[EL] Unvarnished Irony from Briffault

Thu May 31 14:34:08 PDT 2012

Richard Briffault writes, ironically, as it is to his apparent
consternation, that "the emergence of Super PACs may very well spell the
beginning of the end of our nearly four-decade-old post-Watergate campaign
finance regime."

The good professor should congratulate himself for this development.  As
counsel in *SpeechNow.org v. FEC,* one of the lower court opinions
Briffault rightly credits below, believe me, I would know, for he is
heavily cited here:

http://www.cato.org/publications/briefing-paper/free-speech-527-prohibition

Steve Hoersting

On Thu, May 31, 2012 at 4:43 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>   The Big Election Law News Today Comes from Florida, NOT from John
> Edwards’ Trial <http://electionlawblog.org/?p=34981>
> Posted on May 31, 2012 1:38 pm <http://electionlawblog.org/?p=34981> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> This is a very major development given how close the polling is in Florida
> and other battleground states for the presidency.
>
> A federal district court has issued a preliminary injunction
> <http://www.postonpolitics.com/wp-content/uploads/2012/05/0531-HINKLE-ORDER.pdf>barring
> its enforcement of some of its new onerous restrictions on third party
> voter registration drives as violative of the NVRA (motor-voter law).  The
> restrictions were so bad that the League of Women Voters stopped
> registering voters there for fear of prosecution.  (It was also the subject
> of this biting piece from Stephen Colbert.)
>
> A snippet from the judge’s discussion of the requirement that registration
> forms be turned in within 48 hours of signing:
>
> Even so, the state has little if any legitimate interest in setting the
> deadline at 48 hours. The short deadline, coupled with substantial
> penalties for noncompliance, make voter-registration drives a risky
> business. If the goal is to discourage voter-registration drives and thus
> also to make it harder for new voters to register, the 48-hour deadline may
> succeed. But if the goal is to further the state’s legitimate interests
> without unduly burdening the rights of voters and voter registration
> organizations, 48 hours is a bad choice.
>
> Still, lines must be drawn somewhere, and choosing the specific time
> limit, so long as the limit is not unconstitutional, is the job of the
> Legislature, not the court. It is not at all clear that a well crafted
> 48-hour provision could survive constitutional scrutiny, but that issue
> need not be decided at this time. This statute and this rule are not well
> crafted. To the contrary, they are virtually unintelligible, close to the
> point, if not past the point, at which a statute—especially one that
> regulates First Amendment rights and is accompanied by substantial
> penalties—becomes void for vagueness.
>
> I expect the next step will be that Florida will attempt to get this
> overturned at the Eleventh Circuit, though I think it will be a hard
> argument to make given the fact-intensive nature of the judge’s ruling and
> the deferential standard for reviewing such preliminary injunction motions.
>
> If this ruling stands, I expect a large push, especially (but not only)
> from Democratically-aligned groups, to register voters in Florida this
> summer.
>
> I have always said that these Florida restrictions, rather than voter id
> laws, are more likely to have an effect on the presidential election, and
> other elections.
>
> MORE in this Brennan Center release<http://www.brennancenter.org/content/resource/suppressive_voting_laws_take_hit_federal_judge_blocks_florida_law/>
> .
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D34981&title=The%20Big%20Election%20Law%20News%20Today%20Comes%20from%20Florida%2C%20NOT%20from%20John%20Edwards%E2%80%99%20Trial&description=>
>   Posted in election administration <http://electionlawblog.org/?cat=18>, NVRA
> (motor voter) <http://electionlawblog.org/?cat=33>, The Voting Wars<http://electionlawblog.org/?cat=60>,
> voter registration <http://electionlawblog.org/?cat=37> | Comments Off
>   Breaking News: John Edwards Not Guilty on One Charge, Jury Deadlocked
> on Others; Mistrial Declared <http://electionlawblog.org/?p=34979>
> Posted on May 31, 2012 1:24 pm <http://electionlawblog.org/?p=34979> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> So reports <http://abcnews.go.com/Politics/video/live-news-6046305> ABC
> News.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D34979&title=Breaking%20News%3A%20John%20Edwards%20Not%20Guilty%20on%20One%20Charge%2C%20Jury%20Deadlocked%20on%20Others%3B%20Mistrial%20Declared&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10>,
> campaigns <http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>,
> John Edwards <http://electionlawblog.org/?cat=17> | Comments Off
>   “California elections officials prepare for first top-two primary”<http://electionlawblog.org/?p=34976>
> Posted on May 31, 2012 1:05 pm <http://electionlawblog.org/?p=34976> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> That’s the lead story<http://www.electionline.org/index.php/electionline-weekly>in this week’s Electionline Weekly.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D34976&title=%E2%80%9CCalifornia%20elections%20officials%20prepare%20for%20first%20top-two%20primary%E2%80%9D&description=>
>   Posted in election administration <http://electionlawblog.org/?cat=18> | Comments
