[EL] Alan Morrison's proposed constitutional amendment

[Volokh, Eugene]

                My apologies for returning to my hobby-horse, but I don’t think the Court has determined that money is speech.  It has determined that restrictions on spending money for speech are restrictions on speech, and highly burdensome ones at that.

                Consider a hypothetical law banning the spending of money to get or perform an abortion, to hire a lawyer, or to educate one’s child.  Such a law would be seen as presumptively unconstitutional, but not because “$=an abortion” or “$=assistance of counsel” or “$=education.”  Rather, it would be seen as presumptively unconstitutional because the ban on spending money to exercise a right burdens the underlying constitutional right.

                Now one could, of course, argue that at some spending threshold the burden becomes less troublesome.  The government might argue, for instance, that capping private education costs at $20,000, or capping the spending for a defense lawyer at $100,000, or capping the spending for a religious proselytizing campaign at $500,000 is (1) justified by the government’s interest in promoting equality, and (2) doesn’t burden the underlying right too much, because people remain free to get a pretty good education, hire a pretty good lawyer, and reach quite a few potential religious converts.  I don’t think that’s right, but it’s possible, and a similar argument could be made as to spending money to speak, whether about candidates or ballot measures or gay rights or global warming or what have you.

                But all of this should, I think, focus on questions such as the degree of burden on the constitutionally protected activity, and not on claims that the Court has said that “$=speech” and needs to decide whether “$$$$=speech.’

                Eugene

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Lillie Coney
Sent: Wednesday, March 07, 2012 9:46 AM
To: Rick Hasen
Cc: law-election at UCI.edu
Subject: Re: [EL] Alan Morrison's proposed constitutional amendment

The court has determined that $=speech.  I would like to know if they believe that $$$$=Speech.  Today one person with enough disposable liquidity can change the dynamics of Political Darwinism by keeping a candidate who would be too weak to survive an election in the race. Suspending and election or dropping out may be a thing of the past if candidates can find a very wealthy patron.  This will be an interesting phase to watch unfold--it may be short lived, but politics is about passion and passion can have nothing to do with rational decision making.

It could also mean candidates who have never run for public office instantly being front runners--one billion dollars could do that for a candidate in major election season.

This situation could have a positive side in how voter process political information and make decisions on why and for whom they will vote.  My take is that this may be longer
than the period of time it may take the Court to accept a case to decide the $$$$=Speech question.

On Mar 7, 2012, at 11:12 AM, Rick Hasen 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<mailto: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.
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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.
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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.”
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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>
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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>.
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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.
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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.”
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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.
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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.
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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?
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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.”
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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.
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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.
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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
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Rick Hasen
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