[EL] Law-election Digest, Vol 17, Issue 28
Winslow, Daniel B.
dwinslow at proskauer.com
Sat Sep 29 19:27:27 PDT 2012
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Sent from my iPhone. Please excuse any typos.
On Sep 29, 2012, at 3:01 PM, "law-election-request at department-lists.uci.edu" <law-election-request at department-lists.uci.edu> wrote:
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> Today's Topics:
>
> 1. Re: Fact-checking (Larry Levine)
> 2. Re: Fact-checking (Smith, Brad)
> 3. Re: Fact-checking (Robbin Stewart)
> 4. Re: Fact-checking (Marty Lederman)
> 5. Re: Fact-checking (Smith, Brad)
> 6. Re: Fact-checking (Marty Lederman)
> 7. Kelleher vs Halderman: Internet Voting Security Debate (wjk)
> 8. VOTER FRAUD IN FLORIDA... (Salvador Peralta)
> 9. info request (Sean Parnell)
> 10. Re: California top-two effect on number of Republicans
> running for US House (Jack Santucci)
> 11. Re: California top-two effect on number of Republicans
> running for US House (Richard Winger)
> 12. Re: Fact-checking (Lowenstein, Daniel)
> 13. Re: info request (Gaddie, Ronald K.)
> 14. Re: Fact-checking (Rick Hasen)
> 15. Re: Fact-checking (Lowenstein, Daniel)
> 16. Re: Fact-checking (Rick Hasen)
> 17. ELB News and Commentary 9/29/12 (Rick Hasen)
> 18. Re: Fact-checking (Mark Rush)
> 19. Re: Kelleher vs Halderman: Internet Voting Security Debate
> (Joseph Lorenzo Hall)
> 20. Re: Fact-checking (Larry Levine)
> 21. Re: Fact-checking (Scarberry, Mark)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Fri, 28 Sep 2012 12:01:11 -0700
> From: "Larry Levine" <larrylevine at earthlink.net>
> Subject: Re: [EL] Fact-checking
> To: "'Svoboda, Brian \(Perkins Coie\)'" <BSvoboda at perkinscoie.com>,
> "'Smith, Brad'" <BSmith at law.capital.edu>, "'Scarberry, Mark'"
> <Mark.Scarberry at pepperdine.edu>, "'law-election at UCI.edu'"
> <law-election at uci.edu>
> Message-ID: <016d01cd9dab$a1023fa0$e306bee0$@earthlink.net>
> Content-Type: text/plain; charset="us-ascii"
>
> You are correct. There are no consistent policies, sometimes even within the
> same news organization. One will say no story without a formal complaint;
> another will say even a formal complaint can be bogus until it is
> investigated and resolved, which often is quite some time after the election
> is over. What is consistent, however, is that with shrinking staffs and
> resources, news outlets have less time and staff to devote to investigative
> journalism. The result often is poll driven "news" coverage with wrap up
> stories and no in depth coverage of what candidates are doing and saying on
> an ongoing basis.
>
> Larry
>
>
>
> From: Svoboda, Brian (Perkins Coie) [mailto:BSvoboda at perkinscoie.com]
> Sent: Friday, September 28, 2012 11:52 AM
> To: larrylevine at earthlink.net; 'Smith, Brad'; 'Scarberry, Mark';
> 'law-election at UCI.edu'
> Subject: RE: [EL] Fact-checking
>
>
>
> I have actually been told the opposite -- that there are news organizations,
> mainly local ones, that will refuse to write about fairly clear violations
> of the campaign finance laws without a complaint, either because they
> despair of knowing what's illegal, and what's not, in the current
> environment; or because they figure it's not "real" unless the opposing
> candidate or party files a complaint about it.
>
>
>
> =B.
>
> Brian G. Svoboda | Perkins Coie LLP
> 700 Thirteenth Street N.W.
> Washington, DC 20005-3960
> PHONE: 202.434.1654
> FAX: 202.654.9150
> E-MAIL: BSvoboda at perkinscoie.com
> IMPORTANT TAX INFORMATION: This communication is not intended or written by
> Perkins Coie LLP to be used, and cannot be used by the taxpayer, for the
> purpose of avoiding penalties that may be imposed on the taxpayer under the
> Internal Revenue Code of 1986, as amended.
>
> NOTICE: This communication may contain privileged or other confidential
> information. If you have received it in error, please advise the sender by
> reply email and immediately delete the message and any attachments without
> copying or disclosing the contents. Thank you.
>
>
>
> From: Larry Levine [mailto:larrylevine at earthlink.net]
> Sent: Friday, September 28, 2012 2:48 PM
> To: Svoboda, Brian (Perkins Coie); 'Smith, Brad'; 'Scarberry, Mark';
> 'law-election at UCI.edu'
> Subject: RE: [EL] Fact-checking
>
>
>
> Regarding your point about the advantages of simply filing a complaint to
> generate a news story and possibly a campaign mail attack claiming the other
> candidate is under investigation - the same is true of complaints regarding
> alleged violations of campaign finance laws. These usually are not
> investigated and resolved until years after the election is over. Some news
> organizations refuse to report the filing of a complaint because they
> realize it often is a manipulation of the process.
>
> Larry
>
>
>
> From: law-election-bounces at department-lists.uci.edu
> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Svoboda,
> Brian (Perkins Coie)
> Sent: Friday, September 28, 2012 11:24 AM
> To: Smith, Brad; Scarberry, Mark; law-election at UCI.edu
> Subject: Re: [EL] Fact-checking
>
>
>
> I have represented clients in false statement complaints before the Ohio
> Elections Commission. (I hasten to note that I speak for myself, not them.)
> It seems to me that there are many aspects of that state's particular
> process that provide cause for concern, besides the broad First Amendment
> issues involved. On those issues, I will be eager to read Rick's paper,
> once the elections are over, and after I have taken a nap.
>
>
>
> First, in federal races, there is a strong argument that Ohio's statutes are
> preempted. In Advisory Opinion 1986-11, the FEC found a related section of
> the Ohio Revised Code to be preempted, when the statute prohibited
> candidates from using titles that imply incumbency in their campaign
> materials, http://saos.nictusa.com/aodocs/1986-11.pdf. Yet like New
> Hampshire, where the state continues to enforce its so-called "push poll"
> disclaimer statute in federal races despite the FEC's finding of preemption
> in Advisory Opinion 2012-10,
> http://saos.nictusa.com/aodocs/AO%202012-10.pdf, Ohio continues to enforce
> the statutes in federal races, raising the age-old question, "How many
> divisions does Commissioner Hunter have?" (Or, perhaps, "The Commissioners
> have made their ruling. Now let them enforce it.)
>
>
>
> Second, the complaints under the Ohio statutes with which I am familiar are
> generated by political candidates, for political reasons. For candidates,
> there are myriad tactical advantages to filing a complaint. The simple act
> of filing can generate a press story, when the press might not otherwise
> write about the dispute; saying that Candidate A filed a false statement
> complaint over S.B. 1 is easier than learning and explaining what S.B. 1
> actually did. A positive commission outcome gives the candidate the chance
> to cite it in their own ads, or in letters to television stations that ask
> them to reject ads that aren't candidate "uses" and don't enjoy the
> Communications Act's no-censorship protections. And a complaint consumes
> the resources of the opposition who, if prudent, will hire a lawyer to
> oppose it.
>
>
>
> Third, Ohio's process does not lend itself to careful resolution of these
> complaints, especially right before the election. Ohio's law is not unique
> in generating partisan complaints; the FEC is no stranger to them either, at
> least in the campaign finance field. But FEC rules provide a process by
> which a complaint can be defended in the first instance at minimal expense
> to the respondent, and can be reviewed and dismissed entirely on the
> pleadings. This allows the agency to separate the wheat from the chaff,
> usually over a period of months, and thereby minimize the distortion of
> electoral outcomes. But Ohio has a "rocket docket," where
> election-sensitive false statement complaints receive an immediate, public,
> probable cause hearing. If the commission finds probable cause, then the
> complaints receive expedited discovery and a pre-election hearing. This
> does not lend itself easily to calm, thoughtful resolution of highly charged
> matters, especially when the commission is divided among members of the two
> political parties.
>
>
>
> Last, the manner in which the commission considers the complaints recalls
> Justice Stewart, who knew obscenity when he saw it. One could sensibly
> interpret the Ohio statute on voting records to limit its application to
> binary questions of empirical fact: e.g., to apply when I say Hasen voted
> "No" on S.B. 1, when he actually voted "Yes." And the case law indicates
> that, even without an express actual malice requirement, the statute is only
> enforceable under the First Amendment if there is knowledge of falsity or
> reckless disregard. But in practice, Ohio leaps past the binary, and
> plunges into the contextual. It asks not only whether Hasen voted "Yes" or
> "No" on S.B. 1, but whether the advertisement accurately characterized what
> S.B. 1 did. From my experience, the commissioners see their task much as
> PolitiFact does: they ask whether the ad is true or not, while glossing over
> the question of actual malice. I recall one hearing where a member of the
> panel said -- and this is a verbatim quote -- "I don't like this ad. This
> is just the kind of ad we are trying to stop through proper conduct."
>
>
>
> When a state regulates in areas of core First Amendment activity, it should
> carefully construe the statute to avoid constitutional difficulties. It
> should employ a rigorous process that disposes of meritless complaints and
> avoids unnecessary distortion of electoral outcomes. It should minimize,
> rather than maximize, the opportunities for partisan abuse of the process.
> And it should employ objective, not subjective, standards to find
> violations. My experience is that Ohio's process is administered by
> intelligent, earnest and conscientious people, who are trying to follow the
> law as they understand it. But the process merits some careful review,
> especially in a world where political actors increasingly reasons to employ
> it.
>
>
>
> =B.
>
> Brian G. Svoboda | Perkins Coie LLP
> 700 Thirteenth Street N.W.
> Washington, DC 20005-3960
> PHONE: 202.434.1654
> FAX: 202.654.9150
> E-MAIL: BSvoboda at perkinscoie.com
> IMPORTANT TAX INFORMATION: This communication is not intended or written by
> Perkins Coie LLP to be used, and cannot be used by the taxpayer, for the
> purpose of avoiding penalties that may be imposed on the taxpayer under the
> Internal Revenue Code of 1986, as amended.
>
> NOTICE: This communication may contain privileged or other confidential
> information. If you have received it in error, please advise the sender by
> reply email and immediately delete the message and any attachments without
> copying or disclosing the contents. Thank you.
>
>
>
> From: law-election-bounces at department-lists.uci.edu
> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith,
> Brad
> Sent: Friday, September 28, 2012 8:27 AM
> To: Scarberry, Mark; law-election at UCI.edu
> Subject: Re: [EL] Fact-checking
>
>
>
> "We're not going to let our campaign be dictated by facts" would be a kind
> of post-modern relativism in which truth is now in the eyes of the beholder.
> "We're not going to let our campaign be dictated by [self appointed]
> fact-checkers" is simply a comment on the quality of the actual work being
> done by "fact-checkers." That a "fact checker" says 2+2=5 does not make it
> so, and does not make the critic of such a statement a "post-modern
> relativist."
>
>
>
> But this is not just trivial nit-picking on a characterization. To a
> substantial extent, the entire problem with government efforts to regulate
> "false" speech in campaigns is that the government ends up - rather
> routinely, it seems - regulating statements that simply are not objectively
> true or false, but are matters of prediction, interpretation, or
> presentation of data. It is relatively rare that politicians actually "lie"
> (or to be more fair, "err") about matters of fact. What they do routinely is
> selectively use, characterize, and interpret facts to advance an argument.
> Efforts to regulate "false statements" in politics tend to end up being
> trivialized (a common bit of fodder for the Ohio Elections Commission, for
> example, are bumper stickers and yard signs that read "Smith State
> Representative" when Smith is not a state representative, but merely a
> candidate for the office - the OEC demands that they state "Smith for State
> Representative") or subjectively politicized (such as determining which side
> has the better argument on a complex issus such as whether proposed new
> rules "gut" welfare work requirements). When the press makes the mistake of
> calling the latter "fact checking" (as opposed to something like "analysis")
> well, OK. But we don't need government doing it in the midst of campaigns.
>
>
>
>
>
>
>
> Bradley A. Smith
>
> Josiah H. Blackmore II/Shirley M. Nault
>
> Professor of Law
>
> Capital University Law School
>
> 303 E. Broad St.
>
> Columbus, OH 43215
>
> 614.236.6317
>
> http://law.capital.edu/faculty/bios/bsmith.aspx
>
> _____
>
> From: law-election-bounces at department-lists.uci.edu
> [law-election-bounces at department-lists.uci.edu] on behalf of Scarberry, Mark
> [Mark.Scarberry at pepperdine.edu]
> Sent: Friday, September 28, 2012 3:21 AM
> To: law-election at UCI.edu
> Subject: Re: [EL] Fact-checking
>
> I was struck by Rick's comment on Republican criticism of fact-checkers:
>
>
>
> "It was an odd turn to see conservatives seeming to embrace a kind of
> post-modern relativism in which truth is now in the eyes of the beholder."
>
>
>
> The criticism I've seen of fact-checkers is not that there is no objective
> truth to be found with respect to simple factual matters, but rather that
> the fact-checkers seem to be biased in their approach to what is or is not
> factual and in the standards they apply to claims made by Republicans and by
> Democrats.
>
>
>
> Of course it could be argued that fact-checking is pointless, because
> whoever does the checking will just see what they want to see, based on
> their biases. That would be a post-modern relativistic approach, I suppose,
> but I don't think it is the complaint that is being made.
>
>
>
> Occasionally, the criticism is that the fact-checkers are labeling claims as
> false, when the claims are opinions with which the fact-checkers simply
> disagree. If a person says that the President's middle east policy has not
> served our interests well, that is an opinion. We can argue about whether
> the President's policy has been effective or not in advancing our interests,
> whatever we may think they are. The arguments will not be about simple facts
> that a reporter can quickly and objectively determine. I don't think you
> have to be a post-modern relativist to see that a simple fact-check approach
> is not likely to be helpful in evaluating such an opinion. Of course, if
> someone says that the policy has failed because Egypt has tested nuclear
> weapons, a fact-checker can justifiably hand out multiple Pinocchios or call
> a "pants on fire" alert.
>
>
>
> Mark
>
>
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine Univ. School of Law
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> -----Original Message-----
> From: law-election-bounces at department-lists.uci.edu
> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
> Lowenstein, Daniel
> Sent: Thursday, September 27, 2012 11:27 PM
> To: Rick Hasen; law-election at UCI.edu
> Subject: [EL] Fact-checking
>
>
>
> I have read Rick's paper, which he was good enough to send me, on
> regulating false campaign statements. As one would expect given the author,
> the paper gives a careful review of how current First Amendment doctrine is
> likely to affect various types of possible regulation and identifies the
> kinds of regulation that have a fair or good chance to survive in an area in
> which the Constitution is not friendly to regulation.
>
>
>
> Somewhat to my surprise, Rick is friendly in the paper to the idea of
> "fact-checking" by government agencies (though it's not entirely clear
> whether he is saying only that such an enterprise has a fair chance of being
> upheld or is supporting it as a policy matter). In this connection, I think
> it is relevant that Rick notes but does not go much into the criticisms of
> fact-checking by the press.
>
>
>
> The most trenchant criticism that I know of has come from a series of
> writings by Mark Hemingway in the Weekly Standard. Rick opens his article
> with two examples of fact-checking, one nailing Obama and the other Romney.
> The Romney example is that fact-checkers have condemned his ads claiming
> that the Obama administration threatens to gut the work requirement of
> Clinton-era welfare reform.
>
>
>
> As it happens, Hemingway has a lengthy article in the current issue
> of the Weekly Standard focussing on this very point. See
> <http://www.weeklystandard.com/articles/obama-s-palace-guard_652895.html>
> http://www.weeklystandard.com/articles/obama-s-palace-guard_652895.html.
> Hemingway makes what appears on its face to be a strong argument that
> Romney's claim is accurate, but I don't know nearly enough about welfare to
> have an independent opinion on that. In any event, Hemingway makes an
> overwhelming case that the fact-checkers who have condemned Romney on this
> have been at best extremely inept and most likely acting in some degree of
> bad faith.
>
>
>
> Anyone interested in this subject should also read Hemingway's more
> general criticism of fact-checkers, "Lies, Damned Lies, 'Fact-Checking,"
> published last December, which is also extremely persuasive.
> <http://www.weeklystandard.com/articles/lies-damned-lies-and-fact-checking_6
> 11854.html>
> http://www.weeklystandard.com/articles/lies-damned-lies-and-fact-checking_61
> 1854.html
>
>
>
> There are many reasons why fact-checking in the context of
> political debate is highly problematic and should be considered with great
> skepticism. Hemingway makes a strong case that the currently prominent
> fact-checkers are biased, but even if they were not at all biased, the
> problems would run deep. Needless to say, none of the above suggests any
> doubt about the right of the press to engage in fact-checking to it's
> heart's content. But I hope institutionalized fact-checking by the
> government would be found unconstitutional. Whether or not it would be, it
> seems to me an inherently Orwellian enterprise that ought to be strongly
> opposed.
>
>
>
> Best,
>
>
>
> Daniel H. Lowenstein
>
> Director, Center for the Liberal Arts and Free Institutions
> (CLAFI)
>
> UCLA Law School
>
> 405 Hilgard
>
> Los Angeles, California 90095-1476
>
> 310-825-5148
>
>
>
>
>
> "Americans say Obama's ads are more honest, but expect both sides to lie,
> Esquire/Yahoo poll finds"< <http://electionlawblog.org/?p=40731>
> http://electionlawblog.org/?p=40731>
>
> Posted on September 27, 2012 10:57 am< <http://electionlawblog.org/?p=40731>
> http://electionlawblog.org/?p=40731> by Rick Hasen<
> <http://electionlawblog.org/?author=3> http://electionlawblog.org/?author=3>
>
>
>
> Yahoo News reports<
> <http://news.yahoo.com/esquire-yahoo-news-poll-romney-ads-lie-more-both-dish
> onest.html>
> http://news.yahoo.com/esquire-yahoo-news-poll-romney-ads-lie-more-both-disho
> nest.html>.
>
>
>
> My new paper< <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618> on whether there
> is a constitutional right to lie in campaigns and elections begins:
>
>
>
> Election 2012 may well go down in history as the "4 Pinocchios Election." It
> is perhaps no coincidence that the current election season has seen both a
> rise in the amount of arguably false campaign speech and the proliferation
> of journalistic "fact checkers" who regularly rate statements made by
> candidates and campaigns. Journalistic ratings such as Politifact's
> "Truth-o-meter" rank candidate statements from from "true" and "mostly true"
> to "false" and even "pants on fire." The Washington Post rating system,
> which relies upon the judgment of its fact checker, Glenn Kessler, uses 1 to
> 4 "Pinocchios" for false statements. The granddaddy of fact checking groups,
> Factcheck.org, while avoiding a rating system, offers analysis which
> regularly describes controversial campaign claims as "false" or "wrong.
>
>
>
> Both the Romney and Obama presidential campaigns have received stinging
> ratings from fact checkers. The Washington Post's Fact Checker, Glenn
> Kessler, gave the Obama campaign "4 Pinocchios" for claiming that Mitt
> Romney, while working at Bain Capital, "outsourced" jobs and was a
> "corporate raider." Romney's campaign similarly got "4 Pinocchios" for
> claiming there was an "Obama plan" to weaken federal welfare law and issue
> welfare checks to people who do not work."
>
>
>
> Romney's campaign has seemed to bear more of the brunt from the
> fact-checking enterprise. Based solely upon Kessler's subjective assessment
> of truth, by mid-September 2012 the Washington Post fact checker rated
> Romney ads and statements with an average of 2.33 Pinocchios to Obama's
> 1.96. Perhaps the greatest media attack on the truthfulness of Romney's
> campaign came in response to the acceptance speech of Romney's running-mate,
> Representative Paul Ryan, which the New York Times described as containing
> "a number of questionable or misleading claims."
>
>
>
> Whether campaigns are resorting to lies and distortion more often than in
> previous elections, and if so why they are doing so, are interesting
> questions beyond that which I can explore in this brief Article. False and
> misleading speech may be increasing thanks to the proliferation of the
> Internet and a decline in uniform trustworthy sources of news, such as the
> national news networks and major newspapers. Political polarization also may
> play a role, with partisans egged on to believe unsupported claims by the
> modern day partisan press, in the form of FOX News, MSNBC, and liberal and
> conservative blogs and websites.
>
>
>
> Fact check operations also are controversial to journalists, who have always
> been in the business of resolving conflicting factual claims as part of the
> news gathering process. Some journalists take issue with the effectiveness
> of fact checkers. Media critic Jack Shafer declares, "Give [candidates] a
> million billion Pinocchios and they'll still not behave." Others defend the
> "fact check" process but see them losing their effectiveness.
>
>
>
> In 2012, fact checking itself came under attack from the right, with some
> advancing the claim that fact checkers are a biased part of the "liberal
> media."Neil Newhouse, the Romney campaign's pollster, proclaimed that "We're
> not going to let our campaign be dictated by fact-checkers." It was an odd
> turn to see conservatives seeming to embrace a kind of post-modern
> relativism in which truth is now in the eyes of the beholder.
>
>
>
> In this highly charged partisan atmosphere, in which each side cannot agree
> upon the basic facts, mudslinging has become terribly common, and the media
> are not able to meaningfully curb candidates' lies and distortions, it is
> tempting to consider federal and strengthened state legislation to deter and
> punish false campaign speech. Why not let courts or commissions sort out
> truth from fiction? Indeed, a number of states already have laws in place
> which provide some government sanction for false campaign speech.
>
>
>
> <mailto:[cid:part5.01040804.06020009 at law.uci.edu]>
> [cid:part5.01040804.06020009 at law.uci.edu]<
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
> 3Fp%3D40731&title=%E2%80%9CAmericans%20say%20Obama%E2%80%99s%20ads%20are%20m
> ore%20honest%2C%20but%20expect%20both%20sides%20to%20lie%2C%20Esquire%2FYaho
> o%20poll%20finds%E2%80%9D&description=>
> http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3
> Fp%3D40731&title=%E2%80%9CAmericans%20say%20Obama%E2%80%99s%20ads%20are%20mo
> re%20honest%2C%20but%20expect%20both%20sides%20to%20lie%2C%20Esquire%2FYahoo
> %20poll%20finds%E2%80%9D&description=>
>
> Posted in campaigns< <http://electionlawblog.org/?cat=59>
> http://electionlawblog.org/?cat=59> | Comments Off
>
>
>
>
>
> _____
>
> IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with Treasury Department
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> ------------------------------
>
> Message: 2
> Date: Fri, 28 Sep 2012 19:04:51 +0000
> From: "Smith, Brad" <BSmith at law.capital.edu>
> Subject: Re: [EL] Fact-checking
> To: "'law-election at UCI.edu'" <law-election at uci.edu>
> Message-ID:
> <51D6964FB432CC4D8A09CA508AF5844735BC100E at MSGEXCH02.capital.edu>
> Content-Type: text/plain; charset="us-ascii"
>
> My experience is more like Brian's. Doubly frustrating is that reporters then take the view that they must report that a complaint was filed - that is news - but if you point out it is pure BS, that is just opinion from an interested party. In other words, they treat the filing of the complaint as news, the response as expected spin. Even if they are skeptical of the merits of the complaint, to the general public the mere filing of the complaint sounds bad for the respondent.
>
> Bradley A. Smith
> Josiah H. Blackmore II/Shirley M. Nault
> Professor of Law
> Capital University Law School
> 303 East Broad Street
> Columbus, OH 43215
> (614) 236-6317
> bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
> http://www.law.capital.edu/faculty/bios/bsmith.asp
>
> From: Svoboda, Brian (Perkins Coie) [mailto:BSvoboda at perkinscoie.com]
> Sent: Friday, September 28, 2012 2:52 PM
> To: larrylevine at earthlink.net; Smith, Brad; 'Scarberry, Mark'; 'law-election at UCI.edu'
> Subject: RE: [EL] Fact-checking
>
> I have actually been told the opposite -- that there are news organizations, mainly local ones, that will refuse to write about fairly clear violations of the campaign finance laws without a complaint, either because they despair of knowing what's illegal, and what's not, in the current environment; or because they figure it's not "real" unless the opposing candidate or party files a complaint about it.
>
> =B.
> Brian G. Svoboda | Perkins Coie LLP
> 700 Thirteenth Street N.W.
> Washington, DC 20005-3960
> PHONE: 202.434.1654
> FAX: 202.654.9150
> E-MAIL: BSvoboda at perkinscoie.com<mailto:BSvoboda at perkinscoie.com>
> IMPORTANT TAX INFORMATION: This communication is not intended or written by Perkins Coie LLP to be used, and cannot be used by the taxpayer, for the purpose of avoiding penalties that may be imposed on the taxpayer under the Internal Revenue Code of 1986, as amended.
> NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you.
>
> From: Larry Levine [mailto:larrylevine at earthlink.net]
> Sent: Friday, September 28, 2012 2:48 PM
> To: Svoboda, Brian (Perkins Coie); 'Smith, Brad'; 'Scarberry, Mark'; 'law-election at UCI.edu'
> Subject: RE: [EL] Fact-checking
>
> Regarding your point about the advantages of simply filing a complaint to generate a news story and possibly a campaign mail attack claiming the other candidate is under investigation - the same is true of complaints regarding alleged violations of campaign finance laws. These usually are not investigated and resolved until years after the election is over. Some news organizations refuse to report the filing of a complaint because they realize it often is a manipulation of the process.
> Larry
>
> From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Svoboda, Brian (Perkins Coie)
> Sent: Friday, September 28, 2012 11:24 AM
> To: Smith, Brad; Scarberry, Mark; law-election at UCI.edu<mailto:law-election at UCI.edu>
> Subject: Re: [EL] Fact-checking
>
> I have represented clients in false statement complaints before the Ohio Elections Commission. (I hasten to note that I speak for myself, not them.) It seems to me that there are many aspects of that state's particular process that provide cause for concern, besides the broad First Amendment issues involved. On those issues, I will be eager to read Rick's paper, once the elections are over, and after I have taken a nap.
>
> First, in federal races, there is a strong argument that Ohio's statutes are preempted. In Advisory Opinion 1986-11, the FEC found a related section of the Ohio Revised Code to be preempted, when the statute prohibited candidates from using titles that imply incumbency in their campaign materials, http://saos.nictusa.com/aodocs/1986-11.pdf. Yet like New Hampshire, where the state continues to enforce its so-called "push poll" disclaimer statute in federal races despite the FEC's finding of preemption in Advisory Opinion 2012-10, http://saos.nictusa.com/aodocs/AO%202012-10.pdf, Ohio continues to enforce the statutes in federal races, raising the age-old question, "How many divisions does Commissioner Hunter have?" (Or, perhaps, "The Commissioners have made their ruling. Now let them enforce it.)
>
> Second, the complaints under the Ohio statutes with which I am familiar are generated by political candidates, for political reasons. For candidates, there are myriad tactical advantages to filing a complaint. The simple act of filing can generate a press story, when the press might not otherwise write about the dispute; saying that Candidate A filed a false statement complaint over S.B. 1 is easier than learning and explaining what S.B. 1 actually did. A positive commission outcome gives the candidate the chance to cite it in their own ads, or in letters to television stations that ask them to reject ads that aren't candidate "uses" and don't enjoy the Communications Act's no-censorship protections. And a complaint consumes the resources of the opposition who, if prudent, will hire a lawyer to oppose it.
>
> Third, Ohio's process does not lend itself to careful resolution of these complaints, especially right before the election. Ohio's law is not unique in generating partisan complaints; the FEC is no stranger to them either, at least in the campaign finance field. But FEC rules provide a process by which a complaint can be defended in the first instance at minimal expense to the respondent, and can be reviewed and dismissed entirely on the pleadings. This allows the agency to separate the wheat from the chaff, usually over a period of months, and thereby minimize the distortion of electoral outcomes. But Ohio has a "rocket docket," where election-sensitive false statement complaints receive an immediate, public, probable cause hearing. If the commission finds probable cause, then the complaints receive expedited discovery and a pre-election hearing. This does not lend itself easily to calm, thoughtful resolution of highly charged matters, especially when the commission is
> divided among members of the two political parties.
>
> Last, the manner in which the commission considers the complaints recalls Justice Stewart, who knew obscenity when he saw it. One could sensibly interpret the Ohio statute on voting records to limit its application to binary questions of empirical fact: e.g., to apply when I say Hasen voted "No" on S.B. 1, when he actually voted "Yes." And the case law indicates that, even without an express actual malice requirement, the statute is only enforceable under the First Amendment if there is knowledge of falsity or reckless disregard. But in practice, Ohio leaps past the binary, and plunges into the contextual. It asks not only whether Hasen voted "Yes" or "No" on S.B. 1, but whether the advertisement accurately characterized what S.B. 1 did. From my experience, the commissioners see their task much as PolitiFact does: they ask whether the ad is true or not, while glossing over the question of actual malice. I recall one hearing where a member of the panel said -- and this i
> s a verbatim quote -- "I don't like this ad. This is just the kind of ad we are trying to stop through proper conduct."
>
> When a state regulates in areas of core First Amendment activity, it should carefully construe the statute to avoid constitutional difficulties. It should employ a rigorous process that disposes of meritless complaints and avoids unnecessary distortion of electoral outcomes. It should minimize, rather than maximize, the opportunities for partisan abuse of the process. And it should employ objective, not subjective, standards to find violations. My experience is that Ohio's process is administered by intelligent, earnest and conscientious people, who are trying to follow the law as they understand it. But the process merits some careful review, especially in a world where political actors increasingly reasons to employ it.
>
> =B.
> Brian G. Svoboda | Perkins Coie LLP
> 700 Thirteenth Street N.W.
> Washington, DC 20005-3960
> PHONE: 202.434.1654
> FAX: 202.654.9150
> E-MAIL: BSvoboda at perkinscoie.com<mailto:BSvoboda at perkinscoie.com>
> IMPORTANT TAX INFORMATION: This communication is not intended or written by Perkins Coie LLP to be used, and cannot be used by the taxpayer, for the purpose of avoiding penalties that may be imposed on the taxpayer under the Internal Revenue Code of 1986, as amended.
> NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you.
>
> From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu]<mailto:[mailto:law-election-bounces at department-lists.uci.edu]> On Behalf Of Smith, Brad
> Sent: Friday, September 28, 2012 8:27 AM
> To: Scarberry, Mark; law-election at UCI.edu<mailto:law-election at UCI.edu>
> Subject: Re: [EL] Fact-checking
>
> "We're not going to let our campaign be dictated by facts" would be a kind of post-modern relativism in which truth is now in the eyes of the beholder. "We're not going to let our campaign be dictated by [self appointed] fact-checkers" is simply a comment on the quality of the actual work being done by "fact-checkers." That a "fact checker" says 2+2=5 does not make it so, and does not make the critic of such a statement a "post-modern relativist."
>
> But this is not just trivial nit-picking on a characterization. To a substantial extent, the entire problem with government efforts to regulate "false" speech in campaigns is that the government ends up - rather routinely, it seems - regulating statements that simply are not objectively true or false, but are matters of prediction, interpretation, or presentation of data. It is relatively rare that politicians actually "lie" (or to be more fair, "err") about matters of fact. What they do routinely is selectively use, characterize, and interpret facts to advance an argument. Efforts to regulate "false statements" in politics tend to end up being trivialized (a common bit of fodder for the Ohio Elections Commission, for example, are bumper stickers and yard signs that read "Smith State Representative" when Smith is not a state representative, but merely a candidate for the office - the OEC demands that they state "Smith for State Representative") or subjectively politicized (su
> ch as determining which side has the better argument on a complex issus such as whether proposed new rules "gut" welfare work requirements). When the press makes the mistake of calling the latter "fact checking" (as opposed to something like "analysis") well, OK. But we don't need government doing it in the midst of campaigns.
>
>
>
>
> Bradley A. Smith
>
> Josiah H. Blackmore II/Shirley M. Nault
>
> Professor of Law
>
> Capital University Law School
>
> 303 E. Broad St.
>
> Columbus, OH 43215
>
> 614.236.6317
>
> http://law.capital.edu/faculty/bios/bsmith.aspx
>
> ________________________________
> From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu] on behalf of Scarberry, Mark [Mark.Scarberry at pepperdine.edu]
> Sent: Friday, September 28, 2012 3:21 AM
> To: law-election at UCI.edu<mailto:law-election at UCI.edu>
> Subject: Re: [EL] Fact-checking
>
> I was struck by Rick's comment on Republican criticism of fact-checkers:
>
>
> "It was an odd turn to see conservatives seeming to embrace a kind of post-modern relativism in which truth is now in the eyes of the beholder."
