[EL] ELB News and Commentary 3/7/12

Wed Mar 7 08:08:03 PST 2012

So, Alan Morrison proposes a *Wickard v. Filburn* standard for the
regulation of political speech: ‘Congress (and the States) shall have the
power to make all laws reasonably necessary to regulate the financing of
elections, and no court shall overturn any such law on the ground that it
violates the First Amendment.’

Great.  We have had *Wickard v. Filburn* in economics for seventy years.
Mr. Morrison would bring *Wickard* to political speech.  What could
possibly go wrong?

Those jumping on this bandwagon should remember that the dominant
justification for New Deal jurisprudence was that we would retain an
uninhibited and robust political process to give economic regulation its
political and legal legitimacy.  Indeed, no less than Neal Katyal and Akil
Amar are making this very argument -- that the political process is the
limiting principle -- to defend the PPACA.

Steve Hoersting

P.S. I am also glad to see that Super PACs spending approaches $100M.  That
spending allows the airing of a dormant internal debate Republicans have
needed to have for some time, certainly since 2006: *What role the State?*

On Wed, Mar 7, 2012 at 10:50 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

>   “Minn. group claims voter impersonation bounty”<http://electionlawblog.org/?p=31160>
> Posted on March 7, 2012 7:49 am <http://electionlawblog.org/?p=31160> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> I think this example misses the point<http://www.kare11.com/news/article/966029/396/Minn-group-claims-voter-impersonation-bounty>.
> There are document cases of impersonation fraud occurring with absentee
> ballots. Absentee ballots are stolen, misdirected, etc. What Minnesota
> Majority found is nothing new.
>
> What is very hard to find, in contrast, and what is the *only kind* of
> fraud that a voter identification law stops, is *in person *(polling
> place) fraud.
>
> As I explain here<http://www.amazon.com/Fraudulent-Fraud-Squad-Understanding-ebook/dp/B00795X5XI/ref=sr_1_1?s=digital-text&ie=UTF8&qid=1329324138&sr=1-1>,
> such fraud is an illogical and inefficient way to steal an election.
>
> If groups really cared about preventing voter fraud, they’d begin by
> heavily curtailing the use of absentee ballots, not the use of i.d. for
> polling place voting.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31160&title=%E2%80%9CMinn.%20group%20claims%20voter%20impersonation%20bounty%E2%80%9D&description=>
>   Posted in absentee ballots <http://electionlawblog.org/?cat=53>, election
> administration <http://electionlawblog.org/?cat=18>, fraudulent fraud
> squad <http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>,
> voter id <http://electionlawblog.org/?cat=9> | Comments Off
>   “Court inquires about Austin congressional district; Inquiry could
> delay election, clarify issue of ‘coalition districts’”<http://electionlawblog.org/?p=31157>
> Posted on March 7, 2012 7:44 am <http://electionlawblog.org/?p=31157> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Austin-American Statesman<http://www.statesman.com/news/texas-politics/court-inquires-about-austin-congressional-district-2221423.html>:
> “Ithe D.C. court issues an opinion saying that District 25 deserves
> protection, it could throw Texas’ election schedule into turmoil again.
> That’s because the San Antonio court adopted the Legislature’s boundaries
> for District 25 in drawing the congressional map to be used for this year’s
> elections. Assuming the D.C. court will allow enough time to produce new
> maps by March 31, the San Antonio court could redraw new boundaries for
> District 25 and the surrounding districts, said Michael Li, a redistricting
> expert and author of a Texas redistricting blog. But because of tight
> timetables, any changes would force the court to push back the primary
> until June 29, almost four months after the original date of March 6. But
> if the D.C. court does not allow for new maps to be drawn by March 31, then
> the primary would have to be pushed back to July with a runoff in September
> — a move that would be problematic because of general election deadlines,
> Li said.”
>
> This is why I suggested <http://electionlawblog.org/?p=31045>the D.C.
> Court may hold its opinion until it is too late to do anything about the
> upcoming primaries.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31157&title=%E2%80%9CCourt%20inquires%20about%20Austin%20congressional%20district%3B%20Inquiry%20could%20delay%20election%2C%20clarify%20issue%20of%20%E2%80%98coalition%20districts%E2%80%99%E2%80%9D&description=>
