[EL] ELB News and Commentary 1/9/13
Rick Hasen
rhasen at law.uci.edu
Tue Jan 8 20:59:52 PST 2013
<http://electionlawblog.org/>
"Is America Governable?" Conference at UT Austin Jan. 24-26
<http://electionlawblog.org/?p=46027>
Posted on January 8, 2013 8:54 pm <http://electionlawblog.org/?p=46027>
by Rick Hasen <http://electionlawblog.org/?author=3>
I'm really looking forward to participating in this symposium
<https://www.utexas.edu/law/conferences/governable/> organized by Sandy
Levinson (see the schedule
<https://www.utexas.edu/law/conferences/governable/sessions/> and list
of participants
<https://www.utexas.edu/law/conferences/governable/participants/>).
Here's the general description:
Pundits and political figures across the political spectrum now
regularly refer to the United States government--and to some of its
state governments as well--as "dysfunctional" or even
"pathological," with serious questions raised as to whether the
United States in the 21st century can even be described as
"governable." No doubt the answer depends on what one expects from
government. If the only test is, for example, continuing to pay
debts owed by the United States or not willfully falling off "fiscal
cliffs," then perhaps the answer is yes, though one commentator has
compared this standard as the equivalent of a parent proudly
proclaiming of a child that "he has remained out of prison." Should
"governability" be defined as the ability to confront a host of
challenges facing us in the contemporary world, the answer might be
less optimistic.
The weekend after the inauguration of President Barack Obama for his
final term in office is a propitious time for confronting basic
questions about the health of the American political system. The
symposium brings together a remarkable array of scholars across many
disciplines, persons with a variety of high-level political
experience, and eminent journalists to discuss these and other
questions of vital relevance to every American (or person affected
by decisions made by American governments).
Political polarization and the law has become one of my main research
interests these days. So far I've written Fixing Washington
<http://www.harvardlawreview.org/issues/126/december12/Book_Review_9410.php>,
126 Harvard Law Review 550 (2012) (Larry Lessigreply
<http://www.harvardlawreview.org/issues/126/december12/forum_983.php>)
and End of the Dialogue? Political Polarization, the Supreme Court, and
Congress <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2130190>,
86 Southern California Law Review (forthcoming 2013).
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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>, Supreme Court
<http://electionlawblog.org/?cat=29> | Comments Off
"Rhode Island Likely to Lose a House Seat"
<http://electionlawblog.org/?p=46024>
Posted on January 8, 2013 8:39 pm <http://electionlawblog.org/?p=46024>
by Rick Hasen <http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2013/01/09/us/politics/shrinking-rhode-island-likely-to-lose-house-seat.html?ref=politics&_r=0>:
"It may seem early to be thinking about the redistribution of House
seats that will take place after the Census in 2020, but one state,
Rhode Island, is being forced to because its population is declining."
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Posted in legislation and legislatures
<http://electionlawblog.org/?cat=27>, voting
<http://electionlawblog.org/?cat=31> | Comments Off
"Blowing the Whistle on the Pay-to-Play Game: Campaign Financing
Reform in New Jersey, 1998-2012? <http://electionlawblog.org/?p=46021>
Posted on January 8, 2013 7:42 pm <http://electionlawblog.org/?p=46021>
by Rick Hasen <http://electionlawblog.org/?author=3>
Rachel Jackson of Princeton has written this case study
<http://www.princeton.edu/successfulsocieties/content/superfocusareas/traps/PP/policynotes/view.xml?id=221>.
Here is the abstract:
ABSTRACT: In the late 1990s, civil society reformer Harry Pozycki
began a grassroots campaign to eliminate pay to play, a form of
influence buying whereby businesses donated money to New Jersey
political parties and candidates in exchange for favorable
consideration in the awarding of government contracts. Pay to play
had plagued state politics for decades and raised the cost of public
services. Pozycki pushed for enactment of contracting regulations at
the state and local levels that would bar companies making campaign
contributions from being awarded New Jersey government contracts.
