[EL] ELB News and Commentary 4/11/14
Rick Hasen
rhasen at law.uci.edu
Fri Apr 11 09:38:37 PDT 2014
A Tale of Two Campaign Finance Appeals at SCOTUS: Why No Push to
Allow Corporate Contributions to Candidates?
<http://electionlawblog.org/?p=60392>
Posted on April 11, 2014 9:34 am <http://electionlawblog.org/?p=60392>by
Rick Hasen <http://electionlawblog.org/?author=3>
Pardon the inside-baseball post, but I think it reveals a little bit
more about how the Court is going about dismantling what's left of
campaign finance limits.
After the Supreme Court decided McCutcheon v. FEC
<http://www.scotusblog.com/case-files/cases/mccutcheon-v-federal-election-commission/>,
striking down the aggregate limits on federal contributions, it disposed
of two other cases it had been holding since /McCutcheon. /In one case,
James v. FEC
<http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/12-683.htm>,
also involving federal aggregate limits, the Court sent the appeal back
to the district court to reconsider in light of /McCutcheon. /That's
sort of standard operating procedure when the Court holds a case and
then decides another case on the same topic. (Indeed, Justin wrote a
column for Justia
<http://jurist.org/forum/2013/02/justin-levitt-campaign-finance.php#.U0gTxse0Y3Y>a
while back suggesting that /James/ might have been a better case for the
Court than /McCutcheon /when it came to striking aggregate limits.)
In contrast, the Court denied cert.
<http://www.nytimes.com/2014/04/08/us/politics/justices-decline-cases-on-gay-rights-and-campaign-finance.html>
in Iowa Right to Life v. Tooker
<http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-407.htm>,
a case challenging a ban on direct corporate contributions to candidates
and allowing them for unions. The union twist is somewhat different,
but I litigated the corporate ban against Jim Bopp in the Ninth Circuit
and won. And all circuits to have considered the issue (including the
4th Circuit, reversing a contrary decision in the /Danielczyk/ case)
have rejected challenges to the corporate ban under the authority of an
earlier Supreme Court case, /FEC v. Beaumont.
<http://www.law.cornell.edu/supct/html/02-403.ZS.html>/
/Beaumont/ was on somewhat shaky ground after /C//itizens United/, and
on very shaky ground now (for reasons I explained at /Slate/) under
/McCutcheon. /I still think lower courts are bound to follow
/Beaumon//t. /But one can easily imagine a lower court on remand in
/Tooker/ saying something like "While we are bound by /Beaumont/, we
don't see how /Beaumont/ can coexist with /McCutcheon/ and we urge the
Supreme Court to clarify and take the case." But the Court denied cert.,
meaning the case is essentially over.
So why the different treatment of /James/ and /Tooker/? There is both a
procedural answer and a strategic answer.
The procedural answer is that /James/ came up on an appeal and /Tooker/
on a cert. petition. A cert. denial means nothing on the merits but a
decision on appeal, even if it is a summary affirmance or dismissal,
means the lower court got it right (although not necessarily for the
right reasons). I've written a lot about how mandatory appellate
jurisdiction in some election cases has skewed those cases (it explains
the demise of the poll tax, for example, as I explain in /The Supreme
Court and Election Law
<http://www.amazon.com/exec/obidos/tg/detail/-/0814736599/qid=1066951895/sr=1-1/ref=sr_1_1/104-9675773-2517511?v=glance&s=books>/).
Michael Solimine and Josh Douglas have written on these courts too, and
Will Baude had a recent blog post
<http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/02/where-do-the-supreme-courts-campaign-finance-cases-come-from/>on
it. So procedurally the cert. denial in /Tooker/ is no big deal and
expresses nothing on the merits.
But strategically I think it is a big deal. A remand of /Tooker/ to
reconsider in light of /McCutcheon/ almost certainly would have set up
the case for eventual Supreme Court review---because the lower court
likely would have seen itself bound by /Beaumont/ but seriously
questioning /Beaumont/'s reasoning.
And CJ Roberts is playing the long game, not wanting to move quickly.
It is pretty clear he resents the mandatory appellate jurisdiction that
brings so many McCain-Feingold and FECA campaign finance cases directly
to the Supreme Court. Note what the Chief writes in /McCutcheon/:
"McCutcheon and the RNC appealed directly to thisCourt, as authorized by
law. 28 U. S. C. §1253. In such a case, 'we ha[ve] no discretion to
refuse adjudication of the case on its merits,' Hicks v. Miranda, 422 U.