>   Posted in redistricting <http://electionlawblog.org/?cat=6>, Voting
> Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
>   “It’s Not Just Citizens United” <http://electionlawblog.org/?p=31155>
> Posted on March 7, 2012 7:41 am <http://electionlawblog.org/?p=31155> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Alan Morrison blogs<http://www.huffingtonpost.com/alan-b-morrison/citizens-united_b_1324266.html>at the Huffington Post.Given Alan’s position, I find his
> litigation <http://electionlawblog.org/?p=31061> seeking to weaken
> campaign finance law further to be odd.
>
> Alan also proposes a constitutional amendment to overturn CU: “For those
> who think that our election system is fundamentally on the wrong track, the
> only option is to amend the Constitution to allow Congress and the states
> to do what is necessary to restore some level of sanity to campaign finance
> rules. I propose a simple amendment: ‘Congress (and the States) shall have
> the power to make all laws reasonably necessary to regulate the financing
> of elections, and no court shall overturn any such law on the ground that
> it violates the First Amendment.’ I love the First Amendment and rely on it
> often. But it is not the only value in the Constitution, and it should not
> be allowed to trump every other part when it comes to protecting our basic
> democratic system.”
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31155&title=%E2%80%9CIt%E2%80%99s%20Not%20Just%20Citizens%20United%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>   “Tribes rip Abramoff, ethics watchdogs”<http://electionlawblog.org/?p=31152>
> Posted on March 7, 2012 7:36 am <http://electionlawblog.org/?p=31152> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> *The Hill*:<http://thehill.com/business-a-lobbying/214593-tribes-rip-abramoff-watchdogs>“Native
> American tribes are questioning the ethics of government watchdog groups
> that have partnered with Jack Abramoff since his release from prison. The
> criticism has turned the tables on watchdog officials, who are usually the
> ones pointing the finger on ethics controversies.”
>
> I trace Abramoff’s attempt at rehabilitation in this forthcoming book
> review. <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2017026>
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31152&title=%E2%80%9CTribes%20rip%20Abramoff%2C%20ethics%20watchdogs%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10>,
> chicanery <http://electionlawblog.org/?cat=12>, conflict of interest laws<http://electionlawblog.org/?cat=20>,
> legislation and legislatures <http://electionlawblog.org/?cat=27>,
> lobbying <http://electionlawblog.org/?cat=28> | Comments Off
>   “Super PACs unleash politics of the weird”<http://electionlawblog.org/?p=31149>
> Posted on March 7, 2012 7:30 am <http://electionlawblog.org/?p=31149> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Chad Flanders has written this *Politico* oped<http://www.politico.com/news/stories/0312/73679.html>
> .
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31149&title=%E2%80%9CSuper%20PACs%20unleash%20politics%20of%20the%20weird%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>   “Voting and Vice: Criminal Disenfranchisement and the Reconstruction
> Amendments” <http://electionlawblog.org/?p=31146>
> Posted on March 7, 2012 7:28 am <http://electionlawblog.org/?p=31146> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Richard Re and Christopher Re have posted this draft
> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2012115>on SSRN
> (forthcoming, *Yale Law Journal*).  Here is the abstract:
>
> The Reconstruction Amendments are justly celebrated for transforming
> millions of recent slaves into voting citizens. Yet this legacy of
> egalitarian enfranchisement had a flip side. In arguing that voting laws
> should not discriminate on the basis of morally insignificant statuses,
> such as race, supporters of the Reconstruction Amendments emphasized the
> legitimacy of retributive disenfranchisement as a punishment for immoral
> actions, such as crimes. Former slaves were not just compared with virtuous
> military veterans, as commentators have long observed, but were also
> contrasted with immoral criminals. The mutually supportive relationship
> between egalitarian enfranchisement and punitive disenfranchisement —
> between voting and vice — motivated and shaped all three Reconstruction
