[EL] ELB News and Commentary 8/3/13
Rick Hasen
rhasen at law.uci.edu
Sat Aug 3 10:56:51 PDT 2013
"Citizens United poised to destroy judicial impartiality"
<http://electionlawblog.org/?p=53956>
Posted on August 3, 2013 10:50 am <http://electionlawblog.org/?p=53956>
by Rick Hasen <http://electionlawblog.org/?author=3>
Former Montana Supreme Court Justice James C. Nelson, Supreme who
dissented (and was ultimately vindicated) by the United States Supreme
Court in ATP v. Bullock, has written this oped f
<http://missoulian.com/news/opinion/columnists/citizens-united-poised-to-destroy-judicial-impartiality/article_2d25e012-fab8-11e2-833b-001a4bcf887a.html>or
the /Missoulian/.
[A}ccording to the Supreme Court, while contributions directly to a
candidate breed corruption, corporate expenditures on behalf of a
candidate do not have any such corruptive effect.
For those living in a parallel universe that nuance may make sense,
but, in reality it is a dichotomy grounded in utter fiction. Worse,
this canard presents a clear and present danger for the majority of
states, like Montana, where voters elect their judges and justices.
Citizens United applies to judicial elections, too. Make no mistake;
its effects will dominate judicial elections.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
judicial elections <http://electionlawblog.org/?cat=19> | Comments Off
"D.C. group not happy with how Indiana handling complaint"
<http://electionlawblog.org/?p=53953>
Posted on August 3, 2013 10:46 am <http://electionlawblog.org/?p=53953>
by Rick Hasen <http://electionlawblog.org/?author=3>
TribStar
<http://tribstar.com/news/x1664876769/D-C-group-not-happy-with-how-Indiana-handling-complaint>:
"The Washington D.C. watchdog group that accused Terre Haute attorney
Jim Bopp Jr. of improperly benefiting from a not-for-profit organization
has gotten its first official response to one of its complaints --- and
it's not happy."
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
"Congress: Divided, discourteous _ taking a break"
<http://electionlawblog.org/?p=53950>
Posted on August 3, 2013 10:43 am <http://electionlawblog.org/?p=53950>
by Rick Hasen <http://electionlawblog.org/?author=3>
AP's David Espo
<http://bigstory.ap.org/article/congress-divided-discourteous-taking-break-0>:
"The accomplishments are few, the chaos plentiful in the 113th Congress,
a discourteous model of divided government now beginning a five-week break."
More:
Legislation linking interest rates on student loans to the
marketplace passed, and, too, a bill to strengthen the government's
response to crimes against women. Two more measures sent recovery
funds to the victims of Superstorm Sandy.
Among the 18 other measures signed into law so far: one named a new
span over the Mississippi River as the Stan Musial Veterans Memorial
Bridge, after the late baseball legend. Another renamed a section of
the tax code after former Sen. Kay Bailey Hutchison of Texas.
A third clarified the size of metal blanks to be used by the
Baseball Hall of Fame in minting gold and silver commemoratives: a
diameter of .85 inches in the case of $5 gold coins, and 1.5 inches
for $1 silvers.
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Posted in legislation and legislatures
<http://electionlawblog.org/?cat=27>, political parties
<http://electionlawblog.org/?cat=25>, political polarization
<http://electionlawblog.org/?cat=68> | Comments Off
Slate Gabfest Tackles Holder's Voting Rights Gambit
<http://electionlawblog.org/?p=53948>
Posted on August 3, 2013 10:40 am <http://electionlawblog.org/?p=53948>
by Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://www.slate.com/articles/podcasts/gabfest/2013/08/the_gabfest_bradley_manning_s_verdict_texas_and_the_future_of_the_voting.html>.
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15> |
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"Judging the (un)productivity of the 113th Congress"
<http://electionlawblog.org/?p=53945>
Posted on August 2, 2013 8:09 pm <http://electionlawblog.org/?p=53945>
by Rick Hasen <http://electionlawblog.org/?author=3>
WaPo reports
<http://www.washingtonpost.com/blogs/the-fix/wp/2013/08/02/judging-the-unproductivity-of-the-113th-congress/>.
