[EL] Alan Morrison's proposed constitutional amendment
Steve Hoersting
hoersting at gmail.com
Wed Mar 7 08:15:46 PST 2012
That's right, the subject line. Thanks, Rick.
On Wed, Mar 7, 2012 at 11:12 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
> Steve, Steve, Steve,
>
> You have broken a cardinal rule of the listserv: you did not change the
> subject line. I've done so. ;-)
>
> On the merits, I have a different problem with Alan's proposal. A
> "reasonably necessary" standard gives the same discretion to judges that
> they have now. Justice Breyer would find BCRA's soft money rules to be
> "reasonably necessary;" Justice Scalia would not.
>
>
>
> On 3/7/2012 8:08 AM, Steve Hoersting wrote:
>
> 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
>
>
> --
> 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
>
--
Stephen M. Hoersting
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120307/a4a5bd24/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: image/png
Size: 1520 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20120307/a4a5bd24/attachment.png>
View list directory