[EL] ELB News and Commentary 4/20/14

[Rick Hasen]

    Election Law Cartoon of the Day <http://electionlawblog.org/?p=60667>

Posted on April 20, 2014 8:27 am <http://electionlawblog.org/?p=60667>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Here <https://twitter.com/SBSwenson/status/457168020062756864/photo/1>.

Share 
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D60667&title=Election%20Law%20Cartoon%20of%20the%20Day&description=>
Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme 
Court <http://electionlawblog.org/?cat=29>, Voting Rights Act 
<http://electionlawblog.org/?cat=15>


    "'Lying in Politics' Plaintiffs Go on Offense in Several New States"
    <http://electionlawblog.org/?p=60665>

Posted on April 20, 2014 8:16 am <http://electionlawblog.org/?p=60665>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Roll Call: 
<http://blogs.rollcall.com/hawkings/lying-in-politics-plaintiffs-go-on-offense-in-several-new-states/?dcz=>

    The lead plaintiff in the "Can you lie in politics?" case going
    before the Supreme Court next week <http://wp.me/p3fVXI-E2>,
    anti-abortion group Susan B. Anthony List, says Ohio's law against
    false campaign assertions will stifle that state's midterm
    congressional debates.

    The group is apparently not worried about a similarly chilling
    effect elsewhere -- at least not in four races elsewhere in the
    country where it's inserted itself in recent days.

Share 
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D60665&title=%E2%80%9C%E2%80%98Lying%20in%20Politics%E2%80%99%20Plaintiffs%20Go%20on%20Offense%20in%20Several%20New%20States%E2%80%9D&description=>
Posted in campaigns <http://electionlawblog.org/?cat=59>


    "American Gridlock: Causes, Characteristics and Consequences of
    Polarization" <http://electionlawblog.org/?p=60663>

Posted on April 20, 2014 8:15 am <http://electionlawblog.org/?p=60663>by 
Rick Hasen <http://electionlawblog.org/?author=3>

American U. putting on a great conference 
<http://www.american.edu/spa/ccps/upload/May-9-Conference-on-American-Gridlock.pdf> 
May 9.

Share 
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D60663&title=%E2%80%9CAmerican%20Gridlock%3A%20Causes%2C%20Characteristics%20and%20Consequences%20of%20Polarization%E2%80%9D&description=>
Posted in political parties <http://electionlawblog.org/?cat=25>, 
political polarization <http://electionlawblog.org/?cat=68>


    "Leland Yee case: Disgraced California state senator's legislative
    efforts fueled cash for campaigns"
    <http://electionlawblog.org/?p=60661>

Posted on April 20, 2014 8:09 am <http://electionlawblog.org/?p=60661>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Contra Costa Times 
<http://www.contracostatimes.com/news/ci_25600425/leland-yee-case-disgraced-senators-legislative-efforts-fueled?source=rss>:

    Beginning in early 2011, state Sen. Leland Yee repeatedly solicited
    bribes to fund his San Francisco mayor and California secretary of
    state campaigns, according to the FBI agents who brought him down
    last month.

    But he appears to have devoted more time and energy to a far more
    lucrative pursuit: crafting or carrying legislation benefiting
    special interests who supply campaign contributions. It's a practice
    that's all too common in Sacramento, but Yee was a master.

    A review of Yee's legislation and campaign finance records during
    the time of the FBI investigation shows that, when he wasn't
    allegedly trading his influence and trying to broker an
    international arms deal with undercover agents for $62,600 in
    illegal cash payments, the San Francisco Democratic lawmaker raised
    more than $150,000 in perfectly legal fashion, scooping up donations
    from labor unions, trade associations and other groups whose bills
    he advocated in the hearing rooms and hallways of the Capitol.



Share 
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D60661&title=%E2%80%9CLeland%20Yee%20case%3A%20Disgraced%20California%20state%20senator%E2%80%99s%20legislative%20efforts%20fueled%20cash%20for%20campaigns%E2%80%9D&description=>
Posted in bribery <http://electionlawblog.org/?cat=54>, campaign finance 
<http://electionlawblog.org/?cat=10>


    Koch Bros Target Solar Industry <http://electionlawblog.org/?p=60659>

Posted on April 20, 2014 8:05 am <http://electionlawblog.org/?p=60659>by 
Rick Hasen <http://electionlawblog.org/?author=3>

LAT 
<http://www.latimes.com/nation/la-na-solar-kochs-20140420,0,7412286.story>.