S. 332, 344 (1975), and accordingly we noted probable jurisdiction.568
U. S. ___ (2013)." And consider this exchange
<http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-205.pdf>
between the Chief and Ted Olson in the first /Citizens United/ oral
argument:
MR. OLSON: I --- I think I would agree with that, but I would also
say that the --- the idea, the functional equivalent of express
advocacy is the very magic word problem that this Court has
struggled with in McConnell and in --- in each of the cases.
I would --- I said at the beginning that this is an incomprehensible
prohibition, and I --- and my --- I think that's demonstrated by the
fact that since 2003 this Court has issued something close to 500
pages of opinions interpreting and trying to apply the First
Amendment to Federal election law. And I counted 22 separate
opinions from the Justices of this Court attempting to --- in just
the last 6 years, attempting to figure out what this statute means,
how it can be interpreted. In fact --
CHIEF JUSTICE ROBERTS: Well, that's because it's mandatory appellate
jurisdiction. I mean, you don't have a choice.
(Laughter.)
Roberts wants to go slow. As I explained here
<http://electionlawblog.org/wp-content/uploads/hasen-thomas-daily-journal.pdf>,
the contrast is with Justice Thomas, who hates Roberts' faux judicial
restraint and is ready to kill off all of campaign finance.
A decision striking the corporate ban next would further enmesh the
Court in controversy. I expect instead Roberts' preferred order is (1)
strike down federal soft money ban (for reasons explained in the /Slate/
piece); (2) strike individual contribution limits: (3) strike corporate ban.
This is about strategy, not the end result.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"GOP creates new fundraising group after McCutcheon ruling"
<http://electionlawblog.org/?p=60389>
Posted on April 11, 2014 8:57 am <http://electionlawblog.org/?p=60389>by
Rick Hasen <http://electionlawblog.org/?author=3>
Byron Tau
<http://www.politico.com/story/2014/04/gop-fundraising-mccutcheon-105627.html>
reports:
In the wake of a major campaign finance ruling from the Supreme
Court last week, the three major Republican Party committees have
formed a new joint fundraising effort that will allow them to
collect big checks from major donors.
According to documents filed with the Federal Election Commission,
the newly formed Republican Victory Fund is a joint fundraising
committee composed of the Republican National Committee, the
National Republican Congressional Committee and the National
Republican Senatorial Committee.
Guess we are starting to see if some of the "wild hypotheticals"
mentioned at the /McCutcheon /oral argument will come true.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"Conservative Firepower Has Senate Democrats Playing Defense"
<http://electionlawblog.org/?p=60387>
Posted on April 11, 2014 8:55 am <http://electionlawblog.org/?p=60387>by
Rick Hasen <http://electionlawblog.org/?author=3>
Nick Confessore reports
<http://www.nytimes.com/2014/04/12/us/politics/conservative-firepower-has-senate-democrats-playing-defense.html?_r=0>
for NYT.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
political parties <http://electionlawblog.org/?cat=25>, political
polarization <http://electionlawblog.org/?cat=68>
"In Chevron Case, FEC Brings Clarity to the Federal Contractor Ban
and Super PACs" <http://electionlawblog.org/?p=60385>
Posted on April 11, 2014 8:53 am <http://electionlawblog.org/?p=60385>by
Rick Hasen <http://electionlawblog.org/?author=3>
Covington
<http://www.insidepoliticallaw.com/2014/04/11/in-chevron-case-fec-brings-clarity-to-the-federal-contractor-ban-and-super-pacs/>'s
Inside Political Law:
The rules on corporate contributions to Super PACs were made clearer
today when the Federal Election Commission (FEC) released its
finding <http://eqs.fec.gov/eqsdocsMUR/14044353483.pdf> that Chevron
Corporation's $2.5 million contribution in 2012 to the Congressional
Leadership Fund (a Super PAC) had not violated the bar on government
contractors making contributions in federal elections.
Public Citizen and several environmental groups had alleged that
Chevron Corporation and Chevron U.S.A. Inc. had numerous federal
contracts, and consequently could not contribute to a Super PAC. On
a bipartisan 5-1 vote
<http://eqs.fec.gov/eqsdocsMUR/14044353409.pdf>, the FEC dismissed
the charges, finding that Chevron Corporation---which made the
contribution---was not a federal contractor at the time, and that
federal contractor status could not be imputed to the company merely
because it had a wholly-owned subsidiary that owned a subsidiary
that in turn owned a subsidiary that owned a federal contractor. In
so doing, the FEC followed the agency's longstanding practice of
permitting a parent company with a federal contractor subsidiary to
make a contribution as long as it has sufficient funds from sources
other than the contractor subsidiary. Nor is the federal contractor
ban particularly stringent, permitting officers, shareholders, a
corporate PAC, and subcontractors to contribute, even when the
contractor cannot.