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Posted in legislation and legislatures
<http://electionlawblog.org/?cat=27>, political parties
<http://electionlawblog.org/?cat=25>, political polarization
<http://electionlawblog.org/?cat=68> | Comments Off
Two from CLC <http://electionlawblog.org/?p=53942>
Posted on August 2, 2013 1:28 pm <http://electionlawblog.org/?p=53942>
by Rick Hasen <http://electionlawblog.org/?author=3>
Reform Groups Urge FEC Chair to Buck Partisan Political Pressure to
Undermine Enforcement
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2207:august-2-2013-reform-groups-urge-fec-chair-to-buck-partisan-political-pressure-to-undermine-enforcement-&catid=63:legal-center-press-releases&Itemid=61>
and
Watchdogs Urge FEC to Reject Democratic & Republican Parties' Request
to Use "Recount Funds" as Slush Funds
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2208:august-2-2013-watchdogs-urge-fec-to-reject-democratic-a-republican-parties-request-to-use-recount-funds-as-slush-funds&catid=63:legal-center-press-releases&Itemid=61>
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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Can Democracies Ban "Anti-Democratic" Political Parties?
<http://electionlawblog.org/?p=53915>
Posted on August 2, 2013 12:08 pm <http://electionlawblog.org/?p=53915>
by Richard Pildes <http://electionlawblog.org/?author=7>
Though this blog usually focuses only on U.S. issues, I wanted to flag a
story in today's Wall Street Journal that might provoke the interest of
many readers (since the WSJ is behind a paywall, see here
<http://www.washingtonpost.com/world/asia_pacific/bangladesh-court-disqualifies-largest-islamic-party-from-election/2013/08/01/1a405bfa-fa93-11e2-89f7-8599e3f77a67_story.html>).
In Bangladesh, a court has barred the country's largest Islamist
political party from participating in upcoming elections later this year
or early next. Although the party, Jamaat-e-Islam (JI), is relatively
small, it could well be the tipping force in the struggle for control of
the govern between the two major political parties; JI aligns with the
opposition.
The court banned JI on the ground that the party's charter acknowledges
the "absolute power" of God and does not acknowledge the sovereignty of
the people of Bangladesh. This judicial action is a timely illustration
of two central issues in the post-World War II struggles over what
"democracy" means and entails. The first is the idea of "militant
democracy," which is the view that democracies can and should be
militant in taking measures to ensure the continued democratic nature of
the state and to ban or contain anti-democratic forces, including
political parties. Though coined in 1937 by Karl Loewenstein, the idea
caught on powerfully in Europe in the aftermath of WWII. The second
issue this recent court decision raises, of course, is what role
religiously-based political parties should be permitted to play in
democracies --- an issue particularly acute right now in working out the
appropriate relationship between Islam and democracy, surely among the
most significant political issues of our era. The decision sounds
similar to earlier decisions of the Turkish Constitutional Court and the
European Court of Human Rights, which upheld bans on Islamist parties
that were judged to be anti-democratic. For a survey of these
decisions, see here.
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=935395>
Violent protests have been going on in the country since February, after
the International Crimes Tribunal Bangladesh sentenced leading figures
in JI to death or long sentences for their role in the country's 1971
war for independence (seehere
<http://jurist.org/paperchase/2013/08/bangladesh-court-rules-jamaat-e-islami-is-illegal-political-party.php>),
when JI aligned with Pakistan in resisting the move for Bangladesh's
independence. The country became a democracy in 1991.
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Posted in political parties <http://electionlawblog.org/?cat=25> |
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Justice Scalia Ties Supreme Court Prisoner Release Decision to Gay
Rights Overreach: "Power of the Black Robe"
<http://electionlawblog.org/?p=53933>
Posted on August 2, 2013 12:06 pm <http://electionlawblog.org/?p=53933>
by Rick Hasen <http://electionlawblog.org/?author=3>
From today's dissent
<http://sblog.s3.amazonaws.com/wp-content/uploads/2013/08/Calif-prison-release-order-8-2-13.pdf>
on the denial of a stay
<http://www.scotusblog.com/2013/08/no-delay-of-prisoner-release/>in the
California prisoner release case:
It appears to have become a standard ploy, when this Court vastly
expands the Power of the Black Robe, to hint at limitations that
make it seem not so bad. See, e.g., /Lawrence v. Texas /(Scalia J.
dissenting); /United States v. Windsor/ (Scalia, J., dissenting).
Comes the moment of truth, the hinted-at limitation proves a sham.
As for me, I adhere to my original view of this terrible injunction.
It goes beyond what the Prison Litigation Reform Act allows, and
beyond the power of the courts. I would grant the stay and dissolve
the injunction.