Share 
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D60659&title=Koch%20Bros%20Target%20Solar%20Industry&description=>
Posted in campaigns <http://electionlawblog.org/?cat=59>


    "Money Won't Buy You Votes" <http://electionlawblog.org/?p=60657>

Posted on April 20, 2014 8:03 am <http://electionlawblog.org/?p=60657>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Peter Schuck has written this oped 
<http://www.latimes.com/opinion/commentary/la-oe-schuck-campaign-finance-mccutcheon-20140420,0,7723852.story>for 
the /LA Times./

Share 
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D60657&title=%E2%80%9CMoney%20Won%E2%80%99t%20Buy%20You%20Votes%E2%80%9D&description=>
Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme 
Court <http://electionlawblog.org/?cat=29>


    "Lying is Free Speech Too" <http://electionlawblog.org/?p=60655>

Posted on April 20, 2014 8:02 am <http://electionlawblog.org/?p=60655>by 
Rick Hasen <http://electionlawblog.org/?author=3>

LAT oped 
<http://www.latimes.com/opinion/editorials/la-ed-lying-20140420,0,1265902.story> 
on /Susan B. Anthony./

Share 
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D60655&title=%E2%80%9CLying%20is%20Free%20Speech%20Too%E2%80%9D&description=>
Posted in campaigns <http://electionlawblog.org/?cat=59>


    "Change the Constitution in Six Easy Steps? It Won't Be That Simple,
    Justice Stevens; From campaign finance to political gerrymandering,
    the retired Supreme Court justice skips hard arguments in his new
    book in favor of unrealistic, poorly drafted solutions. "
    <http://electionlawblog.org/?p=60653>

Posted on April 19, 2014 8:43 pm <http://electionlawblog.org/?p=60653>by 
Rick Hasen <http://electionlawblog.org/?author=3>

I have written this book review 
<http://www.thedailybeast.com/articles/2014/04/20/change-the-constitution-in-six-easy-steps-it-won-t-be-that-simple-justice-stevens.html>for 
/The Daily Beast. /It begins:

    Reading retired Supreme Court Justice John Paul Stevens's new book,
    /Six Amendments: How and Why We Should Change the Constitution
    <http://www.amazon.com/Six-Amendments-Should-Change-Constitution-ebook/dp/B00GM0P55M/>/,
    I was reminded of an old Steve Martin routine
    <http://snltranscripts.jt.org/77/77imono.phtml> from his standup
    days. "First, get a million dollars," Martin explains in "You Can Be
    a Millionaire and Never Pay Taxes." Then if the tax collector comes
    to your door asking why you didn't pay taxes on your million
    dollars, just say, "I forgot." Just like Martin, Justice Stevens
    wants to skip all the tough stuff, using his slim volume to offer
    overly simplistic solutions to some of the country's most pressing
    problems, from political gerrymandering to Second Amendment gun
    rights and campaign finance. I'm afraid it will take much more to
    cure our nation's ills.

    Let's consider Justice Stevens's take on campaign finance. The
    Supreme Court has been on a long march toward lifting all campaign
    finance limits, most famously
    <http://www.slate.com/articles/news_and_politics/jurisprudence/2010/01/money_grubbers.html>
    in the /Citizens United <http://www.supremecourt.gov>/ case, which
    freed corporate money from its shackles, and most recently
    <http://www.slate.com/articles/news_and_politics/jurisprudence/2014/04/the_subtle_awfulness_of_the_mccutcheon_v_fec_campaign_finance_decision_the.html>
    in the McCutcheon case (PDF
    <http://www.supremecourt.gov/opinions/13pdf/12-536_e1pf.pdf>), which
    dropped limits
    <http://www.thedailybeast.com/articles/2014/04/02/the-supreme-court-rules-campaign-limits-are-for-losers.html>
    on the total amount people can donate to federal candidates in a
    two-year period. These cases have all been 5-4, with the five
    conservative justices, led by Chief Justice John Roberts, striking
    down or limiting campaign finance laws and the four liberals, which
    included Justice Stevens when he was still on the court, protesting
    that reasonable campaign finance limits can coexist with the First
    Amendment.