Having resolved the case by applying the facts to existing law, the
FEC did not address an even more fundamental issue raised by Chevron
<http://eqs.fec.gov/eqsdocsMUR/14044353375.pdf>: Applying the
federal contractor ban to contributions to a Super PAC is
inconsistent with the Supreme Court's limiting of campaign finance
restrictions to the prevention of /quid pro quo/ corruption or its
appearance. Last Wednesday's decision in /McCutcheon v. FEC
/highlights the doctrinal fragility of the federal contractor ban in
cases like this.
Full disclosure: Covington represented Chevron before the FEC in
this matter.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24>
"Did the US Supreme Court's ruling in McCutcheon v. FEC Put the
Constitutionality of Some Pay-to-Play Laws in Doubt?"
<http://electionlawblog.org/?p=60383>
Posted on April 11, 2014 7:51 am <http://electionlawblog.org/?p=60383>by
Rick Hasen <http://electionlawblog.org/?author=3>
Stefan Passantino blogs.
<http://www.paytoplaylawblog.com/2014/04/articles/in-the-news/did-the-us-supreme-courts-ruling-in-mccutcheon-v-fec-put-the-constitutionality-of-some-pay-to-play-laws-in-doubt/>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"Bopp doesn't always score at Supreme Court"
<http://electionlawblog.org/?p=60381>
Posted on April 11, 2014 7:50 am <http://electionlawblog.org/?p=60381>by
Rick Hasen <http://electionlawblog.org/?author=3>
IndyStar reports.
<http://www.indystar.com/story/behind-closed-doors/2014/04/10/bopp-doesnt-always-score-at-supreme-court/7555045/>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"Has the Roberts court placed landmark 1964 civil rights law on a
hit list?" <http://electionlawblog.org/?p=60379>
Posted on April 11, 2014 7:47 am <http://electionlawblog.org/?p=60379>by
Rick Hasen <http://electionlawblog.org/?author=3>
Extensive CNN report.
<http://www.cnn.com/2014/04/10/us/roberts-court-civil-rights-law/>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
"People don't care about campaign finance. Someone tell the
president and his party." <http://electionlawblog.org/?p=60377>
Posted on April 11, 2014 7:35 am <http://electionlawblog.org/?p=60377>by
Rick Hasen <http://electionlawblog.org/?author=3>
The Fix reports.
<http://www.washingtonpost.com/blogs/the-fix/wp/2014/04/10/people-dont-care-about-campaign-finance-someone-tell-the-president-and-his-party/>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
Ex-Felon Voting Rights Bill <http://electionlawblog.org/?p=60375>
Posted on April 10, 2014 9:36 pm <http://electionlawblog.org/?p=60375>by
Rick Hasen <http://electionlawblog.org/?author=3>
Press release
<http://www.cardin.senate.gov/newsroom/press/release/cardin-leads-reintroduction-of-bill-to-create-nationwide-standard-for-restoring-voting-rights-for-americans-released-from-prison>:
*U.S. Senator Ben Cardin (D-MD) *has introduced a bill, S. 2235, the
*/Democracy Restoration Act
<http://cardin.senate.gov/download/democracy-restoration-act-of-2014> /*that
would reduce recidivism rates by restoring voting rights to
individuals after they have served their time and have been released
from incarceration. Studies indicate that former prisoners who have
voting rights restored are less likely to reoffend, and that
disenfranchisement hinders their rehabilitation and reintegration
into their community. *Original cosponsors of S. 2235 include Senate
Judiciary Committee Chairman Patrick Leahy (D-Vt.), and Senators
Richard Durbin (D-Ill.), Sheldon Whitehouse (D-RI), Cory Booker
(D-NJ), Tom Harkin (D-Iowa), and Bernie Sanders (I-Vt.). *Companion
legislation also was introduced today in the House of
Representatives by Congressman John Conyers (D-Mich.), Ranking
Member of the House Judiciary Committee.
Meanwhile, William & Mary Law School launches 'Revive My Vote' project.