>
> The criticism I've seen of fact-checkers is not that there is no objective truth to be found with respect to simple factual matters, but rather that the fact-checkers seem to be biased in their approach to what is or is not factual and in the standards they apply to claims made by Republicans and by Democrats.
>
> Of course it could be argued that fact-checking is pointless, because whoever does the checking will just see what they want to see, based on their biases. That would be a post-modern relativistic approach, I suppose, but I don't think it is the complaint that is being made.
>
> Occasionally, the criticism is that the fact-checkers are labeling claims as false, when the claims are opinions with which the fact-checkers simply disagree. If a person says that the President's middle east policy has not served our interests well, that is an opinion. We can argue about whether the President's policy has been effective or not in advancing our interests, whatever we may think they are. The arguments will not be about simple facts that a reporter can quickly and objectively determine. I don't think you have to be a post-modern relativist to see that a simple fact-check approach is not likely to be helpful in evaluating such an opinion. Of course, if someone says that the policy has failed because Egypt has tested nuclear weapons, a fact-checker can justifiably hand out multiple Pinocchios or call a "pants on fire" alert.
>
> Mark
>
>
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine Univ. School of Law
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> -----Original Message-----
> From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Lowenstein, Daniel
> Sent: Thursday, September 27, 2012 11:27 PM
> To: Rick Hasen; law-election at UCI.edu<mailto:law-election at UCI.edu>
> Subject: [EL] Fact-checking
>
>
>
> I have read Rick's paper, which he was good enough to send me, on regulating false campaign statements. As one would expect given the author, the paper gives a careful review of how current First Amendment doctrine is likely to affect various types of possible regulation and identifies the kinds of regulation that have a fair or good chance to survive in an area in which the Constitution is not friendly to regulation.
>
>
>
> Somewhat to my surprise, Rick is friendly in the paper to the idea of "fact-checking" by government agencies (though it's not entirely clear whether he is saying only that such an enterprise has a fair chance of being upheld or is supporting it as a policy matter). In this connection, I think it is relevant that Rick notes but does not go much into the criticisms of fact-checking by the press.
>
>
>
> The most trenchant criticism that I know of has come from a series of writings by Mark Hemingway in the Weekly Standard. Rick opens his article with two examples of fact-checking, one nailing Obama and the other Romney. The Romney example is that fact-checkers have condemned his ads claiming that the Obama administration threatens to gut the work requirement of Clinton-era welfare reform.
>
>
>
> As it happens, Hemingway has a lengthy article in the current issue of the Weekly Standard focussing on this very point. See http://www.weeklystandard.com/articles/obama-s-palace-guard_652895.html. Hemingway makes what appears on its face to be a strong argument that Romney's claim is accurate, but I don't know nearly enough about welfare to have an independent opinion on that. In any event, Hemingway makes an overwhelming case that the fact-checkers who have condemned Romney on this have been at best extremely inept and most likely acting in some degree of bad faith.
>
>
>
> Anyone interested in this subject should also read Hemingway's more general criticism of fact-checkers, "Lies, Damned Lies, 'Fact-Checking," published last December, which is also extremely persuasive. http://www.weeklystandard.com/articles/lies-damned-lies-and-fact-checking_611854.html
>
>
>
> There are many reasons why fact-checking in the context of political debate is highly problematic and should be considered with great skepticism. Hemingway makes a strong case that the currently prominent fact-checkers are biased, but even if they were not at all biased, the problems would run deep. Needless to say, none of the above suggests any doubt about the right of the press to engage in fact-checking to it's heart's content. But I hope institutionalized fact-checking by the government would be found unconstitutional. Whether or not it would be, it seems to me an inherently Orwellian enterprise that ought to be strongly opposed.
>
>
>
> Best,
>
>
>
> Daniel H. Lowenstein
>
> Director, Center for the Liberal Arts and Free Institutions (CLAFI)
>
> UCLA Law School
>
> 405 Hilgard
>
> Los Angeles, California 90095-1476
>
> 310-825-5148
>
>
>
>
>
> "Americans say Obama's ads are more honest, but expect both sides to lie, Esquire/Yahoo poll finds"<http://electionlawblog.org/?p=40731>
>
> Posted on September 27, 2012 10:57 am<http://electionlawblog.org/?p=40731> by Rick Hasen<http://electionlawblog.org/?author=3>
>
>
>
> Yahoo News reports<http://news.yahoo.com/esquire-yahoo-news-poll-romney-ads-lie-more-both-dishonest.html>.
>
>
>
> My new paper<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618> on whether there is a constitutional right to lie in campaigns and elections begins:
>
>
>
> Election 2012 may well go down in history as the "4 Pinocchios Election." It is perhaps no coincidence that the current election season has seen both a rise in the amount of arguably false campaign speech and the proliferation of journalistic "fact checkers" who regularly rate statements made by candidates and campaigns. Journalistic ratings such as Politifact's "Truth-o-meter" rank candidate statements from from "true" and "mostly true" to "false" and even "pants on fire." The Washington Post rating system, which relies upon the judgment of its fact checker, Glenn Kessler, uses 1 to 4 "Pinocchios" for false statements. The granddaddy of fact checking groups, Factcheck.org, while avoiding a rating system, offers analysis which regularly describes controversial campaign claims as "false" or "wrong.
>
>
>
> Both the Romney and Obama presidential campaigns have received stinging ratings from fact checkers. The Washington Post's Fact Checker, Glenn Kessler, gave the Obama campaign "4 Pinocchios" for claiming that Mitt Romney, while working at Bain Capital, "outsourced" jobs and was a "corporate raider." Romney's campaign similarly got "4 Pinocchios" for claiming there was an "Obama plan" to weaken federal welfare law and issue welfare checks to people who do not work."
>
>
>
> Romney's campaign has seemed to bear more of the brunt from the fact-checking enterprise. Based solely upon Kessler's subjective assessment of truth, by mid-September 2012 the Washington Post fact checker rated Romney ads and statements with an average of 2.33 Pinocchios to Obama's 1.96. Perhaps the greatest media attack on the truthfulness of Romney's campaign came in response to the acceptance speech of Romney's running-mate, Representative Paul Ryan, which the New York Times described as containing "a number of questionable or misleading claims."
>
>
>
> Whether campaigns are resorting to lies and distortion more often than in previous elections, and if so why they are doing so, are interesting questions beyond that which I can explore in this brief Article. False and misleading speech may be increasing thanks to the proliferation of the Internet and a decline in uniform trustworthy sources of news, such as the national news networks and major newspapers. Political polarization also may play a role, with partisans egged on to believe unsupported claims by the modern day partisan press, in the form of FOX News, MSNBC, and liberal and conservative blogs and websites.
>
>
>
> Fact check operations also are controversial to journalists, who have always been in the business of resolving conflicting factual claims as part of the news gathering process. Some journalists take issue with the effectiveness of fact checkers. Media critic Jack Shafer declares, "Give [candidates] a million billion Pinocchios and they'll still not behave." Others defend the "fact check" process but see them losing their effectiveness.
>
>
>
> In 2012, fact checking itself came under attack from the right, with some advancing the claim that fact checkers are a biased part of the "liberal media."Neil Newhouse, the Romney campaign's pollster, proclaimed that "We're not going to let our campaign be dictated by fact-checkers." It was an odd turn to see conservatives seeming to embrace a kind of post-modern relativism in which truth is now in the eyes of the beholder.
>
>
>
> In this highly charged partisan atmosphere, in which each side cannot agree upon the basic facts, mudslinging has become terribly common, and the media are not able to meaningfully curb candidates' lies and distortions, it is tempting to consider federal and strengthened state legislation to deter and punish false campaign speech. Why not let courts or commissions sort out truth from fiction? Indeed, a number of states already have laws in place which provide some government sanction for false campaign speech.
>
>
>
> [cid:part5.01040804.06020009 at law.uci.edu]<mailto:[cid:part5.01040804.06020009 at law.uci.edu]><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40731&title=%E2%80%9CAmericans%20say%20Obama%E2%80%99s%20ads%20are%20more%20honest%2C%20but%20expect%20both%20sides%20to%20lie%2C%20Esquire%2FYahoo%20poll%20finds%E2%80%9D&description=>
>
> Posted in campaigns<http://electionlawblog.org/?cat=59> | Comments Off
>
>
>
> ________________________________
> IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with Treasury Department and IRS regulations, we inform you that, unless expressly indicated otherwise, any federal tax advice contained in this communication (including any attachments) is not intended or written by Perkins Coie LLP to be used, and cannot be used by the taxpayer, for the purpose of (i) avoiding penalties that may be imposed on the taxpayer under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein (or any attachments).
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> * * * * * * * * * *
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> -------------- next part --------------
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> ------------------------------
>
> Message: 3
> Date: Fri, 28 Sep 2012 15:23:42 -0400
> From: Robbin Stewart <gtbear at gmail.com>
> Subject: Re: [EL] Fact-checking
> To: "Svoboda, Brian (Perkins Coie)" <BSvoboda at perkinscoie.com>
> Cc: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>,
> "law-election at UCI.edu" <law-election at uci.edu>, "Smith, Brad"
> <BSmith at law.capital.edu>
> Message-ID:
> <CAPGAC=UBMHxdJ9Sh+cCE7FL2vRhQ-RcOoFycx6vFndexngYfAA at mail.gmail.com>
> Content-Type: text/plain; charset="iso-8859-1"
>
> *As for government bureaucrats deciding the relative truthiness of
> political statements, bring it on. Speaking for my own selfish interest,
> that's a goldmine of litigation in the making.*
> *Forward,*
> *First Amendment Ben
>
> *I have a question for the list about damages. Assume that a state has
> created a Bureau of Truth, somewhat like Ohio's, that your client is a
> candidate, that the Bureau finds one of her statements untrue, but they are
> provably wrong. Your client wants to sue them for damages under the First
> Amendment and the (hypothetical but typical) state constitution. I'm asking
> a descriptive question, not a normative one. Are damages available? Does
> the bureau have absolute or qualified immunity? If QI, can it be overcome
> here? Is the Bureau a person who can be sued under 1983? If not, what other
> statutes can be used? Can one assert a constitutional tort as in*
> Bivens?*I have found that injunctions and declaratory judgments have
> little
> deterrent effect on rogue agencies.
>
> I had an interesting episode of law-checking a Bloomberg article this
> morning.
> http://ballots.blogspot.com/2012/09/hi.html
>
> My further thoughts on this thread are here:
> http://ballots.blogspot.com/2012/09/i-am-sitting-in-buffalo-library-killing.html
>
>
>
>
> On Fri, Sep 28, 2012 at 2:52 PM, Svoboda, Brian (Perkins Coie) <
> BSvoboda at perkinscoie.com> wrote:
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> ------------------------------
>
> Message: 4
> Date: Fri, 28 Sep 2012 15:45:46 -0400
> From: Marty Lederman <lederman.marty at gmail.com>
> Subject: Re: [EL] Fact-checking
> To: "Smith, Brad" <BSmith at law.capital.edu>
> Cc: "law-election at UCI.edu" <law-election at uci.edu>
> Message-ID:
> <CACavKoC-uo3JdLEYbk9dVFWaRKp0f1a13MwDORVuk1JA3bwDCg at mail.gmail.com>
> Content-Type: text/plain; charset="windows-1252"
>
> Brad: Putting the merits of the Ohio statute aside, I've long been
> interested in the phenomenon of executive officials not defending the
> constitutionality of statutes. What the Ohio AG did here -- apparently
> have his office defend but then file an amicus brief in effect taking issue
> with the views of his own office -- has at least one historical precedent:
> what Bob Bork did in Buckley v. Valeo. (The SG's office set up a "chinese
> wall" between two sets of lawyers. One set, led by Deputy SG Louis
> Claiborne, drafted a brief for the federal defendants (the AG and the FEC),
> defending the contribution and expenditure provisions of FECA; the other,
> led by Deputy SG Frank Easterbrook, drafted an brief on behalf of the AG
> and "amicus" United States, in effect questioning the constitutionality of
> the statute. If memory recalls, Bork and AG Levi signed both briefs.)
>
> Do you happen to have the two briefs handy, and any statements issued by
> DeWine? Thanks
>
> On Fri, Sep 28, 2012 at 2:58 PM, Smith, Brad <BSmith at law.capital.edu> wrote:
>
>> It is hard to say enough bad things about Ohio?s law and its
>> application, and it is often worse than even what Brian notes below. For
>> example, experienced Ohio election attorneys know how to when to file a
>> case shortly before the election, so that a probable cause hearing will be
>> held on the Thursday morning before the election. If one gets a ?probable
>> cause? finding, which is handled by a panel consisting of 3 commissioners
>> (who need not have any legal or judicial training or experience), one can
>> then highlight it all through the weekend and the Monday before the
>> election. One need never actually have a merits hearing ? in fact, a great
>> many complaints are dropped after the election, having served their purpose
>> of gaining a political advantage. The complainant gains little more by
>> pursuing the issue, and runs the risk of having the Commission determine
>> that no violation occurred after all. ****
>>
>> ** **
>>
>> One can argue in theory that many of these administrative issues can be
>> resolved, but as a practical matter it is hard to envision any such system
>> that will not be subject to abuse. ****
>>
>> ** **
>>
>> Earlier this year, Ohio Attorney General Mike DeWine took the unusual step
>> of filing an amicus brief arguing to a Federal Court that the law was
>> unconstitutional (leaving defense of the law to the AG?s career staff). (I
>> served as Special Counsel for the AG in that matter ? the above statements
>> reflect my views, and not necessarily those of Attorney General DeWine).
>> http://www.campaignfreedom.org/2012/02/20/ohio-attorney-general-questions-constitutionality-of-state-false-statements-law/
>> ****
>>
>> (earlier this month the Court dismissed the case on jurisdictional
>> grounds).****
>>
>> ** **
>>
>> *Bradley A. Smith*
>>
>> *Josiah H. Blackmore II/Shirley M. Nault *
>>
>> * Professor of Law*
>>
>> *Capital University Law School*
>>
>> *303 East Broad Street*
>>
>> *Columbus, OH 43215*
>>
>> *(614) 236-6317*
>>
>> *bsmith at law.capital.edu*
>>
>> *http://www.law.capital.edu/faculty/bios/bsmith.asp*
>>
>> ** **
>>
>> *From:* Svoboda, Brian (Perkins Coie) [mailto:BSvoboda at perkinscoie.com]
>> *Sent:* Friday, September 28, 2012 2:24 PM
>>
>> *To:* Smith, Brad; Scarberry, Mark; law-election at UCI.edu
>> *Subject:* RE: Fact-checking****
>>
>> ** **
>>
>> I have represented clients in false statement complaints before the Ohio
>> Elections Commission. (I hasten to note that I speak for myself, not
>> them.) It seems to me that there are many aspects of that state's
>> particular process that provide cause for concern, besides the broad First
>> Amendment issues involved. On those issues, I will be eager to read Rick's
>> paper, once the elections are over, and after I have taken a nap.****
>>
>> ** **
>>
>> First, in federal races, there is a strong argument that Ohio's statutes
>> are preempted. In Advisory Opinion 1986-11, the FEC found a related
>> section of the Ohio Revised Code to be preempted, when the statute
>> prohibited candidates from using titles that imply incumbency in their
>> campaign materials, http://saos.nictusa.com/aodocs/1986-11.pdf. Yet like
>> New Hampshire, where the state continues to enforce its so-called "push
>> poll" disclaimer statute in federal races despite the FEC's finding of
>> preemption in Advisory Opinion 2012-10,
>> http://saos.nictusa.com/aodocs/AO%202012-10.pdf, Ohio continues to
>> enforce the statutes in federal races, raising the age-old question, "How
>> many divisions does Commissioner Hunter have?" (Or, perhaps, "The
>> Commissioners have made their ruling. Now let them enforce it.)****
>>
>> ** **
>>
>> Second, the complaints under the Ohio statutes with which I am familiar
>> are generated by political candidates, for political reasons. For
>> candidates, there are myriad tactical advantages to filing a complaint.
>> The simple act of filing can generate a press story, when the press might
>> not otherwise write about the dispute; saying that Candidate A filed a
>> false statement complaint over S.B. 1 is easier than learning and
>> explaining what S.B. 1 actually did. A positive commission outcome gives
>> the candidate the chance to cite it in their own ads, or in letters to
>> television stations that ask them to reject ads that aren't candidate
>> "uses" and don't enjoy the Communications Act's no-censorship protections.
>> And a complaint consumes the resources of the opposition who, if prudent,
>> will hire a lawyer to oppose it.****
>>
>> ** **
>>
>> Third, Ohio's process does not lend itself to careful resolution of these
>> complaints, especially right before the election. Ohio's law is not unique
>> in generating partisan complaints; the FEC is no stranger to them either,
>> at least in the campaign finance field. But FEC rules provide a process by
>> which a complaint can be defended in the first instance at minimal expense
>> to the respondent, and can be reviewed and dismissed entirely on the
>> pleadings. This allows the agency to separate the wheat from the chaff,
>> usually over a period of months, and thereby minimize the distortion of
>> electoral outcomes. But Ohio has a "rocket docket," where
>> election-sensitive false statement complaints receive an immediate, public,
>> probable cause hearing. If the commission finds probable cause, then the
>> complaints receive expedited discovery and a pre-election hearing. This
>> does not lend itself easily to calm, thoughtful resolution of highly
>> charged matters, especially when the commission is divided among members of
>> the two political parties.****
>>
>> ** **
>>
>> Last, the manner in which the commission considers the complaints recalls
>> Justice Stewart, who knew obscenity when he saw it. One could sensibly
>> interpret the Ohio statute on voting records to limit its application to
>> binary questions of empirical fact: e.g., to apply when I say Hasen voted
>> "No" on S.B. 1, when he actually voted "Yes." And the case law indicates
>> that, even without an express actual malice requirement, the statute is
>> only enforceable under the First Amendment if there is knowledge of falsity
>> or reckless disregard. But in practice, Ohio leaps past the binary, and
>> plunges into the contextual. It asks not only whether Hasen voted "Yes" or
>> "No" on S.B. 1, but whether the advertisement accurately characterized what
>> S.B. 1 did. From my experience, the commissioners see their task much as
>> PolitiFact does: they ask whether the ad is true or not, while glossing
>> over the question of actual malice. I recall one hearing where a member of
>> the panel said -- and this is a verbatim quote -- "I don't like this ad.
>> This is just the kind of ad we are trying to stop through proper conduct."
>> ****
>>
>> ** **
>>
>> When a state regulates in areas of core First Amendment activity, it
>> should carefully construe the statute to avoid constitutional
>> difficulties. It should employ a rigorous process that disposes of
>> meritless complaints and avoids unnecessary distortion of electoral
>> outcomes. It should minimize, rather than maximize, the opportunities for
>> partisan abuse of the process. And it should employ objective, not
>> subjective, standards to find violations. My experience is that Ohio's
>> process is administered by intelligent, earnest and conscientious people,
>> who are trying to follow the law as they understand it. But the process
>> merits some careful review, especially in a world where political actors
>> increasingly reasons to employ it.****
>>
>> ** **
>>
>> =B.****
>>
>> *Brian G. Svoboda* * **|* * **Perkins Coie** **LLP**
>> *700 Thirteenth Street N.W.
>> Washington, DC 20005-3960
>> PHONE: 202.434.1654
>> FAX: 202.654.9150
>> E-MAIL: BSvoboda at perkinscoie.com
>> IMPORTANT TAX INFORMATION: This communication is not intended or written
>> by Perkins Coie LLP to be used, and cannot be used by the taxpayer, for the
>> purpose of avoiding penalties that may be imposed on the taxpayer under the
>> Internal Revenue Code of 1986, as amended.****
>>
>> NOTICE: This communication may contain privileged or other confidential
>> information. If you have received it in error, please advise the sender by
>> reply email and immediately delete the message and any attachments without
>> copying or disclosing the contents. Thank you.****
>>
>> ** **
>>
>> *From:* law-election-bounces at department-lists.uci.edu [mailto:
>> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Smith, Brad
>> *Sent:* Friday, September 28, 2012 8:27 AM
>> *To:* Scarberry, Mark; law-election at UCI.edu
>> *Subject:* Re: [EL] Fact-checking****
>>
>> ** **
>>
>> "We're not going to let our campaign be dictated by facts" would be a kind
>> of post-modern relativism in which truth is now in the eyes of the
>> beholder. "We're not going to let our campaign be dictated by [self
>> appointed] fact-checkers" is simply a comment on the quality of the actual
>> work being done by "fact-checkers." That a "fact checker" says 2+2=5 does
>> not make it so, and does not make the critic of such a statement a
>> "post-modern relativist." ****
>>
>> ** **
>>
>> But this is not just trivial nit-picking on a characterization. To a
>> substantial extent, the entire problem with government efforts to regulate
>> "false" speech in campaigns is that the government ends up - rather
>> routinely, it seems - regulating statements that simply are not objectively
>> true or false, but are matters of prediction, interpretation, or
>> presentation of data. It is relatively rare that politicians actually "lie"
>> (or to be more fair, "err") about matters of fact. What they do routinely
>> is selectively use, characterize, and interpret facts to advance an
>> argument. Efforts to regulate "false statements" in politics tend to end up
>> being trivialized (a common bit of fodder for the Ohio Elections
>> Commission, for example, are bumper stickers and yard signs that read
>> "Smith State Representative" when Smith is not a state representative, but
>> merely a candidate for the office - the OEC demands that they state "Smith
>> for State Representative") or subjectively politicized (such as determining
>> which side has the better argument on a complex issus such as whether
>> proposed new rules "gut" welfare work requirements). When the press makes
>> the mistake of calling the latter "fact checking" (as opposed to something
>> like "analysis") well, OK. But we don't need government doing it in the
>> midst of campaigns.****
>>
>> ** **
>>
>> ** **
>>
>> ** **
>>
>> *Bradley A. Smith*****
>>
>> *Josiah H. Blackmore II/Shirley M. Nault*****
>>
>> * Professor of Law*****
>>
>> *Capital University Law School*****
>>
>> *303 E. Broad St.*****
>>
>> *Columbus, OH 43215*****
>>
>> *614.236.6317*****
>>
>> *http://law.capital.edu/faculty/bios/bsmith.aspx*****
>> ------------------------------
>>
>> *From:* law-election-bounces at department-lists.uci.edu [
>> law-election-bounces at department-lists.uci.edu] on behalf of Scarberry,
>> Mark [Mark.Scarberry at pepperdine.edu]
>> *Sent:* Friday, September 28, 2012 3:21 AM
>> *To:* law-election at UCI.edu
>> *Subject:* Re: [EL] Fact-checking****
>>
>> I was struck by Rick's comment on Republican criticism of fact-checkers:**
>> **
>>
>> ****
>>
>> "It was an odd turn to see conservatives seeming to embrace a kind of
>> post-modern relativism in which truth is now in the eyes of the beholder."
>> ****
>>
>> ****
>>
>> The criticism I've seen of fact-checkers is not that there is no objective
>> truth to be found with respect to simple factual matters, but rather that
>> the fact-checkers seem to be biased in their approach to what is or is not
>> factual and in the standards they apply to claims made by Republicans and
>> by Democrats.****
>>
>> ****
>>
>> Of course it could be argued that fact-checking is pointless, because
>> whoever does the checking will just see what they want to see, based on
>> their biases. That would be a post-modern relativistic approach, I suppose,
>> but I don't think it is the complaint that is being made. ****
>>
>> ****
>>
>> Occasionally, the criticism is that the fact-checkers are labeling claims
>> as false, when the claims are opinions with which the fact-checkers simply
>> disagree. If a person says that the President's middle east policy has not
>> served our interests well, that is an opinion. We can argue about whether
>> the President's policy has been effective or not in advancing our
>> interests, whatever we may think they are. The arguments will not be about
>> simple facts that a reporter can quickly and objectively determine. I don't
>> think you have to be a post-modern relativist to see that a simple
>> fact-check approach is not likely to be helpful in evaluating such an
>> opinion. Of course, if someone says that the policy has failed because
>> Egypt has tested nuclear weapons, a fact-checker can justifiably hand out
>> multiple Pinocchios or call a "pants on fire" alert.****
>>
>> ****
>>
>> Mark****
>>
>> ****
>>
>> Mark S. Scarberry****
>>
>> Professor of Law****
>>
>> Pepperdine Univ. School of Law****
>>
>> ****
>>
>> ****
>>
>> ****
>>
>> ****
>>
>> ****
>>
>> ****
>>
>> ****
>>
>> ****
>>
>> -----Original Message-----
>> From: law-election-bounces at department-lists.uci.edu [
>> mailto:law-election-bounces at department-lists.uci.edu<law-election-bounces at department-lists.uci.edu>]
>> On Behalf Of Lowenstein, Daniel
>> Sent: Thursday, September 27, 2012 11:27 PM
>> To: Rick Hasen; law-election at UCI.edu
>> Subject: [EL] Fact-checking****
>>
>> ****
>>
>> I have read Rick's paper, which he was good enough to send me, on
>> regulating false campaign statements. As one would expect given the
>> author, the paper gives a careful review of how current First Amendment
>> doctrine is likely to affect various types of possible regulation and
>> identifies the kinds of regulation that have a fair or good chance to
>> survive in an area in which the Constitution is not friendly to regulation.
>> ****
>>
>> ****
>>
>> Somewhat to my surprise, Rick is friendly in the paper to the idea
>> of "fact-checking" by government agencies (though it's not entirely clear
>> whether he is saying only that such an enterprise has a fair chance of
>> being upheld or is supporting it as a policy matter). In this connection,
>> I think it is relevant that Rick notes but does not go much into the
>> criticisms of fact-checking by the press.****
>>
>> ****
>>
>> The most trenchant criticism that I know of has come from a series
>> of writings by Mark Hemingway in the Weekly Standard. Rick opens his
>> article with two examples of fact-checking, one nailing Obama and the other
>> Romney. The Romney example is that fact-checkers have condemned his ads
>> claiming that the Obama administration threatens to gut the work
>> requirement of Clinton-era welfare reform.****
>>
>> ****
>>
>> As it happens, Hemingway has a lengthy article in the current
>> issue of the Weekly Standard focussing on this very point. See
>> http://www.weeklystandard.com/articles/obama-s-palace-guard_652895.html.
>> Hemingway makes what appears on its face to be a strong argument that
>> Romney's claim is accurate, but I don't know nearly enough about welfare to
>> have an independent opinion on that. In any event, Hemingway makes an
>> overwhelming case that the fact-checkers who have condemned Romney on this
>> have been at best extremely inept and most likely acting in some degree of
>> bad faith.****
>>
>> ****
>>
>> Anyone interested in this subject should also read Hemingway's
>> more general criticism of fact-checkers, "Lies, Damned Lies,
>> 'Fact-Checking," published last December, which is also extremely
>> persuasive.
>> http://www.weeklystandard.com/articles/lies-damned-lies-and-fact-checking_611854.html
>> ****
>>
>> ****
>>
>> There are many reasons why fact-checking in the context of
>> political debate is highly problematic and should be considered with great
>> skepticism. Hemingway makes a strong case that the currently prominent
>> fact-checkers are biased, but even if they were not at all biased, the
>> problems would run deep. Needless to say, none of the above suggests any
>> doubt about the right of the press to engage in fact-checking to it's
>> heart's content. But I hope institutionalized fact-checking by the
>> government would be found unconstitutional. Whether or not it would be, it
>> seems to me an inherently Orwellian enterprise that ought to be strongly
>> opposed.****
>>
>> ****
>>
>> Best,****
>>
>> ****
>>
>> Daniel H. Lowenstein****
>>
>> Director, Center for the Liberal Arts and Free Institutions
>> (CLAFI)****
>>
>> UCLA Law School****
>>
>> 405 Hilgard****
>>
>> Los Angeles, California 90095-1476****
>>
>> 310-825-5148****
>>
>> ****
>>
>> ****
>>
>> ?Americans say Obama?s ads are more honest, but expect both sides to lie,
>> Esquire/Yahoo poll finds?<http://electionlawblog.org/?p=40731>****
>>
>> Posted on September 27, 2012 10:57 am<http://electionlawblog.org/?p=40731>
>> by Rick Hasen<http://electionlawblog.org/?author=3>****
>>
>> ****
>>
>> Yahoo News reports<
>> http://news.yahoo.com/esquire-yahoo-news-poll-romney-ads-lie-more-both-dishonest.html
>>> .****
>>
>> ****
>>
>> My new paper<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>
>> on whether there is a constitutional right to lie in campaigns and
>> elections begins:****
>>
>> ****
>>
>> Election 2012 may well go down in history as the ?4 Pinocchios Election.?
>> It is perhaps no coincidence that the current election season has seen both
>> a rise in the amount of arguably false campaign speech and the
>> proliferation of journalistic ?fact checkers? who regularly rate statements
>> made by candidates and campaigns. Journalistic ratings such as Politifact?s
>> ?Truth-o-meter? rank candidate statements from from ?true? and ?mostly
>> true? to ?false? and even ?pants on fire.? The Washington Post rating
>> system, which relies upon the judgment of its fact checker, Glenn Kessler,
>> uses 1 to 4 ?Pinocchios? for false statements. The granddaddy of fact
>> checking groups, Factcheck.org, while avoiding a rating system, offers
>> analysis which regularly describes controversial campaign claims as ?false?
>> or ?wrong.****
>>
>> ****
>>
>> Both the Romney and Obama presidential campaigns have received stinging
>> ratings from fact checkers. The Washington Post?s Fact Checker, Glenn
>> Kessler, gave the Obama campaign ?4 Pinocchios? for claiming that Mitt
>> Romney, while working at Bain Capital, ?outsourced? jobs and was a
>> ?corporate raider.? Romney?s campaign similarly got ?4 Pinocchios? for
>> claiming there was an ?Obama plan? to weaken federal welfare law and issue
>> welfare checks to people who do not work.?****
>>
>> ****
>>
>> Romney?s campaign has seemed to bear more of the brunt from the
>> fact-checking enterprise. Based solely upon Kessler?s subjective
>> assessment of truth, by mid-September 2012 the Washington Post fact checker
>> rated Romney ads and statements with an average of 2.33 Pinocchios to
>> Obama?s 1.96. Perhaps the greatest media attack on the truthfulness of
>> Romney?s campaign came in response to the acceptance speech of Romney?s
>> running-mate, Representative Paul Ryan, which the New York Times described
>> as containing ?a number of questionable or misleading claims.?****
>>
>> ****
>>
>> Whether campaigns are resorting to lies and distortion more often than in
>> previous elections, and if so why they are doing so, are interesting
>> questions beyond that which I can explore in this brief Article. False and
>> misleading speech may be increasing thanks to the proliferation of the
>> Internet and a decline in uniform trustworthy sources of news, such as the
>> national news networks and major newspapers. Political polarization also
>> may play a role, with partisans egged on to believe unsupported claims by
>> the modern day partisan press, in the form of FOX News, MSNBC, and liberal
>> and conservative blogs and websites.****
>>
>> ****
>>
>> Fact check operations also are controversial to journalists, who have
>> always been in the business of resolving conflicting factual claims as part
>> of the news gathering process. Some journalists take issue with the
>> effectiveness of fact checkers. Media critic Jack Shafer declares, ?Give
>> [candidates] a million billion Pinocchios and they?ll still not behave.?
>> Others defend the ?fact check? process but see them losing their
>> effectiveness.****
>>
>> ****
>>
>> In 2012, fact checking itself came under attack from the right, with some
>> advancing the claim that fact checkers are a biased part of the ?liberal
>> media.?Neil Newhouse, the Romney campaign?s pollster, proclaimed that
>> ?We?re not going to let our campaign be dictated by fact-checkers.? It was
>> an odd turn to see conservatives seeming to embrace a kind of post-modern
>> relativism in which truth is now in the eyes of the beholder.****
>>
>> ****
>>
>> In this highly charged partisan atmosphere, in which each side cannot
>> agree upon the basic facts, mudslinging has become terribly common, and the
>> media are not able to meaningfully curb candidates? lies and distortions,
>> it is tempting to consider federal and strengthened state legislation to
>> deter and punish false campaign speech. Why not let courts or commissions
>> sort out truth from fiction? Indeed, a number of states already have laws
>> in place which provide some government sanction for false campaign speech.
