[EL] ELB News and Commentary 4/18/14
Rick Hasen
rhasen at law.uci.edu
Fri Apr 18 09:23:55 PDT 2014
"Carl P. Leubsdorf commentary: Voting Rights Act will get new
attention" <http://electionlawblog.org/?p=60607>
Posted on April 18, 2014 9:23 am <http://electionlawblog.org/?p=60607>by
Rick Hasen <http://electionlawblog.org/?author=3>
Column
<http://www.dispatch.com/content/stories/editorials/2014/04/18/voting-rights-act-will-get-new-attention.html>:
"Voting issues will get a more extensive airing next year when the LBJ
Library marks the Voting Rights Act's 50th anniversary. But the topic
has come up often this year because, unlike the 1964 Civil Rights Act
that banned discrimination in public accommodations and many other areas
of American life, the voting-rights measure remains under direct legal
and political challenge a half-century later.
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>
"McAuliffe to speed rights restoration"
<http://electionlawblog.org/?p=60605>
Posted on April 18, 2014 9:20 am <http://electionlawblog.org/?p=60605>by
Rick Hasen <http://electionlawblog.org/?author=3>
Times Dispatch
<http://www.timesdispatch.com/news/state-regional/mcauliffe-to-speed-rights-restoration/article_661befcf-b8c9-5ca3-ba60-05b75812c9a3.html>:
"Gov. Terry McAuliffe announced today that he will shrink the time
violent felons must wait to seek reinstatement of their voting rights
and will remove some offenses from that list."
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Posted in felon voting <http://electionlawblog.org/?cat=66>
Views of Some Conservatives and Libertarians of the Election Law
Listserv <http://electionlawblog.org/?p=60602>
Posted on April 18, 2014 9:19 am <http://electionlawblog.org/?p=60602>by
Rick Hasen <http://electionlawblog.org/?author=3>
I have run the Election Law Listserv
<http://department-lists.uci.edu/mailman/listinfo/law-election> with Dan
Lowenstein of UCLA since 1995. It began on the servers at Chicago-Kent,
moved with me to Loyola Law School, and is now housed with me at the
University of California, Irvine. It currently has over 1,000 members,
including most of the people who teach election law, historians,
political scientists, journalists, students, and lawyers of all
political stripes interested in these issues. It is one of the rare fora
in which people from widely divergent backgrounds exchange ideas on
election law issues. Its archives
<http://department-lists.uci.edu/pipermail/law-election/> are public,
although "Members of the press .... may describe in general terms the
substance of discussion on the list, but should not quote posted
comments or attribute ideas to specific individuals without the consent
of the individuals. Our rules also provide that "Discussions on the
listserv are often contentious, but they are conducted in a civil
manner. The proprietors reserve the right to expel or otherwise
discipline subscribers whose postings are in their judgment uncivil or
otherwise objectionable." While I occasionally chime in to promote
civility, we have only removed one person in the history of the listserv
for incivility (someone whose politics was very far to the left, by the
way).
In this post yesterday <http://electionlawblog.org/?p=60581>, I linked
to a piece in which Election Law listserv non-participant J. Christian
Adams said the list was made of of "would be totalitarians" and where
conservatives "are often deliberately given a cold shoulder and ignored,
per plan..." This was not my understanding of how conservatives and
libertarians viewed the list, and many conservative list members took to
the list, Twitter, or in a private email to disagree with Adams. I asked
anyone who self-identifies as a conservative or libertarian and
participates on the listserv if I could post some of their comments on
the blog. Readers will recognize some of these names as people with
whom I have great substantive disagreements but with whom I and the
1000+ listserv members enjoy a fruitful dialogue. Here are a few of
their comments, along with some tweeted comments:
*Rob Kelner*, Chair, Covington & Burling LLP's Election and Political
Law Practice Group (via Twitter
<https://twitter.com/robkelner/status/456939167021551616>): "Rick
Hasen's listserv is an institution. A valuable one. Attacks on Rick are
unfounded. Civility is the glue that holds democracy together."