<http://www.vagazette.com/news/va-vg-wm-revive-my-vote-20140409,0,4938146.story>
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Posted in felon voting <http://electionlawblog.org/?cat=66>
"Democrats embrace adding photos to Social Security cards"
<http://electionlawblog.org/?p=60373>
Posted on April 10, 2014 9:23 pm <http://electionlawblog.org/?p=60373>by
Rick Hasen <http://electionlawblog.org/?author=3>
Must-read WaPo o
<http://www.washingtonpost.com/politics/democrats-embrace-adding-photos-to-social-security-cards/2014/04/10/cfffe55a-c0cc-11e3-b574-f8748871856a_story.html?wprss=rss_AllWPStoriesandBlogs&Post+generic=%3Ftid%3Dsm_twitter_washingtonpost>n
movement toward an national voter id on the Democratic side.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
The EPI and Election Reform: The Early Returns Are Promising
<http://electionlawblog.org/?p=60357>
Posted on April 10, 2014 4:26 pm <http://electionlawblog.org/?p=60357>by
Heather Gerken <http://electionlawblog.org/?author=6>
I want to offer a brief response to Rick Hasen's post
<http://electionlawblog.org/?p=60264http://> about the release of Pew's
2012 Election Performance Index
<http://www.pewstates.org/research/reports/the-elections-performance-index-2012-85899445029>.
Now that we can assess state performance across two comparable
elections, he asks an excellent question: Will we see states trying to
improve their performance? I suggested as much in my book, The
Democracy Index: Why Our System is Failing and How to Fix It
<http://www.amazon.com/The-Democracy-Index-Election-Failing/dp/0691136947>,
where I proposed creating a ranking like the EPI.
It's only been a few days, of course, but the early returns are
heartening. States are obviously paying attention; there are lots of
stories about states touting their rise in the rankings or grumbling
about their scores, with more discussions happening behind the scenes.
More importantly, election officials are already using the EPI to push
for reform. Secretary of State Jon Husted, for instance, noted
<http://www.cincinnati.com/story/news/politics/elections/2014/04/08/tristate-election-performance-lacking/7451239/>
that one of the reasons that Ohio didn't rank higher on the EPI was its
failure to keep up with other states in creating an online registration
system and urged his legislature to take up the bill. Iowa is paying
special attention
<http://wcfcourier.com/news/local/govt-and-politics/iowa-ranks-th-in-national-voting-index/article_e6cca35f-4460-58b6-95cc-386eeff20fe8.html>
to military and overseas balloting, which pushed its rankings down.
Florida was working with Pew in advance of the EPI's release and
promises
<http://miamiherald.typepad.com/nakedpolitics/2014/04/report-faults-fla-vote-but-state-says-issues-fixed-.html>
that it has /already/ enacted transparency and access reforms that will
improve its rankings next time. Indiana's Secretary of State tells us
that, as we speak, the state is working on a post-election auditing
process in order to up its ranking. The state also issued "a call to
action"
<http://www.in.gov/activecalendar/EventList.aspx?fromdate=4/8/2014&todate=4/21/2014&display=&type=public&eventidn=166527&view=EventDetails&information_id=199177&print=print>
suggesting further improvements. Georgia insists
<http://www.usatoday.com/story/news/politics/2014/04/08/state-election-performance/7433501/>
that it's going to do a better job on data collection in the future in
order to increase its score.
We see the same thing happening at the top of the rankings, also as I
predicted. For example, the Secretary of State of Montana -- which now
ranks near the top -- is not resting on her laurels. She called
<http://m.billingsgazette.com/news/state-and-regional/montana/study-montana-s-election-performance-ranks-th-best/article_03029f62-e6bb-5546-bd8b-b8e6c0d03f58.html?mobile_touch=true>for
additional reform so that Montana could maintain its position. So, too,
the Secretary of State of top-ranked Michigan, which fell just shy of
the top five, has called
<http://www.eastvillagemagazine.org/en/news-releases3/21091-michigan-elections-ranks-sixth-highest-in-nation>
for online voter registration and changes to absentee voting in order to
move the state higher up the list. Twelfth-ranked Washington is on the
hunt
<http://www.thenewstribune.com/2014/04/08/3137973/report-washington-ranks-no-12.html?sp=/99/289/&ihp=1>
for ways to improve its already strong ranking. And in North Dakota,
which ranked first in the nation, policymakers who oppose voting rules
recently enacted in North Dakota are using the EPI as a cudgel to beat
the other side, arguing
<http://bismarcktribune.com/news/local/govt-and-politics/north-dakota-first-in-election-performance/article_7264dc64-bf66-11e3-8460-001a4bcf887a.html>
that those changes put the state at risk of losing its treasured number
one spot.