UPDATE: Interesting double entrendre
<https://twitter.com/JoshMBlackman/status/363380501253341184> in Scalia
dissent.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29> | Comments Off
"House Committee Subpoenas Treasury for Tax-Exempt Application
Documents" <http://electionlawblog.org/?p=53929>
Posted on August 2, 2013 11:29 am <http://electionlawblog.org/?p=53929>
by Rick Hasen <http://electionlawblog.org/?author=3>
Bloomberg BNA Breaking News: "House Oversight and Government Reform
Committee Chairman Darrell Issa (R-Calif.) issued a subpoena Aug. 2 to
Treasury Secretary Jacob Lew to compel the production of various
documents the committee wants for its investigation into the Internal
Revenue Service's treatment of groups applying for tax-exempt status."
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22> | Comments Off
"Leahy Eyes 'Nuclear Option' Threat to Confirm Judges"
<http://electionlawblog.org/?p=53926>
Posted on August 2, 2013 11:13 am <http://electionlawblog.org/?p=53926>
by Rick Hasen <http://electionlawblog.org/?author=3>
/Roll Call/
<http://blogs.rollcall.com/wgdb/leahy-nuclear-option-could-return-over-judges/>reports.
<http://blogs.rollcall.com/wgdb/leahy-nuclear-option-could-return-over-judges/>
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Posted in legislation and legislatures
<http://electionlawblog.org/?cat=27>, political parties
<http://electionlawblog.org/?cat=25>, political polarization
<http://electionlawblog.org/?cat=68> | Comments Off
"North Carolina Voter ID Law Could Lead To Increased Voter
Intimidation, Harassment, Election Officials Fear"
<http://electionlawblog.org/?p=53920>
Posted on August 2, 2013 10:54 am <http://electionlawblog.org/?p=53920>
by Rick Hasen <http://electionlawblog.org/?author=3>
HuffPo reports
<http://www.huffingtonpost.com/2013/08/02/north-carolina-voter-intimidation_n_3695657.html>.
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Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
Stewart Baker Mea Culpa <http://electionlawblog.org/?p=53917>
Posted on August 2, 2013 10:49 am <http://electionlawblog.org/?p=53917>
by Rick Hasen <http://electionlawblog.org/?author=3>
Wow
<http://www.volokh.com/2013/08/01/did-the-president-win-re-election-by-violating-the-computer-fraud-and-abuse-act/>.
Stewart Baker crosses out most of his post yesterday (about which I
<http://electionlawblog.org/?p=53843> and others
<http://www.volokh.com/2013/08/01/obama-probably-did-not-win-the-2012-election-by-violating-the-computer-fraud-and-abuse-act/>
were critical
<http://www.volokh.com/2013/08/01/no-the-obama-campaign-didnt-violate-the-computer-fraud-and-abuse-act/>)
and adds the following:
CORRECTION/UPDATE: Having talked in some detail with folks at
Facebook, I've concluded that this post was just wrong, and I owe an
apology to both Facebook and the Obama campaign, not to mention the
co-bloggers and readers who joined the fray. Facebook's terms of
service do say all the things that I and Michael Vatis's post quoted
-- they prohibit password sharing and the soliciting of password
sharing and so on. But it turns out that Facebook also maintains
Facebook Platform, whose rules permit users to grant app developers
access to their user data, including a user's list of friends. The
Obama campaign created an app that adapted this platform to its
turnout goals, and it did so within the rules set by Facebook.
Because the program was authorized by Facebook, it was also
authorized under the Computer Fraud and Abuse Act. I've deleted the
bulk of the post but left it up so that any links to the original
post will come to this correction.
Maybe next time he should be more careful not to insinuate without some
evidence that a presidential candidate was colluding with the Justice
Department to engage in illegal activity to get the candidate illegally
elected.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
"The slow deaths of presidential super PACs"
<http://electionlawblog.org/?p=53912>
Posted on August 2, 2013 9:21 am <http://electionlawblog.org/?p=53912>
by Rick Hasen <http://electionlawblog.org/?author=3>
CPI reports
<http://www.publicintegrity.org/2013/08/02/13119/slow-deaths-presidential-super-pacs>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"The Obligation of Members of Congress to Consider Constitutionality
While Deliberating and Voting: The Deficiencies of House Rule XII
and a Proposed Rule for the United States Senate"
<http://electionlawblog.org/?p=53905>
Posted on August 2, 2013 9:01 am <http://electionlawblog.org/?p=53905>
by Rick Hasen <http://electionlawblog.org/?author=3>
Former Senator Russ Feingold has posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2296716> on SSRN.