Although civic groups did make steady progress in winning public
support for reform, the state legislature failed to pass regulations
because both political parties relied heavily on donations from
contractors to fund their electoral campaigns. But in 2004, outgoing
Governor James E. McGreevey implemented the regulations by executive
order, and his successor, Richard J. Codey, carried forward that
momentum, thereby enacting a state law that made the regulations
permanent. The state and local pay-to-play reforms ultimately
required very little administrative cost and avoided legal
complications related to free speech by their regulation of state
contracts rather than of campaign financing. By 2006, New Jersey had
one of the strongest anti-pay-to-play laws in the United States, and
several other states followed its model. Under two successive
governors, New Jersey continued to consider the legislation and make
changes to it through the end of 2012.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
chicanery <http://electionlawblog.org/?cat=12> | Comments Off
Forum on "The Voting Wars" at Cardozo law Feb. 11
<http://electionlawblog.org/?p=46018>
Posted on January 8, 2013 1:16 pm <http://electionlawblog.org/?p=46018>
by Rick Hasen <http://electionlawblog.org/?author=3>
Cardozo Law School's Foersheimer Center for Constitutional Democracy is
putting on this event
<http://www.cardozo.yu.edu/MemberContentDisplay.aspx?ccmd=ContentDisplay&ucmd=UserDisplay&userid=10374&contentid=25758&folderid=340>
Feb. 11 at noon:
The Voting Wars: From Florida 2000 to the Next Election Meltdown, a
discussion with the author
2/11/2013
12:00 pm -- 1:30 pm
Richard L. Hasen, Chancellor's Professor of Law and Political
Science at the University of California, Irvine, will discuss and
respond to commentary about his recent book, /The Voting Wars: From
Florida 2000 to the Next Election Meltdown/. Professor Hasen is a
well-known expert in the field of election law, having co-founded
the /Election Law Journal/ and published more than eighty articles
in the field.
Commenting on Professor Hasen's book will be election law Professors
Janai S. Nelson, from St. John's University School of Law; Richard
Briffault, from Columbia Law School; and Mark C. Alexander, from
Seton Hall Law School. Professor Alexander is currently running for
the New Jersey Senate.
The panel will be moderated by Professor Michelle Adams.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
"Why 'gerrymandering' doesn't polarise Congress the way we're told"
<http://electionlawblog.org/?p=46015>
Posted on January 8, 2013 11:52 am <http://electionlawblog.org/?p=46015>
by Rick Hasen <http://electionlawblog.org/?author=3>
Harry Enten writes
<http://www.guardian.co.uk/commentisfree/2013/jan/03/gerrymandering-polarise-congress>
for/The Guardian/.
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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
"DISCLOSE Act Causes Less Disclosure"
<http://electionlawblog.org/?p=46013>
Posted on January 8, 2013 11:51 am <http://electionlawblog.org/?p=46013>
by Rick Hasen <http://electionlawblog.org/?author=3>
Eric Wang has writtenthis Roll Call oped
<http://www.rollcall.com/news/wang_disclose_act_causes_less_disclosure-220517-1.html?zkPrintable=true>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Curbing Campaign Cash: Henry Ford, Truman Newberry, and the
Politics of Progressive Reform" <http://electionlawblog.org/?p=46010>
Posted on January 8, 2013 11:43 am <http://electionlawblog.org/?p=46010>
by Rick Hasen <http://electionlawblog.org/?author=3>
Paula Baker's new book <http://www.kansaspress.ku.edu/bakcur.html>:
In the 1918 Michigan race for the U.S. Senate, auto tycoon Henry
Ford faced off against a less well-known industrialist, Truman
Newberry. Bent on countering Ford's fame and endorsement from
President Wilson, Newberry's campaign spent an extravagant amount,
in fact much more than the law seemed to allow. This led to
his conviction under the Federal Corrupt Practices Act---but also to
his eventual exoneration in the first campaign finance case to be
decided by the U.S. Supreme Court. In /Newberry v. United States/
the Court ruled that Congress had no jurisdiction to regulate
primary elections, a controversial decision that allowed southern
states to create whites-only primaries and stalled campaign finance
reform.
In the first book in eight decades on this initial test of federal
campaign finance regulations, Paula Baker examines this case study
of state and local campaign spending to describe how politicians
found their footing in an environment created by progressive reform
and invented modern campaigns. Through this seminal election, she
pries apart two persistent strains in American political culture:
suspicion of money in politics and suspicion of politics itself.
In reexamining the story of the 1918 election, Baker takes a broad
view of the history of the political reform to probe some of the
foundational arguments about why money in politics sometimes seems
so corrupt. She follows the controversy as it unfolded---beginning
with progressive reform of politics and the remaking of
campaigns---then takes readers through the shifting scenes, from
Detroit to Washington, where the Ford-Newberry conflict played out.