>> ****
>>
>> ****
>>
>> [cid:part5.01040804.06020009 at law.uci.edu]<
>> http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40731&title=%E2%80%9CAmericans%20say%20Obama%E2%80%99s%20ads%20are%20more%20honest%2C%20but%20expect%20both%20sides%20to%20lie%2C%20Esquire%2FYahoo%20poll%20finds%E2%80%9D&description=
>>> ****
>>
>> Posted in campaigns<http://electionlawblog.org/?cat=59> | Comments Off****
>>
>> ****
>>
>> ** **
>> ------------------------------
>>
>> IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with Treasury Department
>> and IRS regulations, we inform you that, unless expressly indicated
>> otherwise, any federal tax advice contained in this communication
>> (including any attachments) is not intended or written by Perkins Coie LLP
>> to be used, and cannot be used by the taxpayer, for the purpose of (i)
>> avoiding penalties that may be imposed on the taxpayer under the Internal
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>> NOTICE: This communication may contain privileged or other confidential
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> ------------------------------
>
> Message: 5
> Date: Fri, 28 Sep 2012 19:54:50 +0000
> From: "Smith, Brad" <BSmith at law.capital.edu>
> Subject: Re: [EL] Fact-checking
> To: "'Marty Lederman'" <lederman.marty at gmail.com>
> Cc: "law-election at UCI.edu" <law-election at uci.edu>
> Message-ID:
> <51D6964FB432CC4D8A09CA508AF5844735BC18E9 at MSGEXCH02.capital.edu>
> Content-Type: text/plain; charset="us-ascii"
>
> Marty,
>
> I don't believe that the briefs are available on line, and the AG never, to my knowledge, made a formal statement.
>
> Bradley A. Smith
> Josiah H. Blackmore II/Shirley M. Nault
> Professor of Law
> Capital University Law School
> 303 East Broad Street
> Columbus, OH 43215
> (614) 236-6317
> bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
> http://www.law.capital.edu/faculty/bios/bsmith.asp
>
> From: Marty Lederman [mailto:lederman.marty at gmail.com]
> Sent: Friday, September 28, 2012 3:46 PM
> To: Smith, Brad
> Cc: law-election at UCI.edu
> Subject: Re: [EL] Fact-checking
>
> Brad: Putting the merits of the Ohio statute aside, I've long been interested in the phenomenon of executive officials not defending the constitutionality of statutes. What the Ohio AG did here -- apparently have his office defend but then file an amicus brief in effect taking issue with the views of his own office -- has at least one historical precedent: what Bob Bork did in Buckley v. Valeo. (The SG's office set up a "chinese wall" between two sets of lawyers. One set, led by Deputy SG Louis Claiborne, drafted a brief for the federal defendants (the AG and the FEC), defending the contribution and expenditure provisions of FECA; the other, led by Deputy SG Frank Easterbrook, drafted an brief on behalf of the AG and "amicus" United States, in effect questioning the constitutionality of the statute. If memory recalls, Bork and AG Levi signed both briefs.)
>
> Do you happen to have the two briefs handy, and any statements issued by DeWine? Thanks
> On Fri, Sep 28, 2012 at 2:58 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:
> It is hard to say enough bad things about Ohio's law and its application, and it is often worse than even what Brian notes below. For example, experienced Ohio election attorneys know how to when to file a case shortly before the election, so that a probable cause hearing will be held on the Thursday morning before the election. If one gets a "probable cause" finding, which is handled by a panel consisting of 3 commissioners (who need not have any legal or judicial training or experience), one can then highlight it all through the weekend and the Monday before the election. One need never actually have a merits hearing - in fact, a great many complaints are dropped after the election, having served their purpose of gaining a political advantage. The complainant gains little more by pursuing the issue, and runs the risk of having the Commission determine that no violation occurred after all.
>
> One can argue in theory that many of these administrative issues can be resolved, but as a practical matter it is hard to envision any such system that will not be subject to abuse.
>
> Earlier this year, Ohio Attorney General Mike DeWine took the unusual step of filing an amicus brief arguing to a Federal Court that the law was unconstitutional (leaving defense of the law to the AG's career staff). (I served as Special Counsel for the AG in that matter - the above statements reflect my views, and not necessarily those of Attorney General DeWine). http://www.campaignfreedom.org/2012/02/20/ohio-attorney-general-questions-constitutionality-of-state-false-statements-law/
> (earlier this month the Court dismissed the case on jurisdictional grounds).
>
> Bradley A. Smith
> Josiah H. Blackmore II/Shirley M. Nault
> Professor of Law
> Capital University Law School
> 303 East Broad Street
> Columbus, OH 43215
> (614) 236-6317<tel:%28614%29%20236-6317>
> bsmith at law.capital.edu<mailto:bsmith at law.capital.edu>
> http://www.law.capital.edu/faculty/bios/bsmith.asp
>
> From: Svoboda, Brian (Perkins Coie) [mailto:BSvoboda at perkinscoie.com<mailto:BSvoboda at perkinscoie.com>]
> Sent: Friday, September 28, 2012 2:24 PM
>
> To: Smith, Brad; Scarberry, Mark; law-election at UCI.edu<mailto:law-election at UCI.edu>
> Subject: RE: Fact-checking
>
> I have represented clients in false statement complaints before the Ohio Elections Commission. (I hasten to note that I speak for myself, not them.) It seems to me that there are many aspects of that state's particular process that provide cause for concern, besides the broad First Amendment issues involved. On those issues, I will be eager to read Rick's paper, once the elections are over, and after I have taken a nap.
>
> First, in federal races, there is a strong argument that Ohio's statutes are preempted. In Advisory Opinion 1986-11, the FEC found a related section of the Ohio Revised Code to be preempted, when the statute prohibited candidates from using titles that imply incumbency in their campaign materials, http://saos.nictusa.com/aodocs/1986-11.pdf. Yet like New Hampshire, where the state continues to enforce its so-called "push poll" disclaimer statute in federal races despite the FEC's finding of preemption in Advisory Opinion 2012-10, http://saos.nictusa.com/aodocs/AO%202012-10.pdf, Ohio continues to enforce the statutes in federal races, raising the age-old question, "How many divisions does Commissioner Hunter have?" (Or, perhaps, "The Commissioners have made their ruling. Now let them enforce it.)
>
> Second, the complaints under the Ohio statutes with which I am familiar are generated by political candidates, for political reasons. For candidates, there are myriad tactical advantages to filing a complaint. The simple act of filing can generate a press story, when the press might not otherwise write about the dispute; saying that Candidate A filed a false statement complaint over S.B. 1 is easier than learning and explaining what S.B. 1 actually did. A positive commission outcome gives the candidate the chance to cite it in their own ads, or in letters to television stations that ask them to reject ads that aren't candidate "uses" and don't enjoy the Communications Act's no-censorship protections. And a complaint consumes the resources of the opposition who, if prudent, will hire a lawyer to oppose it.
>
> Third, Ohio's process does not lend itself to careful resolution of these complaints, especially right before the election. Ohio's law is not unique in generating partisan complaints; the FEC is no stranger to them either, at least in the campaign finance field. But FEC rules provide a process by which a complaint can be defended in the first instance at minimal expense to the respondent, and can be reviewed and dismissed entirely on the pleadings. This allows the agency to separate the wheat from the chaff, usually over a period of months, and thereby minimize the distortion of electoral outcomes. But Ohio has a "rocket docket," where election-sensitive false statement complaints receive an immediate, public, probable cause hearing. If the commission finds probable cause, then the complaints receive expedited discovery and a pre-election hearing. This does not lend itself easily to calm, thoughtful resolution of highly charged matters, especially when the commission is
> divided among members of the two political parties.
>
> Last, the manner in which the commission considers the complaints recalls Justice Stewart, who knew obscenity when he saw it. One could sensibly interpret the Ohio statute on voting records to limit its application to binary questions of empirical fact: e.g., to apply when I say Hasen voted "No" on S.B. 1, when he actually voted "Yes." And the case law indicates that, even without an express actual malice requirement, the statute is only enforceable under the First Amendment if there is knowledge of falsity or reckless disregard. But in practice, Ohio leaps past the binary, and plunges into the contextual. It asks not only whether Hasen voted "Yes" or "No" on S.B. 1, but whether the advertisement accurately characterized what S.B. 1 did. From my experience, the commissioners see their task much as PolitiFact does: they ask whether the ad is true or not, while glossing over the question of actual malice. I recall one hearing where a member of the panel said -- and this i
> s a verbatim quote -- "I don't like this ad. This is just the kind of ad we are trying to stop through proper conduct."
>
> When a state regulates in areas of core First Amendment activity, it should carefully construe the statute to avoid constitutional difficulties. It should employ a rigorous process that disposes of meritless complaints and avoids unnecessary distortion of electoral outcomes. It should minimize, rather than maximize, the opportunities for partisan abuse of the process. And it should employ objective, not subjective, standards to find violations. My experience is that Ohio's process is administered by intelligent, earnest and conscientious people, who are trying to follow the law as they understand it. But the process merits some careful review, especially in a world where political actors increasingly reasons to employ it.
>
> =B.
> Brian G. Svoboda | Perkins Coie LLP
> 700 Thirteenth Street N.W.
> Washington, DC 20005-3960
> PHONE: 202.434.1654<tel:202.434.1654>
> FAX: 202.654.9150<tel:202.654.9150>
> E-MAIL: BSvoboda at perkinscoie.com<mailto:BSvoboda at perkinscoie.com>
> IMPORTANT TAX INFORMATION: This communication is not intended or written by Perkins Coie LLP to be used, and cannot be used by the taxpayer, for the purpose of avoiding penalties that may be imposed on the taxpayer under the Internal Revenue Code of 1986, as amended.
> NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you.
>
> From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Smith, Brad
> Sent: Friday, September 28, 2012 8:27 AM
> To: Scarberry, Mark; law-election at UCI.edu
> Subject: Re: [EL] Fact-checking
>
> "We're not going to let our campaign be dictated by facts" would be a kind of post-modern relativism in which truth is now in the eyes of the beholder. "We're not going to let our campaign be dictated by [self appointed] fact-checkers" is simply a comment on the quality of the actual work being done by "fact-checkers." That a "fact checker" says 2+2=5 does not make it so, and does not make the critic of such a statement a "post-modern relativist."
>
> But this is not just trivial nit-picking on a characterization. To a substantial extent, the entire problem with government efforts to regulate "false" speech in campaigns is that the government ends up - rather routinely, it seems - regulating statements that simply are not objectively true or false, but are matters of prediction, interpretation, or presentation of data. It is relatively rare that politicians actually "lie" (or to be more fair, "err") about matters of fact. What they do routinely is selectively use, characterize, and interpret facts to advance an argument. Efforts to regulate "false statements" in politics tend to end up being trivialized (a common bit of fodder for the Ohio Elections Commission, for example, are bumper stickers and yard signs that read "Smith State Representative" when Smith is not a state representative, but merely a candidate for the office - the OEC demands that they state "Smith for State Representative") or subjectively politicized (su
> ch as determining which side has the better argument on a complex issus such as whether proposed new rules "gut" welfare work requirements). When the press makes the mistake of calling the latter "fact checking" (as opposed to something like "analysis") well, OK. But we don't need government doing it in the midst of campaigns.
>
>
>
>
> Bradley A. Smith
>
> Josiah H. Blackmore II/Shirley M. Nault
>
> Professor of Law
>
> Capital University Law School
>
> 303 E. Broad St.
>
> Columbus, OH 43215
>
> 614.236.6317<tel:614.236.6317>
>
> http://law.capital.edu/faculty/bios/bsmith.aspx
>
> ________________________________
> From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Scarberry, Mark [Mark.Scarberry at pepperdine.edu<mailto:Mark.Scarberry at pepperdine.edu>]
> Sent: Friday, September 28, 2012 3:21 AM
> To: law-election at UCI.edu<mailto:law-election at UCI.edu>
> Subject: Re: [EL] Fact-checking
>
> I was struck by Rick's comment on Republican criticism of fact-checkers:
>
>
> "It was an odd turn to see conservatives seeming to embrace a kind of post-modern relativism in which truth is now in the eyes of the beholder."
>
> The criticism I've seen of fact-checkers is not that there is no objective truth to be found with respect to simple factual matters, but rather that the fact-checkers seem to be biased in their approach to what is or is not factual and in the standards they apply to claims made by Republicans and by Democrats.
>
> Of course it could be argued that fact-checking is pointless, because whoever does the checking will just see what they want to see, based on their biases. That would be a post-modern relativistic approach, I suppose, but I don't think it is the complaint that is being made.
>
> Occasionally, the criticism is that the fact-checkers are labeling claims as false, when the claims are opinions with which the fact-checkers simply disagree. If a person says that the President's middle east policy has not served our interests well, that is an opinion. We can argue about whether the President's policy has been effective or not in advancing our interests, whatever we may think they are. The arguments will not be about simple facts that a reporter can quickly and objectively determine. I don't think you have to be a post-modern relativist to see that a simple fact-check approach is not likely to be helpful in evaluating such an opinion. Of course, if someone says that the policy has failed because Egypt has tested nuclear weapons, a fact-checker can justifiably hand out multiple Pinocchios or call a "pants on fire" alert.
>
> Mark
>
>
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine Univ. School of Law
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
>
> -----Original Message-----
> From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Lowenstein, Daniel
> Sent: Thursday, September 27, 2012 11:27 PM
> To: Rick Hasen; law-election at UCI.edu<mailto:law-election at UCI.edu>
> Subject: [EL] Fact-checking
>
>
>
> I have read Rick's paper, which he was good enough to send me, on regulating false campaign statements. As one would expect given the author, the paper gives a careful review of how current First Amendment doctrine is likely to affect various types of possible regulation and identifies the kinds of regulation that have a fair or good chance to survive in an area in which the Constitution is not friendly to regulation.
>
>
>
> Somewhat to my surprise, Rick is friendly in the paper to the idea of "fact-checking" by government agencies (though it's not entirely clear whether he is saying only that such an enterprise has a fair chance of being upheld or is supporting it as a policy matter). In this connection, I think it is relevant that Rick notes but does not go much into the criticisms of fact-checking by the press.
>
>
>
> The most trenchant criticism that I know of has come from a series of writings by Mark Hemingway in the Weekly Standard. Rick opens his article with two examples of fact-checking, one nailing Obama and the other Romney. The Romney example is that fact-checkers have condemned his ads claiming that the Obama administration threatens to gut the work requirement of Clinton-era welfare reform.
>
>
>
> As it happens, Hemingway has a lengthy article in the current issue of the Weekly Standard focussing on this very point. See http://www.weeklystandard.com/articles/obama-s-palace-guard_652895.html. Hemingway makes what appears on its face to be a strong argument that Romney's claim is accurate, but I don't know nearly enough about welfare to have an independent opinion on that. In any event, Hemingway makes an overwhelming case that the fact-checkers who have condemned Romney on this have been at best extremely inept and most likely acting in some degree of bad faith.
>
>
>
> Anyone interested in this subject should also read Hemingway's more general criticism of fact-checkers, "Lies, Damned Lies, 'Fact-Checking," published last December, which is also extremely persuasive. http://www.weeklystandard.com/articles/lies-damned-lies-and-fact-checking_611854.html
>
>
>
> There are many reasons why fact-checking in the context of political debate is highly problematic and should be considered with great skepticism. Hemingway makes a strong case that the currently prominent fact-checkers are biased, but even if they were not at all biased, the problems would run deep. Needless to say, none of the above suggests any doubt about the right of the press to engage in fact-checking to it's heart's content. But I hope institutionalized fact-checking by the government would be found unconstitutional. Whether or not it would be, it seems to me an inherently Orwellian enterprise that ought to be strongly opposed.
>
>
>
> Best,
>
>
>
> Daniel H. Lowenstein
>
> Director, Center for the Liberal Arts and Free Institutions (CLAFI)
>
> UCLA Law School
>
> 405 Hilgard
>
> Los Angeles, California 90095-1476
>
> 310-825-5148<tel:310-825-5148>
>
>
>
>
>
> "Americans say Obama's ads are more honest, but expect both sides to lie, Esquire/Yahoo poll finds"<http://electionlawblog.org/?p=40731>
>
> Posted on September 27, 2012 10:57 am<http://electionlawblog.org/?p=40731> by Rick Hasen<http://electionlawblog.org/?author=3>
>
>
>
> Yahoo News reports<http://news.yahoo.com/esquire-yahoo-news-poll-romney-ads-lie-more-both-dishonest.html>.
>
>
>
> My new paper<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618> on whether there is a constitutional right to lie in campaigns and elections begins:
>
>
>
> Election 2012 may well go down in history as the "4 Pinocchios Election." It is perhaps no coincidence that the current election season has seen both a rise in the amount of arguably false campaign speech and the proliferation of journalistic "fact checkers" who regularly rate statements made by candidates and campaigns. Journalistic ratings such as Politifact's "Truth-o-meter" rank candidate statements from from "true" and "mostly true" to "false" and even "pants on fire." The Washington Post rating system, which relies upon the judgment of its fact checker, Glenn Kessler, uses 1 to 4 "Pinocchios" for false statements. The granddaddy of fact checking groups, Factcheck.org, while avoiding a rating system, offers analysis which regularly describes controversial campaign claims as "false" or "wrong.
>
>
>
> Both the Romney and Obama presidential campaigns have received stinging ratings from fact checkers. The Washington Post's Fact Checker, Glenn Kessler, gave the Obama campaign "4 Pinocchios" for claiming that Mitt Romney, while working at Bain Capital, "outsourced" jobs and was a "corporate raider." Romney's campaign similarly got "4 Pinocchios" for claiming there was an "Obama plan" to weaken federal welfare law and issue welfare checks to people who do not work."
>
>
>
> Romney's campaign has seemed to bear more of the brunt from the fact-checking enterprise. Based solely upon Kessler's subjective assessment of truth, by mid-September 2012 the Washington Post fact checker rated Romney ads and statements with an average of 2.33 Pinocchios to Obama's 1.96. Perhaps the greatest media attack on the truthfulness of Romney's campaign came in response to the acceptance speech of Romney's running-mate, Representative Paul Ryan, which the New York Times described as containing "a number of questionable or misleading claims."
>
>
>
> Whether campaigns are resorting to lies and distortion more often than in previous elections, and if so why they are doing so, are interesting questions beyond that which I can explore in this brief Article. False and misleading speech may be increasing thanks to the proliferation of the Internet and a decline in uniform trustworthy sources of news, such as the national news networks and major newspapers. Political polarization also may play a role, with partisans egged on to believe unsupported claims by the modern day partisan press, in the form of FOX News, MSNBC, and liberal and conservative blogs and websites.
>
>
>
> Fact check operations also are controversial to journalists, who have always been in the business of resolving conflicting factual claims as part of the news gathering process. Some journalists take issue with the effectiveness of fact checkers. Media critic Jack Shafer declares, "Give [candidates] a million billion Pinocchios and they'll still not behave." Others defend the "fact check" process but see them losing their effectiveness.
>
>
>
> In 2012, fact checking itself came under attack from the right, with some advancing the claim that fact checkers are a biased part of the "liberal media."Neil Newhouse, the Romney campaign's pollster, proclaimed that "We're not going to let our campaign be dictated by fact-checkers." It was an odd turn to see conservatives seeming to embrace a kind of post-modern relativism in which truth is now in the eyes of the beholder.
>
>
>
> In this highly charged partisan atmosphere, in which each side cannot agree upon the basic facts, mudslinging has become terribly common, and the media are not able to meaningfully curb candidates' lies and distortions, it is tempting to consider federal and strengthened state legislation to deter and punish false campaign speech. Why not let courts or commissions sort out truth from fiction? Indeed, a number of states already have laws in place which provide some government sanction for false campaign speech.
>
>
>
> [cid:part5.01040804.06020009 at law.uci.edu]<mailto:[cid:part5.01040804.06020009 at law.uci.edu]><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40731&title=%E2%80%9CAmericans%20say%20Obama%E2%80%99s%20ads%20are%20more%20honest%2C%20but%20expect%20both%20sides%20to%20lie%2C%20Esquire%2FYahoo%20poll%20finds%E2%80%9D&description=>
>
> Posted in campaigns<http://electionlawblog.org/?cat=59> | Comments Off
>
>
>
> ________________________________
> IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with Treasury Department and IRS regulations, we inform you that, unless expressly indicated otherwise, any federal tax advice contained in this communication (including any attachments) is not intended or written by Perkins Coie LLP to be used, and cannot be used by the taxpayer, for the purpose of (i) avoiding penalties that may be imposed on the taxpayer under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein (or any attachments).
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> ------------------------------
>
> Message: 6
> Date: Fri, 28 Sep 2012 16:04:27 -0400
> From: Marty Lederman <lederman.marty at gmail.com>
> Subject: Re: [EL] Fact-checking
> To: "Smith, Brad" <BSmith at law.capital.edu>
> Cc: "law-election at UCI.edu" <law-election at uci.edu>
> Message-ID:
> <CACavKoDwTqVuZ7ABQLsTi6G=ixqdi=9bbEJ9dKxeRbU3Lo2GYg at mail.gmail.com>
> Content-Type: text/plain; charset="windows-1252"
>
> Actually, Brad, your brief is online, and it includes the AG's explanation
> of what he did here:
>
> http://littleurl.info/9h5~
>
> On Fri, Sep 28, 2012 at 3:54 PM, Smith, Brad <BSmith at law.capital.edu> wrote:
>
>> Marty,****
>>
>> ** **
>>
>> I don?t believe that the briefs are available on line, and the AG never,
>> to my knowledge, made a formal statement.****
>>
>> ** **
>>
>> *Bradley A. Smith*
>>
>> *Josiah H. Blackmore II/Shirley M. Nault *
>>
>> * Professor of Law*
>>
>> *Capital University Law School*
>>
>> *303 East Broad Street*
>>
>> *Columbus, OH 43215*
>>
>> *(614) 236-6317*
>>
>> *bsmith at law.capital.edu*
>>
>> *http://www.law.capital.edu/faculty/bios/bsmith.asp*
>>
>> ** **
>>
>> *From:* Marty Lederman [mailto:lederman.marty at gmail.com]
>> *Sent:* Friday, September 28, 2012 3:46 PM
>> *To:* Smith, Brad
>> *Cc:* law-election at UCI.edu
>> *Subject:* Re: [EL] Fact-checking****
>>
>> ** **
>>
>> Brad: Putting the merits of the Ohio statute aside, I've long been
>> interested in the phenomenon of executive officials not defending the
>> constitutionality of statutes. What the Ohio AG did here -- apparently
>> have his office defend but then file an amicus brief in effect taking issue
>> with the views of his own office -- has at least one historical precedent:
>> what Bob Bork did in Buckley v. Valeo. (The SG's office set up a "chinese
>> wall" between two sets of lawyers. One set, led by Deputy SG Louis
>> Claiborne, drafted a brief for the federal defendants (the AG and the FEC),
>> defending the contribution and expenditure provisions of FECA; the other,
>> led by Deputy SG Frank Easterbrook, drafted an brief on behalf of the AG
>> and "amicus" United States, in effect questioning the constitutionality of
>> the statute. If memory recalls, Bork and AG Levi signed both briefs.)
>>
>> Do you happen to have the two briefs handy, and any statements issued by
>> DeWine? Thanks****
>>
>> On Fri, Sep 28, 2012 at 2:58 PM, Smith, Brad <BSmith at law.capital.edu>
>> wrote:****
>>
>> It is hard to say enough bad things about Ohio?s law and its application,
>> and it is often worse than even what Brian notes below. For example,
>> experienced Ohio election attorneys know how to when to file a case shortly
>> before the election, so that a probable cause hearing will be held on the
>> Thursday morning before the election. If one gets a ?probable cause?
>> finding, which is handled by a panel consisting of 3 commissioners (who
>> need not have any legal or judicial training or experience), one can then
>> highlight it all through the weekend and the Monday before the election.
>> One need never actually have a merits hearing ? in fact, a great many
>> complaints are dropped after the election, having served their purpose of
>> gaining a political advantage. The complainant gains little more by
>> pursuing the issue, and runs the risk of having the Commission determine
>> that no violation occurred after all. ****
>>
>> ****
>>
>> One can argue in theory that many of these administrative issues can be
>> resolved, but as a practical matter it is hard to envision any such system
>> that will not be subject to abuse. ****
>>
>> ****
>>
>> Earlier this year, Ohio Attorney General Mike DeWine took the unusual step
>> of filing an amicus brief arguing to a Federal Court that the law was
>> unconstitutional (leaving defense of the law to the AG?s career staff). (I
>> served as Special Counsel for the AG in that matter ? the above statements
>> reflect my views, and not necessarily those of Attorney General DeWine).
>> http://www.campaignfreedom.org/2012/02/20/ohio-attorney-general-questions-constitutionality-of-state-false-statements-law/
>> ****
>>
>> (earlier this month the Court dismissed the case on jurisdictional
>> grounds).****
>>
>> ****
>>
>> *Bradley A. Smith*****
>>
>> *Josiah H. Blackmore II/Shirley M. Nault *****
>>
>> * Professor of Law*****
>>
>> *Capital University Law School*****
>>
>> *303 East Broad Street*****
>>
>> *Columbus, OH 43215*****
>>
>> *(614) 236-6317*****
>>
>> *bsmith at law.capital.edu*****
>>
>> *http://www.law.capital.edu/faculty/bios/bsmith.asp*****
>>
>> ****
>>
>> *From:* Svoboda, Brian (Perkins Coie) [mailto:BSvoboda at perkinscoie.com]
>> *Sent:* Friday, September 28, 2012 2:24 PM****
>>
>>
>> *To:* Smith, Brad; Scarberry, Mark; law-election at UCI.edu****
>>
>> *Subject:* RE: Fact-checking****
>>
>> ****
>>
>> I have represented clients in false statement complaints before the Ohio
>> Elections Commission. (I hasten to note that I speak for myself, not
>> them.) It seems to me that there are many aspects of that state's
>> particular process that provide cause for concern, besides the broad First
>> Amendment issues involved. On those issues, I will be eager to read Rick's
>> paper, once the elections are over, and after I have taken a nap.****
>>
>> ****
>>
>> First, in federal races, there is a strong argument that Ohio's statutes
>> are preempted. In Advisory Opinion 1986-11, the FEC found a related
>> section of the Ohio Revised Code to be preempted, when the statute
>> prohibited candidates from using titles that imply incumbency in their
>> campaign materials, http://saos.nictusa.com/aodocs/1986-11.pdf. Yet like
>> New Hampshire, where the state continues to enforce its so-called "push
>> poll" disclaimer statute in federal races despite the FEC's finding of
>> preemption in Advisory Opinion 2012-10,
>> http://saos.nictusa.com/aodocs/AO%202012-10.pdf, Ohio continues to
>> enforce the statutes in federal races, raising the age-old question, "How
>> many divisions does Commissioner Hunter have?" (Or, perhaps, "The
>> Commissioners have made their ruling. Now let them enforce it.)****
>>
>> ****
>>
>> Second, the complaints under the Ohio statutes with which I am familiar
>> are generated by political candidates, for political reasons. For
>> candidates, there are myriad tactical advantages to filing a complaint.
>> The simple act of filing can generate a press story, when the press might
>> not otherwise write about the dispute; saying that Candidate A filed a
>> false statement complaint over S.B. 1 is easier than learning and
>> explaining what S.B. 1 actually did. A positive commission outcome gives
>> the candidate the chance to cite it in their own ads, or in letters to
>> television stations that ask them to reject ads that aren't candidate
>> "uses" and don't enjoy the Communications Act's no-censorship protections.
>> And a complaint consumes the resources of the opposition who, if prudent,
>> will hire a lawyer to oppose it.****
>>
>> ****
>>
>> Third, Ohio's process does not lend itself to careful resolution of these
>> complaints, especially right before the election. Ohio's law is not unique
>> in generating partisan complaints; the FEC is no stranger to them either,
>> at least in the campaign finance field. But FEC rules provide a process by
>> which a complaint can be defended in the first instance at minimal expense
>> to the respondent, and can be reviewed and dismissed entirely on the
>> pleadings. This allows the agency to separate the wheat from the chaff,
>> usually over a period of months, and thereby minimize the distortion of
>> electoral outcomes. But Ohio has a "rocket docket," where
>> election-sensitive false statement complaints receive an immediate, public,
>> probable cause hearing. If the commission finds probable cause, then the
>> complaints receive expedited discovery and a pre-election hearing. This
>> does not lend itself easily to calm, thoughtful resolution of highly
>> charged matters, especially when the commission is divided among members of
>> the two political parties.****
>>
>> ****
>>
>> Last, the manner in which the commission considers the complaints recalls
>> Justice Stewart, who knew obscenity when he saw it. One could sensibly
>> interpret the Ohio statute on voting records to limit its application to
>> binary questions of empirical fact: e.g., to apply when I say Hasen voted
>> "No" on S.B. 1, when he actually voted "Yes." And the case law indicates
>> that, even without an express actual malice requirement, the statute is
>> only enforceable under the First Amendment if there is knowledge of falsity
>> or reckless disregard. But in practice, Ohio leaps past the binary, and
>> plunges into the contextual. It asks not only whether Hasen voted "Yes" or
>> "No" on S.B. 1, but whether the advertisement accurately characterized what
>> S.B. 1 did. From my experience, the commissioners see their task much as
>> PolitiFact does: they ask whether the ad is true or not, while glossing
>> over the question of actual malice. I recall one hearing where a member of
>> the panel said -- and this is a verbatim quote -- "I don't like this ad.
>> This is just the kind of ad we are trying to stop through proper conduct."
>> ****
>>
>> ****
>>
>> When a state regulates in areas of core First Amendment activity, it
>> should carefully construe the statute to avoid constitutional
>> difficulties. It should employ a rigorous process that disposes of
>> meritless complaints and avoids unnecessary distortion of electoral
>> outcomes. It should minimize, rather than maximize, the opportunities for
>> partisan abuse of the process. And it should employ objective, not
>> subjective, standards to find violations. My experience is that Ohio's
>> process is administered by intelligent, earnest and conscientious people,
>> who are trying to follow the law as they understand it. But the process
>> merits some careful review, especially in a world where political actors
>> increasingly reasons to employ it.****
>>
>> ****
>>
>> =B.****
>>
>> *Brian G. Svoboda* * **|* * **Perkins Coie **LLP
>> *700 Thirteenth Street N.W.
>> Washington, DC 20005-3960
>> PHONE: 202.434.1654
>> FAX: 202.654.9150
>> E-MAIL: BSvoboda at perkinscoie.com
>> IMPORTANT TAX INFORMATION: This communication is not intended or written
>> by Perkins Coie LLP to be used, and cannot be used by the taxpayer, for the
>> purpose of avoiding penalties that may be imposed on the taxpayer under the
>> Internal Revenue Code of 1986, as amended.****
>>
>> NOTICE: This communication may contain privileged or other confidential
>> information. If you have received it in error, please advise the sender by
>> reply email and immediately delete the message and any attachments without
>> copying or disclosing the contents. Thank you.****
>>
>> ****
>>
>> *From:* law-election-bounces at department-lists.uci.edu [mailto:
>> law-election-bounces at department-lists.uci.edu] *On Behalf Of *Smith, Brad
>> *Sent:* Friday, September 28, 2012 8:27 AM
>> *To:* Scarberry, Mark; law-election at UCI.edu
>> *Subject:* Re: [EL] Fact-checking****
>>
>> ****
>>
>> "We're not going to let our campaign be dictated by facts" would be a kind
>> of post-modern relativism in which truth is now in the eyes of the
>> beholder. "We're not going to let our campaign be dictated by [self
>> appointed] fact-checkers" is simply a comment on the quality of the actual
>> work being done by "fact-checkers." That a "fact checker" says 2+2=5 does
>> not make it so, and does not make the critic of such a statement a
>> "post-modern relativist." ****
>>
>> ****
>>
>> But this is not just trivial nit-picking on a characterization. To a
>> substantial extent, the entire problem with government efforts to regulate
>> "false" speech in campaigns is that the government ends up - rather
>> routinely, it seems - regulating statements that simply are not objectively
>> true or false, but are matters of prediction, interpretation, or
>> presentation of data. It is relatively rare that politicians actually "lie"
>> (or to be more fair, "err") about matters of fact. What they do routinely
>> is selectively use, characterize, and interpret facts to advance an
>> argument. Efforts to regulate "false statements" in politics tend to end up
>> being trivialized (a common bit of fodder for the Ohio Elections
>> Commission, for example, are bumper stickers and yard signs that read
>> "Smith State Representative" when Smith is not a state representative, but
>> merely a candidate for the office - the OEC demands that they state "Smith
>> for State Representative") or subjectively politicized (such as determining
>> which side has the better argument on a complex issus such as whether
>> proposed new rules "gut" welfare work requirements). When the press makes
>> the mistake of calling the latter "fact checking" (as opposed to something
>> like "analysis") well, OK. But we don't need government doing it in the
>> midst of campaigns.****
>>
>> ****
>>
>> ****
>>
>> ****
>>
>> *Bradley A. Smith*****
>>
>> *Josiah H. Blackmore II/Shirley M. Nault*****
>>
>> * Professor of Law*****
>>
>> *Capital University Law School*****
>>
>> *303 E. Broad St.*****
>>
>> *Columbus, OH 43215*****
>>
>> *614.236.6317*****
>>
>> *http://law.capital.edu/faculty/bios/bsmith.aspx*****
>> ------------------------------
>>
>> *From:* law-election-bounces at department-lists.uci.edu [
>> law-election-bounces at department-lists.uci.edu] on behalf of Scarberry,
>> Mark [Mark.Scarberry at pepperdine.edu]
>> *Sent:* Friday, September 28, 2012 3:21 AM
>> *To:* law-election at UCI.edu
>> *Subject:* Re: [EL] Fact-checking****
>>
>> I was struck by Rick's comment on Republican criticism of fact-checkers:**
>> **
>>
>> ****
>>
>> "It was an odd turn to see conservatives seeming to embrace a kind of
>> post-modern relativism in which truth is now in the eyes of the beholder."