> Amendments. Counterintuitively, the constitutional entrenchment of criminal
> disenfranchisement facilitated the enfranchisement of black Americans. This
> conclusion complicates the conventional understanding of how and why voting
> rights expanded in the Reconstruction era.
>
> Criminal disenfranchisement’s previously overlooked constitutional history
> illuminates four contemporary legal debates. First, the connection between
> voting and vice provides new support for the Supreme Court’s thoroughly
> criticized holding that the Constitution endorses criminal
> disenfranchisement. Second, Reconstruction history suggests that the
> Constitution’s endorsement of criminal disenfranchisement extends only to
> serious crimes. For that reason, disenfranchisement for minor criminal
> offenses, such as misdemeanors, may be unconstitutional. Third, the
> Reconstruction Amendments’ common intellectual origin refutes recent
> arguments by academics and judges that the Fifteenth Amendment impliedly
> repealed the Fourteenth Amendment’s endorsement of criminal
> disenfranchisement. Finally, the historical relationship between voting and
> vice suggests that felon disenfranchisement is specially protected from
> federal regulation but not categorically immune to challenge under the
> Voting Rights Act.
>
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31146&title=%E2%80%9CVoting%20and%20Vice%3A%20Criminal%20Disenfranchisement%20and%20the%20Reconstruction%20Amendments%E2%80%9D&description=>
>   Posted in felon voting <http://electionlawblog.org/?cat=66>, Voting
> Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
>   Obama ♥ K Street <http://electionlawblog.org/?p=31143>
> Posted on March 7, 2012 7:23 am <http://electionlawblog.org/?p=31143> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Dana Milbank<http://www.washingtonpost.com/opinions/obama-embraces-k-street/2012/03/06/gIQAR4ChvR_story.html>:
> “Three years into his presidency, Barack Obama has finally overcome his
> pesky, puritanical aversion to K Street. As a candidate, Obama pledged<http://www.washingtonpost.com/wp-dyn/content/article/2009/01/21/AR2009012103472.html>that lobbyists ‘will not run my White House.’ But on Monday, the president
> brought in one of this town’s most prominent lobbyists to run his White
> House — or at least a nice piece of it.”
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31143&title=Obama%20%E2%99%A5%20K%20Street&description=>
>   Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>,
> lobbying <http://electionlawblog.org/?cat=28> | Comments Off
>   “Jewish Sabbath Concern Over Vote” <http://electionlawblog.org/?p=31140>
> Posted on March 7, 2012 7:20 am <http://electionlawblog.org/?p=31140> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> News<http://www.google.com/hostednews/ukpress/article/ALeqM5gIxFdN8Lvv9eOJ1W68YTFCC9OLSg?docId=N0935041331034339501A>from Scotland.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31140&title=%E2%80%9CJewish%20Sabbath%20Concern%20Over%20Vote%E2%80%9D&description=>
>   Posted in campaigns <http://electionlawblog.org/?cat=59>, voting<http://electionlawblog.org/?cat=31>
> | Comments Off
>   NYT Breaks Major Story About IRS Coming Down on 501c4s Acting as Shadow
> Super PACs <http://electionlawblog.org/?p=31137>
> Posted on March 6, 2012 9:28 pm <http://electionlawblog.org/?p=31137> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Big deal<http://www.nytimes.com/2012/03/07/us/politics/irs-scrutiny-of-political-groups-stirs-harassment-claim.html?pagewanted=1&ref=politics>:
> “The Internal Revenue Service is caught in an election-year struggle
> between Democratic lawmakers pressing for a crackdown on nonprofit
> political groups and conservative organizations accusing the tax agency of
> conducting a politically charged witch hunt. In recent weeks, the I.R.S.
> has sent dozens<http://www.documentcloud.org/documents/323502-letter-from-the-irs-to-tea-party-organizations.html>of detailed questionnaires to Tea
> Party<http://topics.nytimes.com/top/reference/timestopics/subjects/t/tea_party_movement/index.html?inline=nyt-classifier>organizations applying for nonprofit tax status, demanding to know their
> political leanings and activities. The agency plans this year to press
> existing nonprofits like American Crossroads, on the Republican side, and
> Priorities USA, on the Democratic side, to justify their tax-protected
> status as ‘social welfare’ organizations, a status that many tax
> professionals believe is being badly abused.”
>