Baker reexamines the political divisions between conservatives and
progressive reformers to reveal contradictions in how Progressive
Era federal finance regulations worked, with efforts to weaken the
power of political parties and democratize politics actually making
campaigns more expensive. And although the law opened the door to
partisan prosecutions for spending, Congress remained unwilling to
craft legislation that actually curbed spending.
While legislation in recent decades largely has aimed at
contributions rather than spending and the Supreme Court has weighed
whether specific limits abridge free speech, Progressive Era ideas
about money and politics continue to guide campaign finance reform.
/Curbing Campaign Cash/ provides a compelling new account of a key
chapter in the history of this issue.
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"The Political Speech of Charities in the Face of Citizens United: A
Defense of Prohibition" <http://electionlawblog.org/?p=46007>
Posted on January 8, 2013 11:33 am <http://electionlawblog.org/?p=46007>
by Rick Hasen <http://electionlawblog.org/?author=3>
Roger Colinvaux has posted this paper
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1726407> on SSRN
(/Case Western Reserve Law Review/). Here is the abstract:
The Supreme Court's decision in Citizens United v. Federal Election
Commission makes a Supreme Court challenge to the tax law rule that
prohibits charities from involvement in political activities more
likely, and a reexamination of the political speech of charities
necessary. Part I of the Article surveys the history of the
political activities prohibition in order to emphasize that it was
not a reactionary policy but quite considered, and that there are
strong State interests supporting it, including protection of the
definition of charity from further dilution. Part II of the Article
analyzes Citizens United in detail and argues that if the Supreme
Court considers a challenge to the political activities prohibition,
Citizens United is distinguishable: the purpose of the political
activities prohibition is not to suppress speech but to define
charity; the legal setting is tax and not campaign finance; unlike
the campaign finance rule, violation of the political activities
prohibition is not criminal; and the political activities
prohibition is by nature a rule associated with a tax status rather
than a ban on corporate speech. Accordingly, the political
activities prohibition, unlike the campaign finance rule, is not a
burden on speech and therefore is constitutional. Part III of the
Article discusses cautionary notes to the analysis of Part II, and
explains that even if there is a constitutional defect to the
political activities prohibition, the political activities
limitation on the charitable deduction nonetheless would survive.
Regardless of the constitutionality of the political activities
prohibition, Part IV examines a number of possibilities for a
charitable tax status in which political activity is allowed, and
argues that the current rule is the best option. The Article
concludes that the prohibition represents the evolution of a century
of wrestling with the subject of political activity and charity, and
the wisdom that the two are not compatible. Such wisdom should not
be contravened.
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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
"Everyone's Fight: The New Plan to Defeat Big Money"
<http://electionlawblog.org/?p=46005>
Posted on January 8, 2013 11:27 am <http://electionlawblog.org/?p=46005>
by Rick Hasen <http://electionlawblog.org/?author=3>
Democracy: A Journal of Ideas, has publishedthis symposium,
<http://www.democracyjournal.org/27/everyones-fight.php> including:
/An Open Letter to Patriotic Philanthropists/
<http://www.democracyjournal.org/27/an-open-letter-to-patriotic-philanthropists.php>
by Bill Moyers & Arnold Hiatt
/Curing Philanthropy's Blind Spot: One Percent for Democracy/
<http://www.democracyjournal.org/27/curing-philanthropys-blind-spot-one-percent-for-democracy.php>
by Nick Penniman & Ian Simmons
/Nonpolitical? No Such Thing Today/
<http://www.democracyjournal.org/27/nonpolitical-no-such-thing-today.php> by
Wendell Potter
/How Big Money Corrupts the Budget/
<http://www.democracyjournal.org/27/how-big-money-corrupts-the-budget.php>
by Stan Collender
/How Big Money Corrupts the Economy/
<http://www.democracyjournal.org/27/how-big-money-corrupts-the-economy.php>
by Jacob S. Hacker and Nathaniel Loewentheil
/Campaign Finance: Remedies Beyond the Court/
<http://www.democracyjournal.org/27/campaign-finance-remedies-beyond-the-court.php>
by Trevor Potter and Bryson B. Morgan
/Building a Permanent Majority for Reform/
<http://www.democracyjournal.org/27/building-a-permanent-majority-for-reform.php>
by Russ Feingold
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Texas redistricting appeal not relisted for this Friday"
<http://electionlawblog.org/?p=46002>
Posted on January 8, 2013 11:10 am <http://electionlawblog.org/?p=46002>
by Rick Hasen <http://electionlawblog.org/?author=3>
Waiting on Shelby County
<http://txredistricting.org/post/40023541668/texas-redistricting-appeal-not-relisted-for-this-friday>?