>> ****
>>
>> ****
>>
>> The criticism I've seen of fact-checkers is not that there is no objective
>> truth to be found with respect to simple factual matters, but rather that
>> the fact-checkers seem to be biased in their approach to what is or is not
>> factual and in the standards they apply to claims made by Republicans and
>> by Democrats.****
>>
>> ****
>>
>> Of course it could be argued that fact-checking is pointless, because
>> whoever does the checking will just see what they want to see, based on
>> their biases. That would be a post-modern relativistic approach, I suppose,
>> but I don't think it is the complaint that is being made. ****
>>
>> ****
>>
>> Occasionally, the criticism is that the fact-checkers are labeling claims
>> as false, when the claims are opinions with which the fact-checkers simply
>> disagree. If a person says that the President's middle east policy has not
>> served our interests well, that is an opinion. We can argue about whether
>> the President's policy has been effective or not in advancing our
>> interests, whatever we may think they are. The arguments will not be about
>> simple facts that a reporter can quickly and objectively determine. I don't
>> think you have to be a post-modern relativist to see that a simple
>> fact-check approach is not likely to be helpful in evaluating such an
>> opinion. Of course, if someone says that the policy has failed because
>> Egypt has tested nuclear weapons, a fact-checker can justifiably hand out
>> multiple Pinocchios or call a "pants on fire" alert.****
>>
>> ****
>>
>> Mark****
>>
>> ****
>>
>> Mark S. Scarberry****
>>
>> Professor of Law****
>>
>> Pepperdine Univ. School of Law****
>>
>> ****
>>
>> ****
>>
>> ****
>>
>> ****
>>
>> ****
>>
>> ****
>>
>> ****
>>
>> ****
>>
>> -----Original Message-----
>> From: law-election-bounces at department-lists.uci.edu [
>> mailto:law-election-bounces at department-lists.uci.edu<law-election-bounces at department-lists.uci.edu>]
>> On Behalf Of Lowenstein, Daniel
>> Sent: Thursday, September 27, 2012 11:27 PM
>> To: Rick Hasen; law-election at UCI.edu
>> Subject: [EL] Fact-checking****
>>
>> ****
>>
>> I have read Rick's paper, which he was good enough to send me, on
>> regulating false campaign statements. As one would expect given the
>> author, the paper gives a careful review of how current First Amendment
>> doctrine is likely to affect various types of possible regulation and
>> identifies the kinds of regulation that have a fair or good chance to
>> survive in an area in which the Constitution is not friendly to regulation.
>> ****
>>
>> ****
>>
>> Somewhat to my surprise, Rick is friendly in the paper to the idea
>> of "fact-checking" by government agencies (though it's not entirely clear
>> whether he is saying only that such an enterprise has a fair chance of
>> being upheld or is supporting it as a policy matter). In this connection,
>> I think it is relevant that Rick notes but does not go much into the
>> criticisms of fact-checking by the press.****
>>
>> ****
>>
>> The most trenchant criticism that I know of has come from a series
>> of writings by Mark Hemingway in the Weekly Standard. Rick opens his
>> article with two examples of fact-checking, one nailing Obama and the other
>> Romney. The Romney example is that fact-checkers have condemned his ads
>> claiming that the Obama administration threatens to gut the work
>> requirement of Clinton-era welfare reform.****
>>
>> ****
>>
>> As it happens, Hemingway has a lengthy article in the current
>> issue of the Weekly Standard focussing on this very point. See
>> http://www.weeklystandard.com/articles/obama-s-palace-guard_652895.html.
>> Hemingway makes what appears on its face to be a strong argument that
>> Romney's claim is accurate, but I don't know nearly enough about welfare to
>> have an independent opinion on that. In any event, Hemingway makes an
>> overwhelming case that the fact-checkers who have condemned Romney on this
>> have been at best extremely inept and most likely acting in some degree of
>> bad faith.****
>>
>> ****
>>
>> Anyone interested in this subject should also read Hemingway's
>> more general criticism of fact-checkers, "Lies, Damned Lies,
>> 'Fact-Checking," published last December, which is also extremely
>> persuasive.
>> http://www.weeklystandard.com/articles/lies-damned-lies-and-fact-checking_611854.html
>> ****
>>
>> ****
>>
>> There are many reasons why fact-checking in the context of
>> political debate is highly problematic and should be considered with great
>> skepticism. Hemingway makes a strong case that the currently prominent
>> fact-checkers are biased, but even if they were not at all biased, the
>> problems would run deep. Needless to say, none of the above suggests any
>> doubt about the right of the press to engage in fact-checking to it's
>> heart's content. But I hope institutionalized fact-checking by the
>> government would be found unconstitutional. Whether or not it would be, it
>> seems to me an inherently Orwellian enterprise that ought to be strongly
>> opposed.****
>>
>> ****
>>
>> Best,****
>>
>> ****
>>
>> Daniel H. Lowenstein****
>>
>> Director, Center for the Liberal Arts and Free Institutions
>> (CLAFI)****
>>
>> UCLA Law School****
>>
>> 405 Hilgard****
>>
>> Los Angeles, California 90095-1476****
>>
>> 310-825-5148****
>>
>> ****
>>
>> ****
>>
>> ?Americans say Obama?s ads are more honest, but expect both sides to lie,
>> Esquire/Yahoo poll finds?<http://electionlawblog.org/?p=40731>****
>>
>> Posted on September 27, 2012 10:57 am<http://electionlawblog.org/?p=40731>
>> by Rick Hasen<http://electionlawblog.org/?author=3>****
>>
>> ****
>>
>> Yahoo News reports<
>> http://news.yahoo.com/esquire-yahoo-news-poll-romney-ads-lie-more-both-dishonest.html
>>> .****
>>
>> ****
>>
>> My new paper<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>
>> on whether there is a constitutional right to lie in campaigns and
>> elections begins:****
>>
>> ****
>>
>> Election 2012 may well go down in history as the ?4 Pinocchios Election.?
>> It is perhaps no coincidence that the current election season has seen both
>> a rise in the amount of arguably false campaign speech and the
>> proliferation of journalistic ?fact checkers? who regularly rate statements
>> made by candidates and campaigns. Journalistic ratings such as Politifact?s
>> ?Truth-o-meter? rank candidate statements from from ?true? and ?mostly
>> true? to ?false? and even ?pants on fire.? The Washington Post rating
>> system, which relies upon the judgment of its fact checker, Glenn Kessler,
>> uses 1 to 4 ?Pinocchios? for false statements. The granddaddy of fact
>> checking groups, Factcheck.org, while avoiding a rating system, offers
>> analysis which regularly describes controversial campaign claims as ?false?
>> or ?wrong.****
>>
>> ****
>>
>> Both the Romney and Obama presidential campaigns have received stinging
>> ratings from fact checkers. The Washington Post?s Fact Checker, Glenn
>> Kessler, gave the Obama campaign ?4 Pinocchios? for claiming that Mitt
>> Romney, while working at Bain Capital, ?outsourced? jobs and was a
>> ?corporate raider.? Romney?s campaign similarly got ?4 Pinocchios? for
>> claiming there was an ?Obama plan? to weaken federal welfare law and issue
>> welfare checks to people who do not work.?****
>>
>> ****
>>
>> Romney?s campaign has seemed to bear more of the brunt from the
>> fact-checking enterprise. Based solely upon Kessler?s subjective
>> assessment of truth, by mid-September 2012 the Washington Post fact checker
>> rated Romney ads and statements with an average of 2.33 Pinocchios to
>> Obama?s 1.96. Perhaps the greatest media attack on the truthfulness of
>> Romney?s campaign came in response to the acceptance speech of Romney?s
>> running-mate, Representative Paul Ryan, which the New York Times described
>> as containing ?a number of questionable or misleading claims.?****
>>
>> ****
>>
>> Whether campaigns are resorting to lies and distortion more often than in
>> previous elections, and if so why they are doing so, are interesting
>> questions beyond that which I can explore in this brief Article. False and
>> misleading speech may be increasing thanks to the proliferation of the
>> Internet and a decline in uniform trustworthy sources of news, such as the
>> national news networks and major newspapers. Political polarization also
>> may play a role, with partisans egged on to believe unsupported claims by
>> the modern day partisan press, in the form of FOX News, MSNBC, and liberal
>> and conservative blogs and websites.****
>>
>> ****
>>
>> Fact check operations also are controversial to journalists, who have
>> always been in the business of resolving conflicting factual claims as part
>> of the news gathering process. Some journalists take issue with the
>> effectiveness of fact checkers. Media critic Jack Shafer declares, ?Give
>> [candidates] a million billion Pinocchios and they?ll still not behave.?
>> Others defend the ?fact check? process but see them losing their
>> effectiveness.****
>>
>> ****
>>
>> In 2012, fact checking itself came under attack from the right, with some
>> advancing the claim that fact checkers are a biased part of the ?liberal
>> media.?Neil Newhouse, the Romney campaign?s pollster, proclaimed that
>> ?We?re not going to let our campaign be dictated by fact-checkers.? It was
>> an odd turn to see conservatives seeming to embrace a kind of post-modern
>> relativism in which truth is now in the eyes of the beholder.****
>>
>> ****
>>
>> In this highly charged partisan atmosphere, in which each side cannot
>> agree upon the basic facts, mudslinging has become terribly common, and the
>> media are not able to meaningfully curb candidates? lies and distortions,
>> it is tempting to consider federal and strengthened state legislation to
>> deter and punish false campaign speech. Why not let courts or commissions
>> sort out truth from fiction? Indeed, a number of states already have laws
>> in place which provide some government sanction for false campaign speech.
>> ****
>>
>> ****
>>
>> [cid:part5.01040804.06020009 at law.uci.edu]<
>> http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40731&title=%E2%80%9CAmericans%20say%20Obama%E2%80%99s%20ads%20are%20more%20honest%2C%20but%20expect%20both%20sides%20to%20lie%2C%20Esquire%2FYahoo%20poll%20finds%E2%80%9D&description=
>>> ****
>>
>> Posted in campaigns<http://electionlawblog.org/?cat=59> | Comments Off****
>>
>> ****
>>
>> ****
>> ------------------------------
>>
>> IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with Treasury Department
>> and IRS regulations, we inform you that, unless expressly indicated
>> otherwise, any federal tax advice contained in this communication
>> (including any attachments) is not intended or written by Perkins Coie LLP
>> to be used, and cannot be used by the taxpayer, for the purpose of (i)
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> ------------------------------
>
> Message: 7
> Date: Fri, 28 Sep 2012 17:11:33 -0400 (EDT)
> From: wjk <wjkellpro at aol.com>
> Subject: [EL] Kelleher vs Halderman: Internet Voting Security Debate
> To: law-election at department-lists.uci.edu
> Message-ID: <8CF6BD4F8AF2010-1F84-4BE26 at webmail-m159.sysops.aol.com>
> Content-Type: text/plain; charset="us-ascii"
>
>
> Kelleher vs Halderman: Internet Voting Security Debate
> I'm taking an online Digital Democracy class w/ the famous DC hacker, Alex Halderman.
> Yesterday I had a 20 min debate with him during office hours.
> Its now on You Tube - https://www.youtube.com/watch?v=bD7ws2H49L4&feature=player_embedded
> Issues: What is more important to consider in the debate over Internet voting security -- known facts about the many successes of Internet voting trials, or scary possibilities that haven't happened? What evidence is RELEVANT to this debate?
>
> Our debate runs from 21:30 to 42:00.
>
>
> William J. Kelleher, Ph.D.
> Political Scientist, author, speaker,
> CEO for The Internet Voting Research and Education Fund
> Email: Internetvoting at gmail.com
> Blog: http://tinyurl.com/IV4All
> Twitter: wjkno1
>
> Author of Internet Voting Now!
> Kindle edition: http://tinyurl.com/IntV-Now
> In paper: http://tinyurl.com/IVNow2011
>
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> ------------------------------
>
> Message: 8
> Date: Fri, 28 Sep 2012 14:19:54 -0700 (PDT)
> From: Salvador Peralta <oregon.properties at yahoo.com>
> Subject: [EL] VOTER FRAUD IN FLORIDA...
> To: "law-election at uci.edu" <law-election at uci.edu>
> Message-ID:
> <1348867194.59753.YahooMailNeo at web163106.mail.bf1.yahoo.com>
> Content-Type: text/plain; charset="us-ascii"
>
> Nice to see that the GOP has managed to uncover some real life examples of dead people registering to vote...
>
>
> http://www.latimes.com/news/nationworld/nation/la-na-voter-fraud-allegations-20120928,0,4284007.story
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> ------------------------------
>
> Message: 9
> Date: Fri, 28 Sep 2012 17:30:21 -0400
> From: "Sean Parnell" <sean at impactpolicymanagement.com>
> Subject: [EL] info request
> To: <law-election at department-lists.uci.edu>
> Message-ID:
> <02c601cd9dc0$77350ee0$659f2ca0$@impactpolicymanagement.com>
> Content-Type: text/plain; charset="us-ascii"
>
> Is anyone familiar with the literature on the declining marginal value of
> political spending? Had a reporter ask me about it today and I'd like to
> send them any appropriate research on the subject.
>
>
>
> Sean Parnell
>
> President
>
> Impact Policy Management, LLC
>
> 6411 Caleb Court
>
> Alexandria, VA 22315
>
> 571-289-1374 (c)
>
> sean at impactpolicymanagement.com
>
>
>
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> ------------------------------
>
> Message: 10
> Date: Fri, 28 Sep 2012 17:37:06 -0400
> From: Jack Santucci <jms346 at georgetown.edu>
> Subject: Re: [EL] California top-two effect on number of Republicans
> running for US House
> To: Douglas Johnson <djohnson at ndcresearch.com>
> Cc: "law-election at uci.edu" <law-election at uci.edu>
> Message-ID:
> <CAB1bumD9h1nH0PpZhOoFyx5ah6U7bq-cc7vpE97eNmjQFFtxCg at mail.gmail.com>
> Content-Type: text/plain; charset="utf-8"
>
> I guess one just has to look at the districts over two or a few cycles.
> Top-two may well matter in some way. Or not. I'm intrigued by the
> redistricting-plus-top-two argument below. What kind of intraparty
> competition? Just incumbent-on-incumbent or some new(ly intense) form of
> intraparty competition?
>
> Is anyone looking at the districts? It would make an interesting blog post.
> Maybe even a short article in a BePress journal.
>
> Jack
>
> On Friday, September 28, 2012, Douglas Johnson wrote:
>
>> An alternative theory is possible, which, if correct, leads to the exact
>> opposite conclusion about the top-two & redistricting reform:****
>>
>> ** **
>>
>> In 2010, Virtually every California Congressional campaign's result was
>> known well in advance thanks to the 2001 bipartisan incumbent-protection
>> gerrymander. There was little for either party to do except focus on the
>> symbolic "win" of running a candidate in every district.****
>>
>> ** **
>>
>> In 2012, there are a number of inter-party competitive districts, and a
>> number of intra-party competitive districts. Thanks to redistricting reform
>> and the top two primary system, there are a number of Congressional
>> districts essentially up for grabs. So the parties and activists are
>> focused on winning those districts. They appear to have decided that is
>> more important than seeing which party can field more sacrificial
>> candidates who lose 80-20 on election day.****
>>
>> ** **
>>
>> I'm not saying this is the true case (the real question about party
>> resources, power, and enthusiasm is much more complicated than can be
>> debated by email -- for example, the CA Republican Party came so close to
>> bankruptcy it had to close its Sacramento office), but I offer an entirely
>> different scenario and conclusion is possible.****
>>
>> ** **
>>
>> - Doug****
>>
>> ** **
>>
>> Douglas Johnson****
>>
>> Fellow****
>>
>> Rose Institute of State and Local Government****
>>
>> m 310-200-2058****
>>
>> o 909-621-8159****
>>
>> douglas.johnson at cmc.edu <javascript:_e({}, 'cvml',
>> 'douglas.johnson at cmc.edu');>****
>>
>> ** **
>>
>> ** **
>>
>> ** **
>>
>> ** **
>>
>> ** **
>>
>> *From:* law-election-bounces at department-lists.uci.edu <javascript:_e({},
>> 'cvml', 'law-election-bounces at department-lists.uci.edu');> [mailto:
>> law-election-bounces at department-lists.uci.edu <javascript:_e({}, 'cvml',
>> 'law-election-bounces at department-lists.uci.edu');>] *On Behalf Of *Richard
>> Winger
>> *Sent:* Friday, September 28, 2012 8:46 AM
>> *To:* Jack Santucci
>> *Cc:* law-election at uci.edu <javascript:_e({}, 'cvml',
>> 'law-election at uci.edu');>
>> *Subject:* Re: [EL] California top-two effect on number of Republicans
>> running for US House****
>>
>> ** **
>>
>> California's new congressional districts, drawn by the state's first
>> non-partisan districting commission, are considered to have produced more
>> competitive districts than the redistricting in place 2001-2010. The 2000
>> decade redistricting was famous for making as many districts as possible
>> "safe" for one or the other major party.
>>
>> So, if Republicans ran in every single district in California in 2010
>> under the old, uncompetitive districts, the new districts surely wouldn't
>> have deterred any Republican from running.
>>
>> I can't imagine any other strategic considerations that would cause
>> Republicans to want to run in fewer districts. A major party loses
>> prestige when it doesn't field anyone for a congressional race. The
>> absence of a congressional candidate is bad for the morale of the local
>> party in that area.
>>
>> Richard Winger
>> 415-922-9779
>> PO Box 470296, San Francisco Ca 94147
>>
>> --- On *Thu, 9/27/12, Jack Santucci <jms346 at georgetown.edu<javascript:_e({}, 'cvml', 'jms346 at georgetown.edu');>
>>> * wrote:****
>>
>>
>> From: Jack Santucci <jms346 at georgetown.edu <javascript:_e({}, 'cvml',
>> 'jms346 at georgetown.edu');>>
>> Subject: Re: [EL] California top-two effect on number of Republicans
>> running for US House
>> To: "richardwinger at yahoo.com <javascript:_e({}, 'cvml',
>> 'richardwinger at yahoo.com');>" <richardwinger at yahoo.com <javascript:_e({},
>> 'cvml', 'richardwinger at yahoo.com');>>
>> Cc: "law-election at uci.edu <javascript:_e({}, 'cvml',
>> 'law-election at uci.edu');>" <law-election at uci.edu <javascript:_e({},
>> 'cvml', 'law-election at uci.edu');>>
>> Date: Thursday, September 27, 2012, 10:37 PM****
>>
>> How do we know it's top-two? Might it have to do with redistricting? Other
>> year-specific strategic considerations? Idiosyncratic factors?****
>>
>> ** **
>>
>> Best,****
>>
>> Jack
>>
>> On Thursday, September 27, 2012, Richard Winger wrote:****
>>
>> The Republican Party has candidates on the ballot in 415 U.S. House
>> districts this year (out of 435 districts in the nation). Of the twenty
>> districts in which there is no Republican, nine of them are in California.
>> By contrast, in 2010, every California district had a Republican on the
>> ballot.
>>
>> In 2010, the Republicans nationally had candidates on the ballot in 428
>> districts, so two-thirds of the national reduction for the party is due to
>> California's top-two system.
>>
>> Richard Winger
>> 415-922-9779
>> PO Box 470296, San Francisco Ca 94147****
>>
>> ** **
>>
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> ------------------------------
>
> Message: 11
> Date: Fri, 28 Sep 2012 14:57:17 -0700 (PDT)
> From: Richard Winger <richardwinger at yahoo.com>
> Subject: Re: [EL] California top-two effect on number of Republicans
> running for US House
> To: Douglas Johnson <djohnson at ndcresearch.com>, Jack Santucci
> <jms346 at georgetown.edu>
> Cc: "law-election at uci.edu" <law-election at uci.edu>
> Message-ID:
> <1348869437.73642.YahooMailClassic at web140402.mail.bf1.yahoo.com>
> Content-Type: text/plain; charset="iso-8859-1"
>
> Louisiana used top-two for Congress 1978 thru 2006, so there is plenty to study.? From 1978 through 1996 the first round was in September or October, and only if no one got 50% was any election held in November.? From 1998 thru 2006 the first round was in November, and a run-off in December if no one got 50%.? So, in both periods, it wasn't exactly like the Washington/California system, because the first round really was an election (because someone could get elected at that event).? But it is still worth studying.
>
> Generally, proponents of top-two will not ever let the word "Louisiana" pass their lips.? If they are forced to mention it, they act like it's another country.
>
> Richard Winger
>
> 415-922-9779
>
> PO Box 470296, San Francisco Ca 94147
>
> --- On Fri, 9/28/12, Jack Santucci <jms346 at georgetown.edu> wrote:
>
> From: Jack Santucci <jms346 at georgetown.edu>
> Subject: Re: [EL] California top-two effect on number of Republicans running for US House
> To: "Douglas Johnson" <djohnson at ndcresearch.com>
> Cc: "richardwinger at yahoo.com" <richardwinger at yahoo.com>, "Jack Santucci" <jms346 at georgetown.edu>, "law-election at uci.edu" <law-election at uci.edu>
> Date: Friday, September 28, 2012, 2:37 PM
>
> I guess one just has to look at the districts over two or a few cycles. Top-two may well matter in some way. Or not. I'm intrigued by the redistricting-plus-top-two argument below. What kind of intraparty competition? Just incumbent-on-incumbent or some new(ly intense) form of intraparty competition?
>
> Is anyone looking at the districts? It would make an interesting blog post. Maybe even a short article in a BePress journal.
>
> Jack
> On Friday, September 28, 2012, Douglas Johnson wrote:
>
> An alternative theory is possible, which, if correct, leads to the exact opposite conclusion about the top-two & redistricting reform:
> ?In 2010, Virtually every California Congressional campaign's result was known well in advance thanks to the 2001 bipartisan incumbent-protection gerrymander. There was little for either party to do except focus on the symbolic "win" of running a candidate in every district.
> ?In 2012, there are a number of inter-party competitive districts, and a number of intra-party competitive districts. Thanks to redistricting reform and the top two primary system, there are a number of Congressional districts essentially up for grabs. So the parties and activists are focused on winning those districts. They appear to have decided that is more important than seeing which party can field more sacrificial candidates who lose 80-20 on election day.
> ?I'm not saying this is the true case (the real question about party resources, power, and enthusiasm is much more complicated than can be debated by email -- for example, the CA Republican Party came so close to bankruptcy it had to close its Sacramento office), but I offer an entirely different scenario and conclusion is possible.
> ?- Doug
> ?Douglas Johnson
> FellowRose Institute of State and Local Government
> m 310-200-2058
> o 909-621-8159douglas.johnson at cmc.edu
> ??
> ??
> ?
> From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Richard Winger
>
> Sent: Friday, September 28, 2012 8:46 AM
> To: Jack Santucci
> Cc: law-election at uci.edu
>
> Subject: Re: [EL] California top-two effect on number of Republicans running for US House?
> California's new congressional districts, drawn by the state's first non-partisan districting commission, are considered to have produced more competitive districts than the redistricting in place 2001-2010.? The 2000 decade redistricting was famous for making as many districts as possible "safe" for one or the other major party.
>
>
> So, if Republicans ran in every single district in California in 2010 under the old, uncompetitive districts, the new districts surely wouldn't have deterred any Republican from running.
>
> I can't imagine any other strategic considerations that would cause Republicans to want to run in fewer districts.? A major party loses prestige when it doesn't field anyone for a congressional race.? The absence of a congressional candidate is bad for the morale of the local party in that area.
>
>
> Richard Winger
> 415-922-9779
> PO Box 470296, San Francisco Ca 94147
>
> --- On Thu, 9/27/12, Jack Santucci <jms346 at georgetown.edu> wrote:
>
> From: Jack Santucci <jms346 at georgetown.edu>
>
> Subject: Re: [EL] California top-two effect on number of Republicans running for US House
> To: "richardwinger at yahoo.com" <richardwinger at yahoo.com>
>
> Cc: "law-election at uci.edu" <law-election at uci.edu>
>
> Date: Thursday, September 27, 2012, 10:37 PMHow do we know it's top-two? Might it have to do with redistricting? Other year-specific strategic considerations? Idiosyncratic factors?
> ?Best,
> Jack
>
> On Thursday, September 27, 2012, Richard Winger wrote:
> The Republican Party has candidates on the ballot in 415 U.S. House districts this year (out of 435 districts in the nation).? Of the twenty districts in which there is no Republican, nine of them are in California.? By contrast, in 2010, every California district had a Republican on the ballot.?
>
>
> In 2010, the Republicans nationally had candidates on the ballot in 428 districts, so two-thirds of the national reduction for the party is due to California's top-two system.
>
> Richard Winger
> 415-922-9779
>
> PO Box 470296, San Francisco Ca 94147?
>
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> ------------------------------
>
> Message: 12
> Date: Fri, 28 Sep 2012 15:26:05 -0700
> From: "Lowenstein, Daniel" <lowenstein at law.ucla.edu>
> Subject: Re: [EL] Fact-checking
> To: Robbin Stewart <gtbear at gmail.com>, "Svoboda, Brian (Perkins Coie)"
> <BSvoboda at perkinscoie.com>
> Cc: "law-election at UCI.edu" <law-election at uci.edu>, "Scarberry, Mark"
> <Mark.Scarberry at pepperdine.edu>, "Smith, Brad"
> <BSmith at law.capital.edu>
> Message-ID:
> <E7AAEC684F9E3641B8CFC2B9A0BD965A02120AF69FBB at UCLAWE2K7.lawnet.lcl>
> Content-Type: text/plain; charset="iso-8859-1"
>
> All Mr. Stewart's questions might also be put to inquire if and when damages might be available in the hypothetical situation that a state has created a commission to officially declare campaign advertisements truthful or false, as discussed by Rick Hasen in his paper. Although the commission has no power to impose any penalty, the candidate can surely be harmed. That is the evident purpose of a commission's promulgation of a finding of falsity.
>
> Best,
>
> Daniel H. Lowenstein
> Director, Center for the Liberal Arts and Free Institutions (CLAFI)
> UCLA Law School
> 405 Hilgard
> Los Angeles, California 90095-1476
> 310-825-5148
>
>
> ________________________________
> From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Robbin Stewart [gtbear at gmail.com]
> Sent: Friday, September 28, 2012 12:23 PM
> To: Svoboda, Brian (Perkins Coie)
> Cc: Scarberry, Mark; law-election at UCI.edu; Smith, Brad
> Subject: Re: [EL] Fact-checking
>
> As for government bureaucrats deciding the relative truthiness of political statements, bring it on. Speaking for my own selfish interest, that's a goldmine of litigation in the making.
> Forward,
> First Amendment Ben
>
> I have a question for the list about damages. Assume that a state has created a Bureau of Truth, somewhat like Ohio's, that your client is a candidate, that the Bureau finds one of her statements untrue, but they are provably wrong. Your client wants to sue them for damages under the First Amendment and the (hypothetical but typical) state constitution. I'm asking a descriptive question, not a normative one. Are damages available? Does the bureau have absolute or qualified immunity? If QI, can it be overcome here? Is the Bureau a person who can be sued under 1983? If not, what other statutes can be used? Can one assert a constitutional tort as in Bivens? I have found that injunctions and declaratory judgments have little deterrent effect on rogue agencies.
>
> I had an interesting episode of law-checking a Bloomberg article this morning.
> http://ballots.blogspot.com/2012/09/hi.html
>
> My further thoughts on this thread are here:
> http://ballots.blogspot.com/2012/09/i-am-sitting-in-buffalo-library-killing.html
>
>
>
>
> On Fri, Sep 28, 2012 at 2:52 PM, Svoboda, Brian (Perkins Coie) <BSvoboda at perkinscoie.com<mailto:BSvoboda at perkinscoie.com>> wrote:
>
>
> ------------------------------
>
> Message: 13
> Date: Fri, 28 Sep 2012 23:28:23 +0000
> From: "Gaddie, Ronald K." <rkgaddie at ou.edu>
> Subject: Re: [EL] info request
> To: Sean Parnell <sean at impactpolicymanagement.com>,
> "law-election at department-lists.uci.edu"
> <law-election at department-lists.uci.edu>
> Message-ID:
> <A7B09711B720594885B9D990EDFEFECAAB44F38B at it-kodiak.sooner.net.ou.edu>
> Content-Type: text/plain; charset="windows-1252"
>
> Kevin Grier had a piece in Public Choice back in 1989; there was the Silberman and Yocham article from 1977, I think in Social Science Quarterly. And, James L. Regens and I dealt with the issue in our Cambridge book from 1995, The Economic Realities of Political Reform, and Chuck Bullock and I addressed some of this in either our 2002 Legislative Studies Quarterly article on runoffs or our 2002 Journal of Politics piece . But there should be more recent scholarship too . . .
>
> Ronald Keith Gaddie, Ph.D.
> Professor of Political Science
> Editor, Social Science Quarterly
> The University of Oklahoma
> 455 West Lindsey Street, Room 222
> Norman, OK 73019-2001
> Phone 405-325-4989
> Fax 405-325-0718
> E-mail: rkgaddie at ou.edu
> http://faculty-staff.ou.edu/G/Ronald.K.Gaddie-1
> http://socialsciencequarterly.org
> ________________________________
> From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Sean Parnell [sean at impactpolicymanagement.com]
> Sent: Friday, September 28, 2012 4:30 PM
> To: law-election at department-lists.uci.edu
> Subject: [EL] info request
>
> Is anyone familiar with the literature on the declining marginal value of political spending? Had a reporter ask me about it today and I?d like to send them any appropriate research on the subject.
>
> Sean Parnell
> President
> Impact Policy Management, LLC
> 6411 Caleb Court
> Alexandria, VA 22315
> 571-289-1374 (c)
> sean at impactpolicymanagement.com
>
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> ------------------------------
>
> Message: 14
> Date: Fri, 28 Sep 2012 18:34:52 -0600
> From: Rick Hasen <rhasen at law.uci.edu>
> Subject: Re: [EL] Fact-checking
> To: "law-election at UCI.edu" <law-election at uci.edu>
> Message-ID: <5066422C.1030405 at law.uci.edu>
> Content-Type: text/plain; charset="iso-8859-1"
>
> I must say that today I love the listserv.
>
> I was off at the great Montana election law conference presentingmy
> draft paper on campaign finance lies
> <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618> for the
> first time. I came back to very thoughtful comments which are causing me
> to rethink an aspect of my paper.
>
> To be very brief, I argue that after the Supreme Court's fractured
> opinions in U.S. v. Alvarez, there are three kinds of false campaign
> speech laws which are likely to be constitutional and one which is not.
> Applying the three opinions in the case I conclude that he three likely
> constitutional are:
>
> 1. Laws barring false speech about the time and date of elections (such
> as a false statement about where to cast a ballot).
> 2. Laws allowing the government not to reprint a false statement in
> ballot materials (e.g., state does not need to repeat a lie that a
> non-incumbent candidate is an incumbent)
> 3. Laws barring defamatory campaign speech about a candidate proven with
> actual malice (though there is some question about this after Alvarez).
>
> The one category which is the hardest, is the constitutionality of laws
> barring false campaign speech, as in: "I am the incumbent and I've been
> endorsed by President Obama."
>
> In the paper I conclude that, after Alvarez, any such laws which would
> enjoin such speech or provide damages for such speech are very likely
> unconstitutional. (Eugene Volokh in a blog post has expressed greater
> confidence on the constitutionality of a narrow version of such laws.)
>
> I then turn to truth commissions like Ohio, and I conclude that the
> Sixth Circuit's decision in Pestrak, upholding the Ohio commission's
> "truth declaring" function likely survives Alvarez and remains
> constitutional.
>
> In the current draft of the paper at the end I suggest that these truth
> commissions are not only likely constitutional, but also a modestly good
> thing given the decline of the media as a good arbiter of the truth in
> our highly partisan era.
>
> But having read all of the listserv commentary, and also hearing at
> today's conference from Ned Foley about the Ohio experience, I am having
> very serious reservations on the normative value (not the
> constitutionality) of these commission. (I'm setting aside the
> preemption issue for federal elections). The risk of political
> manipulation just before the election may be too high. Ideally I'd like
> to study the actual decisions made by the commission, but I don't think
> I'd have time to do it in time for this publication in the Montana
> symposium. So I appreciate very much all of the input about the dangers
> of such commissions declaring truth before elections.