> Expect this to be a major story going forward.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31137&title=NYT%20Breaks%20Major%20Story%20About%20IRS%20Coming%20Down%20on%20501c4s%20Acting%20as%20Shadow%20Super%20PACs&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax
> law and election law <http://electionlawblog.org/?cat=22> | Comments Off
>   “Super PAC Spending to Eclipse $100 Million; Money From 501(c)’s More
> Difficult to Track” <http://electionlawblog.org/?p=31134>
> Posted on March 6, 2012 8:53 pm <http://electionlawblog.org/?p=31134> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Choose<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=24795255&vname=mpebulallissues&fn=24795255&jd=a0d0x7e9w5&split=0>your poison: big money or big(ger?) dark money?
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31134&title=%E2%80%9CSuper%20PAC%20Spending%20to%20Eclipse%20%24100%20Million%3B%20Money%20From%20501%28c%29%E2%80%99s%20More%20Difficult%20to%20Track%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax
> law and election law <http://electionlawblog.org/?cat=22> | Comments Off
>   Super PAC Spending Milestone <http://electionlawblog.org/?p=31130>
> Posted on March 6, 2012 4:12 pm <http://electionlawblog.org/?p=31130> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> iWatch News<http://www.iwatchnews.org/2012/03/06/8337/super-tuesday-brings-super-pac-spending-milestone>:
> “Heading into Super Tuesday, spending by super PACs aligned with
> presidential candidates has surpassed spending by all super PACs in the
> 2010 mid-term election.”
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31130&title=Super%20PAC%20Spending%20Milestone&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>   “For House leaders, no clear rules for policing their own”<http://electionlawblog.org/?p=31128>
> Posted on March 6, 2012 4:10 pm <http://electionlawblog.org/?p=31128> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Ben Pershing<http://www.washingtonpost.com/politics/for-house-leaders-no-clear-rules-for-policing-their-own/2012/03/05/gIQAUYVXtR_story.html>on lack of House ethics enforcement.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31128&title=%E2%80%9CFor%20House%20leaders%2C%20no%20clear%20rules%20for%20policing%20their%20own%E2%80%9D&description=>
>   Posted in chicanery <http://electionlawblog.org/?cat=12>, conflict of
> interest laws <http://electionlawblog.org/?cat=20>, ethics investigations<http://electionlawblog.org/?cat=42>
> | Comments Off
>  Should We Feel Bad for the 86-Year-Old Veteran Who Could Not Vote with
> His Veterans Card in Ohio? <http://electionlawblog.org/?p=31125>
> Posted on March 6, 2012 4:03 pm <http://electionlawblog.org/?p=31125> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Think Progress is making a big deal <http://t.co/DBlN6WCO> of this
> Cleveland Plain Dealer story<http://www.cleveland.com/politics/index.ssf/2012/03/portage_county_veteran_86_turn.html>about an 86 year old voter who could not vote with his Veterans id card
> because it contains no address. Think Progress says that the voter “can’t
> vote.”
>
> But, under the Ohio law<http://www.sos.state.oh.us/sos/elections/Voters/FAQ/ID.aspx>,
> the voter could have provided a number of documents without a photo,
> including a utility bill. And even if he does not have that, he could have
> cast a provisional ballot after signing an affidavit of identity. And if,
> as he claimed, he needed assistance in reading the small print on the
> provisional ballot, federal law guarantees him a right to assistance.  He
> says the reason he didn’t use the provisional ballot was because he was
> “perturbed” by then.
>
> Ohio may have no good reason <http://t.co/UH6EXVzq>for its identification
> law. But this is hardly a compelling case of disenfranchisement.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D31125&title=Should%20We%20Feel%20Bad%20for%20the%2086-Year-Old%20Veteran%20Who%20Could%20Not%20Vote%20with%20His%20Veterans%20Card%20in%20Ohio%3F&description=>
>   Posted in election administration <http://electionlawblog.org/?cat=18>, The
> Voting Wars <http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>
> | 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
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>

-- 
Stephen M. Hoersting
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120307/61ea9c3f/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1520 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120307/61ea9c3f/attachment.png>