I don't want to overclaim. It's going to be hard to prove exactly how
much of a push the EPI gives reform going forward, as Rick noted in his
generous review
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1392299> of my book
a few years ago. Nonetheless, if anything the pressure on states to
improve seems likely to increase over time. The EPI has only been on
the scene for two years, and this is the first time we've been able to
make an "apples to apples" comparison (comparing a presidential election
to a presidential election). If the EPI continues to develop into the
touchstone for measuring election performance, it should matter more in
these debates. Moreover, the pressure will mount for low-performing
states. States improved an average of 4.4 percentage points between 2008
and 2012. As the always observant Doug Chapin noted
<http://blog.lib.umn.edu/cspg/electionacademy/2014/04/pews_2012_index_election_perfo.php>,
"even states showing modest improvement run the risk of being left
behind." A spokesperson for Washington State has plainly gotten the
message
<http://www.thenewstribune.com/2014/04/08/3137973/report-washington-ranks-no-12.html?sp=/99/289/&ihp=1>:
"[M]uch of what we've done is outstanding" but "others are catching up .
. . We're still a high performing state [but] other states are making
rapid improvements. Essentially, all boats are rising . . ."
Even if the EPI doesn't prod a single state to do a single thing, it
will still matter a great deal to election reform. That's because it
provides an essential tool for data-driven policymaking: a baseline.
Just as we cannot get a good read on economic policy without measures
like the GDP, so, too, we cannot get a good read on elections policy
without a reliable measure of how well our election system is working
across time. Already, for instance, we've begun to learn things we
didn't know before. States with high obesity rates, for instance, seem
to have trouble getting their voters to the polls. So, too, we're
shaking loose some of our assumptions about which systems are working
and which aren't. For instance, a number of states with long lines in
2012 ranked pretty high on the EPI, suggesting that the long lines were
not a sign of a failing system. Ohio and Florida, the perennial objects
of late-night comedy during elections season, were somewhere in the
middle of the pack. Moreover, we see rich states and poor states
performing well and badly on the list, something that at least raises
questions about the real drivers of election performance.
All of the credit for this goes to Pew, which developed a rigorous and
assiduously nonpartisan process for building the EPI. Pew's careful
procedure and remarkable end product put the lie to the naysayer's claim
that any index would be dismissed out of hand as partisan. As to the
rest, we'll see.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
Uncategorized <http://electionlawblog.org/?cat=1> | Tagged Democracy
Indix <http://electionlawblog.org/?tag=democracy-indix>, EPI
<http://electionlawblog.org/?tag=epi>, Pew
<http://electionlawblog.org/?tag=pew>, rankings
<http://electionlawblog.org/?tag=rankings>
Republican FEC Commissioners Write NYT Letter to Editor Responding
to Commr. Ravel's NYT Oped <http://electionlawblog.org/?p=60366>
Posted on April 10, 2014 4:22 pm <http://electionlawblog.org/?p=60366>by
Rick Hasen <http://electionlawblog.org/?author=3>
It pulls
<http://www.nytimes.com/2014/04/10/opinion/chiding-an-fec-colleague.html?_r=1>no
punches, beginning: "Our Federal Election Commission colleague Ann M.
Ravel would rather grandstand than follow the law and judicial precedent."
Flashback <http://electionlawblog.org/?p=57184> to Dec 4: "Ravel said
she found the level of partisan division at the FEC 'very surprising'
after arriving in late October from her previous post as head of
California's campaign finance and ethics agency, the Fair Political
Practices Commission (FPPC)."
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Posted in federal election commission <http://electionlawblog.org/?cat=24>
"Rowland Charged In Campaign Finance Conspiracy"
<http://electionlawblog.org/?p=60362>
Posted on April 10, 2014 4:13 pm <http://electionlawblog.org/?p=60362>by
Rick Hasen <http://electionlawblog.org/?author=3>
Connecticut.
<http://www.courant.com/news/connecticut/hc-rowland-charged-0412-20140410,0,3188195.story>
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
chicanery <http://electionlawblog.org/?cat=12>
Truth-o-Meter v. Dick Morris on Voter Fraud
<http://electionlawblog.org/?p=60355>
Posted on April 10, 2014 3:26 pm <http://electionlawblog.org/?p=60355>by
Rick Hasen <http://electionlawblog.org/?author=3>
Who wins?