Here is the abstract:
Most scholarly attention on constitutional interpretation is focused
on the judicial branch and the role of the judiciary in our system
of separation of powers. Nonetheless constitutional interpretation
should not take place solely in the courts. Rather, history suggests
our Framers envisioned that members of Congress, as well as the
President and the Courts, would have an independent and important
role to play in interpreting our Constitution. Yet this obligation
has eroded such that House Speaker John Boehner, with the support of
the Tea Party and his House colleagues, called for a "sea change" in
the way the House of Representatives operates, with "a closer
adherence to the U.S. Constitution," and amended House Rule XII to
require members of Congress who introduce bills or joint resolutions
to provide a Constitutional Authority Statement (CAS) outlining
Congress's authority to adopt the bill or joint resolution.
This Essay identifies, explains, and critically explores four key
deficiencies in House's Rule in light of the history of
constitutional interpretation in Congress, the incentives of members
of Congress, and the realities of the legislative process. While the
House's Rule represents an important step in improving the quality
of constitutional deliberation in Congress, it is unnecessarily
bureaucratic, underinclusive, fails to capture the importance of
constitutional interpretation for all members of Congress, not just
the introducers of legislation; and most importantly, reflects a
severely limited notion of what constitutional issues need to be
considered in voting on legislation by completely ignoring
constitutional infirmities involving individual rights, civil
liberties, and any other potential constitutional issue aside from
merely Congress's authority.
To address these concerns, the Essay offers a proposed rule for
adoption in the United States Senate. The Proposed Rule requires a
Constitutional Authority Statement for all legislation --- not just
bills or joint resolutions --- but only when that legislation will
actually receive a vote. Furthermore, the Proposed Rule makes it
clear that all members of Congress --- not just the introducer ---
have an individual obligation to consider the constitutionality of
legislation on which they vote. Finally, the Proposed Senate Rule
requires a CAS include not just information about Congress's Article
I authority to enact a bill, but also address other possible
countervailing constitutional issues like individual liberties.
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Posted in legislation and legislatures
<http://electionlawblog.org/?cat=27> | Comments Off
The Law of Democracy: 2013 Supplement
<http://electionlawblog.org/?p=53886>
Posted on August 2, 2013 8:54 am <http://electionlawblog.org/?p=53886>
by Richard Pildes <http://electionlawblog.org/?author=7>
How many books thank both Barack Obama and John Yoo? I know of one ---
and it might well be the only one: */The Law of Democracy: Legal
Structure of the Political Process./*
<http://www.westacademic.com/Professors/ProductDetails.aspx?productid=178125&tab=1>
Back in the mid-1990s, when we were working on the first edition, Barack
Obama was a mere state senator and law professor at the University of
Chicago Law School; John Yoo was a professor at the University of
California, Berkeley School of Law. Both taught from the materials and
provided us significant substantive analysis and commentary. Some
others thanked in the First Edition (1998), who were not well known at
the time -- indeed, many were law students -- but have since gone on to
became major academic or public-policy figures include Lani Guinier
(Harvard Law); Sherrilyn Ifill (now President and Director-Counsel of
the NAACP LDF); Daryl Levinson (NYU Law); Nate Persily (Stanford Law);
Jeff Fisher (Co-Director, Stanford Supreme Court Litigation Clinic); Tom
Goldstein (the lawyer who created and runs SCOTUS Blog). If I left
anyone out, assume it's because I considered you already well known back
in 1998. . .or you worked on later editions.
I thought of all this when I looked through the book while getting ready
to post a notice about the 2013 Supplement to last year's Fourth Edition
now being available. One of the most gratifying aspects of creating
this casebook has been the amazing people we have had a chance to work
with along the way. As for the 2013 Supplement, suffice it to say it
covers all the important developments that need to be covered, and more,
and that it's available from Foundation Press for immediate download
here.
<https://updateweb.thomsonwest.com/pub/cc?_ri_=X0Gzc2X%3DWQpglLjHJlTQGi4TsB7RfuEmtOmlrEzaYpg3wfNpfzbfqrza1tTBuHs7RVXtpKX%3DSRRDUSDWS&_ei_=ErnqQQciIpy-rHXQoqyVvZNYTlsza9wGQvzEbXsSlL0VPhwvaNvc2kN-LKZ3B56c00jViGVHVf5ucdiOL345z-KhgOxK4MbijufSbm3D9TYbiFJFUU9WNkQ66bXGuUNh2MQB.>
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Posted in election law and constitutional law
<http://electionlawblog.org/?cat=55>, pedagogy
<http://electionlawblog.org/?cat=23>, Uncategorized
<http://electionlawblog.org/?cat=1> | 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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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