[EL] ELB News and Commentary 6/19/13

Wed Jun 19 09:01:38 PDT 2013

    "Jocelyn Benson: Supreme Court ruling a victory for Americans and
    the right to vote" <http://electionlawblog.org/?p=51845>

Posted on June 19, 2013 8:57 am <http://electionlawblog.org/?p=51845> by 
Rick Hasen <http://electionlawblog.org/?author=3>

/Detroit Free Press / 
<http://www.freep.com/article/20130619/OPINION05/306190029>oped 
<http://www.freep.com/article/20130619/OPINION05/306190029> on Arizona.

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Posted in Elections Clause <http://electionlawblog.org/?cat=70>, Supreme 
Court <http://electionlawblog.org/?cat=29> | Comments Off

    "What's in a name? That which we call the 'Hastert Rule' by any
    other name would ...." <http://electionlawblog.org/?p=51843>

Posted on June 19, 2013 8:55 am <http://electionlawblog.org/?p=51843> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Sarah Binder channels 
<http://themonkeycage.org/2013/06/19/whats-in-a-name-that-which-we-call-the-hastert-rule-by-any-other-name-would/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+themonkeycagefeed+%28The+Monkey+Cage%29> 
her inner Shakespeare.

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Posted in legislation and legislatures 
<http://electionlawblog.org/?cat=27> | Comments Off

    Lawyers' Committee Offers Bauer-Ginsberg Commission Extensive
    Recommendations to Improve Elections
    <http://electionlawblog.org/?p=51840>

Posted on June 19, 2013 8:50 am <http://electionlawblog.org/?p=51840> by 
Rick Hasen <http://electionlawblog.org/?author=3>

See here 
<http://www.lawyerscommittee.org/admin/site/documents/files/Recommendations-to-the-Presidential-Commission-28229.pdf>.

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Posted in election administration <http://electionlawblog.org/?cat=18> | 
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    Time for the Supreme Court to Take a Case to Clarify When Campaign
    Contributions Can Be Bribes and Whether there is a Quid Pro Quo
    Requirement <http://electionlawblog.org/?p=51836>

Posted on June 19, 2013 8:45 am <http://electionlawblog.org/?p=51836> by 
Rick Hasen <http://electionlawblog.org/?author=3>

As I've been working on the bribery portion of my forthcoming Examples 
and Explanations book <http://electionlawblog.org/?p=50764>, I went back 
and reread Dan Lowenstein's masterful article,Daniel Lowenstein, /When 
is a Campaign Contribution a Bribe?/, in Public and Private Corruption 
(William C. Heffernan & John Kleing, eds. 2004) and also looked at the 
recently failed cert. petitions in the Siegelman case (flagged by Rick 
Pildes <http://electionlawblog.org/?p=30835>, who wrote a brief in the 
case) and well as the key opinion 
<http://electionlawblog.org/wp-content/uploads/thompson-quid.pdf> by 
well-respected federal judge Myron Thompson in the /McGregor/ case (more 
from Rick P. <http://electionlawblog.org/?p=37436>on that opinion). I've 
learned that McGregor ended with acquittals all around, which is great 
news for the defendants but less good news for other defendants who face 
difficulties in the law in this area.  The lack of clarity which 
Lowenstein brilliantly illustrated in 2004 has only worsened.

It is time for the Court to grant cert. in one of these cases.  (The 
Court denied cert. in /Siegelman/, and a few people have suggested to me 
that it was not a good vehicle for exploring these issues because there 
may have been enough evidence of defendants' guilt under whatever 
standard the Court could announce.) But now via BNA 
<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=32379101&vname=mpebulallissues&jd=a0d9m1g7x1&split=0> 
comes word of a cert. petition 
<http://www.bloomberglaw.com/public/document/USA_v_Kevin_Ring_Docket_No_1103100_DC_Cir_Nov_07_2011_Court_Docke/1> 
from Kevin Ring, of the Abramoff scandal, raising these issues.I don't 
know enough about whether the Ring case is a better vehicle for 
exploring these issues, but I hope it is.

What's at stake in these cases is the troubling criminalization of 
politics, where no one knows where the line is (this is a lot like the 
IRS 501(c)(4) problem, where not even the IRS knows where the line is, 
but this time there is criminal liability on the line). Here's what I 
wrote on the broader issue in a /Slate /jurisprudence column 
<http://slate.me/JrGCVL> last year:  "If politics makes for strange 
bedfellows, so too it seems do political prosecutions."

