[EL] ELB News and Commentary 4/19/14
Rick Hasen
rhasen at law.uci.edu
Sat Apr 19 08:32:42 PDT 2014
Perhaps for First Time, Justice Breyer's McCutcheon Dissent Cites
Unavailable Forthcoming Scholarship
<http://electionlawblog.org/?p=60645>
Posted on April 19, 2014 8:28 am <http://electionlawblog.org/?p=60645>by
Rick Hasen <http://electionlawblog.org/?author=3>
I was rereading /McCutcheon /last night in preparation for a Monday talk
at the case at the Center for the Study of Democracy
<http://www.democracy.uci.edu/node/25699>. I noticed that Justice
Breyer cites to Robert Post's forthcoming book on /Citizens United: /
That is also why the Court has used the phrase "subversion of the
political process" to describe circumstances in which "[e]lected
officials are influenced to act contrary to their obligations of
office by the prospect of financial gain to themselves or infusions
of money into their campaigns." /NCPAC,/ 470 U.S., at 497, 105 S.Ct.
1459.
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1985114052&pubNum=708&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Keycite%29>
See also /Federal Election Comm'n v. National Right to Work Comm.,/
459 U.S. 197, 208, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982)
<http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1982153514&pubNum=708&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=%28sc.Keycite%29>
(the Government's interests in preventing corruption "directly
implicate the integrity of our electoral process" (internal
quotation marks and citation omitted)). See generally R. Post,
Citizens Divided: Campaign Finance Reform and the Constitution
7--16, 80--94 (forthcoming 2014) (arguing that the efficacy of
American democracy depends on "electoral integrity" and the
responsiveness of public officials to public opinion).
The book is forthcoming in June according to Amazon
<http://www.amazon.com/Citizens-Divided-Campaign-Constitution-Lectures/dp/0674729005/ref=sr_1_1?s=books&ie=UTF8&qid=1397921007&sr=1-1&keywords=citizens+divided>,
based on Robert's Tanner lectures and with responses by Pam Karlan,
Larry Lessig, and Frank Michelman. SSRN notes the book
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2365024>, but
provides no draft.
Have there been any other occasions where Justices have cited
scholarship not available in the public record. Justice Scalia cited a
forthcoming piece posted on SSRN in Heller ("And if one looks beyond
legal sources, "bear arms" was frequently used in nonmilitary contexts.
See Cramer & Olson, What Did "Bear Arms" Mean in the Second Amendment?,
6 Georgetown J.L. & Pub. Pol'y (forthcoming Sept. 2008), online at
http://papers. ssrn.com/abstract=1086176 (as visited June 24, 2008, and
available in Clerk of Court's case file) (identifying numerous
nonmilitary uses of "bear arms" from the founding period)."). Justice
Kennedy did in Boumediene (". Thus the writ, while it would become part
of the foundation of liberty for the King's subjects, was in its
earliest use a mechanism for securing compliance with the King's laws.
See Halliday & White, The **2245 Suspension Clause: English Text,
Imperial Contexts, and American Implications, 94 Va. L.Rev. 575, 585
(2008)
<https://a.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0338636871&pubNum=1359&originationContext=document&transitionType=DocumentItem&contextData=%28sc.Search%29#co_pp_sp_1359_585>
(hereinafter Halliday & White) (manuscript, at 11, online at
http://papers.ssrn.com/sol 3 /papers.cfm?abstract_id =1008252 (all
Internet materials as visited June 9, 2008, and available in Clerk of
Court's case file) (noting that "conceptually the writ arose from a
theory of power rather than a theory of liberty")".)
But Justice Breyer cited to something which is not available on SSRN nor
is there any notation that a copy is in the Clerk of Court's file.
Is there any precedent for this?