*Joe La Rue,* attorney (my oral argument opponent in the San Diego
Campaign finance case, formerly from Jim Bopp's law firm): I write as a
political conservative and an opponent of excessive regulation of
political speech to commend both the Election Law Listserve and also
Rick Hasen as its moderator. Rick clearly favors more regulation than
I. But he moderates the Listerve in a fair and evenhanded way. I have
never been reprimanded by Rick or otherwise discouraged from posting
because my view differs from his. Rather, I have been allowed to engage
in spirited debate with those who advocate for different policy results
than I. For the most part, these discussions have always remained
friendly, even though the participants passionately disagree. I am
grateful both for the discussions that take place and also for Rick's
approach to moderating them."
*Jeffrey Milyo,* Professor, Dept of Economics, University of Missouri:
"I am writing to personally thank you for the tremendous public service
that you provide via the election law list serve and election law blog.
The list serve in particular provides an open and accessible forum for
informative discussion and debate among legal scholars and professionals
from a variety of backgrounds and view points; it is a true marketplace
of ideas. I greatly appreciate all the time and effort that you devote
to maintaining the list serve, as well as your judicious and tolerant
appproach to moderating comments. You consistently achieve a balance
between the goals of civility and open participation (a task none of us
envy!)." (Read Professor Milyo's full letter
<http://electionlawblog.org/wp-content/uploads/milyo_Election-Law.pdf>.)
*Mark Scarberry*, Professor of Law, Pepperdine: "I couldn't disagree
more with Adams. I consider myself to be mostly conservative on election
law issues, if that's a meaningful category, and to be on the 'less
regulation more 1st Amendment-protective' side; and I think the list is
a great 'place' for discussion. Sometimes my posts get substantial
responses; sometimes not. But Rick and UCI do a real service in
providing this viewpoint-neutral limited forum (if that's the right
description).
*Michael Toner,* Former FEC Chairman (Republican nominee) and Partner,
Wiley, Rein (via
<https://twitter.com/michaeletoner/status/456923286979346432> Twitter
<https://twitter.com/michaeletoner/status/456926289337659393>): "The
following diatribe directed at Larry Noble, Rick Hasen & Bob Bauer among
others is a disservice
http://pjmedia.com/jchristianadams/2014/04/17/a-new-more-sinister-irs-scandal/ ...
<http://t.co/cBmq1fppQf> via @*PJMedia_com";*
<https://twitter.com/PJMedia_com>*"I've differed w/ Noble, Hasen & Bauer
some in past but they have integrity & always been fair to me*..."**
*Abigail Thernstrom*, Adjunct Scholar, American Enterprise Institute,
Vice-chair, U.S. Commission on Civil Rights, 2001 -- 2013:
"Conservatives are generally lonely in the academy, but Rick makes sure
that voices across the political spectrum are heard. I'm fully of
admiration and gratitude. I am also indebted. I know one corner of
election law: the VRA, about which I have written two books, the first
published by Harvard University Press in 1987 and the recipient of
multiple prizes including one from the ABA (a small miracle given my
conservative politics). But I have been woefully ignorant about most
other election law topics, and the listserv has provided some
much-needed education."
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
"Democrats: Husted must enforce election spending rule"
<http://electionlawblog.org/?p=60600>
Posted on April 18, 2014 8:35 am <http://electionlawblog.org/?p=60600>by
Rick Hasen <http://electionlawblog.org/?author=3>
This
<http://www.cincinnati.com/story/news/politics/elections/2014/04/17/democrats-husted-enforce-ohio-election-spending-rule/7825987/>
is interesting:
Secretary of State Jon Husted should enforce a controversial rule
that limits election spending by companies, nonprofits and unions,
Democrats said Thursday.