It wouldn't surprise me. It would be a lot of work to decide the Texas
redistricting case, and the case would be moot if the Supreme Court
strikes down section 5 of the VRA first in /Shelby County/.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
redistricting <http://electionlawblog.org/?cat=6>, Voting Rights Act
<http://electionlawblog.org/?cat=15> | Comments Off
"Early voting in New York easier said than done"
<http://electionlawblog.org/?p=45999>
Posted on January 8, 2013 10:45 am <http://electionlawblog.org/?p=45999>
by Rick Hasen <http://electionlawblog.org/?author=3>
See here.
<http://poststar.com/news/local/early-voting-in-new-york-easier-said-than-done/article_4a1c8e4c-594a-11e2-841e-0019bb2963f4.html>
<http://poststar.com/news/local/early-voting-in-new-york-easier-said-than-done/article_4a1c8e4c-594a-11e2-841e-0019bb2963f4.html>
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Posted in election administration <http://electionlawblog.org/?cat=18> |
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"Attorney general rivals offer bills to require photo ID to vote"
<http://electionlawblog.org/?p=45996>
Posted on January 8, 2013 8:09 am <http://electionlawblog.org/?p=45996>
by Rick Hasen <http://electionlawblog.org/?author=3>
News from Virginia: "A year after controversial voter identification
legislation passed the Virginia General Assembly, several Republican
lawmakers are proposing even greater restrictions on the identification
required to cast a ballot, including the requirement of photo
identification. Del. Robert B. Bell, R-Albemarle, will introduce what he
terms "Photo ID --- No Exceptions," a measure that would require voters
to present valid government-issued photo identification in order to
vote. Acquiring the identification would also require proof of U.S.
citizenship, which the Virginia Department of Motor Vehicles requires to
obtain identification."
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>, voter id
<http://electionlawblog.org/?cat=9> | Comments Off
"How Romney Could Have Won" <http://electionlawblog.org/?p=45994>
Posted on January 8, 2013 8:07 am <http://electionlawblog.org/?p=45994>
by Rick Hasen <http://electionlawblog.org/?author=3>
National Review
<http://www.nationalreview.com/articles/337076/how-romney-could-have-won-katrina-trinko#>:
"If votes in every state were awarded by congressional district,
President-elect Romney would be planning his inauguration right now."
That strikes me as overly simplistic: if voting took place on a district
by district basis, the campaigns would have focused their efforts much
differently.
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Posted in campaigns <http://electionlawblog.org/?cat=59>, electoral
college <http://electionlawblog.org/?cat=44> | Comments Off
"SEC Moves to Require That Corporations Disclose All Political
Spending" <http://electionlawblog.org/?p=45991>
Posted on January 8, 2013 8:01 am <http://electionlawblog.org/?p=45991>
by Rick Hasen <http://electionlawblog.org/?author=3>
Press release
<http://www.citizen.org/pressroom/pressroomredirect.cfm?ID=3790>: "The
Corporate Reform Coalition <http://corporatereformcoalition.org/>
applauds the Securities and Exchange Commission's (SEC) commitment to
seek disclosure of all corporate political spending in response to a
historic demonstration of investor demand for such a rule-making. In one
of the last actions of departing SEC Chair Mary Schapiro's term, the
agency announced that it will consider a proposed rule to require that
public companies provide disclosure to shareholders regarding the use of
corporate resources for political activities. A petition requesting this
rulemaking was filed in 2011 by a bipartisan committee of leading law
professors."
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Candidate Challenges City Limits On Funding"
<http://electionlawblog.org/?p=45988>
Posted on January 8, 2013 7:59 am <http://electionlawblog.org/?p=45988>
by Rick Hasen <http://electionlawblog.org/?author=3>
WSJ
<http://online.wsj.com/article/SB10001424127887323482504578228191663513914.html>:
"New York mayoral candidate George McDonald on Monday filed a lawsuit to
prevent the city's Campaign Finance Board from taking enforcement action
against his campaign for accepting contributions in excess of city
limits and a loan that is prohibited by city law."
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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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
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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