Another snippet:

    It is no wonder then that liberals and conservatives have rallied
    around these politicians, despite the fact that most wouldn't win
    any popularity contests. (Edwards was cheating on his wife while she
    had breast cancer, and then later lied about it on national
    television.) Each of these cases, which feature prosecutors relying
    on novel theories to criminally prosecute prominent political
    figures, raises two distinct dangers.

    First, if the law is murky, prosecutors with a political agenda
    could use criminal prosecutions to take down their political
    enemies. Siegelman
    <http://www.huffingtonpost.com/andrew-kreig/siegelmans-first-trial-ju_b_206546.html>,
    Edwards
    <http://www.politico.com/blogs/joshgerstein/1011/Defense_says_Obama_team_didnt_stand_up_for_John_Edwards.html>,
    and DeLay
    <http://electionlawblog.org/wp-content/uploads/Delay-appeal-brief.pdf>
    each claimed that the prosecutions against them were politically
    motivated: Siegelman and Edwards blame Bush administration Justice
    Department prosecutors, while DeLay blames former Travis County
    District Attorney Ronnie Earle, a Democrat.

    We don't know whether these prosecutions were politically motivated
    or not, and of course each of these defendants has every incentive
    to make such claims. But the point is that when judges allow
    prosecutors to rely on novel legal theories in these sorts of cases,
    they open up the possibility of politically motivated
    prosecutions. Better to leave the criminal cases to clear violations
    of the law, such as Rep. Randy "Duke" Cunningham's yacht bribe
    <http://articles.cnn.com/2005-11-28/politics/cunningham_1_mzm-mitchell-wade-tax-evasion?_s=PM:POLITICS>
    or Rep. William Jefferson's $10,000 stash hidden in his freezer
    <http://www.nytimes.com/2006/05/22/washington/22jefferson.html?_r=1%26hp%26ex=1148270400%26en=2bc01901bdbff48e%26ei=5094%26partner=homepage%26oref=slogin>.
    If prosecutors can't produce clear-cut charges, politicians and
    their campaigns should only face the potential for civil liability.

    Second, even if prosecutors are well-meaning and looking out solely
    for the public interest, there's a fundamental unfairness in
    subjecting politicians to criminal liability for uncertain
    violations of campaign finance law. The threat of criminal liability
    can ruin a political career. Look at the overreaching
    <http://articles.latimes.com/2012/mar/20/opinion/la-ed-stevens-20120320>
    by federal prosecutors in the trial of Ted Stevens; the Justice
    Department's attorneys were so hungry to get the Republican senator
    from Alaska, they withheld key exculpatory evidence from the defense.

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Posted in bribery <http://electionlawblog.org/?cat=54>, campaign finance 
<http://electionlawblog.org/?cat=10> | Comments Off

    "New 'Effective Democracy' Series Starts With Look at Early,
    Absentee Voting in Minnesota" <http://electionlawblog.org/?p=51833>

Posted on June 19, 2013 8:32 am <http://electionlawblog.org/?p=51833> by 
Rick Hasen <http://electionlawblog.org/?author=3>

A ChapinBlog 
<http://blog.lib.umn.edu/cspg/electionacademy/2013/06/new_effective_democracy_series.php>.

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Posted in election administration <http://electionlawblog.org/?cat=18> | 
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    "IRS Scandal's Origins Become Clearer Amid Other Questions"
    <http://electionlawblog.org/?p=51830>

Posted on June 19, 2013 8:28 am <http://electionlawblog.org/?p=51830> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Bloomberg reports 
<http://www.bloomberg.com/news/2013-06-18/first-tea-party-case-labeled-high-profile-irs-manager.html?alcmpid=politics>.

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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

    "Carl DeMaio: 'The Future Something' DeMaio's congressional run and
    Reform San Diego blur campaign funding lines"
    <http://electionlawblog.org/?p=51827>

Posted on June 19, 2013 8:26 am <http://electionlawblog.org/?p=51827> by 
Rick Hasen <http://electionlawblog.org/?author=3>

KPBS Investigate report 
<http://www.kpbs.org/news/2013/jun/19/carl-demaio-congress-reform-san-diego-campaign-fin/>.  
Don't miss the chart of connections, including the Koch Brothers and 
Donors Trust.