<http://www.politifact.com/punditfact/statements/2014/apr/10/dick-morris/dick-morris-theres-proof-over-1-million-people-vot/>
The suspense must be killing you.
Share
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Posted in fraudulent fraud squad <http://electionlawblog.org/?cat=8>,
The Voting Wars <http://electionlawblog.org/?cat=60>
"House Committee Holds IRS Official in Contempt"
<http://electionlawblog.org/?p=60353>
Posted on April 10, 2014 3:25 pm <http://electionlawblog.org/?p=60353>by
Rick Hasen <http://electionlawblog.org/?author=3>
/Legal Times /
<http://www.nationallawjournal.com/legaltimes/id=1202650582953?kw=House%20Committee%20Holds%20IRS%20Official%20in%20Contempt&et=editorial&bu=National%20Law%20Journal&cn=20140410&src=EMC-Email&pt=Legal%20Times%20Afternoon%20Update&slreturn=20140310174538>reports.
<http://www.nationallawjournal.com/legaltimes/id=1202650582953?kw=House%20Committee%20Holds%20IRS%20Official%20in%20Contempt&et=editorial&bu=National%20Law%20Journal&cn=20140410&src=EMC-Email&pt=Legal%20Times%20Afternoon%20Update&slreturn=20140310174538>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
"Wall Street, GOP Poised For Mutual Gain From Supreme Court's
McCutcheon Decision" <http://electionlawblog.org/?p=60351>
Posted on April 10, 2014 2:36 pm <http://electionlawblog.org/?p=60351>by
Rick Hasen <http://electionlawblog.org/?author=3>
Paul Blumenthal writes
<http://www.huffingtonpost.com/2014/04/10/mccutcheon-republican-party_n_5127498.html?1397163531>
for HuffPo.
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
NYT Editorial Ties Medicare Payments, CJ Roberts' View of Corruption
<http://electionlawblog.org/?p=60349>
Posted on April 10, 2014 2:29 pm <http://electionlawblog.org/?p=60349>by
Rick Hasen <http://electionlawblog.org/?author=3>
Here.
<http://www.nytimes.com/2014/04/11/opinion/abusing-both-medicare-and-politics.html?smid=tw-share>
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
Republican FEC Commissioners Issue Statement About Enforcement
<http://electionlawblog.org/?p=60346>
Posted on April 10, 2014 2:28 pm <http://electionlawblog.org/?p=60346>by
Rick Hasen <http://electionlawblog.org/?author=3>
Statement re Defending the Commission in Public Citizen v. FEC
<http://electionlawblog.org/wp-content/uploads/Statement-re-Defending-the-Commission-in-Public-Citizen-v.-FEC-1.pdf>
begins:
For nearly forty years, votes to defend the Commission in cases
challenging dismissals of administrative complaints have been
routine, pro forma acts. Even when the Commission has split on
whether to proceed in an enforcement matter, the decision to defend
has been uncontroversial. In recent days, however, our colleague
Commissioner Ann Ravel has announced her desire to upend this
consensus. Not only does this effort derail longstanding Commission
practice, but more troublingly, it contravenes well-established
legal precedents and evinces a flippant disregard for judicial review.
A copy of the email from Commissioner Hunter's office with the press
release has the following cover note:
Good afternoon, hope you are well. Attached please find a statement
from Lee Goodman, Matt Petersen and me regarding the FEC's vote to
authorize defense of suit in Public Citizen v. FEC.
Please remember any response to this email is subject to a FOIA
request. As we have learned, CREW views positive emails to
Republican Commissioners as evidence of collusion.
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24>
"In India, show the finger after voting, get cheaper gas and food"
<http://electionlawblog.org/?p=60344>
Posted on April 10, 2014 2:20 pm <http://electionlawblog.org/?p=60344>by
Rick Hasen <http://electionlawblog.org/?author=3>
Love this
<http://www.thenewage.co.za/122910-1020-53-In_India_show_the_finger_after_voting_get_cheaper_gas_and_food>:
Showing the finger can get you a punch in the face in many parts of
the world. In India, during this general election at least, it can
earn discounts at gas stations, restaurants, spas, stores and
hospitals after voting.
India's polling stations mark each voter's left forefinger with an
indelible dot of a silver nitrate solution after casting the ballot
to guard against voter fraud.
Could we do this in the US
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=257564>? Not in
elections with federal candidates on the ballots and not in some states
even in state and local elections.
