[EL] ELB News and Commentary 4/24/14
Rick Hasen
rhasen at law.uci.edu
Thu Apr 24 08:07:43 PDT 2014
"McCain predicts 'major scandal' on campaign finance"
<http://electionlawblog.org/?p=60832>
Posted on April 24, 2014 8:03 am <http://electionlawblog.org/?p=60832>by
Rick Hasen <http://electionlawblog.org/?author=3>
The Hill reports.
<http://thehill.com/blogs/ballot-box/campaign-committees/204228-sen-mccain-on-campaign-finance-rulings-i-predict-a-major>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"How wealthy campaign donors may reduce political polarization and
weaken the tea party" <http://electionlawblog.org/?p=60830>
Posted on April 24, 2014 8:01 am <http://electionlawblog.org/?p=60830>by
Rick Hasen <http://electionlawblog.org/?author=3>
Part 2 of Bonica and Shen
<http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/04/24/how-wealthy-campaign-donors-may-reduce-political-polarization-and-weaken-the-tea-party/>on
the aftermath of /McCutcheon./
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"The left's secret club plans for 2014, 2016?
<http://electionlawblog.org/?p=60828>
Posted on April 24, 2014 7:58 am <http://electionlawblog.org/?p=60828>by
Rick Hasen <http://electionlawblog.org/?author=3>
Vogel
<http://www.politico.com/story/2014/04/democrats-democracy-alliance-liberal-donors-105972.html?hp=t1>:
Some of the country's biggest Democratic donors --- including Tom
Steyer and Jonathan Soros --- are huddling behind closed doors next
week in Chicago with union bigwigs and progressive superstars like
Bill de Blasio to plan how to pull their party --- and the country
--- to the left.
The setting is the annual spring meeting of the Democracy Alliance,
a secretive club of wealthy liberals that's the closest thing the
left has to the vaunted Koch brothers' political
<http://www.politico.com/story/2014/01/koch-brothers-2014-elections-102555.html>network
<http://www.politico.com/story/2014/01/koch-brothers-2014-elections-102555.html>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Disclosure, hypocrisy, and hyperbole in campaign finance"
<http://electionlawblog.org/?p=60826>
Posted on April 24, 2014 7:29 am <http://electionlawblog.org/?p=60826>by
Rick Hasen <http://electionlawblog.org/?author=3>
Brad Smith
<http://www.campaignfreedom.org/2014/04/22/disclosure-hypocrisy-and-hyperbole-in-campaign-finance/>:
It has just come to my attention that last week David Schultz, a
Professor at the Graduate School of Management at Hamline University
with whom I've previously had cordial relations, rather out of the
blue "called me out" last week. In a post
<http://politicsinminnesota.com/2014/04/schultz-money-v-democracy-and-the-coming-death-of-disclosure/> at
Politics in Minnesota, Professor Schultz accuses me, by name (along
with Attorney Jim Bopp and political scientist John Samples of the
Cato Institute), of "hypocrisy," and complains that we wish to "hide
in the dark," are "authoritarians," and wish to "create a new
plutocracy." Indeed, he appears to say of all three of us that
"they do not want anyone to know who they are," a particularly odd
claim since you would be hard pressed to find three more visible
advocates of free speech and free elections. Presumably, it's just
sloppy writing and he meant to suggest that others fit that last bill.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Are Democrats Repeating Their Post-Citizens United Mistake? Three
weeks after the McCutcheon ruling, Republicans are taking advantage
of the new rules much quicker than Democrats."
<http://electionlawblog.org/?p=60824>
Posted on April 24, 2014 7:25 am <http://electionlawblog.org/?p=60824>by
Rick Hasen <http://electionlawblog.org/?author=3>
National Journal reports
<http://www.nationaljournal.com/politics/are-democrats-repeating-their-post-citizens-united-mistake-20140422>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"A Constitutional 'Right to Participate' in the Electoral Process?"
<http://electionlawblog.org/?p=60822>
Posted on April 24, 2014 7:21 am <http://electionlawblog.org/?p=60822>by
Rick Hasen <http://electionlawblog.org/?author=3>
Bauer blogs
<http://www.moresoftmoneyhardlaw.com/2014/04/constitutional-right-participate-electoral-process/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>, voting
<http://electionlawblog.org/?cat=31>
"California judge named head of state's political ethics agency"
<http://electionlawblog.org/?p=60819>
Posted on April 23, 2014 9:42 pm <http://electionlawblog.org/?p=60819>by
Rick Hasen <http://electionlawblog.org/?author=3>
LAT
<http://www.latimes.com/local/la-me-ethics-commission-20140424,0,6908.story#axzz2zm91URP9>:
Gov. Jerry Brown
<http://www.latimes.com/topic/politics/government/jerry-brown-PEPLT007547.topic>
on Wednesday appointed as head of California's political ethics
agency a judge who has overseen the discipline of attorneys.
