[EL] ELB News and Commentary 2/23/14

Sun Feb 23 04:39:54 PST 2014

    No, Justice Thomas is Not a "Disgrace"
    <http://electionlawblog.org/?p=58961>

Posted on February 23, 2014 4:30 am 
<http://electionlawblog.org/?p=58961>by Rick Hasen 
<http://electionlawblog.org/?author=3>

I am truly puzzled by Jeffrey Toobin's blog post 
<http://www.newyorker.com/online/blogs/comment/2014/02/clarence-thomas-disgraceful-silence.html> 
in the New Yorker, which goes after Justice Thomas for his silence at 
oral argument.

Michael McGough 
<http://www.latimes.com/opinion/opinion-la/la-ol-clarence-thomas-supreme-court-silence-20140221,0,1703665.story> 
makes most of the salient points rebutting Toobin. But I will just add 
this: Justices should be judged primarily by their opinions. This is the 
place in which the Justices' views are translated into legal binding 
pronouncements, or into well thought-out arguments that the Court has 
headed off in the wrong direction.

Judging Justice Thomas primarily by his opinions, there is no good 
argument that Justice Thomas is a "disgrace."  Quite the opposite. As 
Toobin acknowledges, "For better or worse, Thomas has made important 
contributions to the jurisprudence of the Supreme Court. He has imported 
once outré conservative ideas, about such issues as gun rights under the 
Second Amendment and deregulation of political campaigns, into the 
mainstream. Scalia wrote District of Columbia v. Heller, which 
restricted gun control, and Kennedy wrote Citizens United v. Federal 
Election Commission 
<http://www.newyorker.com/reporting/2012/05/21/120521fa_fact_toobin>, 
which undermined decades of campaign-finance law, but Thomas was an 
intellectual godfather of both decisions."

Indeed, I have written an extensive analysis 
<http://electionlawblog.org/archives/009463.html> of Justice Thomas's 
leadership in conservative thinking in the campaign finance area. There 
is virtually nothing Justice Thomas and I agree upon in this area. But 
his ideas are respectable, and the intellectual heft in his opinions 
formidable.

Even if we were going to focus on oral arguments (which we should not), 
how is Justice Thomas any more "disgraceful" at oral argument than 
Justice Ginsburg napping 
<http://www.cjr.org/behind_the_news/how_does_a_lady_get_any_sleep.php?page=all> 
or Justice Scalia deriding a litigant 
<http://www.businessinsider.com/scalia-chastises-lawyer-for-reading-from-his-notes-2014-1> 
for reading his opening at oral argument?

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Posted in Supreme Court <http://electionlawblog.org/?cat=29>

    Will Justice Stevens Call for a Constitutional Amendment to Overturn
    Citizens United? <http://electionlawblog.org/?p=58958>

Posted on February 23, 2014 4:16 am 
<http://electionlawblog.org/?p=58958>by Rick Hasen 
<http://electionlawblog.org/?author=3>

Via Howard <http://howappealing.law.com/022214.html#055079> comes news 
of a forthcoming book from Justice Stevens, Six Amendments: How and Why 
We Should Change the Constitution. 
<http://www.amazon.com/Six-Amendments-Should-Change-Constitution/dp/0316373729/ref=tmm_hrd_title_0?_encoding=UTF8&sr=&qid=>

Early coverage concerns Justice Stevens' calls to change the Second 
Amendment. I am curious to see what he has to say about the First and 
campaign finance (and he may have other election law issues in there 
too, such as dealing with partisan gerrymandering).

I have been skeptical 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2293979>of proposed 
amendments to overturn Citizens United.

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme 
Court <http://electionlawblog.org/?cat=29>

    "Nowadays, people think 'House of Cards' is a documentary"
    <http://electionlawblog.org/?p=58956>

Posted on February 22, 2014 7:50 pm 
<http://electionlawblog.org/?p=58956>by Rick Hasen 
<http://electionlawblog.org/?author=3>

Great Jack Pitney quote 
<http://www.latimes.com/local/la-me-calderon-elections-20140223,0,1296941.story#axzz2u6zi1Cb2> 
in LA Times on Wright, Calderon controversies.

