[EL] ELB News and Commentary 1/7/14
Rick Hasen
rhasen at law.uci.edu
Mon Jan 6 21:09:29 PST 2014
No Election to Replace Mel Watt in NC Congress Seat Till November
<http://electionlawblog.org/?p=57754>
Posted on January 6, 2014 9:06 pm
<http://electionlawblog.org/?p=57754>by Rick Hasen
<http://electionlawblog.org/?author=3>
That doesn't seem right
<http://atr.rollcall.com/election-scheduled-to-replace-watt-in-north-carolina/>.
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Posted in campaigns <http://electionlawblog.org/?cat=59>
"The right to vote in a 21st Century democracy: Thoughts from my new
book" <http://electionlawblog.org/?p=57752>
Posted on January 6, 2014 9:04 pm
<http://electionlawblog.org/?p=57752>by Rick Hasen
<http://electionlawblog.org/?author=3>
David Schutlz
<http://www.tcdailyplanet.net/blog/david-schultz/right-vote-21st-century-democracy-thoughts-my-new-book>:
"Note: I am pleased to announce the publication of my latest book,
Election Law and Democratic Theory,
<http://www.ashgate.com/isbn/9780754675433> published this month by
Ashgate Publishing. This blog draws upon some of the themes presented in
chapter three of the book which examines voting rights in America."
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Posted in theory <http://electionlawblog.org/?cat=41>
Problem with Voter Impersonation Fraud in UK?
<http://electionlawblog.org/?p=57750>
Posted on January 6, 2014 8:45 pm
<http://electionlawblog.org/?p=57750>by Rick Hasen
<http://electionlawblog.org/?author=3>
I'll want to hear more about this
<http://www.thesundaytimes.co.uk/sto/news/uk_news/National/article1359495.ece?CMP=OTH-gnws-standard-2014_01_04>.
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Posted in election administration <http://electionlawblog.org/?cat=18>
Waiting for the Koch Brothers to Go on Maddow
<http://electionlawblog.org/?p=57747>
Posted on January 6, 2014 4:26 pm
<http://electionlawblog.org/?p=57747>by Rick Hasen
<http://electionlawblog.org/?author=3>
I'm guessing
<http://www.mediaite.com/tv/maddow-scorches-koch-brothers-for-sending-her-legal-letter-im-not-reading-your-script/>
I'll be waiting a long time.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
Pennsylvania Supreme Court Agrees to Hear Cozen Campaign Finance
Case from Philadelphia <http://electionlawblog.org/?p=57745>
Posted on January 6, 2014 2:38 pm
<http://electionlawblog.org/?p=57745>by Rick Hasen
<http://electionlawblog.org/?author=3>
You can find the order granting review here
<http://www.pacourts.us/assets/opinions/Supreme/out/376EAL2013%20-%201016684751866073.pdf>.
My earlier coverage is here. <http://electionlawblog.org/?p=37569>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"New Mexico Urged to Erect Bulwarks to Contribution Limits &
Disclosure Laws in Wake of Court Ruling"
<http://electionlawblog.org/?p=57743>
Posted on January 6, 2014 2:34 pm
<http://electionlawblog.org/?p=57743>by Rick Hasen
<http://electionlawblog.org/?author=3>
CLC press release.
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2322:january-6-2014-new-mexico-urged-to-erect-bulwarks-to-contribution-limits-a-disclosure-laws-in-wake-of-court-ruling&catid=63:legal-center-press-releases&Itemid=61>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Debo Adegbile Confirmation Hearing Wednesday
<http://electionlawblog.org/?p=57740>
Posted on January 6, 2014 12:00 pm
<http://electionlawblog.org/?p=57740>by Rick Hasen
<http://electionlawblog.org/?author=3>
Notice
<http://www.judiciary.senate.gov/hearings/hearing.cfm?id=32caee8082f9297f0e7df6280b1e343b&1>.