Jodi Remke, presiding judge of the State Bar Court of California, is
Brown's choice for chairwoman of the state Fair Political Practices
Commission.
Good-government activists including Robert Stern, a former general
counsel for the California agency and a coauthor of the state
Political Reform Act, said they knew nothing about Remke. But a
former boss said she was a great choice.
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Posted in election law biz <http://electionlawblog.org/?cat=51>
"California secretary of state candidates clash over ethics ideas"
<http://electionlawblog.org/?p=60817>
Posted on April 23, 2014 9:39 pm <http://electionlawblog.org/?p=60817>by
Rick Hasen <http://electionlawblog.org/?author=3>
LAT.
<http://www.latimes.com/local/la-me-secretary-state-20140424,0,4719684.story#axzz2zm8dwhsE>
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Posted in election administration <http://electionlawblog.org/?cat=18>
"The rich are dominating campaigns. Here's why that's about to get
worse." <http://electionlawblog.org/?p=60815>
Posted on April 23, 2014 9:33 pm <http://electionlawblog.org/?p=60815>by
Rick Hasen <http://electionlawblog.org/?author=3>
Adam Bonica and Jenny Shen
<http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/04/23/the-rich-are-dominating-campaigns-heres-why-thats-about-to-get-worse/>
write at The Monkey Cage.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Race and the Supreme Court" <http://electionlawblog.org/?p=60813>
Posted on April 23, 2014 8:45 pm <http://electionlawblog.org/?p=60813>by
Rick Hasen <http://electionlawblog.org/?author=3>
Andrew Cohen reflects
<http://www.brennancenter.org/analysis/race-and-supreme-court#.U1iHxtW6ay0.twitter>
on /Schuette/, /Shelby County,/ and more.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15>
"Southern Whites' Loyalty to G.O.P. Nearing That of Blacks to
Democrats" <http://electionlawblog.org/?p=60811>
Posted on April 23, 2014 8:40 pm <http://electionlawblog.org/?p=60811>by
Rick Hasen <http://electionlawblog.org/?author=3>
Nate Cohn
<http://www.nytimes.com/2014/04/24/upshot/southern-whites-loyalty-to-gop-nearing-that-of-blacks-to-democrats.html?rref=upshot&_r=0>
at NYT's New "The Upshot:"
It is impossible to discuss Mr. Obama's weakness among Southern
whites without mention of race. It is surely a factor, and perhaps
even a large one. Mr. Obama performed significantly worse than John
Kerry among Southern whites, even though both were Northern liberals
and 2008 was a far better year for Democrats than 2004. (The
estimates are derived from census and exit poll data). And the
pattern of white support in the 2012 presidential election is an
eerie reversal of post-Reconstruction presidential elections, when
Jim Crow laws rendered blacks ineligible to vote and Democrats won
the so-called Solid South by similar margins.
But it is hard to know the extent to which racism is responsible for
Mr. Obama's weakness. After all, Mr. Obama is not the only Democrat
to perform so poorly in recent years. Some white Democratic
candidates, like Virginia Gov. Terry McAuliffe, have done worse than
Mr. Obama among Southern whites. And Mr. Obama's losses are part of
a longer-term trend. Mr. Kerry, for instance, performed worse than
Al Gore, who even fared worse than Michael Dukakis among Southern
whites.
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Posted in campaigns <http://electionlawblog.org/?cat=59>, Voting Rights
Act <http://electionlawblog.org/?cat=15>
Rethink Red Lion? <http://electionlawblog.org/?p=60808>
Posted on April 23, 2014 6:23 pm <http://electionlawblog.org/?p=60808>by
Rick Hasen <http://electionlawblog.org/?author=3>
Ron Collins
<http://www.concurringopinions.com/archives/2014/04/fan-12-first-amendment-news-red-lion-revisited.html>:
More than a quarter-century ago, Professor Laurence Tribe
<http://www.law.harvard.edu/faculty/directory/10899/Tribe> declared:
"The first amendment's sweeping guarantees have been most
compromised in the realm of the most modern medium: electronic
broadcasting." (/American Constitutional Law/, p. 1004: 1988).
