[EL] Unvarnished Irony from Briffault
Steve Hoersting
hoersting at gmail.com
Thu May 31 14:47:12 PDT 2012
Permit me one last thought -- for after I sent the earlier e-mail, I
recalled a bit of irony that applies to me, as well:
At the time I penned this CATO briefing paper, which decried a
Republican-led 527 ban for the same reasons that support the Super PAC, I
was embraced by the Left; its Democrats anyway -- and far less so by the
Right; its Republicans anyway.
How times change,
Steve
On Thu, May 31, 2012 at 5:34 PM, Steve Hoersting <hoersting at gmail.com>wrote:
> 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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>> Law-election at department-lists.uci.edu
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>>
>
>
>
> --
> Stephen M. Hoersting
>
>
--
Stephen M. Hoersting
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