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Posted in campaigns <http://electionlawblog.org/?cat=59>, chicanery 
<http://electionlawblog.org/?cat=12>

    "Husted: BOE can move, but locals choose early voting site"
    <http://electionlawblog.org/?p=58952>

Posted on February 22, 2014 6:58 pm 
<http://electionlawblog.org/?p=58952>by Rick Hasen 
<http://electionlawblog.org/?author=3>

The latest 
<http://news.cincinnati.com/apps/pbcs.dll/article?AID=/201402212113/NEWS010602/302210123>from 
Ohio.

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Posted in election administration <http://electionlawblog.org/?cat=18>

    "Where Have All the Lobbyists Gone?"
    <http://electionlawblog.org/?p=58950>

Posted on February 22, 2014 6:57 pm 
<http://electionlawblog.org/?p=58950>by Rick Hasen 
<http://electionlawblog.org/?author=3>

Lee Fang 
<http://www.thenation.com/article/178460/shadow-lobbying-complex?page=full> 
in /The Nation/:

    On paper, the lobbying industry is quickly disappearing. In January,
    records indicated that for a third straight year, overall spending
    on lobbying decreased. Lobbyists themselves continue to deregister.
    In 2013, the number of registered lobbyists dipped to 12,281, the
    lowest number on file since 2002.

    But experts say that lobbying isn't dying; instead, it's simply
    going underground. The problem, says American University professor
    James Thurber, who has studied congressional lobbying for more than
    thirty years, is that "most of what is going on in Washington is not
    covered" by the lobbyist-registration system. Thurber, who is
    currently advising the American Bar Association's lobbying-reform
    task force, adds that his research suggests the true number of
    working lobbyists is closer to 100,000.

    A loophole-ridden law, poor enforcement, the development of
    increasingly sophisticated strategies that enlist third-party
    validators and create faux-grassroots campaigns, along with an Obama
    administration executive order that gave many in the profession a
    disincentive to register---all of these forces have combined to
    produce a near-total collapse of the system that was designed to
    keep tabs on federal lobbying.

    While the official figure puts the annual spending on lobbying at
    $3.2 billion in 2013, Thurber estimates that the industry brings in
    more than $9 billion a year. Other experts have made similar
    estimates, but no one is sure how large the industry has become. Lee
    Drutman, a lobbying expert at the Sunlight Foundation, says that at
    least twice as much is spent on lobbying as is officially reported.

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Posted in legislation and legislatures 
<http://electionlawblog.org/?cat=27>, lobbying 
<http://electionlawblog.org/?cat=28>

    "Court dismisses challenge to Arizona congressional maps"
    <http://electionlawblog.org/?p=58948>

Posted on February 22, 2014 6:53 pm 
<http://electionlawblog.org/?p=58948>by Rick Hasen 
<http://electionlawblog.org/?author=3>

AZ Star: 
<http://azstarnet.com/news/local/govt-and-politics/court-dismisses-challenge-to-arizona-congressional-maps/article_21fdc2eb-ea94-556d-a5db-1d5cb9b1e329.html>

    Arizona voters have a constitutional right to wrest control of
    drawing congressional boundaries from the Legislature, a federal
    court ruled late Friday.

    U.S. District Judge Murray Snow acknowledged the arguments by Peter
    Gentala, an attorney for the Republican-controlled Legislature, that
    the U.S. Constitution spells out that the "times, places and manner"
    of electing members of Congress "shall be prescribed in each state
    by the Legislature thereof."

UPDATE: You can find the 14 page majority opinion and four page partial 
dissent embedded in this story 
<http://azcapitoltimes.com/news/2014/02/21/gop-lawmakers-challenge-to-az-redistricting-commissions-existence-tossed/> 
at the Arizona Capitol Times. This case is subject to direct appeal to 
the U.S. Supreme Court.

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Posted in redistricting <http://electionlawblog.org/?cat=6>

    Quote of the Day <http://electionlawblog.org/?p=58946>

Posted on February 22, 2014 6:48 pm 
<http://electionlawblog.org/?p=58946>by Rick Hasen 
<http://electionlawblog.org/?author=3>

"People like you, Hasen, are destroying our democracy."