Perhaps mindful of that contention, in his petition for certiorari
<http://www.jdsupra.com/legalnews/petition-for-writ-of-certiorari-minorit-05934/>Joshua
Rosenkranz
<http://www.orrick.com/Lawyers/E-Joshua-Rosenkranz/Pages/default.aspx> (who
heads Orrick's Supreme Court and appellate litigation practice)
urges the Court to reconsider its unanimous ruling in /Red Lion
Broadcasting Co. v. FCC/
<http://www.oyez.org/cases/1960-1969/1968/1968_2_2>(1969), which
upheld the Fairness Doctrine over a First Amendment challenge.
(Note: Archibald Cox and Erwin Griswold successfully represented the
Respondents in the case. The ACLU filed an amicus brief submitted by
Melvin L. Wulf and Eleanor Holmes Norton in which they supported
the First Amendment claims.)
Josh was of course the first director of the Brennan Center and I worked
with him a few years ago on the /Carrigan/ case.
One to watch.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
Shorter Supreme Court in Child Pornography Case: Congress, Please
Override Us <http://electionlawblog.org/?p=60802>
Posted on April 23, 2014 5:34 pm <http://electionlawblog.org/?p=60802>by
Rick Hasen <http://electionlawblog.org/?author=3>
Today the Supreme Court decided a statutory interpretation case,
Paroline v. U.S
<http://www.supremecourt.gov/opinions/13pdf/12-8561_7758.pdf>. with no
easy answer, an unusual cross-ideological divide among the Justices, an
interpretation offered by the majority which Adam Liptak
<http://www.nytimes.com/2014/04/24/us/politics/justices-void-3-4-million-award-to-child-pornography-victim.html?hp>
rightfully describes as "a new and vague legal standard," and a Chief
Justice in his dissenting opinion begging Congress to fix the problem
("The statute as written allows no recovery; we ought to say so, and
give Congress a chance to fix it."). Even though Congress rarely
overrides Congress these days, I predict an override in this case, and
probably relatively quickly.
As Adam explains the facts, "The 1994 law allows victims of child
pornography to seek the 'full amount' of their losses from people
convicted of producing, distributing or possessing it, and Amy asked the
United States District Court in Tyler, Tex., to order Mr. Paroline to
pay her the full $3.4 million [of her losses]." The majority in an
opinion by Justice Kennedy said that was too much, and sent the case
back for some kind of uncertain undertaking of the amount of damages;
the Chief Justice (joined by Scalia and Thomas, but not Justice Alito)
in dissent said the standard was unworkable and the proper amount was
zero until Congress fixes the statute for others, and Justice Sotomayor,
for herself only in dissent would have allowed for the full amount of
damages awarded in the lower court.
The case is fascinating to me as someone who teaches both Torts and
Remedies. (It's not every day that you get the Justices on the Court
opining on the difference between actual and proximate cause, citing the
Restatement (Third) of Torts, and discussing the concept of independent
concurrent causation.)
But thinking about this from the point of view of Legislation, this
seems the ideal case for a Congressional override. As I've noted in a
recent law review article
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2130190>, Congress
now rarely overrides the Court, and when it does, there tend to be
partisan overrides (as when Republicans overrode the Supreme Court in
cutting back habeas for detainees in /Hamdan/ or when Democrats overrode
the Supreme Court in allowing more employment remedies in /Ledbetteri).
/I attribute the decline of bipartisan overrides to increasing political
polarization in Congress. (Christiansen and Eskridge
<http://electionlawblog.org/?p=60395> are skeptical of the partisanship
point, and reach somewhat different conclusions using very different
methodology. I will blog more about that at some point.)
But even in an era of intense partisanship, as we are in right now,
there is room sometimes for biparisanship, and this looks like the
perfect opportunity for two reasons. First, everyone hates child
pornographers and wants to look tough on crime. Unless Congress is
satisfied with the vague standard of the majority, it could look good
for all of Congress to get tougher than the Court was willing to be on
child pornographers---particularly when the Court's ruling means that
many victims are undercompensated. (Marci Hamilton offers a suggestion
<http://hamilton-griffin.com/the-perils-of-paroline-v-united-states-and-what-congress-must-do-next/>
for what new congressional legislation could look like.)
Second, though related to the first point, taking a stand in favor of
fixing the statute won't be seen as going up against the Supreme Court.
If all the conservatives were on one side and all the liberals on the
other in a 5-4 decision, then an override of a Supreme Court statutory
case looks like an attack on one wing of the Court. Here, you have a
case with a cross-ideological majority throwing up its hands as to an
administrable rule, and three of four dissenters asking Congress to step in.