>
> Finally, on the question of conservatives and post-modernism/truth. It
> does seem to me that conservatives in this election have taken a very
> strong position against the media and fact checkers, even when there
> were (what I view as) demonstrably false statements made by candidates.
> This is different from earlier elections, and I don't think the MSM ha
> changed. I think each side can disagree with particular calls of
> journalists and fact checkers, but the Ryan speech is a good example, as
> are a couple of Obama's ads against Romney. I'd also point to the claim
> that all of the polls are biased against Romney, which reminds me of
> what I think Kerry's team was saying in 2004. So I'll stand by my (more
> controversial) statement that there does seem to be a rejection on the
> conservative side that there's anyone objective out there who has the
> ability to fairly declare what's true and false in campaigns. And I
> think that's a change.
>
> Rick
>
>
>
> On 9/28/12 8:11 AM, Rick Hasen wrote:
>> Ah, there's nothing like waking up to multiple attacks on the
>> listserv! I am at a conference and so I will have to respond later.
>> In the meantime, you might look at my actual paper, which explains
>> the basis for my defense of such commissions. And we have an actual
>> commission in Ohio, which I discuss in the paper.
>>
>> Rick Hasen
>>
>> Rick Hasen
>>
>> Sent from my iPhone. Please excuse typos.
>>
>> On Sep 28, 2012, at 7:33 AM, "Sean Parnell"
>> <sean at impactpolicymanagement.com
>> <mailto:sean at impactpolicymanagement.com>> wrote:
>>
>>> RE: [EL] Fact-checking
>>>
>>> I suggest we run a pilot program for 'fact-checking'or 'false
>>> statements' in politics,except we do it with the media instead. Maybe
>>> juststart withafewof thelargest outlets in the country, just to see
>>> how it goes and work out any kinks? So, we could have the finest
>>> 'fact checkers' in the country monitor the/New York Times/, NBC News,
>>> and while we're at it the Huffington Post (since more Americans are
>>> turning to the web these days for news), and maybe a few other
>>> outlets as wellfor the accuracy of their coverage, and hand out
>>> penalties for anything in the paper considered to be false,
>>> inaccurate, or misleading. As a value-added service,
>>> thegovernmentfact checkers could offer to pre-clear every story
>>> before it's released, giving it their stamp of approval and
>>> indemnifying the media outlet for any inaccuracies that might somehow
>>> slip through or later bediscovered.Maybe we do it for one year, see
>>> how it goes? There's always the question of who gets to appoint the
>>> fact checkers,perhapsthe President could appointa Truth Czar who
>>> needs to be confirmed by the Senate? And if the Senate balks or
>>> delays, why that's what recess appointments (whether the Senate is or
>>> is not officially in recess) are for. Can't imagine any problems here...
>>>
>>> I'd truly love to hear an argument on why this is or is not a good
>>> idea from those who favor any sort of government fact-checking/false
>>> speech regulations for candidates.
>>>
>>> Sean Parnell
>>>
>>> President
>>>
>>> Impact Policy Management, LLC
>>>
>>> 6411 Caleb Court
>>>
>>> Alexandria, VA 22315
>>>
>>> 571-289-1374 (c)
>>>
>>> sean at impactpolicymanagement.com <mailto:sean at impactpolicymanagement.com>
>>>
>>> -----Original Message-----
>>> From: law-election-bounces at department-lists.uci.edu
>>> <mailto:law-election-bounces at department-lists.uci.edu>
>>> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
>>> Lowenstein, Daniel
>>> Sent: Friday, September 28, 2012 2:27 AM
>>> To: Rick Hasen; law-election at UCI.edu <mailto:law-election at UCI.edu>
>>> Subject: [EL] Fact-checking
>>>
>>> I have read Rick's paper, which he was good enough to send me,
>>> on regulating false campaign statements. As one would expect given
>>> the author, the paper gives a careful review of how current First
>>> Amendment doctrine is likely to affect various types of possible
>>> regulation and identifies the kinds of regulation that have a fair or
>>> good chance to survive in an area in which the Constitution is not
>>> friendly to regulation.
>>>
>>> Somewhat to my surprise, Rick is friendly in the paper to the idea of
>>> "fact-checking" by government agencies (though it's not entirely
>>> clear whether he is saying only that such an enterprise has a fair
>>> chance of being upheld or is supporting it as a policy matter). In
>>> this connection, I think it is relevant that Rick notes but does not
>>> go much into the criticisms of fact-checking by the press.
>>>
>>> The most trenchant criticism that I know of has come from a series of
>>> writings by Mark Hemingway in the Weekly Standard. Rick opens his
>>> article with two examples of fact-checking, one nailing Obama and the
>>> other Romney. The Romney example is that fact-checkers have
>>> condemned his ads claiming that the Obama administration threatens to
>>> gut the work requirement of Clinton-era welfare reform.
>>>
>>> As it happens, Hemingway has a lengthy article in the current issue
>>> of the Weekly Standard focussing on this very point.
>>> Seehttp://www.weeklystandard.com/articles/obama-s-palace-guard_652895.html.
>>> Hemingway makes what appears on its face to be a strong argument that
>>> Romney's claim is accurate, but I don't know nearly enough about
>>> welfare to have an independent opinion on that. In any event,
>>> Hemingway makes an overwhelming case that the fact-checkers who have
>>> condemned Romney on this have been at best extremely inept and most
>>> likely acting in some degree of bad faith.
>>>
>>> Anyone interested in this subject should also read Hemingway's more
>>> general criticism of fact-checkers, "Lies, Damned Lies,
>>> 'Fact-Checking," published last December, which is also extremely
>>> persuasive.
>>> http://www.weeklystandard.com/articles/lies-damned-lies-and-fact-checking_611854.html
>>>
>>> There are many reasons why fact-checking in the context of political
>>> debate is highly problematic and should be considered with great
>>> skepticism. Hemingway makes a strong case that the currently
>>> prominent fact-checkers are biased, but even if they were not at all
>>> biased, the problems would run deep. Needless to say, none of the
>>> above suggests any doubt about the right of the press to engage in
>>> fact-checking to it's heart's content. But I hope institutionalized
>>> fact-checking by the government would be found unconstitutional.
>>> Whether or not it would be, it seems to me an inherently Orwellian
>>> enterprise that ought to be strongly opposed.
>>>
>>> Best,
>>>
>>> Daniel H. Lowenstein
>>>
>>> Director, Center for the Liberal Arts and Free Institutions (CLAFI)
>>>
>>> UCLA Law School
>>>
>>> 405 Hilgard
>>>
>>> Los Angeles, California 90095-1476
>>>
>>> 310-825-5148
>>>
>>>
>>> "Americans say Obama's ads are more honest, but expect both sides to
>>> lie, Esquire/Yahoo poll finds"<http://electionlawblog.org/?p=40731>
>>>
>>> Posted on September 27, 2012 10:57
>>> am<http://electionlawblog.org/?p=40731> by Rick
>>> Hasen<http://electionlawblog.org/?author=3>
>>>
>>> Yahoo News
>>> reports<http://news.yahoo.com/esquire-yahoo-news-poll-romney-ads-lie-more-both-dishonest.html>.
>>>
>>> My new
>>> paper<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618> on
>>> whether there is a constitutional right to lie in campaigns and
>>> elections begins:
>>>
>>> Election 2012 may well go down in history as the "4 Pinocchios
>>> Election." It is perhaps no coincidence that the current election
>>> season has seen both a rise in the amount of arguably false campaign
>>> speech and the proliferation of journalistic "fact checkers" who
>>> regularly rate statements made by candidates and campaigns.
>>> Journalistic ratings such as Politifact's "Truth-o-meter" rank
>>> candidate statements from from "true" and "mostly true" to "false"
>>> and even "pants on fire." The Washington Post rating system, which
>>> relies upon the judgment of its fact checker, Glenn Kessler, uses 1
>>> to 4 "Pinocchios" for false statements. The granddaddy of fact
>>> checking groups, Factcheck.org <http://Factcheck.org>, while avoiding
>>> a rating system, offers analysis which regularly describes
>>> controversial campaign claims as "false" or "wrong.
>>>
>>> Both the Romney and Obama presidential campaigns have received
>>> stinging ratings from fact checkers. The Washington Post's Fact
>>> Checker, Glenn Kessler, gave the Obama campaign "4 Pinocchios" for
>>> claiming that Mitt Romney, while working at Bain Capital,
>>> "outsourced" jobs and was a "corporate raider." Romney's campaign
>>> similarly got "4 Pinocchios" for claiming there was an "Obama plan"
>>> to weaken federal welfare law and issue welfare checks to people who
>>> do not work."
>>>
>>> Romney's campaign has seemed to bear more of the brunt from the
>>> fact-checking enterprise. Based solely upon Kessler's subjective
>>> assessment of truth, by mid-September 2012 the Washington Post fact
>>> checker rated Romney ads and statements with an average of 2.33
>>> Pinocchios to Obama's 1.96. Perhaps the greatest media attack on the
>>> truthfulness of Romney's campaign came in response to the acceptance
>>> speech of Romney's running-mate, Representative Paul Ryan, which the
>>> New York Times described as containing "a number of questionable or
>>> misleading claims."
>>>
>>> Whether campaigns are resorting to lies and distortion more often
>>> than in previous elections, and if so why they are doing so, are
>>> interesting questions beyond that which I can explore in this brief
>>> Article. False and misleading speech may be increasing thanks to the
>>> proliferation of the Internet and a decline in uniform trustworthy
>>> sources of news, such as the national news networks and major
>>> newspapers. Political polarization also may play a role, with
>>> partisans egged on to believe unsupported claims by the modern day
>>> partisan press, in the form of FOX News, MSNBC, and liberal and
>>> conservative blogs and websites.
>>>
>>> Fact check operations also are controversial to journalists, who have
>>> always been in the business of resolving conflicting factual claims
>>> as part of the news gathering process. Some journalists take issue
>>> with the effectiveness of fact checkers. Media critic Jack Shafer
>>> declares, "Give [candidates] a million billion Pinocchios and they'll
>>> still not behave." Others defend the "fact check" process but see
>>> them losing their effectiveness.
>>>
>>> In 2012, fact checking itself came under attack from the right, with
>>> some advancing the claim that fact checkers are a biased part of the
>>> "liberal media."Neil Newhouse, the Romney campaign's pollster,
>>> proclaimed that "We're not going to let our campaign be dictated by
>>> fact-checkers." It was an odd turn to see conservatives seeming to
>>> embrace a kind of post-modern relativism in which truth is now in the
>>> eyes of the beholder.
>>>
>>> In this highly charged partisan atmosphere, in which each side cannot
>>> agree upon the basic facts, mudslinging has become terribly common,
>>> and the media are not able to meaningfully curb candidates' lies and
>>> distortions, it is tempting to consider federal and strengthened
>>> state legislation to deter and punish false campaign speech. Why not
>>> let courts or commissions sort out truth from fiction? Indeed, a
>>> number of states already have laws in place which provide some
>>> government sanction for false campaign speech.
>>>
>>> [cid:part5.01040804.06020009 at law.uci.edu]<mailto:[cid:part5.01040804.06020009 at law.uci.edu]><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40731&title=%E2%80%9CAmericans%20say%20Obama%E2%80%99s%20ads%20are%20more%20honest%2C%20but%20expect%20both%20sides%20to%20lie%2C%20Esquire%2FYahoo%20poll%20finds%E2%80%9D&description=>
>>>
>>> Posted in campaigns<http://electionlawblog.org/?cat=59> | Comments Off
>>>
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>
> --
> 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
> Now available: The Voting Wars: http://amzn.to/y22ZTv
>
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> ------------------------------
>
> Message: 15
> Date: Fri, 28 Sep 2012 17:58:12 -0700
> From: "Lowenstein, Daniel" <lowenstein at law.ucla.edu>
> Subject: Re: [EL] Fact-checking
> To: Rick Hasen <rhasen at law.uci.edu>, "law-election at UCI.edu"
> <law-election at uci.edu>
> Message-ID:
> <E7AAEC684F9E3641B8CFC2B9A0BD965A02120AF69FBC at UCLAWE2K7.lawnet.lcl>
> Content-Type: text/plain; charset="Windows-1252"
>
> One quibble with Rick's generous post. If what he is suggesting is that most people can agree that Ryan's acceptance speech at the convention is an example of false campaign statements, he is incorrect. That may be a consensus among Democrats and many journalists, but it is certainly not agreed to by Republicans and so far as I can tell, there is precious little ground for it. The point that I think got the most attention was the supposed false statement that the Janesville factory closed during Obama's administration. The Associated Press, in particular, claimed that Ryan's claim was false because the plant closed in December, 2008. But aside from the point that Ryan did not actually say anything about when the plant closed, the Associated Press failed to note its own news reports in 2009 that the plant was going to be closed in April of that year. As Mark Hemingway pointed out in the current article I linked to this morning, most of the complaints about Ryan's
> speech are simply complaints that the Democrats have rebuttals that Ryan did not report.
>
> As to the existence of anyone objective who can declare what's true and false in campaigns, that is a different question from whether the existing "fact-checkers" are in fact objective. But the more fundamental point is that the kinds of questions that are mostly at stake in these controversies do not lend themselves to to simple declarations of truth or falsity. Anyone here can declare objectively that it is false that the American Civil War began in 1812. But if the statement is, the Civil War was caused by southern intransigence, only a fool would think it can be reolved by "true or false" or, for that matter, zero through four Pinocchios. Most of the questions that matter about campaign claims are closer to the latter than the former.
>
> Best,
>
> Daniel H. Lowenstein
> Director, Center for the Liberal Arts and Free Institutions (CLAFI)
> UCLA Law School
> 405 Hilgard
> Los Angeles, California 90095-1476
> 310-825-5148
>
>
> ________________________________
> From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen [rhasen at law.uci.edu]
> Sent: Friday, September 28, 2012 5:34 PM
> To: law-election at UCI.edu
> Subject: Re: [EL] Fact-checking
>
> I must say that today I love the listserv.
>
> I was off at the great Montana election law conference presenting my draft paper on campaign finance lies<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618> for the first time. I came back to very thoughtful comments which are causing me to rethink an aspect of my paper.
>
> To be very brief, I argue that after the Supreme Court's fractured opinions in U.S. v. Alvarez, there are three kinds of false campaign speech laws which are likely to be constitutional and one which is not. Applying the three opinions in the case I conclude that he three likely constitutional are:
>
> 1. Laws barring false speech about the time and date of elections (such as a false statement about where to cast a ballot).
> 2. Laws allowing the government not to reprint a false statement in ballot materials (e.g., state does not need to repeat a lie that a non-incumbent candidate is an incumbent)
> 3. Laws barring defamatory campaign speech about a candidate proven with actual malice (though there is some question about this after Alvarez).
>
> The one category which is the hardest, is the constitutionality of laws barring false campaign speech, as in: "I am the incumbent and I've been endorsed by President Obama."
>
> In the paper I conclude that, after Alvarez, any such laws which would enjoin such speech or provide damages for such speech are very likely unconstitutional. (Eugene Volokh in a blog post has expressed greater confidence on the constitutionality of a narrow version of such laws.)
>
> I then turn to truth commissions like Ohio, and I conclude that the Sixth Circuit's decision in Pestrak, upholding the Ohio commission's "truth declaring" function likely survives Alvarez and remains constitutional.
>
> In the current draft of the paper at the end I suggest that these truth commissions are not only likely constitutional, but also a modestly good thing given the decline of the media as a good arbiter of the truth in our highly partisan era.
>
> But having read all of the listserv commentary, and also hearing at today's conference from Ned Foley about the Ohio experience, I am having very serious reservations on the normative value (not the constitutionality) of these commission. (I'm setting aside the preemption issue for federal elections). The risk of political manipulation just before the election may be too high. Ideally I'd like to study the actual decisions made by the commission, but I don't think I'd have time to do it in time for this publication in the Montana symposium. So I appreciate very much all of the input about the dangers of such commissions declaring truth before elections.
>
> Finally, on the question of conservatives and post-modernism/truth. It does seem to me that conservatives in this election have taken a very strong position against the media and fact checkers, even when there were (what I view as) demonstrably false statements made by candidates. This is different from earlier elections, and I don't think the MSM ha changed. I think each side can disagree with particular calls of journalists and fact checkers, but the Ryan speech is a good example, as are a couple of Obama's ads against Romney. I'd also point to the claim that all of the polls are biased against Romney, which reminds me of what I think Kerry's team was saying in 2004. So I'll stand by my (more controversial) statement that there does seem to be a rejection on the conservative side that there's anyone objective out there who has the ability to fairly declare what's true and false in campaigns. And I think that's a change.
>
> Rick
>
>
>
> On 9/28/12 8:11 AM, Rick Hasen wrote:
> Ah, there's nothing like waking up to multiple attacks on the listserv! I am at a conference and so I will have to respond later. In the meantime, you might look at my actual paper, which explains the basis for my defense of such commissions. And we have an actual commission in Ohio, which I discuss in the paper.
>
> Rick Hasen
>
> Rick Hasen
>
> Sent from my iPhone. Please excuse typos.
>
> On Sep 28, 2012, at 7:33 AM, "Sean Parnell" <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>> wrote:
>
>
> I suggest we run a pilot program for 'fact-checking' or 'false statements' in politics, except we do it with the media instead. Maybe just start with a few of the largest outlets in the country, just to see how it goes and work out any kinks? So, we could have the finest 'fact checkers' in the country monitor the New York Times, NBC News, and while we're at it the Huffington Post (since more Americans are turning to the web these days for news), and maybe a few other outlets as well for the accuracy of their coverage, and hand out penalties for anything in the paper considered to be false, inaccurate, or misleading. As a value-added service, the government fact checkers could offer to pre-clear every story before it's released, giving it their stamp of approval and indemnifying the media outlet for any inaccuracies that might somehow slip through or later be discovered. Maybe we do it for one year, see how it goes? There's always the question of who gets to appoint the fact c
> heckers, perhaps the President could appoint a Truth Czar who needs to be confirmed by the Senate? And if the Senate balks or delays, why that's what recess appointments (whether the Senate is or is not officially in recess) are for. Can't imagine any problems here?
>
> I'd truly love to hear an argument on why this is or is not a good idea from those who favor any sort of government fact-checking/false speech regulations for candidates.
>
> Sean Parnell
>
> President
>
> Impact Policy Management, LLC
>
> 6411 Caleb Court
>
> Alexandria, VA 22315
>
> 571-289-1374 (c)
>
> sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>
>
> -----Original Message-----
> From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Lowenstein, Daniel
> Sent: Friday, September 28, 2012 2:27 AM
> To: Rick Hasen; law-election at UCI.edu<mailto:law-election at UCI.edu>
> Subject: [EL] Fact-checking
>
> I have read Rick's paper, which he was good enough to send me, on regulating false campaign statements. As one would expect given the author, the paper gives a careful review of how current First Amendment doctrine is likely to affect various types of possible regulation and identifies the kinds of regulation that have a fair or good chance to survive in an area in which the Constitution is not friendly to regulation.
>
> Somewhat to my surprise, Rick is friendly in the paper to the idea of "fact-checking" by government agencies (though it's not entirely clear whether he is saying only that such an enterprise has a fair chance of being upheld or is supporting it as a policy matter). In this connection, I think it is relevant that Rick notes but does not go much into the criticisms of fact-checking by the press.
>
> The most trenchant criticism that I know of has come from a series of writings by Mark Hemingway in the Weekly Standard. Rick opens his article with two examples of fact-checking, one nailing Obama and the other Romney. The Romney example is that fact-checkers have condemned his ads claiming that the Obama administration threatens to gut the work requirement of Clinton-era welfare reform.
>
> As it happens, Hemingway has a lengthy article in the current issue of the Weekly Standard focussing on this very point. See http://www.weeklystandard.com/articles/obama-s-palace-guard_652895.html. Hemingway makes what appears on its face to be a strong argument that Romney's claim is accurate, but I don't know nearly enough about welfare to have an independent opinion on that. In any event, Hemingway makes an overwhelming case that the fact-checkers who have condemned Romney on this have been at best extremely inept and most likely acting in some degree of bad faith.
>
> Anyone interested in this subject should also read Hemingway's more general criticism of fact-checkers, "Lies, Damned Lies, 'Fact-Checking," published last December, which is also extremely persuasive. http://www.weeklystandard.com/articles/lies-damned-lies-and-fact-checking_611854.html
>
> There are many reasons why fact-checking in the context of political debate is highly problematic and should be considered with great skepticism. Hemingway makes a strong case that the currently prominent fact-checkers are biased, but even if they were not at all biased, the problems would run deep. Needless to say, none of the above suggests any doubt about the right of the press to engage in fact-checking to it's heart's content. But I hope institutionalized fact-checking by the government would be found unconstitutional. Whether or not it would be, it seems to me an inherently Orwellian enterprise that ought to be strongly opposed.
>
> Best,
>
> Daniel H. Lowenstein
>
> Director, Center for the Liberal Arts and Free Institutions (CLAFI)
>
> UCLA Law School
>
> 405 Hilgard
>
> Los Angeles, California 90095-1476
>
> 310-825-5148
>
>
> ?Americans say Obama?s ads are more honest, but expect both sides to lie, Esquire/Yahoo poll finds?<http://electionlawblog.org/?p=40731>
>
> Posted on September 27, 2012 10:57 am<http://electionlawblog.org/?p=40731> by Rick Hasen<http://electionlawblog.org/?author=3>
>
> Yahoo News reports<http://news.yahoo.com/esquire-yahoo-news-poll-romney-ads-lie-more-both-dishonest.html>.
>
> My new paper<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618> on whether there is a constitutional right to lie in campaigns and elections begins:
>
> Election 2012 may well go down in history as the ?4 Pinocchios Election.? It is perhaps no coincidence that the current election season has seen both a rise in the amount of arguably false campaign speech and the proliferation of journalistic ?fact checkers? who regularly rate statements made by candidates and campaigns. Journalistic ratings such as Politifact?s ?Truth-o-meter? rank candidate statements from from ?true? and ?mostly true? to ?false? and even ?pants on fire.? The Washington Post rating system, which relies upon the judgment of its fact checker, Glenn Kessler, uses 1 to 4 ?Pinocchios? for false statements. The granddaddy of fact checking groups, Factcheck.org<http://Factcheck.org>, while avoiding a rating system, offers analysis which regularly describes controversial campaign claims as ?false? or ?wrong.
>
> Both the Romney and Obama presidential campaigns have received stinging ratings from fact checkers. The Washington Post?s Fact Checker, Glenn Kessler, gave the Obama campaign ?4 Pinocchios? for claiming that Mitt Romney, while working at Bain Capital, ?outsourced? jobs and was a ?corporate raider.? Romney?s campaign similarly got ?4 Pinocchios? for claiming there was an ?Obama plan? to weaken federal welfare law and issue welfare checks to people who do not work.?
>
> Romney?s campaign has seemed to bear more of the brunt from the fact-checking enterprise. Based solely upon Kessler?s subjective assessment of truth, by mid-September 2012 the Washington Post fact checker rated Romney ads and statements with an average of 2.33 Pinocchios to Obama?s 1.96. Perhaps the greatest media attack on the truthfulness of Romney?s campaign came in response to the acceptance speech of Romney?s running-mate, Representative Paul Ryan, which the New York Times described as containing ?a number of questionable or misleading claims.?
>
> Whether campaigns are resorting to lies and distortion more often than in previous elections, and if so why they are doing so, are interesting questions beyond that which I can explore in this brief Article. False and misleading speech may be increasing thanks to the proliferation of the Internet and a decline in uniform trustworthy sources of news, such as the national news networks and major newspapers. Political polarization also may play a role, with partisans egged on to believe unsupported claims by the modern day partisan press, in the form of FOX News, MSNBC, and liberal and conservative blogs and websites.
>
> Fact check operations also are controversial to journalists, who have always been in the business of resolving conflicting factual claims as part of the news gathering process. Some journalists take issue with the effectiveness of fact checkers. Media critic Jack Shafer declares, ?Give [candidates] a million billion Pinocchios and they?ll still not behave.? Others defend the ?fact check? process but see them losing their effectiveness.
>
> In 2012, fact checking itself came under attack from the right, with some advancing the claim that fact checkers are a biased part of the ?liberal media.?Neil Newhouse, the Romney campaign?s pollster, proclaimed that ?We?re not going to let our campaign be dictated by fact-checkers.? It was an odd turn to see conservatives seeming to embrace a kind of post-modern relativism in which truth is now in the eyes of the beholder.
>
> In this highly charged partisan atmosphere, in which each side cannot agree upon the basic facts, mudslinging has become terribly common, and the media are not able to meaningfully curb candidates? lies and distortions, it is tempting to consider federal and strengthened state legislation to deter and punish false campaign speech. Why not let courts or commissions sort out truth from fiction? Indeed, a number of states already have laws in place which provide some government sanction for false campaign speech.
>
> [cid:part5.01040804.06020009 at law.uci.edu]<mailto:[cid:part5.01040804.06020009 at law.uci.edu]><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40731&title=%E2%80%9CAmericans%20say%20Obama%E2%80%99s%20ads%20are%20more%20honest%2C%20but%20expect%20both%20sides%20to%20lie%2C%20Esquire%2FYahoo%20poll%20finds%E2%80%9D&description=>
>
> Posted in campaigns<http://electionlawblog.org/?cat=59> | Comments Off
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
> --
> 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<mailto:rhasen at law.uci.edu>
> http://law.uci.edu/faculty/page1_r_hasen.html
> http://electionlawblog.org
> Now available: The Voting Wars: http://amzn.to/y22ZTv
>
>
>
>
> ------------------------------
>
> Message: 16
> Date: Fri, 28 Sep 2012 19:01:14 -0600
> From: Rick Hasen <rhasen at law.uci.edu>
> Subject: Re: [EL] Fact-checking
> To: "Lowenstein, Daniel" <lowenstein at law.ucla.edu>
> Cc: "law-election at UCI.edu" <law-election at uci.edu>
> Message-ID: <5066485A.10702 at law.uci.edu>
> Content-Type: text/plain; charset="windows-1252"; format=flowed
>
> The interesting question is whether, under Alvarez, even objectively
> verifiable lies (I am the incumbent and was endorsed by President Obama)
> could be the subject of a damages action or some other penalty. On the
> one hand, there is less danger of partisan abuse of objectively
> verifiable facts. On the other hand, the Court notes that in cases of
> objective facts that counter-speech might be the best solution (as in a
> government database of true facts in the Stolen Valor context).
>
>
>
>
> On 9/28/12 6:58 PM, Lowenstein, Daniel wrote:
>> One quibble with Rick's generous post. If what he is suggesting is that most people can agree that Ryan's acceptance speech at the convention is an example of false campaign statements, he is incorrect. That may be a consensus among Democrats and many journalists, but it is certainly not agreed to by Republicans and so far as I can tell, there is precious little ground for it. The point that I think got the most attention was the supposed false statement that the Janesville factory closed during Obama's administration. The Associated Press, in particular, claimed that Ryan's claim was false because the plant closed in December, 2008. But aside from the point that Ryan did not actually say anything about when the plant closed, the Associated Press failed to note its own news reports in 2009 that the plant was going to be closed in April of that year. As Mark Hemingway pointed out in the current article I linked to this morning, most of the complaints about Ryan
> 's speech are simply complaints that the Democrats have rebuttals that Ryan did not report.
>>
>> As to the existence of anyone objective who can declare what's true and false in campaigns, that is a different question from whether the existing "fact-checkers" are in fact objective. But the more fundamental point is that the kinds of questions that are mostly at stake in these controversies do not lend themselves to to simple declarations of truth or falsity. Anyone here can declare objectively that it is false that the American Civil War began in 1812. But if the statement is, the Civil War was caused by southern intransigence, only a fool would think it can be reolved by "true or false" or, for that matter, zero through four Pinocchios. Most of the questions that matter about campaign claims are closer to the latter than the former.
>>
>> Best,
>>
>> Daniel H. Lowenstein
>> Director, Center for the Liberal Arts and Free Institutions (CLAFI)
>> UCLA Law School
>> 405 Hilgard
>> Los Angeles, California 90095-1476
>> 310-825-5148
>>
>>
>> ________________________________
>> From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen [rhasen at law.uci.edu]
>> Sent: Friday, September 28, 2012 5:34 PM
>> To: law-election at UCI.edu
>> Subject: Re: [EL] Fact-checking
>>
>> I must say that today I love the listserv.
>>
>> I was off at the great Montana election law conference presenting my draft paper on campaign finance lies<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618> for the first time. I came back to very thoughtful comments which are causing me to rethink an aspect of my paper.
>>
>> To be very brief, I argue that after the Supreme Court's fractured opinions in U.S. v. Alvarez, there are three kinds of false campaign speech laws which are likely to be constitutional and one which is not. Applying the three opinions in the case I conclude that he three likely constitutional are:
>>
>> 1. Laws barring false speech about the time and date of elections (such as a false statement about where to cast a ballot).
>> 2. Laws allowing the government not to reprint a false statement in ballot materials (e.g., state does not need to repeat a lie that a non-incumbent candidate is an incumbent)
>> 3. Laws barring defamatory campaign speech about a candidate proven with actual malice (though there is some question about this after Alvarez).
>>
>> The one category which is the hardest, is the constitutionality of laws barring false campaign speech, as in: "I am the incumbent and I've been endorsed by President Obama."
>>
>> In the paper I conclude that, after Alvarez, any such laws which would enjoin such speech or provide damages for such speech are very likely unconstitutional. (Eugene Volokh in a blog post has expressed greater confidence on the constitutionality of a narrow version of such laws.)
>>
>> I then turn to truth commissions like Ohio, and I conclude that the Sixth Circuit's decision in Pestrak, upholding the Ohio commission's "truth declaring" function likely survives Alvarez and remains constitutional.
>>
>> In the current draft of the paper at the end I suggest that these truth commissions are not only likely constitutional, but also a modestly good thing given the decline of the media as a good arbiter of the truth in our highly partisan era.
>>
>> But having read all of the listserv commentary, and also hearing at today's conference from Ned Foley about the Ohio experience, I am having very serious reservations on the normative value (not the constitutionality) of these commission. (I'm setting aside the preemption issue for federal elections). The risk of political manipulation just before the election may be too high. Ideally I'd like to study the actual decisions made by the commission, but I don't think I'd have time to do it in time for this publication in the Montana symposium. So I appreciate very much all of the input about the dangers of such commissions declaring truth before elections.
>>
>> Finally, on the question of conservatives and post-modernism/truth. It does seem to me that conservatives in this election have taken a very strong position against the media and fact checkers, even when there were (what I view as) demonstrably false statements made by candidates. This is different from earlier elections, and I don't think the MSM ha changed. I think each side can disagree with particular calls of journalists and fact checkers, but the Ryan speech is a good example, as are a couple of Obama's ads against Romney. I'd also point to the claim that all of the polls are biased against Romney, which reminds me of what I think Kerry's team was saying in 2004. So I'll stand by my (more controversial) statement that there does seem to be a rejection on the conservative side that there's anyone objective out there who has the ability to fairly declare what's true and false in campaigns. And I think that's a change.
>>
>> Rick
>>
>>
>>
>> On 9/28/12 8:11 AM, Rick Hasen wrote:
>> Ah, there's nothing like waking up to multiple attacks on the listserv! I am at a conference and so I will have to respond later. In the meantime, you might look at my actual paper, which explains the basis for my defense of such commissions. And we have an actual commission in Ohio, which I discuss in the paper.
>>
>> Rick Hasen
>>
>> Rick Hasen
>>
>> Sent from my iPhone. Please excuse typos.
>>
>> On Sep 28, 2012, at 7:33 AM, "Sean Parnell" <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>> wrote:
>>
>>
>> I suggest we run a pilot program for 'fact-checking' or 'false statements' in politics, except we do it with the media instead. Maybe just start with a few of the largest outlets in the country, just to see how it goes and work out any kinks? So, we could have the finest 'fact checkers' in the country monitor the New York Times, NBC News, and while we're at it the Huffington Post (since more Americans are turning to the web these days for news), and maybe a few other outlets as well for the accuracy of their coverage, and hand out penalties for anything in the paper considered to be false, inaccurate, or misleading. As a value-added service, the government fact checkers could offer to pre-clear every story before it's released, giving it their stamp of approval and indemnifying the media outlet for any inaccuracies that might somehow slip through or later be discovered. Maybe we do it for one year, see how it goes? There's always the question of who gets to appoint the fact
> checkers, perhaps the President could appoint a Truth Czar who needs to be confirmed by the Senate? And if the Senate balks or delays, why that's what recess appointments (whether the Senate is or is not officially in recess) are for. Can't imagine any problems here?