Share
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Posted in vote buying <http://electionlawblog.org/?cat=43>
"How to start a Super PAC because you can"
<http://electionlawblog.org/?p=60342>
Posted on April 10, 2014 2:16 pm <http://electionlawblog.org/?p=60342>by
Rick Hasen <http://electionlawblog.org/?author=3>
WaPo
<http://www.washingtonpost.com/blogs/in-the-loop/wp/2014/04/10/how-to-start-a-super-pac-because-you-can/>on
17 year old PACmeister.
The three boys aimed to make their application as "ridiculous as
possible," Grant said. He picked "Corporate Antelope" as his
official title or position. His friends Brady Harper and Hudson
Roberts are "Arch-Mage" and "Not Pope," respectively. They left
blank the section asking for the bank accounts where they would
deposit funds, because, well, the teens don't have bank accounts.
They created a Web site using the free service "Weebly." (It's
currently blank <http://becausewecanpac.weebly.com/> other than a
background of the Manhattan skyline and the PAC's name.)
Within several days, Grant received the notice from the FEC that his
application had been received. And just like that, "Because We Can"
was given an official committee ID number.
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Campaign Finance and the Social Contract"
<http://electionlawblog.org/?p=60340>
Posted on April 10, 2014 2:15 pm <http://electionlawblog.org/?p=60340>by
Rick Hasen <http://electionlawblog.org/?author=3>
Charles Fried
<http://www.clcblog.org/index.php?option=com_content&view=article&id=556:campaign-finance-and-the-social-contract>
guest blog post at CLC.
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"How the Supreme Court Blowtorched Democracy and What You Can Do
About It" <http://electionlawblog.org/?p=60338>
Posted on April 10, 2014 2:08 pm <http://electionlawblog.org/?p=60338>by
Rick Hasen <http://electionlawblog.org/?author=3>
/The Nation /
<http://www.thenation.com/article/179264/how-supreme-court-blowtorched-democracy-and-what-you-can-do-about-it>editorial.
<http://www.thenation.com/article/179264/how-supreme-court-blowtorched-democracy-and-what-you-can-do-about-it>
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
" Watchdog Groups Challenge House Ways and Means Committee Letter
Claiming IRS Pursuit of Crossroads GPS was Improper; Statement of
Democracy 21 President Fred Wertheimer and Campaign Legal Center
Executive Director J. Gerald Hebert"
<http://electionlawblog.org/?p=60336>
Posted on April 10, 2014 2:07 pm <http://electionlawblog.org/?p=60336>by
Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://www.democracy21.org/money-in-politics/letters-to-the-irs/watchdog-groups-challenge-house-ways-and-means-committee-letter-claiming-irs-pursuit-of-crossroads-gps-was-improper/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
"Campaign Finance and the Nihilist Politics of Resignation"
<http://electionlawblog.org/?p=60334>
Posted on April 10, 2014 1:46 pm <http://electionlawblog.org/?p=60334>by
Rick Hasen <http://electionlawblog.org/?author=3>
Lessig:
<http://www.theatlantic.com/politics/archive/2014/04/campaign-finance-and-the-nihilist-politics-of-resignation/360437/>
his is the politics of resignation. We accept the status quo not
because we want it, and certainly not because we don't care about
"process." To the contrary: We are resigned precisely because we
view the very process by which we would effect change as corrupt. We
thus steer away from the politics of reform, and focus our
(dwindling level of) political attention on other issues instead.
This is reform's greatest challenge. The ordinary way we do politics
in America---Democrats yelling at Republicans, Republicans yelling
at Democrats---won't move this issue, because neither side will seem
credible as reformers, at least as against the other. That is
Cillizza's sensible, and unfortunately true, point.
But what if we could crack this cynicism, and melt the resignation?
What if there were a way to give Americans hope---not that ordinary
politicians could be different, but that a different kind of
political power could matter? Not one from the inside, but one born
on the outside. Not a power seeking political office, but a power
seeking to change the way politics works. Americans might not rally
to yet another politician promising change. That's Cillizza's
insight. But could they be rallied to a cause that would change the
way politicians promise?
Such a movement is this generation's moonshot. Yet the reformers I
know---as decent and committed as anyone could imagine---think
small. They call their thinking "realistic."
Share
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"Feds appeal ruling in voter citizenship case"
<http://electionlawblog.org/?p=60332>
Posted on April 10, 2014 1:43 pm <http://electionlawblog.org/?p=60332>by
Rick Hasen <http://electionlawblog.org/?author=3>
AP reports.