In an era where Congress can do so little thanks to ideological
polarization, a new Amy Act looks to be a no-brainer.
UPDATE: Much more on what Congress can do from Paul Casell,
<http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/23/the-supreme-court-promises-child-pornography-victims-full-restitution-someday-how-long-is-that/>
Amy's lawyer.
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Posted in Remedies <http://electionlawblog.org/?cat=57>, statutory
interpretation <http://electionlawblog.org/?cat=21>, Supreme Court
<http://electionlawblog.org/?cat=29>, Torts
<http://electionlawblog.org/?cat=35>
"Hardening Partisanship in State Legislatures"
<http://electionlawblog.org/?p=60800>
Posted on April 23, 2014 5:06 pm <http://electionlawblog.org/?p=60800>by
Rick Hasen <http://electionlawblog.org/?author=3>
FairVote blog
<http://www.fairvote.org/research-and-analysis/blog/monopoly-politics-blog-series-hardening-partisanship-in-state-legislatures/>.
[corrected link]
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Posted in alternative voting systems
<http://electionlawblog.org/?cat=63>, political parties
<http://electionlawblog.org/?cat=25>, political polarization
<http://electionlawblog.org/?cat=68>
This Does Not Bode Well for Congress's Updating of the Voting Rights
Act <http://electionlawblog.org/?p=60798>
Posted on April 23, 2014 3:28 pm <http://electionlawblog.org/?p=60798>by
Rick Hasen <http://electionlawblog.org/?author=3>
At I have been writing
<http://electionlawblog.org/?s=%22eric+cantor%22&x=0&y=0>, the only real
chance of the Voting Rights Act Amendment (
<http://electionlawblog.org/?cat=81>which would restore a form of
preclearance regime) making it out of the current session of Congress
appears to be if the bill gets the support of Eric Cantor. So far
Cantor has been noncommittal. <http://electionlawblog.org/?p=58072>
Today, however, Eric Cantor is being attacked from the right
<http://www.breitbart.com/Big-Government/2014/04/22/Eric-Cantor-Shadow-Job-Interview-For-Speaker>(not
about the VRAA, but generally). Whether the claims against Cantor are
fair or not are not questions for me to answer. But there's little doubt
that if he endorses the VRAA he is going to get attacked from the
right. While if he does nothing on the VRAA he will suffer no political
cost. So this marginally makes it less likely that Cantor will do
anything on the VRAA.
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Posted in political parties <http://electionlawblog.org/?cat=25>,
political polarization <http://electionlawblog.org/?cat=68>, Voting
Rights Act <http://electionlawblog.org/?cat=15>, VRAA
<http://electionlawblog.org/?cat=81>
"Governor Will Automatically Restore Voting Rights For All
Virginians With A Drug Record" <http://electionlawblog.org/?p=60796>
Posted on April 23, 2014 3:06 pm <http://electionlawblog.org/?p=60796>by
Rick Hasen <http://electionlawblog.org/?author=3>
Think Progress reports
<http://thinkprogress.org/justice/2014/04/18/3428483/governor-will-automatically-restore-voting-rights-for-all-virginians-with-a-drug-record/>.
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Posted in felon voting <http://electionlawblog.org/?cat=66>
Politifact Rates as "Half-True" the President's Statement that The
U.S. Justice Department has "taken on more than 100 voting rights
cases since 2009? <http://electionlawblog.org/?p=60794>
Posted on April 23, 2014 2:58 pm <http://electionlawblog.org/?p=60794>by
Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://www.politifact.com/florida/statements/2014/apr/23/barack-obama/obama-boasts-about-number-voting-rights-cases-take/>.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
election administration <http://electionlawblog.org/?cat=18>, The Voting
Wars <http://electionlawblog.org/?cat=60>, Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Citizens United plans political film on Colorado, Gov.
Hickenlooper" <http://electionlawblog.org/?p=60792>
Posted on April 23, 2014 1:44 pm <http://electionlawblog.org/?p=60792>by
Rick Hasen <http://electionlawblog.org/?author=3>
The /Denver Post /reports.
<http://www.denverpost.com/news/ci_25618221/citizens-united-plans-political-film-colorado-gov-hickenlooper>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
campaigns <http://electionlawblog.org/?cat=59>
Trevor Potter, Ann Ravel, Norm Ornstein Testifying at Senate
Committee Hearing on "Dark Money" <http://electionlawblog.org/?p=60788>
Posted on April 23, 2014 11:20 am
<http://electionlawblog.org/?p=60788>by Rick Hasen
<http://electionlawblog.org/?author=3>
Here.