>>
>> I'd truly love to hear an argument on why this is or is not a good idea from those who favor any sort of government fact-checking/false speech regulations for candidates.
>>
>> Sean Parnell
>>
>> President
>>
>> Impact Policy Management, LLC
>>
>> 6411 Caleb Court
>>
>> Alexandria, VA 22315
>>
>> 571-289-1374 (c)
>>
>> sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>
>>
>> -----Original Message-----
>> From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Lowenstein, Daniel
>> Sent: Friday, September 28, 2012 2:27 AM
>> To: Rick Hasen; law-election at UCI.edu<mailto:law-election at UCI.edu>
>> Subject: [EL] Fact-checking
>>
>> I have read Rick's paper, which he was good enough to send me, on regulating false campaign statements. As one would expect given the author, the paper gives a careful review of how current First Amendment doctrine is likely to affect various types of possible regulation and identifies the kinds of regulation that have a fair or good chance to survive in an area in which the Constitution is not friendly to regulation.
>>
>> Somewhat to my surprise, Rick is friendly in the paper to the idea of "fact-checking" by government agencies (though it's not entirely clear whether he is saying only that such an enterprise has a fair chance of being upheld or is supporting it as a policy matter). In this connection, I think it is relevant that Rick notes but does not go much into the criticisms of fact-checking by the press.
>>
>> The most trenchant criticism that I know of has come from a series of writings by Mark Hemingway in the Weekly Standard. Rick opens his article with two examples of fact-checking, one nailing Obama and the other Romney. The Romney example is that fact-checkers have condemned his ads claiming that the Obama administration threatens to gut the work requirement of Clinton-era welfare reform.
>>
>> As it happens, Hemingway has a lengthy article in the current issue of the Weekly Standard focussing on this very point. See http://www.weeklystandard.com/articles/obama-s-palace-guard_652895.html. Hemingway makes what appears on its face to be a strong argument that Romney's claim is accurate, but I don't know nearly enough about welfare to have an independent opinion on that. In any event, Hemingway makes an overwhelming case that the fact-checkers who have condemned Romney on this have been at best extremely inept and most likely acting in some degree of bad faith.
>>
>> Anyone interested in this subject should also read Hemingway's more general criticism of fact-checkers, "Lies, Damned Lies, 'Fact-Checking," published last December, which is also extremely persuasive. http://www.weeklystandard.com/articles/lies-damned-lies-and-fact-checking_611854.html
>>
>> There are many reasons why fact-checking in the context of political debate is highly problematic and should be considered with great skepticism. Hemingway makes a strong case that the currently prominent fact-checkers are biased, but even if they were not at all biased, the problems would run deep. Needless to say, none of the above suggests any doubt about the right of the press to engage in fact-checking to it's heart's content. But I hope institutionalized fact-checking by the government would be found unconstitutional. Whether or not it would be, it seems to me an inherently Orwellian enterprise that ought to be strongly opposed.
>>
>> Best,
>>
>> Daniel H. Lowenstein
>>
>> Director, Center for the Liberal Arts and Free Institutions (CLAFI)
>>
>> UCLA Law School
>>
>> 405 Hilgard
>>
>> Los Angeles, California 90095-1476
>>
>> 310-825-5148
>>
>>
>> ?Americans say Obama?s ads are more honest, but expect both sides to lie, Esquire/Yahoo poll finds?<http://electionlawblog.org/?p=40731>
>>
>> Posted on September 27, 2012 10:57 am<http://electionlawblog.org/?p=40731> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> Yahoo News reports<http://news.yahoo.com/esquire-yahoo-news-poll-romney-ads-lie-more-both-dishonest.html>.
>>
>> My new paper<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618> on whether there is a constitutional right to lie in campaigns and elections begins:
>>
>> Election 2012 may well go down in history as the ?4 Pinocchios Election.? It is perhaps no coincidence that the current election season has seen both a rise in the amount of arguably false campaign speech and the proliferation of journalistic ?fact checkers? who regularly rate statements made by candidates and campaigns. Journalistic ratings such as Politifact?s ?Truth-o-meter? rank candidate statements from from ?true? and ?mostly true? to ?false? and even ?pants on fire.? The Washington Post rating system, which relies upon the judgment of its fact checker, Glenn Kessler, uses 1 to 4 ?Pinocchios? for false statements. The granddaddy of fact checking groups, Factcheck.org<http://Factcheck.org>, while avoiding a rating system, offers analysis which regularly describes controversial campaign claims as ?false? or ?wrong.
>>
>> Both the Romney and Obama presidential campaigns have received stinging ratings from fact checkers. The Washington Post?s Fact Checker, Glenn Kessler, gave the Obama campaign ?4 Pinocchios? for claiming that Mitt Romney, while working at Bain Capital, ?outsourced? jobs and was a ?corporate raider.? Romney?s campaign similarly got ?4 Pinocchios? for claiming there was an ?Obama plan? to weaken federal welfare law and issue welfare checks to people who do not work.?
>>
>> Romney?s campaign has seemed to bear more of the brunt from the fact-checking enterprise. Based solely upon Kessler?s subjective assessment of truth, by mid-September 2012 the Washington Post fact checker rated Romney ads and statements with an average of 2.33 Pinocchios to Obama?s 1.96. Perhaps the greatest media attack on the truthfulness of Romney?s campaign came in response to the acceptance speech of Romney?s running-mate, Representative Paul Ryan, which the New York Times described as containing ?a number of questionable or misleading claims.?
>>
>> Whether campaigns are resorting to lies and distortion more often than in previous elections, and if so why they are doing so, are interesting questions beyond that which I can explore in this brief Article. False and misleading speech may be increasing thanks to the proliferation of the Internet and a decline in uniform trustworthy sources of news, such as the national news networks and major newspapers. Political polarization also may play a role, with partisans egged on to believe unsupported claims by the modern day partisan press, in the form of FOX News, MSNBC, and liberal and conservative blogs and websites.
>>
>> Fact check operations also are controversial to journalists, who have always been in the business of resolving conflicting factual claims as part of the news gathering process. Some journalists take issue with the effectiveness of fact checkers. Media critic Jack Shafer declares, ?Give [candidates] a million billion Pinocchios and they?ll still not behave.? Others defend the ?fact check? process but see them losing their effectiveness.
>>
>> In 2012, fact checking itself came under attack from the right, with some advancing the claim that fact checkers are a biased part of the ?liberal media.?Neil Newhouse, the Romney campaign?s pollster, proclaimed that ?We?re not going to let our campaign be dictated by fact-checkers.? It was an odd turn to see conservatives seeming to embrace a kind of post-modern relativism in which truth is now in the eyes of the beholder.
>>
>> In this highly charged partisan atmosphere, in which each side cannot agree upon the basic facts, mudslinging has become terribly common, and the media are not able to meaningfully curb candidates? lies and distortions, it is tempting to consider federal and strengthened state legislation to deter and punish false campaign speech. Why not let courts or commissions sort out truth from fiction? Indeed, a number of states already have laws in place which provide some government sanction for false campaign speech.
>>
>> [cid:part5.01040804.06020009 at law.uci.edu]<mailto:[cid:part5.01040804.06020009 at law.uci.edu]><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40731&title=%E2%80%9CAmericans%20say%20Obama%E2%80%99s%20ads%20are%20more%20honest%2C%20but%20expect%20both%20sides%20to%20lie%2C%20Esquire%2FYahoo%20poll%20finds%E2%80%9D&description=>
>>
>> Posted in campaigns<http://electionlawblog.org/?cat=59> | Comments Off
>>
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>> --
>> 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<mailto:rhasen at law.uci.edu>
>> http://law.uci.edu/faculty/page1_r_hasen.html
>> http://electionlawblog.org
>> Now available: The Voting Wars: http://amzn.to/y22ZTv
>>
>>
>
> --
> 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
> Now available: The Voting Wars: http://amzn.to/y22ZTv
>
>
>
>
> ------------------------------
>
> Message: 17
> Date: Fri, 28 Sep 2012 23:22:40 -0600
> From: Rick Hasen <rhasen at law.uci.edu>
> Subject: [EL] ELB News and Commentary 9/29/12
> To: "law-election at UCI.edu" <law-election at UCI.edu>
> Message-ID: <506685A0.1020703 at law.uci.edu>
> Content-Type: text/plain; charset="iso-8859-1"
>
>
> "After Waters Inquiry, House Panel Recommends New Ethics Rules"
> <http://electionlawblog.org/?p=40884>
>
> Posted on September 28, 2012 10:20 pm
> <http://electionlawblog.org/?p=40884> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> I missed this NYT piece
> <http://thecaucus.blogs.nytimes.com/2012/09/25/after-waters-inquiry-house-panel-recommends-new-ethics-rules/?hp>
> earlier this week. It begins: "Saying that public trust is at stake, a
> special House ethics panel on Tuesday called for new rules to prevent
> lawmakers and their staffs from violating conflict of interest standards
> and proposed other new measures designed to keep partisan squabbles from
> undermining future investigations of such wrongdoing. The broad set of
> recommendations, coming only a few months before the House will adopt a
> new set of rules for the next Congress, were released as the ethics
> committee finally completed a three-year investigation of Representative
> Maxine Waters
> <http://www.nytimes.com/2012/09/22/us/politics/panel-finds-maxine-waters-didnt-violate-ethics-rules-in-bank-case.html>,
> Democrat of California, an inquiry that itself got caught up in
> controversy because of such partisan disputes and ambiguous ethics rules."
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40884&title=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20House%20will%20adopt
> %20a%20new%20set%20of%20rules%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20months.%20But%20there%20
> are%20still%20other%20presidential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20state%E2%80%99s%20el
> ections.%0A%0A%20%20%20%20New%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20Hasen%0A%0AEarlier%2
> 0Bloomberg%20story%20with%20new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in conflict of interest laws
> <http://electionlawblog.org/?cat=20>, ethics investigations
> <http://electionlawblog.org/?cat=42> | Comments Off
>
>
> "Lawsuit highlights difficulty of third-party involvement in
> debates" <http://electionlawblog.org/?p=40881>
>
> Posted on September 28, 2012 10:04 pm
> <http://electionlawblog.org/?p=40881> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> LA Times
> <http://www.latimes.com/news/politics/la-pn-gary-johnson-third-party-debate-20120927,0,940506.story?track=rss&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+latimes%2Fnews%2Fpolitics+%28L.A.+Times+-+Politics%29>:
> "The participants if this year's presidential debates are set --
> Republican nominee Mitt Romney
> <http://www.latimes.com/topic/politics/government/mitt-romney-PEPLT007376.topic>
> will face off against President Obama
> <http://www.latimes.com/topic/politics/government/barack-obama-PEPLT007408.topic>
> in a matchup that's been obvious for months. But there are still other
> presidential candidates, and one in particular is keen on elbowing his
> way into the debates. Libertarian
> <http://www.latimes.com/topic/politics/parties-movements/libertarian-party-ORGOV000277.topic>
> candidate Gary Johnson earlier this month filed a lawsuit against the
> Commission on Presidential Debates, claiming that the organization's
> practices violate antitrust laws and alleging collusion between the
> commission and the country's two dominant political parties."
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40881&title=%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20House%20will%20ado
> pt%20a%20new%20set%20of%20rules%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20months.%20But%20there%
> 20are%20still%20other%20presidential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20state%E2%80%99s%20
> elections.%0A%0A%20%20%20%20New%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20Hasen%0A%0AEarlier
> %20Bloomberg%20story%20with%20new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in ballot access <http://electionlawblog.org/?cat=46>, campaigns
> <http://electionlawblog.org/?cat=59>, third parties
> <http://electionlawblog.org/?cat=47> | Comments Off
>
>
> "Citizens United aftermath affecting states' uniqueness, speakers at
> UM say" <http://electionlawblog.org/?p=40879>
>
> Posted on September 28, 2012 10:03 pm
> <http://electionlawblog.org/?p=40879> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> Missoulian
> <http://missoulian.com/news/state-and-regional/citizens-united-aftermath-affecting-states-uniqueness-speakers-at-um-say/article_604abc02-09d1-11e2-9cf8-0019bb2963f4.html>:
>
> Montana is different. For years, the Copper Kings wielded undue
> influence on the state's elections.
>
> New Hampshire is different. Its 400-member House of Representatives
> makes for one lawmaker for every 3,500 residents.
>
> Contrast that with California, where each state senator represents
> about 1 million residents. That's pretty different.
>
> Don't forget about Nebraska, whose unicameral legislature is
> nonpartisan. Different.
>
> Given such variety among all the states, professor William Marshall
> of the University of North Carolina School of Law wondered, why
> should campaign finance laws apply uniformly?
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40879&title=%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the
> %20House%20will%20adopt%20a%20new%20set%20of%20rules%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20m
> onths.%20But%20there%20are%20still%20other%20presidential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the
> %20state%E2%80%99s%20elections.%0A%0A%20%20%20%20New%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick
> %20Hasen%0A%0AEarlier%20Bloomberg%20story%20with%20new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> |
> Comments Off
>
>
> "Democrats Target Ohio Ballot Rule as Republican Laws Fall"
> <http://electionlawblog.org/?p=40876>
>
> Posted on September 28, 2012 9:57 pm
> <http://electionlawblog.org/?p=40876> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> Earlier Bloomberg story
> <http://www.bloomberg.com/news/2012-09-29/democrats-target-ohio-ballot-rule-as-republican-laws-fall.html>
> with new lede. I'll have more to say about this case soon.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40876&title=%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20House%20will%20adopt%20a%2
> 0new%20set%20of%20rules%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20months.%20But%20there%20are%20
> still%20other%20presidential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20state%E2%80%99s%20election
> s.%0A%0A%20%20%20%20New%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20Hasen%0A%0AEarlier%20Bloom
> berg%20story%20with%20new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in election administration <http://electionlawblog.org/?cat=18>,
> The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
>
>
> NYT on Sherman-Berman <http://electionlawblog.org/?p=40873>
>
> Posted on September 28, 2012 9:54 pm
> <http://electionlawblog.org/?p=40873> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> Here
> <http://www.nytimes.com/2012/09/29/us/politics/democrats-duke-it-out-in-the-san-fernando-valley.html?ref=politics>.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40873&title=NYT%20on%20Sherman-Berman&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20House%20will%20adopt%20a%20new%20set%20of%20rules%20for%20the%20next%20Congress%2C%20were%20
> released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20months.%20But%20there%20are%20still%20other%20presidential%20candidates%2C%20and%20one%20in%20pa
> rticular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20state%E2%80%99s%20elections.%0A%0A%20%20%20%20New%20Hampshire%20is%20different.%20Its%20400-
> member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20Hasen%0A%0AEarlier%20Bloomberg%20story%20with%20new%20lede.%20%20I%E2%80%99ll%20have%20more%
> 20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in campaigns <http://electionlawblog.org/?cat=59> | Comments Off
>
>
> "In Florida, G.O.P. Says Voter Forms Are Suspect"
> <http://electionlawblog.org/?p=40870>
>
> Posted on September 28, 2012 9:52 pm
> <http://electionlawblog.org/?p=40870> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> AP reports.
> <http://www.nytimes.com/2012/09/29/us/politics/florida-gop-reports-suspect-voter-registration-forms.html?ref=politics>
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40870&title=%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20House%20will%20adopt%20a%20new%20set
> %20of%20rules%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20months.%20But%20there%20are%20still%20ot
> her%20presidential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20state%E2%80%99s%20elections.%0A%0A%2
> 0%20%20%20New%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20Hasen%0A%0AEarlier%20Bloomberg%20sto
> ry%20with%20new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in election administration <http://electionlawblog.org/?cat=18>,
> The Voting Wars <http://electionlawblog.org/?cat=60>, voter registration
> <http://electionlawblog.org/?cat=37> | Comments Off
>
>
> "Vote laws inspire minority backlash; Restrictions now a rallying
> cry" <http://electionlawblog.org/?p=40867>
>
> Posted on September 28, 2012 9:50 pm
> <http://electionlawblog.org/?p=40867> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> The /Boston Globe /reports.
> <http://bostonglobe.com/news/nation/2012/09/28/ohio-voter-suppression-efforts-may-galvanizing-african-american-voters/wEaaMnxD2fFhm87Pkp5t4M/story.html>
>
> This is one of my major themes in /The Voting Wars
> <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>/:
> <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>the
> fight over things like voter id is as much about motivating the base and
> fundraising as about actually affecting turnout.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40867&title=%E2%80%9CVote%20laws%20inspire%20minority%20backlash%3B%20Restrictions%20now%20a%20rallying%20cry%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20House%20wil
> l%20adopt%20a%20new%20set%20of%20rules%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20months.%20But%2
> 0there%20are%20still%20other%20presidential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20state%E2%80
> %99s%20elections.%0A%0A%20%20%20%20New%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20Hasen%0A%0A
> Earlier%20Bloomberg%20story%20with%20new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in election administration <http://electionlawblog.org/?cat=18>,
> The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
>
>
> "Phone-bank for 50+ hours and get an ipad3 (32 gig)"
> <http://electionlawblog.org/?p=40863>
>
> Posted on September 28, 2012 5:13 pm
> <http://electionlawblog.org/?p=40863> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> Nice "volunteer" work
> <http://www.buzzfeed.com/zekejmiller/republican-jewish-coalition-paying-volunteers-wi#HTWF2>
> if you can get it!
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40863&title=%E2%80%9CPhone-bank%20for%2050%2B%20hours%20and%20get%20an%20ipad3%20%2832%20gig%29%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20House%20will%20adopt%20a%
> 20new%20set%20of%20rules%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20months.%20But%20there%20are%2
> 0still%20other%20presidential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20state%E2%80%99s%20electio
> ns.%0A%0A%20%20%20%20New%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20Hasen%0A%0AEarlier%20Bloo
> mberg%20story%20with%20new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in campaigns <http://electionlawblog.org/?cat=59> | Comments Off
>
>
> "GOP, Dems Voter Registration Numbers Lag, Mad Dash Now Across Fla
> To Sign People Up" <http://electionlawblog.org/?p=40861>
>
> Posted on September 28, 2012 5:12 pm
> <http://electionlawblog.org/?p=40861> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> WFSU reports.
> <http://news.wfsu.org/post/gop-dems-voter-registration-numbers-lag-mad-dash-now-across-fla-sign-people>
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40861&title=%E2%80%9CGOP%2C%20Dems%20Voter%20Registration%20Numbers%20Lag%2C%20Mad%20Dash%20Now%20Across%20Fla%20To%20Sign%20People%20Up%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%2
> 0before%20the%20House%20will%20adopt%20a%20new%20set%20of%20rules%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvi
> ous%20for%20months.%20But%20there%20are%20still%20other%20presidential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influen
> ce%20on%20the%20state%E2%80%99s%20elections.%0A%0A%20%20%20%20New%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20p
> m%20by%20Rick%20Hasen%0A%0AEarlier%20Bloomberg%20story%20with%20new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in election administration <http://electionlawblog.org/?cat=18>,
> The Voting Wars <http://electionlawblog.org/?cat=60>, voter registration
> <http://electionlawblog.org/?cat=37> | Comments Off
>
>
> Quote of the Day <http://electionlawblog.org/?p=40859>
>
> Posted on September 28, 2012 5:11 pm
> <http://electionlawblog.org/?p=40859> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> "At best the rules are opaque, and at worst they're misleading"
>
> --Loyola Law professor Ellen Aprill, quoted in the Wall St. Journal's Is
> Your Political Donation Deductible?
> <http://online.wsj.com/article/SB10000872396390444549204578022201425205738.html>
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40859&title=Quote%20of%20the%20Day&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20House%20will%20adopt%20a%20new%20set%20of%20rules%20for%20the%20next%20Congress%2C%20were%20rel
> eased%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20months.%20But%20there%20are%20still%20other%20presidential%20candidates%2C%20and%20one%20in%20parti
> cular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20state%E2%80%99s%20elections.%0A%0A%20%20%20%20New%20Hampshire%20is%20different.%20Its%20400-mem
> ber%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20Hasen%0A%0AEarlier%20Bloomberg%20story%20with%20new%20lede.%20%20I%E2%80%99ll%20have%20more%20t
> o%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
> and election law <http://electionlawblog.org/?cat=22> | Comments Off
>
>
> "Super Secrets of the Political Nonprofits"
> <http://electionlawblog.org/?p=40857>
>
> Posted on September 28, 2012 5:05 pm
> <http://electionlawblog.org/?p=40857> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> This item
> <http://www.usnews.com/news/articles/2012/09/28/super-secrets-of-the-political-nonprofits>appears
> atU.S. News and World Report.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40857&title=%E2%80%9CSuper%20Secrets%20of%20the%20Political%20Nonprofits%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20House%20will%20adopt%20a%20new%20set%20of%20rule
> s%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20months.%20But%20there%20are%20still%20other%20presid
> ential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20state%E2%80%99s%20elections.%0A%0A%20%20%20%20Ne
> w%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20Hasen%0A%0AEarlier%20Bloomberg%20story%20with%20
> new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
> and election law <http://electionlawblog.org/?cat=22> | Comments Off
>
>
> "CNN's Joe Johns Investigates Impact of Tough New Voter Laws on 2012
> Election" <http://electionlawblog.org/?p=40855>
>
> Posted on September 28, 2012 5:04 pm
> <http://electionlawblog.org/?p=40855> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> CNN
> <http://cnnpressroom.blogs.cnn.com/2012/09/28/cnns-joe-johns-investigates-impact-of-tough-new-voter-laws-on-2012-election/>:
> "CNN senior correspondent *Joe Johns* investigates the impact of tough
> new voter laws in /Voters in America:/ /Who Counts/ on Sunday, Oct. 14*.
> * The one-hour documentary focuses on new legislative voting changes in
> the battleground state of Florida and how those changes may affect the
> outcome of the 2012 presidential election. /Who Counts /will debut on
> CNN/U.S. in a special primetime presentation on Sunday, Oct. 14 at
> 8:00p.m. and 11:00p.m. ET and PT."
>
> I was interviewed a few times for this documentary and look forward to
> seeing it.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40855&title=%E2%80%9CCNN%E2%80%99s%20Joe%20Johns%20Investigates%20Impact%20of%20Tough%20New%20Voter%20Laws%20on%202012%20Election%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before
> %20the%20House%20will%20adopt%20a%20new%20set%20of%20rules%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20f
> or%20months.%20But%20there%20are%20still%20other%20presidential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on
> %20the%20state%E2%80%99s%20elections.%0A%0A%20%20%20%20New%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%
> 20Rick%20Hasen%0A%0AEarlier%20Bloomberg%20story%20with%20new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in election administration <http://electionlawblog.org/?cat=18>,
> The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
>
>
> "Another Big Supreme Court Term Kicks Off Monday"
> <http://electionlawblog.org/?p=40853>
>
> Posted on September 28, 2012 5:00 pm
> <http://electionlawblog.org/?p=40853> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> AP notes
> <http://www.wsvn.com/news/articles/national/21008646633150/another-big-supreme-court-term-kicks-off-monday/>
> the possibility of election-related litigation making it to the Court
> before Election Day.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40853&title=%E2%80%9CAnother%20Big%20Supreme%20Court%20Term%20Kicks%20Off%20Monday%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20House%20will%20adopt%20a%20new%20set%2
> 0of%20rules%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20months.%20But%20there%20are%20still%20othe
> r%20presidential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20state%E2%80%99s%20elections.%0A%0A%20%
> 20%20%20New%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20Hasen%0A%0AEarlier%20Bloomberg%20story
> %20with%20new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in Supreme Court <http://electionlawblog.org/?cat=29> | Comments Off
>
>
> "Electoral College Math: Not All Votes Are Equal"
> <http://electionlawblog.org/?p=40850>
>
> Posted on September 28, 2012 4:58 pm
> <http://electionlawblog.org/?p=40850> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> AP reports.
> <http://www.nytimes.com/aponline/2012/09/28/us/politics/ap-us-some-votes-count-more.html?_r=1&ref=politics>
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40850&title=%E2%80%9CElectoral%20College%20Math%3A%20Not%20All%20Votes%20Are%20Equal%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20House%20will%20adopt%20a%20new%20set
> %20of%20rules%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20months.%20But%20there%20are%20still%20ot
> her%20presidential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20state%E2%80%99s%20elections.%0A%0A%2
> 0%20%20%20New%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20Hasen%0A%0AEarlier%20Bloomberg%20sto
> ry%20with%20new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in electoral college <http://electionlawblog.org/?cat=44> |
> Comments Off
>
>
> Unanimous 3-Judge Court Rejects RNC's Challenge to Federal Aggregate
> Contribution Limits <http://electionlawblog.org/?p=40847>
>
> Posted on September 28, 2012 4:48 pm
> <http://electionlawblog.org/?p=40847> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> In a very convincing opinion
> <http://www.campaignlegalcenter.org/images/McCutcheon_opinion_9_28_12.pdf>by
> Judge Janice Rogers Brown, who basically says that this is a result
> dictated by precedent, and that the RNC can ask the Supreme Court, but
> not lower courts, to change that precedent.
>
> And I expect the RNC will do just that.
>
> (See also this release
> <http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=1902:september-28-2012-court-rejection-of-rnc-challenge-to-aggregate-contribution-limits-follows-campaign-legal-centerdemocracy-21-argument-&catid=63:legal-center-press-releases&Itemid=61>from
> the Campaign Legal Center.)
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40847&title=Unanimous%203-Judge%20Court%20Rejects%20RNC%E2%80%99s%20Challenge%20to%20Federal%20Aggregate%20Contribution%20Limits&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20H
> ouse%20will%20adopt%20a%20new%20set%20of%20rules%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20month
> s.%20But%20there%20are%20still%20other%20presidential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20s
> tate%E2%80%99s%20elections.%0A%0A%20%20%20%20New%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20H
> asen%0A%0AEarlier%20Bloomberg%20story%20with%20new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> |
> Comments Off
>
>
> "Symposium: Disclosure, Anonymity, and the First Amendment"
> <http://electionlawblog.org/?p=40844>
>
> Posted on September 28, 2012 4:43 pm
> <http://electionlawblog.org/?p=40844> by Rick Hasen
> <http://electionlawblog.org/?author=3>
> *27 JOURNAL OF LAW & POLITICS, NO. 4, SUMMER, 2012. *
>
> Symposium: Disclosure, Anonymity, and the First Amendment. 27 J.L. &
> Pol. 557-719 (2012). [H
> <http://www.heinonline.org/HOL/OneBoxCitation?cit_string=27%20J.L.%20%26%20Pol.%20557&collection=journals&base=js>][L
> <http://www.lexis.com/xlink?showcidslinks=on&ORIGINATION_CODE=00142&searchtype=get&search=27%20J.L.%20%26%20Pol.%20557>][W
> <http://www.westlaw.com/find/default.asp?cite=27+J.L.+%26+Pol.+557&RS=WLW2.05&VR=1.0>]
>
> Hasen, Richard L. Chill out: a qualified defense of campaign finance
> disclosure laws in the Internet age. 27 J.L. & Pol. 557-573 (2012). [H
> <http://www.heinonline.org/HOL/OneBoxCitation?cit_string=27%20J.L.%20%26%20Pol.%20557&collection=journals&base=js>][L
> <http://www.lexis.com/xlink?showcidslinks=on&ORIGINATION_CODE=00142&searchtype=get&search=27%20J.L.%20%26%20Pol.%20557>][W
> <http://www.westlaw.com/find/default.asp?cite=27+J.L.+%26+Pol.+557&RS=WLW2.05&VR=1.0>]
>
> Kendrick, Leslie. Disclosure and its discontents. 27 J.L. & Pol. 575-596
> (2012). [H
> <http://www.heinonline.org/HOL/OneBoxCitation?cit_string=27%20J.L.%20%26%20Pol.%20575&collection=journals&base=js>][L
> <http://www.lexis.com/xlink?showcidslinks=on&ORIGINATION_CODE=00142&searchtype=get&search=27%20J.L.%20%26%20Pol.%20575>][W
> <http://www.westlaw.com/find/default.asp?cite=27+J.L.+%26+Pol.+575&RS=WLW2.05&VR=1.0>]
>
> Schauer, Frederick. Anonymity and authority. 27 J.L. & Pol. 597-607
> (2012). [H
> <http://www.heinonline.org/HOL/OneBoxCitation?cit_string=27%20J.L.%20%26%20Pol.%20597&collection=journals&base=js>][L
> <http://www.lexis.com/xlink?showcidslinks=on&ORIGINATION_CODE=00142&searchtype=get&search=27%20J.L.%20%26%20Pol.%20597>][W
> <http://www.westlaw.com/find/default.asp?cite=27+J.L.+%26+Pol.+597&RS=WLW2.05&VR=1.0>]
>
> Birkenstock, Joseph M. Three can keep a secret, if two of them are dead:
> a thought experiment around compelled public disclosure of "anonymous"
> political expenditures. 27 J.L. & Pol. 609-625 (2012). [H
> <http://www.heinonline.org/HOL/OneBoxCitation?cit_string=27%20J.L.%20%26%20Pol.%20609&collection=journals&base=js>][L
> <http://www.lexis.com/xlink?showcidslinks=on&ORIGINATION_CODE=00142&searchtype=get&search=27%20J.L.%20%26%20Pol.%20609>][W
> <http://www.westlaw.com/find/default.asp?cite=27+J.L.+%26+Pol.+609&RS=WLW2.05&VR=1.0>]
>
> Gilbert, Michael D. Disclosure, credibility, and speech. 27 J.L. & Pol.
> 627-640 (2012). [H
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>
> Norton, Helen. Secrets, lies, and disclosure. 27 J.L. & Pol. 641-654
> (2012). [H
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>
> Karlan, Pamela S. The "ambiguous giving out": the complicated roles of
> disclosure and anonymity in political activity. 27 J.L. & Pol. 655-662
> (2012). [H
> <http://www.heinonline.org/HOL/OneBoxCitation?cit_string=27%20J.L.%20%26%20Pol.%20655&collection=journals&base=js>][L
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> Ortiz, Daniel R. The informational interest. 27 J.L. & Pol. 663-682
> (2012). [H
> <http://www.heinonline.org/HOL/OneBoxCitation?cit_string=27%20J.L.%20%26%20Pol.%20663&collection=journals&base=js>][L
> <http://www.lexis.com/xlink?showcidslinks=on&ORIGINATION_CODE=00142&searchtype=get&search=27%20J.L.%20%26%20Pol.%20663>][W
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>
> Briffault, Richard. Updating disclosure for the new era of independent
> spending. 27 J.L. & Pol. 683-719 (2012). [H
> <http://www.heinonline.org/HOL/OneBoxCitation?cit_string=27%20J.L.%20%26%20Pol.%20683&collection=journals&base=js>][L
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> <http://www.westlaw.com/find/default.asp?cite=27+J.L.+%26+Pol.+683&RS=WLW2.05&VR=1.0>]
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40844&title=%E2%80%9CSymposium%3A%20Disclosure%2C%20Anonymity%2C%20and%20the%20First%20Amendment%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20House%20will%20adopt%20a
> %20new%20set%20of%20rules%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20months.%20But%20there%20are%
> 20still%20other%20presidential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20state%E2%80%99s%20electi
> ons.%0A%0A%20%20%20%20New%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20Hasen%0A%0AEarlier%20Blo
> omberg%20story%20with%20new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in campaign finance <http://electionlawblog.org/?cat=10> |
> Comments Off
>
>
> "Fraud proof scarce in two voter ID cases"
> <http://electionlawblog.org/?p=40842>
>
> Posted on September 28, 2012 4:42 pm
> <http://electionlawblog.org/?p=40842> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> CBS News reports.
> <http://www.cbsnews.com/8301-250_162-57522224/fraud-proof-scarce-in-two-voter-id-cases/>
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40842&title=%E2%80%9CFraud%20proof%20scarce%20in%20two%20voter%20ID%20cases%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20House%20will%20adopt%20a%20new%20set%20of%20r
> ules%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20months.%20But%20there%20are%20still%20other%20pre
> sidential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20state%E2%80%99s%20elections.%0A%0A%20%20%20%2
> 0New%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20Hasen%0A%0AEarlier%20Bloomberg%20story%20with
> %20new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> 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>, voter id
> <http://electionlawblog.org/?cat=9> | Comments Off
>
>
> "Who's accountable for this lie?" <http://electionlawblog.org/?p=40839>
>
> Posted on September 28, 2012 4:39 pm
> <http://electionlawblog.org/?p=40839> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> Ventura County Star:
> <http://blogs.venturacountystar.com/therdt/archives/2012/09/whos-accountabl.html>
>
> In a television ad
> <http://www.vcstar.com/videos/detail/pavley-opposition-ad/>now
> airing, paid for by an independent expenditure group called the
> California Senior Advocates League PAC and attacking Sen. *Fran
> Pavley*, an announcer asserts, "While Pavley voted to raise our
> taxes, she pays none on her six-figure salary."