<http://ksn.com/2014/04/09/feds-appeal-ruling-in-voter-citizenship-case/>
Share
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Posted in election administration <http://electionlawblog.org/?cat=18>,
Election Assistance Commission <http://electionlawblog.org/?cat=34>,
Elections Clause <http://electionlawblog.org/?cat=70>, NVRA (motor
voter) <http://electionlawblog.org/?cat=33>, The Voting Wars
<http://electionlawblog.org/?cat=60>
Breaking: Republicans Offering Potential Nominees for EAC
<http://electionlawblog.org/?p=60329>
Posted on April 10, 2014 10:03 am
<http://electionlawblog.org/?p=60329>by Rick Hasen
<http://electionlawblog.org/?author=3>
Bloomberg BNA has a breaking news report saying that the names were put
in by Senate Leader McConnell. It quotes a spokesperson for Sen.
Roberts, ranking Republican on Rules, that "The ball is with the White
House."
Lots of questions here.
1. Are these viable Republican nominees? If not, what will the
President do?
2. Why would Republicans do this? Perhaps the calculation is that it is
better to have two Republicans to deadlock with the two new Democratic
nominees on the commission than to have the two Democrats speak for the
Commission---even though two commissioners does not a quorum make.
[corrected]
3. Is there any chance there could be common ground at a new EAC? Or
will Republicans come in Don McGahn style, acting as flame throwers at
an agency they despise?
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Posted in election administration <http://electionlawblog.org/?cat=18>,
Election Assistance Commission <http://electionlawblog.org/?cat=34>, The
Voting Wars <http://electionlawblog.org/?cat=60>
"The Doctrine of One Last Chance" <http://electionlawblog.org/?p=60327>
Posted on April 10, 2014 8:22 am <http://electionlawblog.org/?p=60327>by
Rick Hasen <http://electionlawblog.org/?author=3>
Richard Re has posted this must-read short essay
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2421362>on SSRN
(/Green Bag/).
Here is the abstract:
Constitutional avoidance is an old idea, but the Roberts Court has
given it a new twist. Instead of avoiding constitutional questions
whenever possible, recent Supreme Court majorities have tended to
engage in avoidance just once before issuing disruptive decisions.
For example, the Roberts Court initially ducked constitutional
challenges to central pillars of the Bipartisan Campaign Reform Act
and the Voting Rights Act. But when those measures came before the
Court for a second time, they were both struck down as
unconstitutional, despite their importance and bipartisan support. A
similar pattern of limited deferral may be visible in other recent
cases, as the Roberts Court has taken a pass on its first
opportunities to strike at the Affordable Care Act, affirmative
action in higher education, and same-sex marriage laws.
This emerging use of constitutional avoidance might be called "the
doctrine of one last chance." Under this doctrine, the Court must
signal its readiness to impose major disruptions before actually
doing so. Put more colorfully, the doctrine of one last chance is
avoidance on steroids, but with an expiration date. The result is a
practical rule of judicial decision-making --- an attempt not just
to extol the dueling virtues of judicial action and restraint, but
to balance them. And the balance is attractive. Here as elsewhere,
there is good reason to afford notice and postpone decision before
causing massive and potentially unexpected disruptions. Still, the
doctrine should give us pause: by facilitating major legal change,
the doctrine of one last chance converts a cornerstone principle of
judicial restraint into a playbook for judicial action.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
"Why voting rights is the Democrats' most important project in 2014?
<http://electionlawblog.org/?p=60325>
Posted on April 10, 2014 7:33 am <http://electionlawblog.org/?p=60325>by
Rick Hasen <http://electionlawblog.org/?author=3>
The Fix reports.
<http://www.washingtonpost.com/blogs/the-fix/wp/2014/04/10/why-voting-rights-is-the-democrats-most-important-project-in-2014/>
Share
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
What Does Movement on the EAC Nominees Mean?
<http://electionlawblog.org/?p=60323>
Posted on April 10, 2014 7:31 am <http://electionlawblog.org/?p=60323>by
Rick Hasen <http://electionlawblog.org/?author=3>
Doug Chapin games it out.
<http://blog.lib.umn.edu/cspg/electionacademy/2014/04/light_at_the_end_of_the_tunnel.php>
Share
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Posted in election administration <http://electionlawblog.org/?cat=18>,
Election Assistance Commission <http://electionlawblog.org/?cat=34>, The
Voting Wars <http://electionlawblog.org/?cat=60>
--
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://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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