The regulation requires companies, unions and nonprofits to disclose
when they pay for election ads. It also prohibits companies from
spending money to influence elections for a year after they receive
state or federal money, such as through a contract or a grant to
promote job creation. Ohio House Republicans drew attention to the
rule last week by passing legislation that would void it, saying
limiting corporate election spending was a violation of free speech.
Readers may recall that the original version of Democrats' DISCLOSE Act
would have limited election spending by government contractors. I took
the position (and still do) that such a limitation violates the First
Amendment under /Citizens United/. (The current version of the DISCLOSE
Act does not do so, and I testified in favor of it before the Senate
Rules Committee.)
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
For Campaign Strategists, Accentuating the Positive or Raffling Off
Guns <http://electionlawblog.org/?p=60598>
Posted on April 18, 2014 8:30 am <http://electionlawblog.org/?p=60598>by
Rick Hasen <http://electionlawblog.org/?author=3>
Two
<http://www.nytimes.com/2014/04/18/us/politics/in-a-switch-some-campaign-ads-press-the-positive.html?ref=politics>
pieces
<http://www.nytimes.com/2014/04/18/us/politics/gop-campaign-outreach-tool-gun-sweepstakes.html?ref=politics>
in today's NY Times.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
campaigns <http://electionlawblog.org/?cat=59>
"Clinton Backer Pleads Guilty in a Straw Donor Scheme"
<http://electionlawblog.org/?p=60596>
Posted on April 18, 2014 8:29 am <http://electionlawblog.org/?p=60596>by
Rick Hasen <http://electionlawblog.org/?author=3>
NYT reports.
<http://www.nytimes.com/2014/04/18/nyregion/clinton-backer-pleads-guilty-in-a-straw-donor-scheme.html?ref=campaignfinance&_r=1>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
chicanery <http://electionlawblog.org/?cat=12>
"More Right-Wing Media Lies About Voting Rights As Another Election
Approaches" <http://electionlawblog.org/?p=60594>
Posted on April 18, 2014 8:23 am <http://electionlawblog.org/?p=60594>by
Rick Hasen <http://electionlawblog.org/?author=3>
This item
<http://mediamatters.org/research/2014/04/17/more-right-wing-media-lies-about-voting-rights/198923>
appears at Media Matters.
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
"What's Next After McCutcheon? Challenging the Dominance of the
Donor Class" <http://electionlawblog.org/?p=60592>
Posted on April 17, 2014 5:14 pm <http://electionlawblog.org/?p=60592>by
Rick Hasen <http://electionlawblog.org/?author=3>
Demos/Brennan Center event
<http://www.demos.org/event/whats-next-after-mccutcheon-challenging-dominance-donor-class>
April 24.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
What If the President Engages in False Speech to Further a Political
Message? <http://electionlawblog.org/?p=60590>
Posted on April 17, 2014 4:00 pm <http://electionlawblog.org/?p=60590>by
Rick Hasen <http://electionlawblog.org/?author=3>
A few days before the Supreme Court tackles false campaign speech laws
in the /Susan B. Anthony/ case
<http://www.scotusblog.com/case-files/cases/susan-b-anthony-list-v-driehaus/?wpmp_switcher=desktop>,
John Dickerson makes a provocative claim in his /Slate /column
<http://www.slate.com/articles/news_and_politics/politics/2014/04/barack_obama_trolls_the_gop_the_president_intentionally_baited_republicans.html>:
The issue last week was the pay gap between men and women. The
president issued executive orders to address the disparity, and
Democrats pushed legislation in Congress. In making the case, the
president and White House advisers used a figure they knew to be
imprecise and controversial---a Census Bureau statistic that the
median wages of working women in America are 77 percent of median
wages earned by men.