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Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
Voting Rights Act <http://electionlawblog.org/?cat=15>
"Life and death of electing judges: Column; Supreme Court Justice
Sonia Sotomayor's dissent rekindles debate on justice in America"
<http://electionlawblog.org/?p=57738>
Posted on January 6, 2014 11:36 am
<http://electionlawblog.org/?p=57738>by Rick Hasen
<http://electionlawblog.org/?author=3>
Bert Brandenberg /USA Today/ oped.
<http://www.usatoday.com/story/opinion/2014/01/05/judges-campaign-alabama-sotomayor-column/4329823/>
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Posted in judicial elections <http://electionlawblog.org/?cat=19>
Koch Brothers Network Picture Will Give You a Headache
<http://electionlawblog.org/?p=57736>
Posted on January 6, 2014 10:08 am
<http://electionlawblog.org/?p=57736>by Rick Hasen
<http://electionlawblog.org/?author=3>
Via OpenSecrets
<https://twitter.com/RobertMaguire_/status/420251244310323200>:
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
"Citizens Divided: Campaign Finance Reform and the Constitution"
<http://electionlawblog.org/?p=57733>
Posted on January 6, 2014 9:47 am
<http://electionlawblog.org/?p=57733>by Rick Hasen
<http://electionlawblog.org/?author=3>
This book <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2365024>
from Robert Post and others looks like it will be great:
/ROBERT POST, CITIZENS DIVIDED: CAMPAIGN FINANCE REFORM AND THE
CONSTITUTION (Harvard University Press 2014)./
*Abstract: *
This volume contains the Tanner Lectures delivered by Robert Post at
Harvard University in 2013, with commentary by Pamela S. Karlan,
Lawrence Lessig, Frank Michelman, and Nadia Urbinati. There is a
response to the commentary by Post. The volume will be published in
Spring 2014.
The Lectures interpret the Court's decision in Citizens United as
turning on a disagreement about the nature of self-government in the
United States. Justice Kennedy's opinion for the majority
understands self-government to depend on the freedom of individual
citizens to participate in the formation of public opinion. By
contrast, Justice Stevens' opinion for the dissent understands
self-government to inhere in forms of electoral representation. In
his first Tanner lecture, Post traces the intellectual history of
each of these distinct ideals of self-government.
At the founding, the Framers conceived self-government in terms of a
representative republic. Their debate with Great Britain about the
"virtual" representation of the colonies in the British parliament
led the Framers to a strong commitment to what Post calls
"representative integrity," which is the need for a relationship of
trust and confidence between representatives and constituents such
that the latter believe that they are "represented" by the former.
The Framers believed that representative integrity was necessary for
a republic to achieve the value of self-government, and they agreed
that representative integrity was a contingent empirical question
that depended upon the institutional design of elections.
The representative integrity of the American Republic was threatened
when the hierarchical system of deference inhabited by the Framers
collapsed during the Jacksonian Era. With every candidate claiming
to be a man of the people, it became difficult for the electorate to
know whom to trust and believe. The difficulty was surmounted by the
development of the second American party system. Political parties
set forth principles and endorsed candidates, and in this way
mediated between constituents and representatives. The voter, Robert
La Follette would later say, "gives support to that party which
promises to do the specific things that he regards of the highest
importance to the state and to the welfare of every citizen. . . .
Upon its promise and his support the party has become the custodian
of his political rights. . . . [T]he party is bound to keep its
pledged word. . . . This measures its value as a power for good in
representative government." Since the Jacksonian Era, political
parties have been the custodians of representative integrity.
This equilibrium abruptly disintegrated during the Progressive Era.
At the beginning of the 20th century, Americans came to regard
political parties as "machines" that served their own interests
rather than those of the electorate. They condemned political
parties as selling government favors to corporations. As Lincoln
Steffens put it, "Political corruption, then, is a force by which a
representative democracy is transformed into an oligarchy,
representative of special interests, and the medium of the
revolution is the party." Progressives accordingly sought to bypass
representative institutions and to create forms of direct democracy
in which the people could govern without the mediation of political
parties.
