[EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance

Tue Jul 1 10:12:39 PDT 2014

Examples where reform was subverted to protect entrenched interests:

- Secret ballot: when government took control of printing ballots, some states set very high bars to qualify for the ballot to the benefit of major parties.

- Redistricting: where state legislatures must enact reform, we more often see the legislature retain approval of proposed maps or a commission composed solely of partisans.

- Voter registration: first enacted by political parties with rural power bases to cover urban areas only. Wisconsin still had this arrangement until HAVA required statewide databases.

Perhaps others can add to list.

Sent from my iPhone

On Jul 1, 2014, at 12:40 PM, "Mark Schmitt" <schmitt.mark at gmail.com<mailto:schmitt.mark at gmail.com>> wrote:

Interesting theory, but how do you explain the fact that Congress passed BCRA after three consecutive cycles of incumbent reelection rates of 96% or higher?

Mark Schmitt
202/246-2350
gchat or Skype: schmitt.mark
twitter: mschmitt9

On Mon, Jun 30, 2014 at 8:21 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:
My general view is that all campaign finance systems will eventually come to benefit incumbents. This isn't necessarily due to nefarious purpose or intent (though it can be and sometimes is). Rather, if the system benefits incumbents, it won't be seen as a problem. Even if pressure grows for "reform," incumbents won't see as the problem those elements (or at least most such elements) that benefit incumbents. If the system is working against incumbents, however, those incumbents will see that as a problem and move to change the system.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317<tel:614.236.6317>

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of ReThink Media [tyler at rethinkmedia.org<mailto:tyler at rethinkmedia.org>]
Sent: Monday, June 30, 2014 7:56 PM
To: Sean Parnell
Cc: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance

I didn't mean to imply that this is necessarily the *real* reason Republicans oppose the amendment but rather to show Mr. Bopps argument is easily turned on its head.

--
Tyler Creighton
tyler at rethinkmedia.org<mailto:tyler at rethinkmedia.org>

Sent from my phone

On Jun 30, 2014, at 7:24 PM, "Sean Parnell" <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>> wrote:

All I can say is that if I possessed the type of mindreading abilities displayed here on the matter of why Republicans *really* oppose a Constitutional amendment giving Congress the powers sought by Mr. Creighton, I wouldn’t be typing out e-mails to the election law listserve, I’d be sitting at a poker table in Vegas.

Best,

Sean Parnell
President
Impact Policy Management, LLC
6411 Caleb Court
Alexandria, VA  22315
571-289-1374<tel:571-289-1374> (c)
sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Tyler Creighton
Sent: Monday, June 30, 2014 6:31 PM
To: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: Re: [EL] Supreme Court and campaign finance

The "campaign finance is incumbency protection" argument is a tired trope that doesn't hold water. The argument implies that Congressional inaction to regulate campaign finance is as much an incumbency protection racket as Congressional action to do the same. In other words not writing any rules is in fact writing the rules. Republicans in Congress refuse to support a constitutional amendment empowering Congress to place contribution limits on independent expenditure groups because they wish to preserve a leg up over challengers who cannot attract large sums of IEs. Republicans in Congress refuse to support a constitutional amendment empowering Congress to re-enforce aggregate contribution limits because incumbents can join together to solicit multi-million dollar contributions to JFCs.

Moreover, the argument is completely divorced from hard data and the reality of modern day fundraising. The data shows us that incumbents are disproportionately advantaged in raising large sums of money with higher contribution limits. Incumbents have ready made fundraising networks and connections to industry and lobbyists who are willing to write checks and host fundraisers. Of the top 20 State Assembly fundraisers in 2012 in Texas<http://www.followthemoney.org/database/StateGlance/state_candidates.phtml?s=TX&y=2012&f=H>, a state with no individual contribution limit to candidates, 14 were incumbents while a mere 4 were challengers and 2 were for open seats. A challenger doesn't crack the top 7. Only one true challenger is in the top 20 list<http://www.followthemoney.org/database/StateGlance/state_candidates.phtml?s=TX&y=2012&f=S> for State Senate candidates. A much more exhaustive look at contribution limits<http://www.brennancenter.org/sites/default/files/legacy/publications/Electoral.Competition.pdf> and electoral competition by the Brennan Center (itself supported by this GMU research<http://brennan.3cdn.net/82542437c8f479e0e9_3em6iyowv.pdf>) substantiates this quick glance at the data in Texas.