    Mercifully, Justice Stevens assures us that he won't repeat the
    arguments he made in his somewhat meandering and ineffective
    <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1737938> 86-page
    dissent in /Citizens United/. (He does reveal that Justice David
    Souter told him he too would have joined the /Citizens United/
    dissent had he still been on the court, something consistent with
    earlier leaks
    <http://www.slate.com/articles/news_and_politics/jurisprudence/2012/05/citizens_united_justice_david_souter_s_dissent_in_the_supreme_court_s_momentous_campaign_finance_case_.html>).
    Justice Stevens instead offers 20 or so pages describing the nature
    of the dispute followed by his proposed amendment: "Neither the
    First Amendment nor any other provision of this Constitution shall
    be construed to prohibit the Congress or any state from imposing
    reasonable limits on the amount of money that candidates for public
    office, or their supporters, may spend in elections."

Share 
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D60653&title=%E2%80%9CChange%20the%20Constitution%20in%20Six%20Easy%20Steps%3F%20It%20Won%E2%80%99t%20Be%20That%20Simple%2C%20Justice%20Stevens%3B%20From%20campaign%20finance%20to%20political%20gerrymandering%2C%20the%20retired%20Supreme%20Court%20justice%20skips%20hard%20arguments%20in%20his%20new%20book%20in%20favor%20of%20unrealistic%2C%20poorly%20drafted%20solutions.%20%E2%80%9C&description=>
Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme 
Court <http://electionlawblog.org/?cat=29>


    "Ifill: Supreme Court's campaign finance ruling cheapens voting"
    <http://electionlawblog.org/?p=60649>

Posted on April 19, 2014 8:52 am <http://electionlawblog.org/?p=60649>by 
Rick Hasen <http://electionlawblog.org/?author=3>

Sherrilyn Ifill oped 
<http://www.chron.com/opinion/outlook/article/Ifill-Supreme-Court-s-campaign-finance-ruling-5392991.php>on 
/McCutcheon/.

Share 
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D60649&title=%E2%80%9CIfill%3A%20Supreme%20Court%E2%80%99s%20campaign%20finance%20ruling%20cheapens%20voting%E2%80%9D&description=>
Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme 
Court <http://electionlawblog.org/?cat=29>, Voting Rights Act 
<http://electionlawblog.org/?cat=15>


    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 
on 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?

UPDATE: Derek Muller writes:

    Rick, I tweeted (the height of academic inquiry, I know--here
    <http://twitter.com/derektmuller/status/451375319392350208> and here
    <http://twitter.com/derektmuller/status/451376988129734656>, the
    second with a link to a now-expired HUP page) about it when
    /McCutcheon /was released--but, sadly, the only response was of
    interest, not of anyone who could identify any precedent.
    Interestingly, the HUP link identifying the forthcoming book was
    available when /McCutcheon /was released, but it appears that HUP
    has now moved the page to here:
    http://www.hup.harvard.edu/catalog.php?isbn=9780674729001

    Another question I had is, who sent him the advance copy, and did
    everyone on the Court get them?

Share 
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D60645&title=Perhaps%20for%20First%20Time%2C%20Justice%20Breyer%E2%80%99s%20McCutcheon%20Dissent%20Cites%20Unavailable%20Forthcoming%20Scholarship&description=>
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."

Share 
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D60643&title=%E2%80%9CFPPC%20investigating%20disclosure%20compliance%20by%20Tim%20Donnelly%E2%80%99s%20PAC%E2%80%9D&description=>
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>

Share 
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D60641&title=In%20Wake%20of%20McCutcheon%2C%20City%20of%20Los%20Angeles%20Will%20No%20Longer%20Enforce%20Aggregate%20Campaign%20Limits&description=>
Posted in campaign finance <http://electionlawblog.org/?cat=10>

-- 
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

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140420/d692ee19/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140420/d692ee19/attachment.png>