>
> While that bald-faced assertion is being made, a screen shot shows a
> photo of Pavley alongside a headline that reads "$261,000 tax free
> salary."
>
> The assertion is preposterous. Legislators are paid an annual salary
> of $90,526, and they pay taxes just like everyone else --- federal
> income taxes, Social Security taxes, state income taxes and the
> rest. In fact, the Pavley family's tax attorney attests in an email
> shared with me today that Pavley and her husband, Andy, paid $16,797
> in federal income taxes in 2011, for an effective tax rate of 16.6
> percent. In addition, they paid state income taxes of $5,925.
>
> So where does this "tax free salary" assertion come from?
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40839&title=%E2%80%9CWho%E2%80%99s%20accountable%20for%20this%20lie%3F%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20House%20will%20adopt%20a%20new%20set%20of%20rules%
> 20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20months.%20But%20there%20are%20still%20other%20presiden
> tial%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20state%E2%80%99s%20elections.%0A%0A%20%20%20%20New%
> 20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20Hasen%0A%0AEarlier%20Bloomberg%20story%20with%20ne
> w%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in campaigns <http://electionlawblog.org/?cat=59>, chicanery
> <http://electionlawblog.org/?cat=12> | Comments Off
>
>
> "Closing the Racial Voting Gap; Turnout among blacks and Latinos is
> low compared with white turnout. It's time for a change"
> <http://electionlawblog.org/?p=40834>
>
> Posted on September 28, 2012 4:34 pm
> <http://electionlawblog.org/?p=40834> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> This item
> <http://www.theroot.com/views/election-2012-and-exercising-your-rights>
> appears at The Root.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40834&title=%E2%80%9CClosing%20the%20Racial%20Voting%20Gap%3B%20Turnout%20among%20blacks%20and%20Latinos%20is%20low%20compared%20with%20white%20turnout.%20It%E2%80%99s%20time%20for%20a%20change%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%
> 20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20House%20will%20adopt%20a%20new%20set%20of%20rules%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%
> 20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20months.%20But%20there%20are%20still%20other%20presidential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20ye
> ars%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20state%E2%80%99s%20elections.%0A%0A%20%20%20%20New%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80
> %9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20Hasen%0A%0AEarlier%20Bloomberg%20story%20with%20new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in voting <http://electionlawblog.org/?cat=31>, Voting Rights Act
> <http://electionlawblog.org/?cat=15> | Comments Off
>
>
> "Essex Man Convicted of Absentee Ballot Fraud"
> <http://electionlawblog.org/?p=40831>
>
> Posted on September 28, 2012 4:32 pm
> <http://electionlawblog.org/?p=40831> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> News
> <http://www.politickernj.com/60053/essex-man-convicted-absentee-ballot-fraud>from
> New Jersey.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40831&title=%E2%80%9CEssex%20Man%20Convicted%20of%20Absentee%20Ballot%20Fraud%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20House%20will%20adopt%20a%20new%20set%20of%2
> 0rules%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20months.%20But%20there%20are%20still%20other%20p
> residential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20state%E2%80%99s%20elections.%0A%0A%20%20%20
> %20New%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20Hasen%0A%0AEarlier%20Bloomberg%20story%20wi
> th%20new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in absentee ballots <http://electionlawblog.org/?cat=53>,
> chicanery <http://electionlawblog.org/?cat=12>, The Voting Wars
> <http://electionlawblog.org/?cat=60> | Comments Off
>
>
> "Suspicious voter registration forms found in 10 Florida counties"
> <http://electionlawblog.org/?p=40829>
>
> Posted on September 28, 2012 4:30 pm
> <http://electionlawblog.org/?p=40829> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> LA Times
> <http://www.latimes.com/news/politics/la-pn-voter-registration-florida-republicans-20120928,0,7654954.story>:
> 'Florida elections officials said Friday that at least 10 counties have
> identified suspicious and possibly fraudulent voter registration forms
> turned in by a firm working for the Republican Party
> <http://www.latimes.com/topic/politics/parties-movements/republican-party-ORGOV0000004.topic>
> of Florida, which has filed an election fraud complaint with the state
> Division of Elections against its one-time consultant."
>
> /Salon/: <http://www.salon.com/2012/09/28/gops_acorn_moment/>"GOP's
> ACORN moment: <http://www.salon.com/2012/09/28/gops_acorn_moment/> A
> Republican consulting firm allegedly commits voter registration fraud.
> Where's the right-wing outrage this time?"
>
> At this point I think it is important to draw a distinction between two
> kinds of things which might be going on, one much more troubling than
> the other.
>
> One thing which may be going on is that the Sproul group hired people
> who filled in phony voter registration forms in order to keep their
> jobs. If that's what happened, it is a nuisance and troubling, but it
> is unlikely to lead to any problems at the polls. Mickey Mouse is not
> coming to vote on election day, whether the form came from ACORN or Sproul.
>
> But if what we see here is an effort to change people's addresses to
> addresses out of the county, and this is being done to force those
> voters to use a provisional ballot (which won't be counted because of
> the address problem), that would be a serious voter suppression issue
> and worthy of a much fuller investigation.
>
> I've seen conflicting reports here on motives and types of ballots, and
> I think we need to learn more before we understand what's really going
> on here.
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40829&title=%E2%80%9CSuspicious%20voter%20registration%20forms%20found%20in%2010%20Florida%20counties%E2%80%9D&description=%E2%80%9CAfter%20Waters%20Inquiry%2C%20House%20Panel%20Recommends%20New%20Ethics%20Rules%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A20%20pm%20by%20Rick%20Hasen%0A%0AI%20missed%20this%20NYT%20pieceearlier%20this%20week.%20%20It%20begins%3A%20%E2%80%9CSaying%20that%20public%20trust%20is%20at%20stake%2C%20a%20special%20House%20ethics%20panel%20on%20Tuesday%20called%20for%20new%20rules%20to%20prevent%20lawmakers%20and%20their%20staffs%20from%20violating%20conflict%20of%20interest%20standards%20and%20proposed%20other%20new%20measures%20designed%20to%20keep%20partisan%20squabbles%20from%20undermining%20future%20investigations%20of%20such%20wrongdoing.%20The%20broad%20set%20of%20recommendations%2C%20coming%20only%20a%20few%20months%20before%20the%20House%20will%20adop
> t%20a%20new%20set%20of%20rules%20for%20the%20next%20Congress%2C%20were%20released%20as%20the%20ethics%20committee%20finally%20completed%20a%20three-year%20investigation%20of%20Representative%20Maxine%20Waters%2C%20Democrat%20of%20California%2C%20an%20inquiry%20that%20itself%20got%20caught%20up%20in%20controversy%20because%20of%20such%20partisan%20disputes%20and%20ambiguous%20ethics%20rules.%E2%80%9D%0AShare%0APosted%20in%20conflict%20of%20interest%20laws%2C%20ethics%20investigations%09%7C%20Comments%20Off%0A%E2%80%9CLawsuit%20highlights%20difficulty%20of%20third-party%20involvement%20in%20debates%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A04%20pm%20by%20Rick%20Hasen%0A%0ALA%20Times%3A%20%E2%80%9CThe%20participants%20if%20this%20year%E2%80%99s%20presidential%20debates%20are%20set%20%E2%80%93%20Republican%20nominee%20Mitt%20Romney%20will%20face%20off%20against%20President%20Obama%20in%20a%20matchup%20that%E2%80%99s%20been%20obvious%20for%20months.%20But%20there%2
> 0are%20still%20other%20presidential%20candidates%2C%20and%20one%20in%20particular%20is%20keen%20on%20elbowing%20his%20way%20into%20the%20debates.%20Libertarian%20candidate%20Gary%20Johnson%20earlier%20this%20month%20filed%20a%20lawsuit%20against%20the%20Commission%20on%20Presidential%20Debates%2C%20claiming%20that%20the%20organization%E2%80%99s%20practices%20violate%20antitrust%20laws%20and%20alleging%20collusion%20between%20the%20commission%20and%20the%20country%E2%80%99s%20two%20dominant%20political%20parties.%E2%80%9D%0AShare%0APosted%20in%20ballot%20access%2C%20campaigns%2C%20third%20parties%09%7C%20Comments%20Off%0A%E2%80%9CCitizens%20United%20aftermath%20affecting%20states%E2%80%99%20uniqueness%2C%20speakers%20at%20UM%20say%E2%80%9D%0APosted%20on%20September%2028%2C%202012%2010%3A03%20pm%20by%20Rick%20Hasen%0A%0AMissoulian%3A%0A%0A%20%20%20%20Montana%20is%20different.%20For%20years%2C%20the%20Copper%20Kings%20wielded%20undue%20influence%20on%20the%20state%E2%80%99s%20e
> lections.%0A%0A%20%20%20%20New%20Hampshire%20is%20different.%20Its%20400-member%20House%20of%20Representatives%20makes%20for%20one%20lawmaker%20for%20every%203%2C500%20residents.%0A%0A%20%20%20%20Contrast%20that%20with%20California%2C%20where%20each%20state%20senator%20represents%20about%201%20million%20residents.%20That%E2%80%99s%20pretty%20different.%0A%0A%20%20%20%20Don%E2%80%99t%20forget%20about%20Nebraska%2C%20whose%20unicameral%20legislature%20is%20nonpartisan.%20Different.%0A%0A%20%20%20%20Given%20such%20variety%20among%20all%20the%20states%2C%20professor%20William%20Marshall%20of%20the%20University%20of%20North%20Carolina%20School%20of%20Law%20wondered%2C%20why%20should%20campaign%20finance%20laws%20apply%20uniformly%3F%0A%0AShare%0APosted%20in%20campaign%20finance%09%7C%20Comments%20Off%0A%E2%80%9CDemocrats%20Target%20Ohio%20Ballot%20Rule%20as%20Republican%20Laws%20Fall%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A57%20pm%20by%20Rick%20Hasen%0A%0AEarlier%
> 20Bloomberg%20story%20with%20new%20lede.%20%20I%E2%80%99ll%20have%20more%20to%20say%20about%20this%20case%20soon.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%09%7C%20Comments%20Off%0ANYT%20on%20Sherman-Berman%0APosted%20on%20September%2028%2C%202012%209%3A54%20pm%20by%20Rick%20Hasen%0A%0AHere.%0AShare%0APosted%20in%20campaigns%09%7C%20Comments%20Off%0A%E2%80%9CIn%20Florida%2C%20G.O.P.%20Says%20Voter%20Forms%20Are%20Suspect%E2%80%9D%0APosted%20on%20September%2028%2C%202012%209%3A52%20pm%20by%20Rick%20Hasen%0A%0AAP%20reports.%0AShare%0APosted%20in%20election%20administration%2C%20The%20Voting%20Wars%2C%20voter%20registration%09%7C%20Comments%20Off>
> Posted in chicanery <http://electionlawblog.org/?cat=12>, The Voting
> Wars <http://electionlawblog.org/?cat=60>, voter registration
> <http://electionlawblog.org/?cat=37> | 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
> Now available: The Voting Wars: http://amzn.to/y22ZTv
>
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> ------------------------------
>
> Message: 18
> Date: Sat, 29 Sep 2012 13:39:33 +0400
> From: Mark Rush <markrush7983 at gmail.com>
> Subject: Re: [EL] Fact-checking
> To: Rick Hasen <rhasen at law.uci.edu>
> Cc: "law-election at UCI.edu" <law-election at uci.edu>
> Message-ID:
> <CACsASVvYwhAumtvNDi0b4pDw8y7p4BOA=8mOf7mMfU=UQx+bjQ at mail.gmail.com>
> Content-Type: text/plain; charset="windows-1252"
>
> All--
>
> Hi from the relatively stable, quiet part of the Middle East. I do need to
> get Rick's paper and review the long string of posts more carefully. But
> let me offer a couple of thoughts on this from the perspective of one who
> watched a carefully content monitored election last year for the Federal
> National Council in the UAE: it doesn't work.
>
> Sure, "fact checking" elsewhere might be a bit less heavy handed. But, in
> the spirit of making sure we had a good, clean, clear, non-confusing
> election, the authorities vetted candidacies and monitored promises. If
> you lied or made a promise that you could not keep, you could actually be
> penalized or removed from the ballot. The result was a pretty bland
> election, little in the way of real discussion of issues, no political
> parties and, as you might have expected, abysmal (25% turnout).
>
> This does embody one vision of what democracy ought to be, I guess. It
> leans in the Orwellian direction, as Dan says. But, I do wonder if the
> antithesis in the USA really can be said to be a qualitatively better
> version. Viz.: Obama said you didn't build that and Romney likes to fire
> people. Not exactly redeeming stuff.
>
> Anyway, it's always good to lurk on the list.
>
> cheers
>
> On Sat, Sep 29, 2012 at 5:01 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>> The interesting question is whether, under Alvarez, even objectively
>> verifiable lies (I am the incumbent and was endorsed by President Obama)
>> could be the subject of a damages action or some other penalty. On the
>> one hand, there is less danger of partisan abuse of objectively
>> verifiable facts. On the other hand, the Court notes that in cases of
>> objective facts that counter-speech might be the best solution (as in a
>> government database of true facts in the Stolen Valor context).
>>
>>
>>
>>
>> On 9/28/12 6:58 PM, Lowenstein, Daniel wrote:
>>> One quibble with Rick's generous post. If what he is suggesting
>> is that most people can agree that Ryan's acceptance speech at the
>> convention is an example of false campaign statements, he is incorrect.
>> That may be a consensus among Democrats and many journalists, but it is
>> certainly not agreed to by Republicans and so far as I can tell, there is
>> precious little ground for it. The point that I think got the most
>> attention was the supposed false statement that the Janesville factory
>> closed during Obama's administration. The Associated Press, in particular,
>> claimed that Ryan's claim was false because the plant closed in December,
>> 2008. But aside from the point that Ryan did not actually say anything
>> about when the plant closed, the Associated Press failed to note its own
>> news reports in 2009 that the plant was going to be closed in April of that
>> year. As Mark Hemingway pointed out in the current article I linked to
>> this morning, most of the complaints about Ryan's speech are simply
>> complaints that the Democrats have rebuttals that Ryan did not report.
>>>
>>> As to the existence of anyone objective who can declare what's
>> true and false in campaigns, that is a different question from whether the
>> existing "fact-checkers" are in fact objective. But the more fundamental
>> point is that the kinds of questions that are mostly at stake in these
>> controversies do not lend themselves to to simple declarations of truth or
>> falsity. Anyone here can declare objectively that it is false that the
>> American Civil War began in 1812. But if the statement is, the Civil War
>> was caused by southern intransigence, only a fool would think it can be
>> reolved by "true or false" or, for that matter, zero through four
>> Pinocchios. Most of the questions that matter about campaign claims are
>> closer to the latter than the former.
>>>
>>> Best,
>>>
>>> Daniel H. Lowenstein
>>> Director, Center for the Liberal Arts and Free
>> Institutions (CLAFI)
>>> UCLA Law School
>>> 405 Hilgard
>>> Los Angeles, California 90095-1476
>>> 310-825-5148
>>>
>>>
>>> ________________________________
>>> From: law-election-bounces at department-lists.uci.edu [
>> law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen [
>> rhasen at law.uci.edu]
>>> Sent: Friday, September 28, 2012 5:34 PM
>>> To: law-election at UCI.edu
>>> Subject: Re: [EL] Fact-checking
>>>
>>> I must say that today I love the listserv.
>>>
>>> I was off at the great Montana election law conference presenting my
>> draft paper on campaign finance lies<
>> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618> for the first
>> time. I came back to very thoughtful comments which are causing me to
>> rethink an aspect of my paper.
>>>
>>> To be very brief, I argue that after the Supreme Court's fractured
>> opinions in U.S. v. Alvarez, there are three kinds of false campaign speech
>> laws which are likely to be constitutional and one which is not. Applying
>> the three opinions in the case I conclude that he three likely
>> constitutional are:
>>>
>>> 1. Laws barring false speech about the time and date of elections (such
>> as a false statement about where to cast a ballot).
>>> 2. Laws allowing the government not to reprint a false statement in
>> ballot materials (e.g., state does not need to repeat a lie that a
>> non-incumbent candidate is an incumbent)
>>> 3. Laws barring defamatory campaign speech about a candidate proven with
>> actual malice (though there is some question about this after Alvarez).
>>>
>>> The one category which is the hardest, is the constitutionality of laws
>> barring false campaign speech, as in: "I am the incumbent and I've been
>> endorsed by President Obama."
>>>
>>> In the paper I conclude that, after Alvarez, any such laws which would
>> enjoin such speech or provide damages for such speech are very likely
>> unconstitutional. (Eugene Volokh in a blog post has expressed greater
>> confidence on the constitutionality of a narrow version of such laws.)
>>>
>>> I then turn to truth commissions like Ohio, and I conclude that the
>> Sixth Circuit's decision in Pestrak, upholding the Ohio commission's "truth
>> declaring" function likely survives Alvarez and remains constitutional.
>>>
>>> In the current draft of the paper at the end I suggest that these truth
>> commissions are not only likely constitutional, but also a modestly good
>> thing given the decline of the media as a good arbiter of the truth in our
>> highly partisan era.
>>>
>>> But having read all of the listserv commentary, and also hearing at
>> today's conference from Ned Foley about the Ohio experience, I am having
>> very serious reservations on the normative value (not the
>> constitutionality) of these commission. (I'm setting aside the preemption
>> issue for federal elections). The risk of political manipulation just
>> before the election may be too high. Ideally I'd like to study the actual
>> decisions made by the commission, but I don't think I'd have time to do it
>> in time for this publication in the Montana symposium. So I appreciate
>> very much all of the input about the dangers of such commissions declaring
>> truth before elections.
>>>
>>> Finally, on the question of conservatives and post-modernism/truth. It
>> does seem to me that conservatives in this election have taken a very
>> strong position against the media and fact checkers, even when there were
>> (what I view as) demonstrably false statements made by candidates. This is
>> different from earlier elections, and I don't think the MSM ha changed. I
>> think each side can disagree with particular calls of journalists and fact
>> checkers, but the Ryan speech is a good example, as are a couple of Obama's
>> ads against Romney. I'd also point to the claim that all of the polls are
>> biased against Romney, which reminds me of what I think Kerry's team was
>> saying in 2004. So I'll stand by my (more controversial) statement that
>> there does seem to be a rejection on the conservative side that there's
>> anyone objective out there who has the ability to fairly declare what's
>> true and false in campaigns. And I think that's a change.
>>>
>>> Rick
>>>
>>>
>>>
>>> On 9/28/12 8:11 AM, Rick Hasen wrote:
>>> Ah, there's nothing like waking up to multiple attacks on the listserv!
>> I am at a conference and so I will have to respond later. In the
>> meantime, you might look at my actual paper, which explains the basis for
>> my defense of such commissions. And we have an actual commission in Ohio,
>> which I discuss in the paper.
>>>
>>> Rick Hasen
>>>
>>> Rick Hasen
>>>
>>> Sent from my iPhone. Please excuse typos.
>>>
>>> On Sep 28, 2012, at 7:33 AM, "Sean Parnell" <
>> sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>>
>> wrote:
>>>
>>>
>>> I suggest we run a pilot program for 'fact-checking' or 'false
>> statements' in politics, except we do it with the media instead. Maybe just
>> start with a few of the largest outlets in the country, just to see how it
>> goes and work out any kinks? So, we could have the finest 'fact checkers'
>> in the country monitor the New York Times, NBC News, and while we're at it
>> the Huffington Post (since more Americans are turning to the web these days
>> for news), and maybe a few other outlets as well for the accuracy of their
>> coverage, and hand out penalties for anything in the paper considered to be
>> false, inaccurate, or misleading. As a value-added service, the government
>> fact checkers could offer to pre-clear every story before it's released,
>> giving it their stamp of approval and indemnifying the media outlet for any
>> inaccuracies that might somehow slip through or later be discovered. Maybe
>> we do it for one year, see how it goes? There's always the question of who
>> gets to appoint the fact checkers, perhaps the President could appoint a
>> Truth Czar who needs to be confirmed by the Senate? And if the Senate balks
>> or delays, why that's what recess appointments (whether the Senate is or is
>> not officially in recess) are for. Can't imagine any problems here?
>>>
>>> I'd truly love to hear an argument on why this is or is not a good idea
>> from those who favor any sort of government fact-checking/false speech
>> regulations for candidates.
>>>
>>> Sean Parnell
>>>
>>> President
>>>
>>> Impact Policy Management, LLC
>>>
>>> 6411 Caleb Court
>>>
>>> Alexandria, VA 22315
>>>
>>> 571-289-1374 (c)
>>>
>>> sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>
>>>
>>> -----Original Message-----
>>> From: law-election-bounces at department-lists.uci.edu<mailto:
>> law-election-bounces at department-lists.uci.edu> [mailto:
>> law-election-bounces at department-lists.uci.edu] On Behalf Of Lowenstein,
>> Daniel
>>> Sent: Friday, September 28, 2012 2:27 AM
>>> To: Rick Hasen; law-election at UCI.edu<mailto:law-election at UCI.edu>
>>> Subject: [EL] Fact-checking
>>>
>>> I have read Rick's paper, which he was good enough to send me, on
>> regulating false campaign statements. As one would expect given the
>> author, the paper gives a careful review of how current First Amendment
>> doctrine is likely to affect various types of possible regulation and
>> identifies the kinds of regulation that have a fair or good chance to
>> survive in an area in which the Constitution is not friendly to regulation.
>>>
>>> Somewhat to my surprise, Rick is friendly in the paper to the
>> idea of "fact-checking" by government agencies (though it's not entirely
>> clear whether he is saying only that such an enterprise has a fair chance
>> of being upheld or is supporting it as a policy matter). In this
>> connection, I think it is relevant that Rick notes but does not go much
>> into the criticisms of fact-checking by the press.
>>>
>>> The most trenchant criticism that I know of has come from a
>> series of writings by Mark Hemingway in the Weekly Standard. Rick opens
>> his article with two examples of fact-checking, one nailing Obama and the
>> other Romney. The Romney example is that fact-checkers have condemned his
>> ads claiming that the Obama administration threatens to gut the work
>> requirement of Clinton-era welfare reform.
>>>
>>> As it happens, Hemingway has a lengthy article in the current
>> issue of the Weekly Standard focussing on this very point. See
>> http://www.weeklystandard.com/articles/obama-s-palace-guard_652895.html.
>> Hemingway makes what appears on its face to be a strong argument that
>> Romney's claim is accurate, but I don't know nearly enough about welfare to
>> have an independent opinion on that. In any event, Hemingway makes an
>> overwhelming case that the fact-checkers who have condemned Romney on this
>> have been at best extremely inept and most likely acting in some degree of
>> bad faith.
>>>
>>> Anyone interested in this subject should also read Hemingway's
>> more general criticism of fact-checkers, "Lies, Damned Lies,
>> 'Fact-Checking," published last December, which is also extremely
>> persuasive.
>> http://www.weeklystandard.com/articles/lies-damned-lies-and-fact-checking_611854.html
>>>
>>> There are many reasons why fact-checking in the context of
>> political debate is highly problematic and should be considered with great
>> skepticism. Hemingway makes a strong case that the currently prominent
>> fact-checkers are biased, but even if they were not at all biased, the
>> problems would run deep. Needless to say, none of the above suggests any
>> doubt about the right of the press to engage in fact-checking to it's
>> heart's content. But I hope institutionalized fact-checking by the
>> government would be found unconstitutional. Whether or not it would be, it
>> seems to me an inherently Orwellian enterprise that ought to be strongly
>> opposed.
>>>
>>> Best,
>>>
>>> Daniel H. Lowenstein
>>>
>>> Director, Center for the Liberal Arts and Free
>> Institutions (CLAFI)
>>>
>>> UCLA Law School
>>>
>>> 405 Hilgard
>>>
>>> Los Angeles, California 90095-1476
>>>
>>> 310-825-5148
>>>
>>>
>>> ?Americans say Obama?s ads are more honest, but expect both sides to
>> lie, Esquire/Yahoo poll finds?<http://electionlawblog.org/?p=40731>
>>>
>>> Posted on September 27, 2012 10:57 am<
>> http://electionlawblog.org/?p=40731> by Rick Hasen<
>> http://electionlawblog.org/?author=3>
>>>
>>> Yahoo News reports<
>> http://news.yahoo.com/esquire-yahoo-news-poll-romney-ads-lie-more-both-dishonest.html
>>> .
>>>
>>> My new paper<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>
>> on whether there is a constitutional right to lie in campaigns and
>> elections begins:
>>>
>>> Election 2012 may well go down in history as the ?4 Pinocchios
>> Election.? It is perhaps no coincidence that the current election season
>> has seen both a rise in the amount of arguably false campaign speech and
>> the proliferation of journalistic ?fact checkers? who regularly rate
>> statements made by candidates and campaigns. Journalistic ratings such as
>> Politifact?s ?Truth-o-meter? rank candidate statements from from ?true? and
>> ?mostly true? to ?false? and even ?pants on fire.? The Washington Post
>> rating system, which relies upon the judgment of its fact checker, Glenn
>> Kessler, uses 1 to 4 ?Pinocchios? for false statements. The granddaddy of
>> fact checking groups, Factcheck.org<http://Factcheck.org>, while avoiding
>> a rating system, offers analysis which regularly describes controversial
>> campaign claims as ?false? or ?wrong.
>>>
>>> Both the Romney and Obama presidential campaigns have received stinging
>> ratings from fact checkers. The Washington Post?s Fact Checker, Glenn
>> Kessler, gave the Obama campaign ?4 Pinocchios? for claiming that Mitt
>> Romney, while working at Bain Capital, ?outsourced? jobs and was a
>> ?corporate raider.? Romney?s campaign similarly got ?4 Pinocchios? for
>> claiming there was an ?Obama plan? to weaken federal welfare law and issue
>> welfare checks to people who do not work.?
>>>
>>> Romney?s campaign has seemed to bear more of the brunt from the
>> fact-checking enterprise. Based solely upon Kessler?s subjective
>> assessment of truth, by mid-September 2012 the Washington Post fact checker
>> rated Romney ads and statements with an average of 2.33 Pinocchios to
>> Obama?s 1.96. Perhaps the greatest media attack on the truthfulness of
>> Romney?s campaign came in response to the acceptance speech of Romney?s
>> running-mate, Representative Paul Ryan, which the New York Times described
>> as containing ?a number of questionable or misleading claims.?
>>>
>>> Whether campaigns are resorting to lies and distortion more often than
>> in previous elections, and if so why they are doing so, are interesting
>> questions beyond that which I can explore in this brief Article. False and
>> misleading speech may be increasing thanks to the proliferation of the
>> Internet and a decline in uniform trustworthy sources of news, such as the
>> national news networks and major newspapers. Political polarization also
>> may play a role, with partisans egged on to believe unsupported claims by
>> the modern day partisan press, in the form of FOX News, MSNBC, and liberal
>> and conservative blogs and websites.
>>>
>>> Fact check operations also are controversial to journalists, who have
>> always been in the business of resolving conflicting factual claims as part
>> of the news gathering process. Some journalists take issue with the
>> effectiveness of fact checkers. Media critic Jack Shafer declares, ?Give
>> [candidates] a million billion Pinocchios and they?ll still not behave.?
>> Others defend the ?fact check? process but see them losing their
>> effectiveness.
>>>
>>> In 2012, fact checking itself came under attack from the right, with
>> some advancing the claim that fact checkers are a biased part of the
>> ?liberal media.?Neil Newhouse, the Romney campaign?s pollster, proclaimed
>> that ?We?re not going to let our campaign be dictated by fact-checkers.? It
>> was an odd turn to see conservatives seeming to embrace a kind of
>> post-modern relativism in which truth is now in the eyes of the beholder.
>>>
>>> In this highly charged partisan atmosphere, in which each side cannot
>> agree upon the basic facts, mudslinging has become terribly common, and the
>> media are not able to meaningfully curb candidates? lies and distortions,
>> it is tempting to consider federal and strengthened state legislation to
>> deter and punish false campaign speech. Why not let courts or commissions
>> sort out truth from fiction? Indeed, a number of states already have laws
>> in place which provide some government sanction for false campaign speech.
>>>
>>> [cid:part5.01040804.06020009 at law.uci.edu]<mailto:[
>> cid:part5.01040804.06020009 at law.uci.edu]><
>> http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40731&title=%E2%80%9CAmericans%20say%20Obama%E2%80%99s%20ads%20are%20more%20honest%2C%20but%20expect%20both%20sides%20to%20lie%2C%20Esquire%2FYahoo%20poll%20finds%E2%80%9D&description=
>>>
>>>
>>> Posted in campaigns<http://electionlawblog.org/?cat=59> | Comments Off
>>>
>>>
>>>
>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu<mailto:
>> Law-election at department-lists.uci.edu>
>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>
>>>
>>> --
>>> 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<mailto:rhasen at law.uci.edu>
>>> http://law.uci.edu/faculty/page1_r_hasen.html
>>> http://electionlawblog.org
>>> Now available: The Voting Wars: http://amzn.to/y22ZTv
>>>
>>>
>>
>> --
>> 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
>> Now available: The Voting Wars: http://amzn.to/y22ZTv
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>
>
>
> --
> Mark Rush
> -------------- next part --------------
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> ------------------------------
>
> Message: 19
> Date: Sat, 29 Sep 2012 07:48:12 -0400
> From: Joseph Lorenzo Hall <joehall at gmail.com>
> Subject: Re: [EL] Kelleher vs Halderman: Internet Voting Security
> Debate
> To: wjk <wjkellpro at aol.com>
> Cc: law-election at department-lists.uci.edu
> Message-ID:
> <CACDmtYaTkTNV7kRJpsRXSHXBYhhp1XojZ_S1b98EahB_TMk0hA at mail.gmail.com>
> Content-Type: text/plain; charset=ISO-8859-1
>
> Past performance is no guarantee of future results... it's the same in
> information security as it is in finance. --Joe
>
> On Fri, Sep 28, 2012 at 5:11 PM, wjk <wjkellpro at aol.com> wrote:
>> What is more important to consider in the debate over Internet voting
>> security -- known facts about the many successes of Internet voting trials,
>> or scary possibilities that haven't happened?
>
>
>
> --
> https://josephhall.org/
>
>
> ------------------------------
>
> Message: 20
> Date: Sat, 29 Sep 2012 09:34:06 -0700
> From: "Larry Levine" <larrylevine at earthlink.net>
> Subject: Re: [EL] Fact-checking
> To: "'Mark Rush'" <markrush7983 at gmail.com>, "'Rick Hasen'"
> <rhasen at law.uci.edu>
> Cc: "'law-election at UCI.edu'" <law-election at uci.edu>
> Message-ID: <003901cd9e60$3ee5a9a0$bcb0fce0$@earthlink.net>
> Content-Type: text/plain; charset="us-ascii"
>
> More on the subject of fact-checking and the role of the press. This from an
> Associated Press editor:
>
> http://www.rawstory.com/rs/2012/09/27/ap-editor-there-wasnt-enough-time-and-
> space-to-debunk-bachmann-lies/#.UGXx92GvBQg.facebook
>
>
>
> From: law-election-bounces at department-lists.uci.edu
> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Mark
> Rush
> Sent: Saturday, September 29, 2012 2:40 AM
> To: Rick Hasen
> Cc: law-election at UCI.edu
> Subject: Re: [EL] Fact-checking
>
>
>
> All--
>
> Hi from the relatively stable, quiet part of the Middle East. I do need to
> get Rick's paper and review the long string of posts more carefully. But
> let me offer a couple of thoughts on this from the perspective of one who
> watched a carefully content monitored election last year for the Federal
> National Council in the UAE: it doesn't work.
>
> Sure, "fact checking" elsewhere might be a bit less heavy handed. But, in
> the spirit of making sure we had a good, clean, clear, non-confusing
> election, the authorities vetted candidacies and monitored promises. If you
> lied or made a promise that you could not keep, you could actually be
> penalized or removed from the ballot. The result was a pretty bland
> election, little in the way of real discussion of issues, no political
> parties and, as you might have expected, abysmal (25% turnout).
>
> This does embody one vision of what democracy ought to be, I guess. It
> leans in the Orwellian direction, as Dan says. But, I do wonder if the
> antithesis in the USA really can be said to be a qualitatively better
> version. Viz.: Obama said you didn't build that and Romney likes to fire
> people. Not exactly redeeming stuff.
>
> Anyway, it's always good to lurk on the list.
>
> cheers
>
> On Sat, Sep 29, 2012 at 5:01 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
> The interesting question is whether, under Alvarez, even objectively
> verifiable lies (I am the incumbent and was endorsed by President Obama)
> could be the subject of a damages action or some other penalty. On the
> one hand, there is less danger of partisan abuse of objectively
> verifiable facts. On the other hand, the Court notes that in cases of
> objective facts that counter-speech might be the best solution (as in a
> government database of true facts in the Stolen Valor context).