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
"FPPC investigating disclosure compliance by Tim Donnelly's PAC"
<http://electionlawblog.org/?p=60643>
Posted on April 18, 2014 9:30 pm <http://electionlawblog.org/?p=60643>by
Rick Hasen <http://electionlawblog.org/?author=3>
Sac Bee
<http://blogs.sacbee.com/capitolalertlatest/2014/04/fppc-investigating-disclosure-compliance-by-tim-donnellys-pac.html#mi_rss=Latest%20News>:
"The state agency overseeing campaign finance rules in California says
Republican *Tim Donnelly* has failed for more than a year to file
campaign finance statements for a political action committee he formed
in 2012."
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
In Wake of McCutcheon, City of Los Angeles Will No Longer Enforce
Aggregate Campaign Limits <http://electionlawblog.org/?p=60641>
Posted on April 18, 2014 9:26 pm <http://electionlawblog.org/?p=60641>by
Rick Hasen <http://electionlawblog.org/?author=3>
LA Times reports.
<http://www.latimes.com/local/la-me-public-financed-campaign-20140419,0,5945485.story#axzz2zIqenAKM>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"How Rand Paul Bailed on His Bold Plan to Reform Big-Money Politics
in Washington" <http://electionlawblog.org/?p=60638>
Posted on April 18, 2014 9:20 pm <http://electionlawblog.org/?p=60638>by
Rick Hasen <http://electionlawblog.org/?author=3>
David Corn writes
<http://www.motherjones.com/politics/2014/04/rand-paul-campaign-reform-cheney-halliburton-lobbying>.
My Stanford piece
<http://www.stanfordlawreview.org/print/article/lobbying-rent-seeking-and-constitution>
on lobbying begins with some of Rand Paul's and Sarah Palin's comments
about "crony capitalism" and limiting the power of lobbyists. I had
wondered how this would get squared with the /Citizen United/ /campaign
finance regulation appeal to other Republicans.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
lobbying <http://electionlawblog.org/?cat=28>
"Dead for now: Kentucky bill allowing twin Paul 2016 runs"
<http://electionlawblog.org/?p=60636>
Posted on April 18, 2014 9:17 pm <http://electionlawblog.org/?p=60636>by
Rick Hasen <http://electionlawblog.org/?author=3>
CNN
<http://politicalticker.blogs.cnn.com/2014/04/17/dead-for-now-kentucky-bill-allowing-twin-paul-2016-runs/>:
"A bill allowing Kentucky GOP Sen. Rand Paul to simultaneously run for
the presidency and re-election to his U.S. Senate seat in 2016 died
earlier this week when the Kentucky legislature adjourned for the year.
The bill had passed the Republican-controlled state Senate, but stalled
in the Democratic-controlled state House of Representatives."
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Posted in campaigns <http://electionlawblog.org/?cat=59>
"Ohio case before U.S. Supreme Court could decide whether states can
criminalize campaign lies" <http://electionlawblog.org/?p=60633>
Posted on April 18, 2014 9:14 pm <http://electionlawblog.org/?p=60633>by
Rick Hasen <http://electionlawblog.org/?author=3>
The /Cleveland Plain Dealer/ previews
<http://www.cleveland.com/metro/index.ssf/2014/04/ohio_case_before_us_supreme_co.html>
the /Susan B. Anthony /case.
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Posted in campaigns <http://electionlawblog.org/?cat=59>
"Protect academic freedom in N.C."
<http://electionlawblog.org/?p=60631>
Posted on April 18, 2014 9:04 pm <http://electionlawblog.org/?p=60631>by
Rick Hasen <http://electionlawblog.org/?author=3>
Charlotte Observer
<http://www.charlotteobserver.com/2014/04/18/4850506/protect-academic-freedom-in-nc.html#.U1H0kceT6N8>
editorial: "What's happening to UNC Chapel Hill law professor Gene
Nichol should trouble all of us in North Carolina. A campaign appears
afoot to silence his criticism of Republicans and their legislative
policies that Nichol deems harmful to the state and its residents....In
email records obtained by the (Raleigh) News & Observer, criticism by
Republican supporters of GOP Gov. Pat McCrory -- including university
board members, alumni and others -- spurred the university to request
notice when Nichol writes opinion pieces. University officials also
asked him to omit his title as director of the privately funded,
university-based Center on Poverty, Work & Opportunity when the issue
does not directly involve poverty. Last October after he criticized the
governor and legislature for election law changes that this editorial
board has also lambasted as partisan and racially motivated, the school
asked him to include an explicit disclaimer that "he doesn't speak for
UNC."...It is understandable officials would make such requests, given
the legislative rock and hard place the university finds itself in these
days. Budget director Art Pope just last month chastised university
officials for submitting a funding request that asks for what they
needed rather than acceding to his directive for something much less.