<http://www.king.senate.gov/newsroom/press-releases/dark-money-to-be-subject-of-king-led-committee-hearing>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Ohio Poll Worker for 10 Years Indicted for Voting Twice (Once
Absentee) <http://electionlawblog.org/?p=60786>
Posted on April 23, 2014 10:34 am
<http://electionlawblog.org/?p=60786>by Rick Hasen
<http://electionlawblog.org/?author=3>
Poll worker apparently
<http://electionlawblog.org/more%20indicted%20in%20Hamilton%20County%20for%20illegal%20voting>
said she didn't understand the rules.
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Posted in chicanery <http://electionlawblog.org/?cat=12>, election
administration <http://electionlawblog.org/?cat=18>
"WyLiberty Attorneys File Brief Highlighting Government Secrecy"
<http://electionlawblog.org/?p=60784>
Posted on April 23, 2014 10:29 am
<http://electionlawblog.org/?p=60784>by Rick Hasen
<http://electionlawblog.org/?author=3>
Press release
<http://wyliberty.org/feature/wyliberty-attorneys-file-brief-highlighting-government-secrecy/#ff_s=fA9Ie>:
"Wyoming Liberty Group attorneys filed a supplemental brief
<http://wyliberty.org/wp-content/uploads/2014/04/FreeSpeechSuppBrief.pdf> with
the United States Supreme Court today in the case /Free Speech v.
Federal Election Commission/ (/FEC/)
<http://wyliberty.org/legal-center/free-speech-v-federal-election-commission/#ff_s=nNlWq>,
discussing recent events at the FEC and how they should impact the
Court's review of Free Speech's case."
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24>, Supreme Court
<http://electionlawblog.org/?cat=29>
Rand Paul: Incidence of Voter Fraud "Probably Small" and
"Republicans May Have Over-Emphasized This"
<http://electionlawblog.org/?p=60782>
Posted on April 23, 2014 10:28 am
<http://electionlawblog.org/?p=60782>by Rick Hasen
<http://electionlawblog.org/?author=3>
Woah
<http://www.washingtonpost.com/blogs/post-politics/wp/2014/04/23/rand-paul-gop-might-be-over-selling-voter-fraud/>.
#progress
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Posted in election administration <http://electionlawblog.org/?cat=18>,
The Voting Wars <http://electionlawblog.org/?cat=60>
"There Is One Campaign Finance Regulation That Rand Paul Supports"
<http://electionlawblog.org/?p=60779>
Posted on April 23, 2014 8:30 am <http://electionlawblog.org/?p=60779>by
Rick Hasen <http://electionlawblog.org/?author=3>
HuffPo
<http://www.huffingtonpost.com/2014/04/23/rand-paul-campaign-finance_n_5198801.html?1398266598>:
"In an appearance at the University of Chicago's Institute of Politics,
the Kentucky Republican said he backed legislation that would prohibit
the ability of federal contract recipients to plow money back into the
political process. Though he kept his remarks broad (as he has in the
past
<http://www.motherjones.com/politics/2014/04/rand-paul-campaign-reform-cheney-halliburton-lobbying>),
Paul hinted that he supported prohibiting contractors from donating to
campaigns and, potentially, from lobbying Congress."
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
lobbying <http://electionlawblog.org/?cat=28>
"D'Souza Case Is Political, Lawyer Says"
<http://electionlawblog.org/?p=60777>
Posted on April 23, 2014 8:12 am <http://electionlawblog.org/?p=60777>by
Rick Hasen <http://electionlawblog.org/?author=3>
Talk about NYT
<http://www.nytimes.com/2014/04/23/nyregion/dsouza-lawyer-brafman-says-obama-criticism-spurred-straw-donor-case.html>burying
the lede:
Prosecutors also said they had obtained a copy of a recording made
surreptitiously last October by the husband of a woman Mr. D'Souza
was involved with romantically around the time of the donations,
when Mr. D'Souza was separated from his wife. In making the
recording, the husband was not acting at the government's direction,
prosecutors said. The woman, Denise Joseph, was one of the alleged
straw donors.
Ms. Joseph was recorded as saying that Mr. D'Souza had told her that
if he were charged he might plead guilty, but would initially plead
not guilty because that "gives him a window of opportunity to get
his story out there," the government said. Ms. Joseph had no
comment, her lawyer said.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
chicanery <http://electionlawblog.org/?cat=12>
--
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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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