One can certainly envision a contribution limit sufficiently low as to advantage incumbents over challengers, but high contribution limits is the other side of the same coin. If your goal is electoral competition, public financing of elections, as demonstrated in Connecticut<http://www.demos.org/publication/fresh-start-impact-public-campaign-financing-connecticut> and elsewhere, should be your goal, not abolishment of all contribution caps.

Tyler Creighton | tyler at rethinkmedia.org<mailto:tyler at rethinkmedia.org>  |  Media Associate
ReThink Media<http://rethinkmedia.org> | (202) 449-6960<tel:%28202%29%20449-6960> office | (925) 548-2189<tel:%28925%29%20548-2189> mobile
@ReThinkDemocrcy<https://twitter.com/rethinkdemocrcy> | @ReThink_Media<https://twitter.com/rethink_media> | @TylerCreighton<http://www.twitter.com/tylercreighton>

On Mon, Jun 30, 2014 at 3:46 PM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
If anyone responds to this, please use this (or another) subject line (and not ELB News and Commentary)
On 6/30/14, 12:44 PM, JBoppjr at aol.com<mailto:JBoppjr at aol.com> wrote:
Regarding this:

The Court has shown no such deference when it comes to the need for campaign finance regulation or to protect the voting rights of racial minorities and others. The Roberts Court has overturned or limited every campaign finance law it has examined (aside from disclosure laws). It has struck down a key provision of the Voting Rights Act. How much deference did Congress get in those cases? None.

Well when is Congress wise and entitled to deference? When the Court agrees with Congress’s approach. Let’s call that “faux deference,” to go with the “faux-nanimity<http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2014/scotus_roundup/scotus_end_of_term_massachusetts_abortion_clinic_buffer_zone_law_goes_down.html>” of the rest of the term.

Rather than deference, a much better argument could be made for scepticism when it comes to Congress writing campaign finance laws.  After all, with campaign finance laws, members of Congress are writing the rules for their own election specifically and when citizens can criticize them generally. There are no subjects that they are more intensely self-interested.

Ironically, "reformers" should know this.  Some of them believe that members of Congress thirst so strongly for campaign contributions that they would sell their votes for just a few hundred dollars.  If this is true, then surely they would write campaign finance laws to benefit themselves.  Jim Bopp
In a message dated 6/30/2014 1:05:54 P.M. Eastern Daylight Time, rhasen at law.uci.edu<mailto:rhasen at law.uci.edu> writes:
#HobbyLobby: When is Congress “Wise?” When the Court Agrees with Congress’s Wisdom<http://electionlawblog.org/?p=62877>
Posted on June 30, 2014 8:50 am<http://electionlawblog.org/?p=62877> by Rick Hasen<http://electionlawblog.org/?author=3>

Near the end of Justice Alito’s majority opinion in the Hobby Lobby<http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf> case today, he writes that it is not the Court’s job to question the “wisdom” of Congress in using the compelling interest test in RFRA, but the Court applies that RFRA test strongly, and in a way which shows the Court apparently giving great deference to Congress’s judgment about how to balance the government’s interest in generally applicable laws with the accommodations of religious freedoms. It reminded me of Justice Scalia’s pleas in Windsor <http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf> last term for deference to Congress on the need for the Defense of Marriage Act.

The Court has shown no such deference when it comes to the need for campaign finance regulation or to protect the voting rights of racial minorities and others. The Roberts Court has overturned or limited every campaign finance law it has examined (aside from disclosure laws). It has struck down a key provision of the Voting Rights Act. How much deference did Congress get in those cases? None.

Well when is Congress wise and entitled to deference? When the Court agrees with Congress’s approach. Let’s call that “faux deference,” to go with the “faux-nanimity<http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2014/scotus_roundup/scotus_end_of_term_massachusetts_abortion_clinic_buffer_zone_law_goes_down.html>” of the rest of the term.

--

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<tel:949.824.3072> - office

949.824.0495<tel:949.824.0495> - fax

rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>

http://www.law.uci.edu/faculty/full-time/hasen/

http://electionlawblog.org

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