After his tongue-lashing, officials revised their request substantially
downward."
Art Pope? Now where have I heard that name before? Oh yeah
<http://www.newyorker.com/reporting/2011/10/10/111010fa_fact_mayer?currentPage=all>.
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Posted in academic freedom <http://electionlawblog.org/?cat=92>
"How Not to End Racial Discrimination; Conservatives have been
making the same wrongheaded argument for more than 100 years."
<http://electionlawblog.org/?p=60627>
Posted on April 18, 2014 5:16 pm <http://electionlawblog.org/?p=60627>by
Rick Hasen <http://electionlawblog.org/?author=3>
Jamelle Bouie writes
<http://www.slate.com/articles/news_and_politics/politics/2014/04/national_review_is_wrong_on_racial_discrimination_conservatives_have_been.html>
for /Slate./
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15>
"Nevada secretary of state says woman arrested for voter fraud; used
false identity" <http://electionlawblog.org/?p=60625>
Posted on April 18, 2014 5:06 pm <http://electionlawblog.org/?p=60625>by
Rick Hasen <http://electionlawblog.org/?author=3>
AP
<http://www.beaumontenterprise.com/news/crime/article/Woman-arrested-for-Nevada-voter-fraud-5414042.php>:
"Secretary of State Ross Miller
<http://www.beaumontenterprise.com/?controllerName=search&action=search&channel=news%2Fcrime&search=1&inlineLink=1&query=%22Ross+Miller%22>
says a woman has been arrested on two felony charges for allegedly using
a false identity to register to vote and casting ballots in two elections.
Jon Ralston
<https://twitter.com/RalstonReports/status/457296079239663616>:
.@*rossjmiller* <https://twitter.com/rossjmiller>: "This was... identity
theft. The suspect had identification, albeit fraudulent, which is why
she was allowed to vote." MORE
<https://twitter.com/RalstonReports/status/457295581656776704>: .@*rossjmiller*
<https://twitter.com/rossjmiller>: "....no reason to believe that this
type of fraud is widespread....a 'voter ID' law would not have prevented
this incident."
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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>
"Are Democrats Trying To Energize The Base With The Race Card?"
<http://electionlawblog.org/?p=60623>
Posted on April 18, 2014 3:50 pm <http://electionlawblog.org/?p=60623>by
Rick Hasen <http://electionlawblog.org/?author=3>
NPR
<http://www.npr.org/blogs/itsallpolitics/2014/04/18/304571750/are-democrats-trying-to-energize-the-base-with-the-race-card?utm_source=twitter.com&utm_campaign=politics&utm_medium=social&utm_term=nprnews>:
For some voters, suggestions that some of the opposition to Obama
and his policies is more than just honest disagreement --- and is
indeed racially based --- could help do the trick.
The Democrats' use of voting rights strikes the same chord. Voting
rights and race have been so inextricably linked in the nation's
history, and in the African-American experience, that Obama can send
a resonant message to many minority voters without ever explicitly
mentioning race.
He did exactly that when he spoke to the same Sharpton group as
Holder, a few days after the attorney general.
Obama portrayed Republican voter ID efforts as attempts to undo
civil and voting rights protections enacted during the Johnson
administration --- protections won at the price of blood.