> Off
>   “The GOP Sees Dead People—Voting” <http://electionlawblog.org/?p=34971>
> Posted on May 31, 2012 1:01 pm <http://electionlawblog.org/?p=34971> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Scott Keyes has written this article<http://www.slate.com/articles/news_and_politics/politics/2012/05/republicans_are_trying_to_stamp_out_voting_fraud_that_does_not_exist_.html>for
> *Slate*.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D34971&title=%E2%80%9CThe%20GOP%20Sees%20Dead%20People%E2%80%94Voting%E2%80%9D&description=>
>   Posted in election administration <http://electionlawblog.org/?cat=18>, The
> Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
>   “Duran withholds cash from publicly financed candidates”<http://electionlawblog.org/?p=34969>
> Posted on May 31, 2012 12:59 pm <http://electionlawblog.org/?p=34969> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> News<http://www.nmpolitics.net/index/2012/05/duran-withholds-cash-from-publicly-financed-candidates/>from New Mexico: “The Secretary of State’s Office is refusing to provide
> matching funds state law dictates are due to publicly financed candidates
> who are up against wealthier, privately financed campaigns. To back up her
> decision, Secretary of State Dianna Duran<http://www.sos.state.nm.us/sos-SecBio.html>cites a recent U.S. Supreme Court ruling that struck down a similar law in
> Arizona in 2011<http://www.csmonitor.com/USA/Justice/2011/0627/Supreme-Court-Matching-funds-in-Arizona-election-law-violate-free-speech>.
> As a result, six Public Regulation and Court of Appeals candidates are
> currently without funds state law says they’re due.”
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D34969&title=%E2%80%9CDuran%20withholds%20cash%20from%20publicly%20financed%20candidates%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>   “Big donors to Democratic super PACs visited White House”<http://electionlawblog.org/?p=34967>
> Posted on May 31, 2012 12:54 pm <http://electionlawblog.org/?p=34967> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Sunlight reports<http://reporting.sunlightfoundation.com/2012/big-donors-democratic-super-pacs-visited-white-house/>
> .
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D34967&title=%E2%80%9CBig%20donors%20to%20Democratic%20super%20PACs%20visited%20White%20House%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>   “Super PACS” <http://electionlawblog.org/?p=34964>
> Posted on May 31, 2012 12:49 pm <http://electionlawblog.org/?p=34964> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Richard Briffault has posted this draft
> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2040941>on SSRN.
> Here is the abstract:
>
> The most striking campaign finance development since the Supreme Court’s
> Citizens United decision has not been an upsurge in corporate or union
> spending as many commentators predicted. Instead, federal election
> campaigns have witnessed the emergence of a new campaign finance vehicle –
> the Super PAC – which relies primarily on extremely large individual
> contributions, not corporate or union money, but which threatens to upend
> the federal campaign finance regime in place since 1974.
>
> Super PACs can accept contributions in unlimited amounts and use them to
> engage in unlimited independent expenditures expressly supporting or
> opposing candidates. Non-existent before the spring of 2010, Super PACs
> were significant players in a number of 2010 Congressional elections and
> became major factors in the 2012 Republican presidential nominating
> contest. In many of the Republican primaries, Super PACs outspent the
> candidates. Nearly all the leading Super PACs in 2011-12 were closely
> identified with specific presidential contenders, and they became vehicles
> for wealthy donors who had given the legal maximum in contributions to a
> candidate’s campaign to give much more to the Super PAC backing that
> candidate. As a result, Super PACs threaten to effectively eliminate limits
> on contributions to candidates.
>
> This article examines the Super PAC phenomenon. It compares and contrasts
> Super PACs with other campaign finance actors. It considers the judicial
> and Federal Election Commission decisions that authorized their existence
> and operations, and the impact of Citizens United — which is not directly
> responsible for Super PACs — in creating an atmosphere in which lower
> courts concluded that donations to independent spending committees cannot
> be limited. The article explores the preliminary data on Super PAC
> fundraising and spending and the evidence that they function as virtual,
> but legally far less constrained, alter egos for the candidates they
> support. As a result, the emergence of Super PACs may very well spell the
> beginning of the end of our nearly four-decade-old post-Watergate campaign
> finance regime.
>
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D34964&title=%E2%80%9CSuper%20PACS%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>   John Edwards Verdict <http://electionlawblog.org/?p=34960>
> Posted on May 31, 2012 11:33 am <http://electionlawblog.org/?p=34960> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> The jury has reached a verdict.  Stand by.
>
> UPDATE: Jury Says It Can Reach Verdict on Only One Count of John Edwards
> Indictment<http://abcnews.go.com/Politics/john-edwards-jury-reaches-verdict/story?id=16378643#.T8fKm7_kDZz>
>