>
>
>
>
>
> On 9/28/12 6:58 PM, Lowenstein, Daniel wrote:
>> One quibble with Rick's generous post. If what he is suggesting
> is that most people can agree that Ryan's acceptance speech at the
> convention is an example of false campaign statements, he is incorrect.
> That may be a consensus among Democrats and many journalists, but it is
> certainly not agreed to by Republicans and so far as I can tell, there is
> precious little ground for it. The point that I think got the most
> attention was the supposed false statement that the Janesville factory
> closed during Obama's administration. The Associated Press, in particular,
> claimed that Ryan's claim was false because the plant closed in December,
> 2008. But aside from the point that Ryan did not actually say anything
> about when the plant closed, the Associated Press failed to note its own
> news reports in 2009 that the plant was going to be closed in April of that
> year. As Mark Hemingway pointed out in the current article I linked to this
> morning, most of the complaints about Ryan's speech are simply complaints
> that the Democrats have rebuttals that Ryan did not report.
>>
>> As to the existence of anyone objective who can declare what's
> true and false in campaigns, that is a different question from whether the
> existing "fact-checkers" are in fact objective. But the more fundamental
> point is that the kinds of questions that are mostly at stake in these
> controversies do not lend themselves to to simple declarations of truth or
> falsity. Anyone here can declare objectively that it is false that the
> American Civil War began in 1812. But if the statement is, the Civil War
> was caused by southern intransigence, only a fool would think it can be
> reolved by "true or false" or, for that matter, zero through four
> Pinocchios. Most of the questions that matter about campaign claims are
> closer to the latter than the former.
>>
>> Best,
>>
>> Daniel H. Lowenstein
>> Director, Center for the Liberal Arts and Free Institutions
> (CLAFI)
>> UCLA Law School
>> 405 Hilgard
>> Los Angeles, California 90095-1476
>> 310-825-5148
>>
>>
>> ________________________________
>> From: law-election-bounces at department-lists.uci.edu
> [law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
> [rhasen at law.uci.edu]
>> Sent: Friday, September 28, 2012 5:34 PM
>> To: law-election at UCI.edu
>> Subject: Re: [EL] Fact-checking
>>
>> I must say that today I love the listserv.
>>
>> I was off at the great Montana election law conference presenting my draft
> paper on campaign finance
> lies<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618> for the
> first time. I came back to very thoughtful comments which are causing me to
> rethink an aspect of my paper.
>>
>> To be very brief, I argue that after the Supreme Court's fractured
> opinions in U.S. v. Alvarez, there are three kinds of false campaign speech
> laws which are likely to be constitutional and one which is not. Applying
> the three opinions in the case I conclude that he three likely
> constitutional are:
>>
>> 1. Laws barring false speech about the time and date of elections (such as
> a false statement about where to cast a ballot).
>> 2. Laws allowing the government not to reprint a false statement in ballot
> materials (e.g., state does not need to repeat a lie that a non-incumbent
> candidate is an incumbent)
>> 3. Laws barring defamatory campaign speech about a candidate proven with
> actual malice (though there is some question about this after Alvarez).
>>
>> The one category which is the hardest, is the constitutionality of laws
> barring false campaign speech, as in: "I am the incumbent and I've been
> endorsed by President Obama."
>>
>> In the paper I conclude that, after Alvarez, any such laws which would
> enjoin such speech or provide damages for such speech are very likely
> unconstitutional. (Eugene Volokh in a blog post has expressed greater
> confidence on the constitutionality of a narrow version of such laws.)
>>
>> I then turn to truth commissions like Ohio, and I conclude that the Sixth
> Circuit's decision in Pestrak, upholding the Ohio commission's "truth
> declaring" function likely survives Alvarez and remains constitutional.
>>
>> In the current draft of the paper at the end I suggest that these truth
> commissions are not only likely constitutional, but also a modestly good
> thing given the decline of the media as a good arbiter of the truth in our
> highly partisan era.
>>
>> But having read all of the listserv commentary, and also hearing at
> today's conference from Ned Foley about the Ohio experience, I am having
> very serious reservations on the normative value (not the constitutionality)
> of these commission. (I'm setting aside the preemption issue for federal
> elections). The risk of political manipulation just before the election may
> be too high. Ideally I'd like to study the actual decisions made by the
> commission, but I don't think I'd have time to do it in time for this
> publication in the Montana symposium. So I appreciate very much all of the
> input about the dangers of such commissions declaring truth before
> elections.
>>
>> Finally, on the question of conservatives and post-modernism/truth. It
> does seem to me that conservatives in this election have taken a very strong
> position against the media and fact checkers, even when there were (what I
> view as) demonstrably false statements made by candidates. This is different
> from earlier elections, and I don't think the MSM ha changed. I think each
> side can disagree with particular calls of journalists and fact checkers,
> but the Ryan speech is a good example, as are a couple of Obama's ads
> against Romney. I'd also point to the claim that all of the polls are
> biased against Romney, which reminds me of what I think Kerry's team was
> saying in 2004. So I'll stand by my (more controversial) statement that
> there does seem to be a rejection on the conservative side that there's
> anyone objective out there who has the ability to fairly declare what's true
> and false in campaigns. And I think that's a change.
>>
>> Rick
>>
>>
>>
>> On 9/28/12 8:11 AM, Rick Hasen wrote:
>> Ah, there's nothing like waking up to multiple attacks on the listserv!
> I am at a conference and so I will have to respond later. In the meantime,
> you might look at my actual paper, which explains the basis for my defense
> of such commissions. And we have an actual commission in Ohio, which I
> discuss in the paper.
>>
>> Rick Hasen
>>
>> Rick Hasen
>>
>> Sent from my iPhone. Please excuse typos.
>>
>> On Sep 28, 2012, at 7:33 AM, "Sean Parnell"
> <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>>
> wrote:
>>
>>
>> I suggest we run a pilot program for 'fact-checking' or 'false statements'
> in politics, except we do it with the media instead. Maybe just start with a
> few of the largest outlets in the country, just to see how it goes and work
> out any kinks? So, we could have the finest 'fact checkers' in the country
> monitor the New York Times, NBC News, and while we're at it the Huffington
> Post (since more Americans are turning to the web these days for news), and
> maybe a few other outlets as well for the accuracy of their coverage, and
> hand out penalties for anything in the paper considered to be false,
> inaccurate, or misleading. As a value-added service, the government fact
> checkers could offer to pre-clear every story before it's released, giving
> it their stamp of approval and indemnifying the media outlet for any
> inaccuracies that might somehow slip through or later be discovered. Maybe
> we do it for one year, see how it goes? There's always the question of who
> gets to appoint the fact checkers, perhaps the President could appoint a
> Truth Czar who needs to be confirmed by the Senate? And if the Senate balks
> or delays, why that's what recess appointments (whether the Senate is or is
> not officially in recess) are for. Can't imagine any problems here.
>>
>> I'd truly love to hear an argument on why this is or is not a good idea
> from those who favor any sort of government fact-checking/false speech
> regulations for candidates.
>>
>> Sean Parnell
>>
>> President
>>
>> Impact Policy Management, LLC
>>
>> 6411 Caleb Court
>>
>> Alexandria, VA 22315
>>
>> 571-289-1374 (c)
>>
>> sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>
>>
>> -----Original Message-----
>> From:
> law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at de
> partment-lists.uci.edu>
> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
> Lowenstein, Daniel
>> Sent: Friday, September 28, 2012 2:27 AM
>> To: Rick Hasen; law-election at UCI.edu<mailto:law-election at UCI.edu>
>> Subject: [EL] Fact-checking
>>
>> I have read Rick's paper, which he was good enough to send me, on
> regulating false campaign statements. As one would expect given the author,
> the paper gives a careful review of how current First Amendment doctrine is
> likely to affect various types of possible regulation and identifies the
> kinds of regulation that have a fair or good chance to survive in an area in
> which the Constitution is not friendly to regulation.
>>
>> Somewhat to my surprise, Rick is friendly in the paper to the idea
> of "fact-checking" by government agencies (though it's not entirely clear
> whether he is saying only that such an enterprise has a fair chance of being
> upheld or is supporting it as a policy matter). In this connection, I think
> it is relevant that Rick notes but does not go much into the criticisms of
> fact-checking by the press.
>>
>> The most trenchant criticism that I know of has come from a series
> of writings by Mark Hemingway in the Weekly Standard. Rick opens his
> article with two examples of fact-checking, one nailing Obama and the other
> Romney. The Romney example is that fact-checkers have condemned his ads
> claiming that the Obama administration threatens to gut the work requirement
> of Clinton-era welfare reform.
>>
>> As it happens, Hemingway has a lengthy article in the current
> issue of the Weekly Standard focussing on this very point. See
> http://www.weeklystandard.com/articles/obama-s-palace-guard_652895.html.
> Hemingway makes what appears on its face to be a strong argument that
> Romney's claim is accurate, but I don't know nearly enough about welfare to
> have an independent opinion on that. In any event, Hemingway makes an
> overwhelming case that the fact-checkers who have condemned Romney on this
> have been at best extremely inept and most likely acting in some degree of
> bad faith.
>>
>> Anyone interested in this subject should also read Hemingway's
> more general criticism of fact-checkers, "Lies, Damned Lies,
> 'Fact-Checking," published last December, which is also extremely
> persuasive.
> http://www.weeklystandard.com/articles/lies-damned-lies-and-fact-checking_61
> 1854.html
>>
>> There are many reasons why fact-checking in the context of
> political debate is highly problematic and should be considered with great
> skepticism. Hemingway makes a strong case that the currently prominent
> fact-checkers are biased, but even if they were not at all biased, the
> problems would run deep. Needless to say, none of the above suggests any
> doubt about the right of the press to engage in fact-checking to it's
> heart's content. But I hope institutionalized fact-checking by the
> government would be found unconstitutional. Whether or not it would be, it
> seems to me an inherently Orwellian enterprise that ought to be strongly
> opposed.
>>
>> Best,
>>
>> Daniel H. Lowenstein
>>
>> Director, Center for the Liberal Arts and Free Institutions
> (CLAFI)
>>
>> UCLA Law School
>>
>> 405 Hilgard
>>
>> Los Angeles, California 90095-1476
>>
>> 310-825-5148
>>
>>
>> "Americans say Obama's ads are more honest, but expect both sides to lie,
> Esquire/Yahoo poll finds"<http://electionlawblog.org/?p=40731>
>>
>> Posted on September 27, 2012 10:57 am<http://electionlawblog.org/?p=40731>
> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> Yahoo News
> reports<http://news.yahoo.com/esquire-yahoo-news-poll-romney-ads-lie-more-bo
> th-dishonest.html>.
>>
>> My new paper<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>
> on whether there is a constitutional right to lie in campaigns and elections
> begins:
>>
>> Election 2012 may well go down in history as the "4 Pinocchios Election."
> It is perhaps no coincidence that the current election season has seen both
> a rise in the amount of arguably false campaign speech and the proliferation
> of journalistic "fact checkers" who regularly rate statements made by
> candidates and campaigns. Journalistic ratings such as Politifact's
> "Truth-o-meter" rank candidate statements from from "true" and "mostly true"
> to "false" and even "pants on fire." The Washington Post rating system,
> which relies upon the judgment of its fact checker, Glenn Kessler, uses 1 to
> 4 "Pinocchios" for false statements. The granddaddy of fact checking groups,
> Factcheck.org<http://Factcheck.org>, while avoiding a rating system, offers
> analysis which regularly describes controversial campaign claims as "false"
> or "wrong.
>>
>> Both the Romney and Obama presidential campaigns have received stinging
> ratings from fact checkers. The Washington Post's Fact Checker, Glenn
> Kessler, gave the Obama campaign "4 Pinocchios" for claiming that Mitt
> Romney, while working at Bain Capital, "outsourced" jobs and was a
> "corporate raider." Romney's campaign similarly got "4 Pinocchios" for
> claiming there was an "Obama plan" to weaken federal welfare law and issue
> welfare checks to people who do not work."
>>
>> Romney's campaign has seemed to bear more of the brunt from the
> fact-checking enterprise. Based solely upon Kessler's subjective assessment
> of truth, by mid-September 2012 the Washington Post fact checker rated
> Romney ads and statements with an average of 2.33 Pinocchios to Obama's
> 1.96. Perhaps the greatest media attack on the truthfulness of Romney's
> campaign came in response to the acceptance speech of Romney's running-mate,
> Representative Paul Ryan, which the New York Times described as containing
> "a number of questionable or misleading claims."
>>
>> Whether campaigns are resorting to lies and distortion more often than in
> previous elections, and if so why they are doing so, are interesting
> questions beyond that which I can explore in this brief Article. False and
> misleading speech may be increasing thanks to the proliferation of the
> Internet and a decline in uniform trustworthy sources of news, such as the
> national news networks and major newspapers. Political polarization also may
> play a role, with partisans egged on to believe unsupported claims by the
> modern day partisan press, in the form of FOX News, MSNBC, and liberal and
> conservative blogs and websites.
>>
>> Fact check operations also are controversial to journalists, who have
> always been in the business of resolving conflicting factual claims as part
> of the news gathering process. Some journalists take issue with the
> effectiveness of fact checkers. Media critic Jack Shafer declares, "Give
> [candidates] a million billion Pinocchios and they'll still not behave."
> Others defend the "fact check" process but see them losing their
> effectiveness.
>>
>> In 2012, fact checking itself came under attack from the right, with some
> advancing the claim that fact checkers are a biased part of the "liberal
> media."Neil Newhouse, the Romney campaign's pollster, proclaimed that "We're
> not going to let our campaign be dictated by fact-checkers." It was an odd
> turn to see conservatives seeming to embrace a kind of post-modern
> relativism in which truth is now in the eyes of the beholder.
>>
>> In this highly charged partisan atmosphere, in which each side cannot
> agree upon the basic facts, mudslinging has become terribly common, and the
> media are not able to meaningfully curb candidates' lies and distortions, it
> is tempting to consider federal and strengthened state legislation to deter
> and punish false campaign speech. Why not let courts or commissions sort out
> truth from fiction? Indeed, a number of states already have laws in place
> which provide some government sanction for false campaign speech.
>>
>> [cid:part5.01040804.06020009 at law.uci.edu
> <mailto:cid%3Apart5.01040804.06020009 at law.uci.edu>
> ]<mailto:[cid:part5.01040804.06020009 at law.uci.edu
> <mailto:cid%3Apart5.01040804.06020009 at law.uci.edu>
> ]><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2
> F%3Fp%3D40731
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%
> 3Fp%3D40731&title=%E2%80%9CAmericans%20say%20Obama%E2%80%99s%20ads%20are%20m
> ore%20honest%2C%20but%20expect%20both%20sides%20to%20lie%2C%20Esquire%2FYaho
> o%20poll%20finds%E2%80%9D&description=>
> &title=%E2%80%9CAmericans%20say%20Obama%E2%80%99s%20ads%20are%20more%20hones
> t%2C%20but%20expect%20both%20sides%20to%20lie%2C%20Esquire%2FYahoo%20poll%20
> finds%E2%80%9D&description=>
>>
>> Posted in campaigns<http://electionlawblog.org/?cat=59> | Comments Off
>>
>>
>>
>> _______________________________________________
>> Law-election mailing list
>>
> Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.u
> ci.edu>
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>> --
>> 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<mailto:rhasen at law.uci.edu>
>> http://law.uci.edu/faculty/page1_r_hasen.html
>> http://electionlawblog.org
>> Now available: The Voting Wars: http://amzn.to/y22ZTv
>>
>>
>
> --
> 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
> Now available: The Voting Wars: http://amzn.to/y22ZTv
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
>
> --
> Mark Rush
>
> -------------- next part --------------
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>
> ------------------------------
>
> Message: 21
> Date: Sat, 29 Sep 2012 10:35:33 -0700
> From: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
> Subject: Re: [EL] Fact-checking
> To: "law-election at UCI.edu" <law-election at uci.edu>
> Message-ID:
> <0C2E309B4F3A894F859CD79B9AB3279A123EBCAE6E at LULI.pepperdine.ad.pepperdine.edu>
>
> Content-Type: text/plain; charset="us-ascii"
>
> Mark,
>
> Those very examples show the problems with government fact-checking. Obama did say "you didn't build that." There is a dispute over how to interpret those words in the context of the sentence or two preceding it, in the context of the paragraph or two preceding it, in the context of the President's general pronouncements and world view, and in the context of a party that embraces concepts like "it takes a village." The same might be said of Romney's "I like to be able to fire people" comment. In context it probably meant that people in positions of responsibility who don't perform adequately should be replaced, but others would say it should be interpreted in light of the supposed mass firings he was supposed to have been responsible for with Bain Capital. If we want to have freedom of speech and of the press, we can't have a government body determining whose interpretation of those statements is permissible.
>
> Stay safe, and best wishes.
>
> Mark S. Scarberry
> Professor of Law
> Pepperdine Univ. School of Law
>
>
>
> From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Mark Rush
> Sent: Saturday, September 29, 2012 2:40 AM
> To: Rick Hasen
> Cc: law-election at UCI.edu
> Subject: Re: [EL] Fact-checking
>
> All--
>
> Hi from the relatively stable, quiet part of the Middle East. I do need to get Rick's paper and review the long string of posts more carefully. But let me offer a couple of thoughts on this from the perspective of one who watched a carefully content monitored election last year for the Federal National Council in the UAE: it doesn't work.
>
> Sure, "fact checking" elsewhere might be a bit less heavy handed. But, in the spirit of making sure we had a good, clean, clear, non-confusing election, the authorities vetted candidacies and monitored promises. If you lied or made a promise that you could not keep, you could actually be penalized or removed from the ballot. The result was a pretty bland election, little in the way of real discussion of issues, no political parties and, as you might have expected, abysmal (25% turnout).
>
> This does embody one vision of what democracy ought to be, I guess. It leans in the Orwellian direction, as Dan says. But, I do wonder if the antithesis in the USA really can be said to be a qualitatively better version. Viz.: Obama said you didn't build that and Romney likes to fire people. Not exactly redeeming stuff.
>
> Anyway, it's always good to lurk on the list.
>
> cheers
> On Sat, Sep 29, 2012 at 5:01 AM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
> The interesting question is whether, under Alvarez, even objectively
> verifiable lies (I am the incumbent and was endorsed by President Obama)
> could be the subject of a damages action or some other penalty. On the
> one hand, there is less danger of partisan abuse of objectively
> verifiable facts. On the other hand, the Court notes that in cases of
> objective facts that counter-speech might be the best solution (as in a
> government database of true facts in the Stolen Valor context).
>
>
>
>
> On 9/28/12 6:58 PM, Lowenstein, Daniel wrote:
>> One quibble with Rick's generous post. If what he is suggesting is that most people can agree that Ryan's acceptance speech at the convention is an example of false campaign statements, he is incorrect. That may be a consensus among Democrats and many journalists, but it is certainly not agreed to by Republicans and so far as I can tell, there is precious little ground for it. The point that I think got the most attention was the supposed false statement that the Janesville factory closed during Obama's administration. The Associated Press, in particular, claimed that Ryan's claim was false because the plant closed in December, 2008. But aside from the point that Ryan did not actually say anything about when the plant closed, the Associated Press failed to note its own news reports in 2009 that the plant was going to be closed in April of that year. As Mark Hemingway pointed out in the current article I linked to this morning, most of the complaints about Ryan
> 's speech are simply complaints that the Democrats have rebuttals that Ryan did not report.
>>
>> As to the existence of anyone objective who can declare what's true and false in campaigns, that is a different question from whether the existing "fact-checkers" are in fact objective. But the more fundamental point is that the kinds of questions that are mostly at stake in these controversies do not lend themselves to to simple declarations of truth or falsity. Anyone here can declare objectively that it is false that the American Civil War began in 1812. But if the statement is, the Civil War was caused by southern intransigence, only a fool would think it can be reolved by "true or false" or, for that matter, zero through four Pinocchios. Most of the questions that matter about campaign claims are closer to the latter than the former.
>>
>> Best,
>>
>> Daniel H. Lowenstein
>> Director, Center for the Liberal Arts and Free Institutions (CLAFI)
>> UCLA Law School
>> 405 Hilgard
>> Los Angeles, California 90095-1476
>> 310-825-5148
>>
>>
>> ________________________________
>> From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Rick Hasen [rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>]
>> Sent: Friday, September 28, 2012 5:34 PM
>> To: law-election at UCI.edu<mailto:law-election at UCI.edu>
>> Subject: Re: [EL] Fact-checking
>>
>> I must say that today I love the listserv.
>>
>> I was off at the great Montana election law conference presenting my draft paper on campaign finance lies<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618> for the first time. I came back to very thoughtful comments which are causing me to rethink an aspect of my paper.
>>
>> To be very brief, I argue that after the Supreme Court's fractured opinions in U.S. v. Alvarez, there are three kinds of false campaign speech laws which are likely to be constitutional and one which is not. Applying the three opinions in the case I conclude that he three likely constitutional are:
>>
>> 1. Laws barring false speech about the time and date of elections (such as a false statement about where to cast a ballot).
>> 2. Laws allowing the government not to reprint a false statement in ballot materials (e.g., state does not need to repeat a lie that a non-incumbent candidate is an incumbent)
>> 3. Laws barring defamatory campaign speech about a candidate proven with actual malice (though there is some question about this after Alvarez).
>>
>> The one category which is the hardest, is the constitutionality of laws barring false campaign speech, as in: "I am the incumbent and I've been endorsed by President Obama."
>>
>> In the paper I conclude that, after Alvarez, any such laws which would enjoin such speech or provide damages for such speech are very likely unconstitutional. (Eugene Volokh in a blog post has expressed greater confidence on the constitutionality of a narrow version of such laws.)
>>
>> I then turn to truth commissions like Ohio, and I conclude that the Sixth Circuit's decision in Pestrak, upholding the Ohio commission's "truth declaring" function likely survives Alvarez and remains constitutional.
>>
>> In the current draft of the paper at the end I suggest that these truth commissions are not only likely constitutional, but also a modestly good thing given the decline of the media as a good arbiter of the truth in our highly partisan era.
>>
>> But having read all of the listserv commentary, and also hearing at today's conference from Ned Foley about the Ohio experience, I am having very serious reservations on the normative value (not the constitutionality) of these commission. (I'm setting aside the preemption issue for federal elections). The risk of political manipulation just before the election may be too high. Ideally I'd like to study the actual decisions made by the commission, but I don't think I'd have time to do it in time for this publication in the Montana symposium. So I appreciate very much all of the input about the dangers of such commissions declaring truth before elections.
>>
>> Finally, on the question of conservatives and post-modernism/truth. It does seem to me that conservatives in this election have taken a very strong position against the media and fact checkers, even when there were (what I view as) demonstrably false statements made by candidates. This is different from earlier elections, and I don't think the MSM ha changed. I think each side can disagree with particular calls of journalists and fact checkers, but the Ryan speech is a good example, as are a couple of Obama's ads against Romney. I'd also point to the claim that all of the polls are biased against Romney, which reminds me of what I think Kerry's team was saying in 2004. So I'll stand by my (more controversial) statement that there does seem to be a rejection on the conservative side that there's anyone objective out there who has the ability to fairly declare what's true and false in campaigns. And I think that's a change.
>>
>> Rick
>>
>>
>>
>> On 9/28/12 8:11 AM, Rick Hasen wrote:
>> Ah, there's nothing like waking up to multiple attacks on the listserv! I am at a conference and so I will have to respond later. In the meantime, you might look at my actual paper, which explains the basis for my defense of such commissions. And we have an actual commission in Ohio, which I discuss in the paper.
>>
>> Rick Hasen
>>
>> Rick Hasen
>>
>> Sent from my iPhone. Please excuse typos.
>>
>> On Sep 28, 2012, at 7:33 AM, "Sean Parnell" <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com><mailto:sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>>> wrote:
>>
>>
>> I suggest we run a pilot program for 'fact-checking' or 'false statements' in politics, except we do it with the media instead. Maybe just start with a few of the largest outlets in the country, just to see how it goes and work out any kinks? So, we could have the finest 'fact checkers' in the country monitor the New York Times, NBC News, and while we're at it the Huffington Post (since more Americans are turning to the web these days for news), and maybe a few other outlets as well for the accuracy of their coverage, and hand out penalties for anything in the paper considered to be false, inaccurate, or misleading. As a value-added service, the government fact checkers could offer to pre-clear every story before it's released, giving it their stamp of approval and indemnifying the media outlet for any inaccuracies that might somehow slip through or later be discovered. Maybe we do it for one year, see how it goes? There's always the question of who gets to appoint the fact
> checkers, perhaps the President could appoint a Truth Czar who needs to be confirmed by the Senate? And if the Senate balks or delays, why that's what recess appointments (whether the Senate is or is not officially in recess) are for. Can't imagine any problems here...
>>
>> I'd truly love to hear an argument on why this is or is not a good idea from those who favor any sort of government fact-checking/false speech regulations for candidates.
>>
>> Sean Parnell
>>
>> President
>>
>> Impact Policy Management, LLC
>>
>> 6411 Caleb Court
>>
>> Alexandria, VA 22315
>>
>> 571-289-1374 (c)
>>
>> sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com><mailto:sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>>
>>
>> -----Original Message-----
>> From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu><mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Lowenstein, Daniel
>> Sent: Friday, September 28, 2012 2:27 AM
>> To: Rick Hasen; law-election at UCI.edu<mailto:law-election at UCI.edu<mailto:law-election at UCI.edu>>
>> Subject: [EL] Fact-checking
>>
>> I have read Rick's paper, which he was good enough to send me, on regulating false campaign statements. As one would expect given the author, the paper gives a careful review of how current First Amendment doctrine is likely to affect various types of possible regulation and identifies the kinds of regulation that have a fair or good chance to survive in an area in which the Constitution is not friendly to regulation.
>>
>> Somewhat to my surprise, Rick is friendly in the paper to the idea of "fact-checking" by government agencies (though it's not entirely clear whether he is saying only that such an enterprise has a fair chance of being upheld or is supporting it as a policy matter). In this connection, I think it is relevant that Rick notes but does not go much into the criticisms of fact-checking by the press.
>>
>> The most trenchant criticism that I know of has come from a series of writings by Mark Hemingway in the Weekly Standard. Rick opens his article with two examples of fact-checking, one nailing Obama and the other Romney. The Romney example is that fact-checkers have condemned his ads claiming that the Obama administration threatens to gut the work requirement of Clinton-era welfare reform.
>>
>> As it happens, Hemingway has a lengthy article in the current issue of the Weekly Standard focussing on this very point. See http://www.weeklystandard.com/articles/obama-s-palace-guard_652895.html. Hemingway makes what appears on its face to be a strong argument that Romney's claim is accurate, but I don't know nearly enough about welfare to have an independent opinion on that. In any event, Hemingway makes an overwhelming case that the fact-checkers who have condemned Romney on this have been at best extremely inept and most likely acting in some degree of bad faith.
>>
>> Anyone interested in this subject should also read Hemingway's more general criticism of fact-checkers, "Lies, Damned Lies, 'Fact-Checking," published last December, which is also extremely persuasive. http://www.weeklystandard.com/articles/lies-damned-lies-and-fact-checking_611854.html
>>
>> There are many reasons why fact-checking in the context of political debate is highly problematic and should be considered with great skepticism. Hemingway makes a strong case that the currently prominent fact-checkers are biased, but even if they were not at all biased, the problems would run deep. Needless to say, none of the above suggests any doubt about the right of the press to engage in fact-checking to it's heart's content. But I hope institutionalized fact-checking by the government would be found unconstitutional. Whether or not it would be, it seems to me an inherently Orwellian enterprise that ought to be strongly opposed.
>>
>> Best,
>>
>> Daniel H. Lowenstein
>>
>> Director, Center for the Liberal Arts and Free Institutions (CLAFI)
>>
>> UCLA Law School
>>
>> 405 Hilgard
>>
>> Los Angeles, California 90095-1476
>>
>> 310-825-5148
>>
>>
>> "Americans say Obama's ads are more honest, but expect both sides to lie, Esquire/Yahoo poll finds"<http://electionlawblog.org/?p=40731>
>>
>> Posted on September 27, 2012 10:57 am<http://electionlawblog.org/?p=40731> by Rick Hasen<http://electionlawblog.org/?author=3>
>>
>> Yahoo News reports<http://news.yahoo.com/esquire-yahoo-news-poll-romney-ads-lie-more-both-dishonest.html>.
>>
>> My new paper<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618> on whether there is a constitutional right to lie in campaigns and elections begins:
>>
>> Election 2012 may well go down in history as the "4 Pinocchios Election." It is perhaps no coincidence that the current election season has seen both a rise in the amount of arguably false campaign speech and the proliferation of journalistic "fact checkers" who regularly rate statements made by candidates and campaigns. Journalistic ratings such as Politifact's "Truth-o-meter" rank candidate statements from from "true" and "mostly true" to "false" and even "pants on fire." The Washington Post rating system, which relies upon the judgment of its fact checker, Glenn Kessler, uses 1 to 4 "Pinocchios" for false statements. The granddaddy of fact checking groups, Factcheck.org<http://Factcheck.org>, while avoiding a rating system, offers analysis which regularly describes controversial campaign claims as "false" or "wrong.
>>
>> Both the Romney and Obama presidential campaigns have received stinging ratings from fact checkers. The Washington Post's Fact Checker, Glenn Kessler, gave the Obama campaign "4 Pinocchios" for claiming that Mitt Romney, while working at Bain Capital, "outsourced" jobs and was a "corporate raider." Romney's campaign similarly got "4 Pinocchios" for claiming there was an "Obama plan" to weaken federal welfare law and issue welfare checks to people who do not work."
>>
>> Romney's campaign has seemed to bear more of the brunt from the fact-checking enterprise. Based solely upon Kessler's subjective assessment of truth, by mid-September 2012 the Washington Post fact checker rated Romney ads and statements with an average of 2.33 Pinocchios to Obama's 1.96. Perhaps the greatest media attack on the truthfulness of Romney's campaign came in response to the acceptance speech of Romney's running-mate, Representative Paul Ryan, which the New York Times described as containing "a number of questionable or misleading claims."
>>
>> Whether campaigns are resorting to lies and distortion more often than in previous elections, and if so why they are doing so, are interesting questions beyond that which I can explore in this brief Article. False and misleading speech may be increasing thanks to the proliferation of the Internet and a decline in uniform trustworthy sources of news, such as the national news networks and major newspapers. Political polarization also may play a role, with partisans egged on to believe unsupported claims by the modern day partisan press, in the form of FOX News, MSNBC, and liberal and conservative blogs and websites.
>>
>> Fact check operations also are controversial to journalists, who have always been in the business of resolving conflicting factual claims as part of the news gathering process. Some journalists take issue with the effectiveness of fact checkers. Media critic Jack Shafer declares, "Give [candidates] a million billion Pinocchios and they'll still not behave." Others defend the "fact check" process but see them losing their effectiveness.
>>
>> In 2012, fact checking itself came under attack from the right, with some advancing the claim that fact checkers are a biased part of the "liberal media."Neil Newhouse, the Romney campaign's pollster, proclaimed that "We're not going to let our campaign be dictated by fact-checkers." It was an odd turn to see conservatives seeming to embrace a kind of post-modern relativism in which truth is now in the eyes of the beholder.
>>
>> In this highly charged partisan atmosphere, in which each side cannot agree upon the basic facts, mudslinging has become terribly common, and the media are not able to meaningfully curb candidates' lies and distortions, it is tempting to consider federal and strengthened state legislation to deter and punish false campaign speech. Why not let courts or commissions sort out truth from fiction? Indeed, a number of states already have laws in place which provide some government sanction for false campaign speech.
>>
>> [cid:part5.01040804.06020009 at law.uci.edu<mailto:cid%3Apart5.01040804.06020009 at law.uci.edu>]<mailto:[cid:part5.01040804.06020009 at law.uci.edu<mailto:cid%3Apart5.01040804.06020009 at law.uci.edu>]><http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D40731&title=%E2%80%9CAmericans%20say%20Obama%E2%80%99s%20ads%20are%20more%20honest%2C%20but%20expect%20both%20sides%20to%20lie%2C%20Esquire%2FYahoo%20poll%20finds%E2%80%9D&description=>
>>
>> Posted in campaigns<http://electionlawblog.org/?cat=59> | Comments Off
>>
>>
>>
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>> --
>> 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<mailto:rhasen at law.uci.edu><mailto:rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
>> http://law.uci.edu/faculty/page1_r_hasen.html
>> http://electionlawblog.org
>> Now available: The Voting Wars: http://amzn.to/y22ZTv
>>
>>
>
> --
> 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
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