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1733169>— has been the Court’s extremely well known, controversial, and greatly
> unpopular decision in the *Citizens United* case. From the moment the
> Court held two years ago, in a 5-4 decision, that corporations have the
> constitutional right to spend unlimited amounts of money to seek to
> influence election outcomes, polls have consistently shown that roughly 80%
> of the public strongly opposes the decision. Measured by “mainstream public
> opinion” (not a concept I like, since getting a meaningful handle on
> “public opinion” is so elusive, but a concept central to theories that
> insist “public opinion” strongly constrains the Court), few decisions in
> recent decades can be said to so boldly fly in the face of “public
> opinion.” So how do the theorists who insist the Court is strongly
> constrained by “public opinion” explain the decision? ****
>
> They cannot conclude that the majority of the Court has strong
> constitutional or even ideological convictions (whether right or wrong)
> that corporate political speech is just as entitled to First Amendment
> protection as other political speech. After all, to conclude that these
> Court commentators would have to accept that the Court’s decisions in big
> cases rest on something other than guesses about where “mainstream public
> opinion” lies. So instead, these Court commentators have to assert that the
> otherwise savvy Court just made a massively mistaken miscalculation when it
> decided *Citizens United*. Thus, my colleague Barry Friedman and his
> co-author, Dahlia Lithwick – two of the biggest proponents of the view that
> Court decisions will not stray far from “public opinion” – assert that no
> one could have known how negative the reaction to *Citizens United* would
> turn out to be. As they put it in a recent Slate piece<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/04/the_supreme_court_and_obamacare_the_justices_should_be_careful_not_to_let_public_opinion_guide_their_decisions_.html>:
> “[The Justices] could not have anticipated the strength of the negative
> public reaction to the *Citizens United* decision on campaign finance
> reform. . . . Who knew the public was so enamored of McCain-Feingold? The
> answer is no one—until the court showed what life without campaign finance
> regulations would look like.” In other words, had the Court realized what
> the reaction to the decision would have been, the case would have come out
> the other way. ****
>
> Even on its own terms, though, the claim that the Court just miscalculated
> and would never have decided *Citizens United* had it known how negative
> the popular reaction would be seems like a desperate attempt to salvage a
> fundamentally flawed theory. Anyone following these debates at the time, or
> the general debates about the role of corporations in American democracy,
> knew how vehemently most of the public would react to the Court overturning
> decades of campaign finance law and licensing unlimited corporate election
> spending. Indeed, the best evidence that hindsight wasn’t necessary comes,
> ironically, from Friedman and Lithwick themselves. For one week after the
> decision in another Slate piece<http://www.slate.com/articles/news_and_politics/jurisprudence/2010/01/speeding_locomotive.html>,
> they criticized the “bombshell” *Citizens United* decision for being
> dramatically out of touch with public opinion – as evidence by polls they
> cited even back then which showed that 76% of people believed government
> should have the power to limit corporate election spending. Perhaps we are
> supposed to think that the Justices in the majority were the only ones in
> the political elite who failed to understand how controversial and
> unpopular their decision would be. ****
>
> But today’s Montana decision means we no longer have to speculate about
> such matters. Because if the Court made a mistake and simply miscalculated
> how the public would react to *Citizens United*, the Montana case
> presented the perfect opportunity, just two years later, for the Court to
> “correct” its mistake. Now in a position to fully appreciate “the strength
> of the negative public reaction” to the original decision, the Court
> nonetheless not only reaffirmed that decision but doubled down on it by
> making clear that it would tolerate no exceptions to *Citizens United*.
> That outcome comes as no surprise to those of us who believe *Citizens
> United* reflected powerfully held philosophical and constitutional
> convictions, whether we agree with those convictions or not. But it should
> put the final nail in the coffin of theories that assert the Court could
> have decided *Citizens United *only “by mistake” and, more generally, put
> to rest the view that Court decisions are destined to reflect “mainstream
> public opinion,” rather than sometimes standing forcefully against such
> opinion in the name of powerfully held philosophical and legal convictions.
> The American public might not believe in unlimited corporate speech rights
> in elections, but the Court’s majority does – and no amount of public
> backlash is going to cause this Court to back down. ****
>
> [image: Description: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D36136&title=Breaking%20News%3A%20The%20Montana%20Campaign%20Finance%20Decision%2C%20the%20Supreme%20Court%2C%20and%20%E2%80%9CPublic%20Opinion%E2%80%9D&description=>
> ****
>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
> ****
>
>  ****
>
> *Breaking News: Summary Reversal in Montana<http://electionlawblog.org/?p=36145>
> *****
>
> Posted on June 25, 2012 7:06 am <http://electionlawblog.org/?p=36145> by Dan
> Tokaji <http://electionlawblog.org/?author=5> ****
>
> 5-4 according to SCOTUS blog<http://electionlawblog.org/www.scotusblog.com>,
> which is live-blogging <http://scotusblog.wpengine.com/>.  Justice Breyer
> wrote the dissent.****
>
> *Update*:  You can find the short per curiam and dissenting opinions here<http://www.supremecourt.gov/opinions/11pdf/11-1179h9j3.pdf>
> .****
>
> [image: Description: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D36145&title=Breaking%20News%3A%20Summary%20Reversal%20in%20Montana&description=>
> ****
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off ****
>
>  ****
>
>  ****
>
> Daniel Tokaji ****
>
> Robert M. Duncan/Jones Day Designated Professor of Law****
>
> The Ohio State University | Moritz College of Law****
>
> 55 W. 12th Ave. | Columbus, OH 43210****
>
> 614.292.6566 | tokaji.1 at osu.edu****
>



-- 
 Daniel Tokaji
Robert M. Duncan/Jones Day Designated Professor of Law
The Ohio State University | Moritz College of Law
55 W. 12th Ave. | Columbus, OH 43210
614.292.6566 | tokaji.1 at osu.edu
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