In the late 19th century James Bryce had characterized the United
States as a "government by public opinion," in which "the will of
the people acts directly and constantly upon its executive and
legislative agents." Progressives built on this insight and
theorized public opinion as an institution that could connect the
people to their government. All persons could help form public
opinion, and in that way imagine that government might be responsive
to their own views. Participation in public opinion formation could
thus underwrite a democratic form of self-government.
Two distinct forms of democratic self-government emerged during the
Progressive Era. In direct democracy, the beliefs of the people were
transparently represented and enacted through institutions like the
initiative and the referendum. But direct democracy was at best
episodic, because the quotidian conduct of government affairs would
always remain in the hands of elected officials. In discursive
democracy, by contrast, public opinion was conceived as constantly
but indirectly influencing government, in Bryce's words, "as a
pervading and impalpable power, like the ether which . . . passes
through all things. It binds all the parts of the complicated system
together and gives them whatever unity of aim and action they
possess." In discursive democracy, public opinion could not be
represented, because it was always in motion and always evolving.
Judicially enforceable First Amendment rights, of the kind deployed
by the majority in Citizens United, were created at the conclusion
of the Progressive Era as a means of protecting the integrity of
public opinion. First Amendment rights were designed to police the
processes by which public opinion was formed. First Amendment
jurisprudence developed to preserve the possibility of
self-government at a time when faith in representative government,
and in political parties, was collapsing. A decision like Citizens
United stands for the proposition that discursive democracy is a
constitutionally more fundamental path to self-government than are
the representative institutions whose integrity campaign finance
legislation seeks to preserve.
In his second lecture, Post applies the implications of this history
to the Court's decision in Citizens United. He notes that three
interests have traditionally been advanced to justify campaign
finance reform: equality, antidistortion, and the elimination of
corruption. Each of these three interests is fundamental within a
system of representative government. Each constituent is entitled to
equal influence in the selection of her representative; election
results should transparently represent, without distortion, the
views of the people; and elected representatives should perform
their appropriate roles, without corruption.
None of these three interests, however, makes sense within the
discursive democracy established and protected by First Amendment
rights. In discursive democracy, as distinct from direct democracy,
public opinion is always evolving; it does not make decisions with
respect to which citizens can exercise an equal influence. In
discursive democracy, public opinion is never represented, so that
there is no baseline from which distortions can be measured. And the
state's interest in preserving the role morality of representatives
from corruption can at most count as a constitutional interest to be
weighed against First Amendment interests in preserving the
integrity of self-government through discursive democracy. It is no
wonder that the constitutional jurisprudence of campaign finance
reform has been a muddle since the days of Buckley v. Valeo.
Citizens United concludes that neither equality, nor distortion, nor
eliminating corruption, can count as constitutionally compelling
interests capable of justifying legislation prohibiting corporations
from making independent campaign expenditures directly from their
corporate treasuries. But in leaping to this conclusion, Citizens
United fails to engage in a sufficiently deep analysis of relevant
First Amendment rights. First Amendment rights protect freedom of
speech in order to preserve the possibility of self-government. The
First Amendment assumes that persons should be free to influence the
content of public opinion and that the government will be responsive
to public opinion. We assume that elections will ensure that
government is responsive to public opinion. If elections do not
select for representatives who are attentive to public opinion,
however, the link between First Amendment rights and the value of
self-government will disappear. If we denominate the capacity of
elections to select representatives who are responsive to public
opinion as electoral integrity, legislation aiming to preserve
electoral integrity serve a compelling constitutional interest for
purposes of First Amendment analysis. Citizens United failed to ask
whether the campaign finance legislation it was considering served
the purpose of maintaining electoral integrity.