--A reader commen 
<http://www.washingtonpost.com/opinions/how-the-next-citizens-united-could-bring-more-corruption--but-less-gridlock/2014/02/21/a190d1c6-95ab-11e3-afce-3e7c922ef31e_allComments.html?ctab=all_&>t 
on my Washington Post Sunday Outlook piece on /McCutcheon, /More 
Corruption, Less Gridlock. 
<http://www.washingtonpost.com/opinions/how-the-next-citizens-united-could-bring-more-corruption--but-less-gridlock/2014/02/21/a190d1c6-95ab-11e3-afce-3e7c922ef31e_story.html>

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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme 
Court <http://electionlawblog.org/?cat=29>

    "Calderon indictment could affect other races, supermajority"
    <http://electionlawblog.org/?p=58944>

Posted on February 21, 2014 6:33 pm 
<http://electionlawblog.org/?p=58944>by Rick Hasen 
<http://electionlawblog.org/?author=3>

This CA news 
<http://www.latimes.com/local/political/la-me-pc-calderon-indictment-could-impact-other-races-supermajority-20140221,0,80263.story#axzz2u0kM7Wgw> 
was expected, but it is still BIG.

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Posted in bribery <http://electionlawblog.org/?cat=54>, chicanery 
<http://electionlawblog.org/?cat=12>, conflict of interest laws 
<http://electionlawblog.org/?cat=20>

    "Redistricting Reform in the South"
    <http://electionlawblog.org/?p=58942>

Posted on February 21, 2014 6:22 pm 
<http://electionlawblog.org/?p=58942>by Rick Hasen 
<http://electionlawblog.org/?author=3>

New FairVote report. 
<http://www.fairvote.org/research-reports/redistricting-reform-in-the-south/>

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Posted in alternative voting systems 
<http://electionlawblog.org/?cat=63>, redistricting 
<http://electionlawblog.org/?cat=6>

    "Pennsylvania Circulator Residency Victory"
    <http://electionlawblog.org/?p=58940>

Posted on February 21, 2014 6:20 pm 
<http://electionlawblog.org/?p=58940>by Rick Hasen 
<http://electionlawblog.org/?author=3>

Ballot Access News reports 
<http://www.ballot-access.org/2014/02/pennsylvania-circulator-residency-victory/>.

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Posted in direct democracy <http://electionlawblog.org/?cat=62>, 
petition signature gathering <http://electionlawblog.org/?cat=39>, 
residency <http://electionlawblog.org/?cat=38>

    "Four things the District can try to send election turnout through
    the roof" <http://electionlawblog.org/?p=58938>

Posted on February 21, 2014 6:18 pm 
<http://electionlawblog.org/?p=58938>by Rick Hasen 
<http://electionlawblog.org/?author=3>

Norm Ornstein 
<http://www.washingtonpost.com/opinions/four-things-the-district-can-try-to-send-election-turnout-through-the-roof/2014/02/21/6ae5efe6-9365-11e3-83b9-1f024193bb84_story.html> 
has good ideas, as always.

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Posted in election administration <http://electionlawblog.org/?cat=18>

    "How 'the next Citizens United' could bring more corruption --- but
    less gridlock" <http://electionlawblog.org/?p=58936>

Posted on February 21, 2014 11:18 am 
<http://electionlawblog.org/?p=58936>by Rick Hasen 
<http://electionlawblog.org/?author=3>

I have written this piece 
<http://www.washingtonpost.com/opinions/how-the-next-citizens-united-could-bring-more-corruption--but-less-gridlock/2014/02/21/a190d1c6-95ab-11e3-afce-3e7c922ef31e_story.html> 
for the Sunday Outlook section of the Washington Post. It begins:

    An opinion could come as early as this coming week in the Supreme
    Court case being called "the next /Citizens United/," and groups
    concerned about the influence of money in American politics are
    bracing themselves for the result. Public Citizen has planned more
    than 100 events
    <http://www.citizen.org/pressroom/pressroomredirect.cfm?ID=4082>
    across the country in anticipation of a McCutcheon v. Federal
    Election Commission
    <http://www.washingtonpost.com/politics/supreme-court-case-could-give-wealthy-donors-more-latitude-in-elections/2013/10/03/26a66d82-2ad4-11e3-b139-029811dbb57f_story.html>
    ruling that further dismantles our campaign finance laws and strikes
    down a key federal campaign contribution limit.

    I, too, am troubled by the prospect of an awful decision that would
    clear the way for more corruption. But I find some solace in the
    thought that such a ruling could have a surprising positive side
    effect: reducing gridlock in Washington.

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Posted in Uncategorized <http://electionlawblog.org/?cat=1>

-- 
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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