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Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
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    "Virginia Man Forged Thousands Of Signatures On Newt Gingrich's 2011
    Primary Ballot" <http://electionlawblog.org/?p=51825>

Posted on June 19, 2013 8:25 am <http://electionlawblog.org/?p=51825> by 
Rick Hasen <http://electionlawblog.org/?author=3>

TPM reports. 
<http://livewire.talkingpointsmemo.com/entry/virginia-man-forged-thousands-of-signatures-on-newt>

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Posted in ballot access <http://electionlawblog.org/?cat=46>, chicanery 
<http://electionlawblog.org/?cat=12>, petition signature gathering 
<http://electionlawblog.org/?cat=39> | Comments Off

    "Chris Van Hollen: IRS Rules To Be Challenged In Court"
    <http://electionlawblog.org/?p=51822>

Posted on June 18, 2013 5:47 pm <http://electionlawblog.org/?p=51822> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Paul Blumenthal reports 
<http://www.huffingtonpost.com/2013/06/18/chris-van-hollen-irs_n_3462329.html?1371601837> 
for HuffPo.

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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

    "U.S. District Court Strikes Down Tennessee Law Giving Two Major
    Parties Best Spot on Ballot; and Also Strikes Down Petition
    Requirement Again" <http://electionlawblog.org/?p=51819>

Posted on June 18, 2013 4:30 pm <http://electionlawblog.org/?p=51819> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Ballot Access News: 
<http://www.ballot-access.org/u-s-district-court-strikes-down-tennessee-law-giving-two-major-parties-best-spot-on-ballot-and-also-strikes-down-petition-requirement-again/>

    On June 18, U.S. District Court Judge William J. Haynes ruled
    <http://www.antiwar.com/ban/Tennessee-win-again2.pdf> that
    Tennessee's law, giving the two largest parties the best spots on
    the general election ballot, is unconstitutional. He also again
    struck down the law that requires newly-qualifying parties to submit
    40,042 valid signatures (2.5% of the last gubernatorial vote).

    Judge Haynes had struck down the number of signatures in the same
    case, but the Sixth Circuit had remanded the case back to him, and
    requested that he review the number of signatures again. The Sixth
    Circuit mentioned that in 1971, the U.S. Supreme Court had upheld
    Georgia's petition requirement of 5% of the number of registered
    voters. In response, Judge Haynes reaffirmed his original decision,
    pointing out that Tennessee is obviously not concerned about crowded
    ballots, because it allows presidential primary candidates to get on
    the ballot with only 2,500 signatures; and it lets all candidates
    for other office get on primary ballots with only 25 signatures.
    Also he mentioned that Tennessee lets independent candidates get on
    the ballot for President with 275 signatures and independent
    candidates for all other office only need 25 signatures.

    The part of the decision on ballot order of candidates is surely the
    most thorough court opinion on that subject ever written. The
    opinion contains an exhaustive report on research on whether ballot
    access order affects voting behavior.

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Posted in ballot access <http://electionlawblog.org/?cat=46>, political 
parties <http://electionlawblog.org/?cat=25>, third parties 
<http://electionlawblog.org/?cat=47> | Comments Off

    "Justice Thomas' Originalism and the Civil War"
    <http://electionlawblog.org/?p=51816>

Posted on June 18, 2013 4:22 pm <http://electionlawblog.org/?p=51816> by 
Rick Hasen <http://electionlawblog.org/?author=3>

Joey Fishkin 
<http://balkin.blogspot.com/2013/06/justice-thomas-originalism-and-civil-war.html> 
on Justice Thomas's dissent in yesterday's Arizona elections case.

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Posted in Elections Clause <http://electionlawblog.org/?cat=70>, Supreme 
Court <http://electionlawblog.org/?cat=29> | Comments Off

    "Rep. Elijah Cummings releases a full IRS interview transcript"
    <http://electionlawblog.org/?p=51814>

Posted on June 18, 2013 4:20 pm <http://electionlawblog.org/?p=51814> by 
Rick Hasen <http://electionlawblog.org/?author=3>

WaPo 
<http://www.washingtonpost.com/blogs/federal-eye/wp/2013/06/18/rep-elijah-cummings-releases-a-full-irs-interview-transcript/>:

    The House Oversight Committee's top Democrat on Tuesday released the
    full
    <http://democrats.oversight.house.gov/images/stories/IRS_Screening_Manager_Part_I.pdf>
    transcript
    <http://democrats.oversight.house.gov/images/stories/IRS_Screening_Manager_Part_II.pdf>
    of a congressional interview that he said "debunks conspiracy
    theories" about the IRS targeting controversy
    <http://www.treasury.gov/tigta/auditreports/2013reports/201310053fr.pdf>.

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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

-- 
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

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