Citizens United also misunderstood the relationship between ordinary
commercial corporations and First Amendment rights. Ordinary
commercial corporations are legal entities that cannot experience
the value of self-government. That is why they cannot vote or hold
office. But in First National Bank of Boston v. Bellotti, the Court
held that the speech of ordinary commercial corporations is valuable
because of the information it provides to persons who wish to
participate in public discourse. The relevant constitutional
question for Citizens United, therefore, which the Court neither
asked nor answered, is whether prohibiting direct corporate speech,
but allowing the speech of corporate PACs, promotes or undermines
informed public decision making. Instead the Court in Citizens
United applied forms of constitutional analysis, like rules against
speaker discrimination and chilling effects, that ought to have no
constitutional relevance to the speech of commercial corporations.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"'Accuracy, Resilience and Denial' and Their Impact on Elections"
<http://electionlawblog.org/?p=57731>
Posted on January 6, 2014 8:53 am
<http://electionlawblog.org/?p=57731>by Rick Hasen
<http://electionlawblog.org/?author=3>
A ChapinBlog.
<http://blog.lib.umn.edu/cspg/electionacademy/2014/01/accuracy_resilience_and_denial.php>
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Posted in election administration <http://electionlawblog.org/?cat=18>
"Super PACs gear up for individual Senate battles"
<http://electionlawblog.org/?p=57729>
Posted on January 6, 2014 8:51 am
<http://electionlawblog.org/?p=57729>by Rick Hasen
<http://electionlawblog.org/?author=3>
USA Today reports
<http://www.usatoday.com/story/news/nation/2014/01/02/candidate-aligned-super-pacs-senate-races-midterm-elections/4289825/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Of 'Dereliction' and 'Power Grabs' And Another Year of More of the
Same" <http://electionlawblog.org/?p=57727>
Posted on January 6, 2014 8:50 am
<http://electionlawblog.org/?p=57727>by Rick Hasen
<http://electionlawblog.org/?author=3>
Bob Bauer blogs
<http://www.moresoftmoneyhardlaw.com/2014/01/of-dereliction-and-power-grabs-and-another-year-of-more-of-the-same/>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, federal
election commission <http://electionlawblog.org/?cat=24>, tax law and
election law <http://electionlawblog.org/?cat=22>
No Surprise: Supreme Court Stays Utah Gay Marriage Ruling: What It
Means <http://electionlawblog.org/?p=57725>
Posted on January 6, 2014 8:15 am
<http://electionlawblog.org/?p=57725>by Rick Hasen
<http://electionlawblog.org/?author=3>
As I've been <https://twitter.com/rickhasen/status/420054009311809536>
predicting <https://twitter.com/rickhasen/status/420055574563135489>,
the Supreme Court unanimously put the Utah same sex marriage ruling on
hold <http://t.co/uGnXLCccGl> this morning, <http://t.co/mTifTQWYRZ>
pending disposition of the issue in the Tenth Circuit.
This is no surprise. Recognizing a constitutional right to same sex
marriage is a big deal, which requires thought, consideration and
preparation in the public if this is going to happen through the
courts. In Utah, one of the most conservative states in the union, we
went all of a sudden overnight from no gay marriage to gay marriage.
There was little indication for those not following developments it
would happen. I think it did happen because Utah's lawyers continually
botched their stay requests, and the Judge was following the arguments
that were presented to him. And once things started, Utah botched again
how it handled its request in the 10th Circuit.
Key here I think is lowering the temperature, even (especially) for
those Justices who ultimately support finding a right to same sex
marriage. When courts talk about preserving the status quo, it is the
last peaceable status quo before the litigation---which was no same sex
marriage in Utah. It is not the new "status quo" when people recently in
Utah started having same sex marriages.
Now there are reliance interests of those people who did get married,
and the messy question of how to handle those marriages in the interim.
But I think they are casualties in the Supreme Court which wants to go
slower than this abrupt change.
So what happens next? The Tenth Circuit will issue a ruling on the the
lower court judge's order. If the Tenth Circuit decides to continue the
stay, then things will ultimately get to the Supreme Court in a longer
time frame, with a decision as soon as this year but possibly next
year. If the Tenth Circuit rules in favor of the plaintiffs and lifts
the stay, the Court will have to confront what to do then, and that
could be as soon as a matter of months.
The bottom line is that we should expect within the next year or two
<http://t.co/pgaMS26xfJ> for the Supreme Court to issue a ruling on the
merits of constitutionality of a ban on same sex marriage. Not decades,
but probably a year or two.
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Posted in 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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