Under this approach, a president wants the fact-checkers to call him
out
<http://www.factcheck.org/2012/06/obamas-77-cent-exaggeration/> (again
and again
<http://www.washingtonpost.com/blogs/fact-checker/wp/2014/04/09/president-obamas-persistent-77-cent-claim-on-the-wage-gap-gets-a-new-pinocchio-rating/>)
because that hubbub keeps the issue in the news, which is good for
promoting the issue to the public. It is the political equivalent of
"there is no such thing as bad publicity" or the quote attributed to
Mae West (and others
<http://www.nku.edu/%7Eturney/prclass/readings/3eras1x.html>): "I
don't care what the newspapers say about me as long as they spell my
name right." The tactic represents one more step in the embrace of
cynicism that has characterized President Obama's journey in office....
Facts, schmacts. As long as people are talking about an issue where
my party has an advantage with voters, it's good. So, the theory
goes, if I'm a Republican candidate, I benefit from conversations
about budget deficits and spending restraint because voters trust
Republicans more on the issue of the budget and spending restraint
<https://mediarelations.gwu.edu/sites/mediarelations.gwu.edu/files/downloads/Charts%20and%20Graphs%2003.25.2014.pdf>, and
it excites Republican voters who care about those issues. Democrats
have several reasons to keep stories about equal-pay equity in the
news. It excites their voters, attracts female voters
<http://www.politico.com/magazine/story/2014/04/democrats-single-women-105719.html#ixzz2z4t24GRE>,
and crowds out whatever the Republicans wanted to talk about (these
days, Obamacare). It also sets a trap. The more Republicans have to
talk about politically unfavorable issues, the greater chance
they'll slip up and say something dumb like candidates Todd Akin
<http://en.wikipedia.org/wiki/Todd_Akin> and Richard Mourdock
<http://en.wikipedia.org/wiki/Richard_Mourdock> did that can be
exploited more broadly.
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Posted in campaigns <http://electionlawblog.org/?cat=59>
"Justice Department, Texas Clash Over Discovery in Voting Rights
Case" <http://electionlawblog.org/?p=60588>
Posted on April 17, 2014 3:14 pm <http://electionlawblog.org/?p=60588>by
Rick Hasen <http://electionlawblog.org/?author=3>
Legal Times reports
<http://www.nationallawjournal.com/legaltimes/id=1202651491143?kw=Justice%20Department%2C%20Texas%20Clash%20Over%20Discovery%20in%20Voting%20Rights%20Case&et=editorial&bu=National%20Law%20Journal&cn=20140417&src=EMC-Email&pt=Legal%20Times%20Afternoon%20Update&slreturn=20140317181339>.
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>
"Can National Popular Vote end the voting wars?"
<http://electionlawblog.org/?p=60585>
Posted on April 17, 2014 2:50 pm <http://electionlawblog.org/?p=60585>by
Rick Hasen <http://electionlawblog.org/?author=3>
Rob Richie writes
<http://blogs.reuters.com/great-debate/2014/04/17/can-national-popular-vote-end-the-voting-wars/>
for /Reuters Opinion./
Another from Richie: Overseas Voters From 5 States to Use Ranked Choice
Voting Ballots in 2014 Congressional Election
<http://www.huffingtonpost.com/rob-richie/overseas-voters-from-5-st_b_5167752.html>
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Posted in electoral college <http://electionlawblog.org/?cat=44>
"Part-time poll workers: Problems solved or problems created"
<http://electionlawblog.org/?p=60583>
Posted on April 17, 2014 2:42 pm <http://electionlawblog.org/?p=60583>by
Rick Hasen <http://electionlawblog.org/?author=3>
That's the lead story in this week's Electionline Weekly
<http://www.electionline.org/index.php/electionline-weekly>.
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Posted in election administration <http://electionlawblog.org/?cat=18>
Interesting Perspective on Election Law Listserv from
Non-Participant <http://electionlawblog.org/?p=60581>
Posted on April 17, 2014 10:03 am
<http://electionlawblog.org/?p=60581>by Rick Hasen
<http://electionlawblog.org/?author=3>
I wonder if the many conservatives on the election law listserv would
agree with these points made by J. Christian Adams
<http://pjmedia.com/jchristianadams/2014/04/17/a-new-more-sinister-irs-scandal/?singlepage=true>:
/S/o who are the speech regulators seeking to impose government
limits on the exercise of the First Amendment?