> So still, stand by.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D34960&title=John%20Edwards%20Verdict&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10>,
> chicanery <http://electionlawblog.org/?cat=12>, John Edwards<http://electionlawblog.org/?cat=17>
> | Comments Off
>   Mega-Donor Whining <http://electionlawblog.org/?p=34957>
> Posted on May 31, 2012 8:13 am <http://electionlawblog.org/?p=34957> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Politico <http://www.politico.com/news/stories/0512/76899.html>:
> Mega-Donors: Quit Picking on Us.
>
> I’ll have more to say on this theme very soon.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D34957&title=Mega-Donor%20Whining&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
> Off
>   “Jail for Edwards over Bunny money?”<http://electionlawblog.org/?p=34954>
> Posted on May 31, 2012 8:11 am <http://electionlawblog.org/?p=34954> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Allison Hayward has written this oped f<http://www.politico.com/news/stories/0512/76897.html>or
> *Politico*.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D34954&title=%E2%80%9CJail%20for%20Edwards%20over%20Bunny%20money%3F%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10>, John
> Edwards <http://electionlawblog.org/?cat=17> | Comments Off
>   “Montana Bucks Supreme Court” <http://electionlawblog.org/?p=34951>
> Posted on May 31, 2012 7:49 am <http://electionlawblog.org/?p=34951> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> George Will:<http://www.washingtonpost.com/opinions/montana-attempts-to-buck-the-supreme-court-on-citizens-united/2012/05/30/gJQA4DCi2U_story.html>“Montana uses an interesting argument to justify defiance of a Supreme
> Court decision: Because the state is particularly prone to political
> corruption, it should be trusted to constrict First Amendment protections
> of political speech.”
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D34951&title=%E2%80%9CMontana%20Bucks%20Supreme%20Court%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
> Court <http://electionlawblog.org/?cat=29> | Comments Off
>   More Reports on Justice Stevens Anti-CU Speech<http://electionlawblog.org/?p=34949>
> Posted on May 31, 2012 7:47 am <http://electionlawblog.org/?p=34949> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Here <http://howappealing.law.com/053112.html#045898>.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D34949&title=More%20Reports%20on%20Justice%20Stevens%20Anti-CU%20Speech&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
> Court <http://electionlawblog.org/?cat=29> | Comments Off
>   “RNC Chair claims rampant voter fraud in advance of recall”<http://electionlawblog.org/?p=34946>
> Posted on May 31, 2012 7:45 am <http://electionlawblog.org/?p=34946> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> The Recall Elections Blog reports.<http://recallelections.blogspot.com/2012/05/rnc-chair-claims-rampant-voter-fraud-in.html>
>
> Let’s see if Mr. Priebus continues to raise the issue of voter fraud *
> after* the Governor survives the recall.  As I explain in some detail<http://www.amazon.com/Voting-Wars-Florida-Election-Meltdown/dp/0300182031/ref=sr_1_cc_2?s=aps&ie=UTF8&qid=1329286945&sr=1-2-catcorr>,
> these claims of impersonation voter fraud made by Republicans cease
> immediately when Republicans win elections.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D34946&title=%E2%80%9CRNC%20Chair%20claims%20rampant%20voter%20fraud%20in%20advance%20of%20recall%E2%80%9D&description=>
>   Posted in election administration <http://electionlawblog.org/?cat=18>, fraudulent
> fraud squad <http://electionlawblog.org/?cat=8>, The Voting Wars<http://electionlawblog.org/?cat=60>
> | Comments Off
>   “NAACP Announces Strong Support For Comprehensive Federal Voter
> Empowerment” <http://electionlawblog.org/?p=34943>
> Posted on May 31, 2012 7:41 am <http://electionlawblog.org/?p=34943> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> See this press release.<http://www.naacp.org/press/entry/naacp-announces-strong-support-for-comprehensive-federal-voter-empowerment>
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D34943&title=%E2%80%9CNAACP%20Announces%20Strong%20Support%20For%20Comprehensive%20Federal%20Voter%20Empowerment%E2%80%9D&description=>
>   Posted in election administration <http://electionlawblog.org/?cat=18>, The
> Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
>   “Merck, Pfizer Back Lawmakers Who Oppose Company Products”<http://electionlawblog.org/?p=34940>
> Posted on May 31, 2012 7:39 am <http://electionlawblog.org/?p=34940> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Interesting<http://www.bloomberg.com/news/2012-05-31/merck-pfizer-back-lawmakers-who-oppose-company-products.html>Bloomberg story.
>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D34940&title=%E2%80%9CMerck%2C%20Pfizer%20Back%20Lawmakers%20Who%20Oppose%20Company%20Products%E2%80%9D&description=>
>   Posted in campaign finance <http://electionlawblog.org/?cat=10>, legislation
> and legislatures <http://electionlawblog.org/?cat=27>, lobbying<http://electionlawblog.org/?cat=28>
> | 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
> Pre-order *The Voting Wars*: http://amzn.to/y22ZTv
>
> _______________________________________________
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>

-- 
Stephen M. Hoersting
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