That those Johnson-era laws were needed to counter racist laws and
practices that prevented blacks from voting, especially in the
South, could go unsaid before an audience well-steeped in that
racial history.
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Posted in campaigns <http://electionlawblog.org/?cat=59>, Voting Rights
Act <http://electionlawblog.org/?cat=15>
Interesting Memos from Michael Waldman and Others on Clinton Admin.
Approach to Limiting Soft money <http://electionlawblog.org/?p=60621>
Posted on April 18, 2014 3:39 pm <http://electionlawblog.org/?p=60621>by
Rick Hasen <http://electionlawblog.org/?author=3>
Via Ken Vogel <https://twitter.com/kenvogel/status/457283947786145793>,
start reading at page 48 of these newly released documents.
<http://t.co/IS8LxAgkA8>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Quote of the Day: Nazi Edition <http://electionlawblog.org/?p=60619>
Posted on April 18, 2014 3:06 pm <http://electionlawblog.org/?p=60619>by
Rick Hasen <http://electionlawblog.org/?author=3>
"Rick Hasen and his cohorts truly seem to be digital brownshirts. I will
not be civil with fascists."
A "top rated" comment
<http://pjmedia.com/tatler/2014/04/18/irs-scandal-one-way-civility-in-academia/?show-at-comment=620747#comment-620747>
at PJ Media's post on my blog and the listserv.
UPDATE: A new commen
<https://twitter.com/rickhasen/status/457315945640255489/photo/1/large>t
threatening violence, and a great response.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
"Despite ruling, Iowa to bar all felons from voting"
<http://electionlawblog.org/?p=60617>
Posted on April 18, 2014 1:28 pm <http://electionlawblog.org/?p=60617>by
Rick Hasen <http://electionlawblog.org/?author=3>
AP
<http://timesrepublican.com/page/content.detail/id/570622/Despite-ruling--Iowa-to-bar-all-felons-from-voting.html>:
"Iowa elections officials will continue to bar convicted felons from
voting despite a landmark state Supreme Court ruling that suggests not
all of them lost their voting rights, a spokesman said Wednesday."
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Posted in felon voting <http://electionlawblog.org/?cat=66>
IRS's Lois Lerner Was Skeptical of Criminal Prosecution of 501c(4)s
<http://electionlawblog.org/?p=60615>
Posted on April 18, 2014 1:27 pm <http://electionlawblog.org/?p=60615>by
Rick Hasen <http://electionlawblog.org/?author=3>
Politico Morning Tax
<http://www.politico.com/morningtax/0414/morningtax13641.html>:
*LATEST IRS DRAMA, PER A NEW BATCH OF EMAILS ---*
*DOJ CONTACTED LERNER ABOUT PROSECUTING SOCIAL WELFARE GROUPS. Two
days before Lois Lerner broke the IRS scandal news at a tax law
conference, *the Department of Justice reached out to the former IRS
agent to discuss the possibility of prosecuting social welfare
organizations that quietly underwrote their political activities
against tax-exempt rules. That's according to emails released by
Judicial Watch, a conservative watchdog group that FOIA-ed
documents. The email that details the DOJ-Lerner convo doesn't
mention a specific group or even groups that lean toward a certain
ideology --- just 501(c)4s in general.
*THE LERNER EMAIL*: Sent on May 8, 2013 to IRS colleagues, including
the chief of staff for then-Acting IRS Commissioner Steven Miller:
"I got a call today from Richard Pilger Director [of the] Elections
Crimes Branch at DOJ.... [Pilger] wanted to know who at IRS the DOJ
folks could talk to about Sen. [Sheldon] Whitehouse idea at the
hearing that DOJ could piece together false statement cases about
applicants who 'lied' on their [applications] --saying they weren't
planning on doing political activity, and then turning around and
making large visible political expenditures.... DOJ is feeling like
it needs to respond, but want to talk to the right folks at IRS to
see whether there are impediments from our side and what, if any
damage this might do to IRS programs."