Like bats in the belfry, they tend to congregate online at
University of California at Irvine Law Professor Rick Hasen's
election blog <http://electionlawblog.org/>.
Hasen runs an online meeting hall
<http://department-lists.uci.edu/pipermail/law-election/> for all
the would-be speech totalitarians. They post, bluster, and kibitz
about the latest news on their effort to erode the First Amendment
and increase federal power. Whenever a free speech advocate seeks to
contribute to the conversation at the blog, they are often
deliberately given a cold shoulder and ignored, per plan. The
ignored don't understand that leftists aren't interested in debate.
Their pedigree requires the eradication of opposing ideas, not their
incubation.
But perhaps the ignored should be thankful. Being ignored is better
than what the speech regulators have done in other places throughout
history. Jail and truncheons are the usual tools of those who want
to stamp out free speech. In America, the speech regulators have
just begun to warm up to jail as a tool.
That Hasen's online hangout is hosted on /government
servers/ provides an interesting twist.
Judicial Watch sent the University of California at Irvine a freedom
of information request demanding Hasen's emails to the White House
and other government officials including any on the topic of speech
regulations. The University told Judicial Watch to pound sand, and
still hasn't provided anything.
a <http://cdn.pjmedia.com/jchristianadams/files/2014/04/a1.jpg>
Yesterday's IRS email revelation makes you wonder what Cal-Irvine is
hiding.
So who are some of the other speech regulators who haven't shown up
on IRS scandal documents yet?
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
California AG faces court challenge today in free speech case"
<http://electionlawblog.org/?p=60579>
Posted on April 17, 2014 9:26 am <http://electionlawblog.org/?p=60579>by
Rick Hasen <http://electionlawblog.org/?author=3>
CCP release
<http://www.campaignfreedom.org/2014/04/17/california-ag-faces-court-challenge-today-in-free-speech-case/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Neil Reiff and Don McGahn on a Decade of McCain-Feingold
<http://electionlawblog.org/?p=60577>
Posted on April 17, 2014 7:31 am <http://electionlawblog.org/?p=60577>by
Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://www.campaignsandelections.com/magazine/us-edition/445782/a-decade-of-mccainfeingold.thtml>
in Campaigns & Elections.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"For Republicans, super PACs are so 2012?
<http://electionlawblog.org/?p=60575>
Posted on April 17, 2014 7:26 am <http://electionlawblog.org/?p=60575>by
Rick Hasen <http://electionlawblog.org/?author=3>
The Fix reports
<http://www.washingtonpost.com/blogs/the-fix/wp/2014/04/17/for-republicans-super-pacs-are-so-last-election-cycle/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Politician congratulates herself -- before Election Day"
<http://electionlawblog.org/?p=60573>
Posted on April 17, 2014 7:23 am <http://electionlawblog.org/?p=60573>by
Rick Hasen <http://electionlawblog.org/?author=3>
News
<http://www.cincinnati.com/story/news/politics/2014/04/16/cindy-carpenter-billboard-campaign-congratulations/7775725/>
from Ohio: "Incumbent Butler County Commissioner Cindy Carpenter may
have some explaining to do about a billboard on Ohio Bypass 4 in
Fairfield that appears to congratulate her as commissioner even though
the contested GOP primary is just three weeks away."
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Posted in campaigns <http://electionlawblog.org/?cat=59>
Bauer on Carter, Chemerinsky, Noble on McCutcheon
<http://electionlawblog.org/?p=60571>
Posted on April 17, 2014 7:21 am <http://electionlawblog.org/?p=60571>by
Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://www.moresoftmoneyhardlaw.com/2014/04/lines-argument-campaign-finance-law-significance/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
Latest on the VRAA: Still Waiting on Cantor
<http://electionlawblog.org/?p=60569>
Posted on April 16, 2014 9:22 pm <http://electionlawblog.org/?p=60569>by
Rick Hasen <http://electionlawblog.org/?author=3>
The Hill reports
<http://thehill.com/blogs/ballot-box/203626-clock-ticking-on-2014-fix-to-the-voting-rights-act>
on the ticking clock.
