[EL] ATP v. Bullock

Mon Jun 25 10:07:49 PDT 2012

http://www.citizen.org/pressroom/pressroomredirect.cfm?ID=3639 And one on ATP v. Bullock from Public Citizen.

_____________________________________________
Lisa Gilbert
Office: (202) 454-5188 | Cell: (551) 404-5200

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith, Brad
Sent: Monday, June 25, 2012 1:00 PM
To: 'Tokaji, Daniel'; law-election at uci.edu
Subject: [EL] ATP v. Bullock

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<mailto: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> [mailto:law-election-bounces at department-lists.uci.edu]<mailto:[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<mailto: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>.
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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.
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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."
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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>.
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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."
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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>."
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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.
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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.
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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.
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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>.
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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<mailto:tokaji.1 at osu.edu>
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