*THE 'WHY' FACTOR: CONGRESSIONAL PRESSURE? *At first glance
conspiracy theorists may latch on to this Justice correspondence to
suggest a second federal department was involved in the targeting
scandal. But a closer look at the emails suggests the departments
may have been covering their backs after getting some congressional
pressure. Sen. Whitehouse (D-R.I), a prominent campaign finance
reformer, wanted to know why the IRS had not referred any suspect
(c)4s to DOJ for prosecution and used his time during an April 9,
2013 hearing to press DOJ on the matter. It is in that context that
Justice reached out to Lerner.
Campaign Legal Center's Larry Noble, Lerner's former boss at the
Federal Election Commission, has this to say about the
correspondence: "What I get from these emails is two agencies trying
to figure out... how to answer this question... They're not
conspiring how to do it but rather answering why they weren't doing
it. Nothing in here leads me to believe they were going to do it but
respond to Sen. Whitehouse's questions as to why they weren't."
*LERNER WAS SKEPTICAL.* Lerner expressed skepticism that any suspect
(c)4 groups could really be prosecuted in a later email chain to her
IRS colleagues, also released Wednesday. "In looking at their
testimony though, it's all about criminal prosecution of federal
campaign laws --- so we're all talking apples and oranges. ... In
both instances, the issue is whether a particular expenditure was
political intervention. Whether there was a false statement or fraud
regarding an description of an alleged political expenditure that
doesn't say vote for or vote against is not realistic under current
law. Everyone is looking for a magic bullet or scapegoat --- there
isn't one. The law in this area is just hard."
*FOOTNOTE: *The IRS usually handles unruly (c)4s that don't follow
the rules, internally, by simply revoking tax-exempt status. But
Marc Owens, former IRS exempt-orgs chief, said there have been a few
charities, 501(c)3s, that were criminally charged for willfully
lying to the IRS and secretly funneling funds to political campaigns.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
Free Car Raffle for US. Senate Candidate Web Signup
<http://electionlawblog.org/?p=60613>
Posted on April 18, 2014 1:18 pm <http://electionlawblog.org/?p=60613>by
Rick Hasen <http://electionlawblog.org/?author=3>
Interesting question
<http://www.thedailybeast.com/articles/2014/04/18/blow-your-balls-off-senate-candidate-wants-to-give-away-a-free-car.html>
whether this is getting too close to illegal vote buying
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=257564>. I think it
is probably ok because there's no payment for turnout or voting.
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Posted in vote buying <http://electionlawblog.org/?cat=43>
Great IGS Event/Lineup on Top-Two Primary in California
<http://electionlawblog.org/?p=60611>
Posted on April 18, 2014 1:12 pm <http://electionlawblog.org/?p=60611>by
Rick Hasen <http://electionlawblog.org/?author=3>
Check it out.
<http://us5.campaign-archive1.com/?u=d77c7ab2fffb03c109d588f05&id=eacb03d73a&e=f7366dafb9>
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Posted in political parties <http://electionlawblog.org/?cat=25>,
primaries <http://electionlawblog.org/?cat=32>
Christian Adams Apparently Does Not Understand the Difference
Between My Blog and the Election Law Listserv
<http://electionlawblog.org/?p=60609>
Posted on April 18, 2014 11:54 am
<http://electionlawblog.org/?p=60609>by Rick Hasen
<http://electionlawblog.org/?author=3>
See here
<http://pjmedia.com/tatler/2014/04/18/irs-scandal-one-way-civility-in-academia/>
(following up on this post <http://electionlawblog.org/?p=60602>, which
he does not link to).
And with that, I think I'm done feeding the trolls for a while (here's
the last time <http://electionlawblog.org/?p=38895> I gave up on
engaging with Adams).
And now back to our regularly scheduled programming.
[Adams explains himself more in the comment section, including this
<https://twitter.com/rickhasen/status/457324021583839232>.]
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
"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>
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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
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http://electionlawblog.org
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