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Posted in VRAA <http://electionlawblog.org/?cat=81>
"IRS chief committed to new rules for nonprofits despite
conservative resistance" <http://electionlawblog.org/?p=60567>
Posted on April 16, 2014 6:43 pm <http://electionlawblog.org/?p=60567>by
Rick Hasen <http://electionlawblog.org/?author=3>
WaPo reports
<http://www.washingtonpost.com/politics/federal_government/irs-chief-committed-to-new-rules-for-nonprofits-despite-conservative-resistance/2014/04/16/c369de2e-c593-11e3-bf7a-be01a9b69cf1_story.html>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
Linda Greenhouse on McCutcheon <http://electionlawblog.org/?p=60565>
Posted on April 16, 2014 6:08 pm <http://electionlawblog.org/?p=60565>by
Rick Hasen <http://electionlawblog.org/?author=3>
NYT: <http://www.nytimes.com/2014/04/17/opinion/an-indecent-burial.html>
This time, five justices did actually manage to toss something out
the window: the post-Watergate system of campaign finance regulation.
Only Justice Clarence Thomas, who refused to sign the four-justice
plurality opinion by Chief Justice John G. Roberts Jr. because it
didn't go far enough, would have explicitly overturned the court's
foundational precedents in this area. The chief justice tried in his
own opinion to persuade readers that while striking down the
aggregate limits on contributions to federal candidates, parties and
political committees, the court was actually leaving a meaningful
regulatory edifice still standing --- one that could remain
standing, despite the expansive "money is speech" view of the First
Amendment and the extremely cramped definition of corruption that
the McCutcheon opinion embraced.
Maybe somewhere in the country there is someone sufficiently out of
touch with political reality to be open to the chief justice's
persuasion. Not David Ransohoff, a nonpolitical doctor friend of
mine who last week forwarded to me the story from The Times
<http://www.nytimes.com/2014/04/10/business/doctor-with-big-medicare-billings-is-no-stranger-to-scrutiny.html?hpw&rref=politics&action=click&module=Search®ion=searchResults&mabReward=csesort%3Ah&url=http%3A%2F%2Fquery.nytimes.com%2Fsearch%2Fsitesearch%2F%3Faction%3Dclick%26region%3DMasthead%26pgtype%3DHomepage%26module%3DSearchSubmit%26contentCollection%3DHomepage%26t%3Dqry193%23%2F%2522political%2Bties%2Bof%2Btop%2Bbillers%2522%2F30days%2F>
about the six-figure political contributions made by the doctors who
are the country's top Medicare billers. "While I was initially
disturbed by this report," my friend wrote in his wry email, "John
Roberts reassured me that, because there was no clear quid pro quo,
this was just 'free speech, democracy in action.' "
I'll leave it to the election-law experts to assess the practical
impact of the decision. It has already set off a wave of
deregulation at the state level, where aggregate contribution limits
are under attack in those states that haven't already announced that
they will no longer enforce them. Clearly, the federal limits have
been easy enough to evade, openly and legally through independent
expenditures and new types of committees; for Sheldon Adelson, the
right-wing casino mogul who spent nearly $100 million during the
2012 campaign season, the $123,200 direct contribution limit that
the McCutcheon decision invalidated would have been little more than
a rounding error.
My interest here is less the real-world impact than what the
decision tells us about the Supreme Court and Chief Justice Roberts,
who at this rate and at age 59 figures to be with us a good deal
longer than campaign finance laws. Deregulating campaign finance is
clearly part of his long-term project. In the course of his opinion,
the chief justice made some moves that are worth highlighting for
the way in which they illuminate both his method and his priorities.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
--
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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