[EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance
Mark Schmitt
schmitt.mark at gmail.com
Mon Jul 7 19:36:29 PDT 2014
And just to add one small point to Bob's: the single provision of BCRA that
was likely motivated by incumbent-protection, the millionaire's amendment
that was overturned in* Davis*, had a completely different coalition than
the coalition that supported the underlying bill. The 30 nay votes on
Senator Domenici's amendment that created a higher contribution limit for
candidates opposed by a self-funder were almost all from *supporters *of
the underlying bill. (The exception was Hagel.) McConnell voted for the
amendment. If McConnell and other BCRA opponents had joined BCRA supporters
in opposition to incumbent-protection, the amendment would have failed
71-29. But they didn't
Mark Schmitt
202/246-2350
gchat or Skype: schmitt.mark
twitter: mschmitt9
On Mon, Jul 7, 2014 at 5:16 PM, Bauer, Bob (Perkins Coie) <
RBauer at perkinscoie.com> wrote:
>
> I don't mean to prolong the thread long after it passed this point, but I
> am moved to comment on some what suggestions about what moved incumbents
> about the passage of McCain-Feingold.
>
> In my experience with the process leading to Congressional enactment, I
> saw no basis for the belief that Democrats supporting the McCain-Feingold
> prohibitions on party soft money believed generally that it served their
> partisan or incumbent interests. Quite the contrary: leading Members of
> Congress worried that the legislation harmed parties--and them, in their
> roles as candidates--more than it accomplished specified reform goals.
> The Members with this view were typically the ones most involved in party
> affairs or activities. Other Members, some more divorced from party
> operations or less reliant on them for their own reelections, were not
> moved by the parties' predicament. And many, whatever their political or
> narrowly self-interested view, believed that the party's formal position
> on reform--a pro position, to be sure--compelled them to vote for the
> measure or appear opposed to "reform", a branding that the bill had
> managed to secure.
>
> Over the entire period, I do not recall hearing one Member argue that
> party soft money was more advantageous to their challengers than to them.
> About outside group soft money they had a lot to say. This was the
> relationship between the party and "outside group" soft money restrictions
> most commonly observed: Members were reluctant to have the parties striped
> of their soft money funding if outside groups (to use the controversial
> term) could expand their influence accordingly. So the vote on the one
> was important to their vote on the other because the electioneering
> communication restrictions were seen as mitigating to some extent the
> risks associated with the loss of soft money party funding.
>
> This is not to say that partisan or incumbent interest does not shape
> reform legislation, including McCain-Feingold. It does, routinely. But not
> always clearly or directly.
>
>
>
>
>
>
>
>
>
>
>
> On 7/5/14 3:00 PM, "law-election-request at department-lists.uci.edu"
> <law-election-request at department-lists.uci.edu> wrote:
>
> >Send Law-election mailing list submissions to
> > law-election at department-lists.uci.edu
> >
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> >c852f6cbaaa68ef307
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> >
> >Today's Topics:
> >
> > 1. Re: WARNING: SNARK AHEAD RE: Supreme Court and campaign
> > finance (Larry Levine)
> > 2. Re: fundraising blackout rules (prev'ly "Re: WARNING: SNARK
> > AHEAD RE: Supreme Court and campaign finance") (Steve Kolbert)
> > 3. Re: fundraising blackout rules (prev'ly "Re: WARNING: SNARK
> > AHEAD RE: Supreme Court and campaign finance") (Larry Levine)
> > 4. op-ed/Is there a First Amendment right to lie in politics?
> > (Schultz, David A.)
> > 5. Re: op-ed/Is there a First Amendment right to lie in
> > politics? (Stephen Klein)
> > 6. Re: op-ed/Is there a First Amendment right to lie in
> > politics? (sean at impactpolicymanagement.com)
> >
> >
> >----------------------------------------------------------------------
> >
> >Message: 1
> >Date: Fri, 4 Jul 2014 12:08:02 -0700
> >From: "Larry Levine" <larrylevine at earthlink.net>
> >To: "'Mark Schmitt'" <schmitt.mark at gmail.com>,
> > "'law-election at UCI.edu'" <law-election at uci.edu>
> >Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign
> > finance
> >Message-ID: <000b01cf97bb$4781a130$d684e390$@earthlink.net>
> >Content-Type: text/plain; charset="utf-8"
> >
> >Here?s what?s wrong at the heart of the reforms: if we have a sex scandal
> >involving an incumbent office holder, we enact rules requiring future
> >officials to undergo sexual harassment training. If we have a finance
> >scandal, we enact new finance reforms. It all comes down to show for the
> >press and public, none of it is very effective in fighting corruption,
> >and all of it comes packed with its own set of loopholes and consequences.
> >
> >Larry
> >
> >
> >
> >From: law-election-bounces at department-lists.uci.edu
> >[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Mark
> >Schmitt
> >Sent: Friday, July 04, 2014 11:46 AM
> >To: 'law-election at UCI.edu'
> >Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign
> >finance
> >
> >
> >
> >Thanks, John. I don?t remember what was in the 1996 bill, but I think it
> >was mostly an extension of the 1994 bill and the 1980s bills that were
> >focused on PACs. The key things that made BCRA BCRA, and problematic,
> >such as the Snowe-Jeffords provision on electioneering communications,
> >were developed after 1998.
> >
> >
> >
> >There?s one name that should be mentioned here. An incumbent who raised a
> >huge amount of soft money, from dubious sources and using the power of
> >his office, to protect his incumbency: the Big Dog. The Clinton
> >fundraising scandals really changed the game after 1996; they are
> >certainly a large part of what drove McCain, as well as a lot of more
> >moderate Republicans like Chris Shays, who didn?t like the Clinton
> >impeachment stuff (nor did their constituents), but were genuinely
> >shocked by the Lincoln Bedroom, etc. And if there is one lasting
> >achievement of BCRA, it was in getting elected officials (incumbents) out
> >of the business of soliciting soft money in the way that Clinton did.
> >Even if a little bit of that money eventually went to challengers, that
> >soft money was certainly enhancing the power of incumbents.
> >
> >
> >
> >Finally, if moderate Republicans supported BCRA as incumbent protection
> >?you might ask Mr. Shays how that worked out for them.
> >
> >
> >
> >
> >
> >From: John Samples [mailto:john.samples at gmail.com]
> >Sent: Thursday, July 3, 2014 3:19 PM
> >To: Mark Schmitt
> >Cc: law-election at UCI.edu
> >Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign
> >finance
> >
> >
> >
> >Interesting question, Mark.
> >
> >
> >
> >You are correct about House elections just prior to the passage of BCRA.
> >I recall that something similar might be said about House re-election
> >rates prior to the enactment of FECA (though not to immediately
> >afterward, i.e. the 1974 election).
> >
> >
> >
> >Here I would look elsewhere for the incumbency factor.
> >
> >
> >
> >BCRA began its legislative journey prior to the 1996 election (The New
> >Campaign Finance Sourcebook, 36). The 1992 and 1994 elections were scary
> >for incumbents. BCRA could be seen as a response to that threat.
> >
> >
> >
> >But BCRA did not pass in 1996. Why not, if incumbent protection is such a
> >factor in enacting these regulations? Part of the answer is
> >institutional: BCRA fell in 1996 to a filibuster. In general, legislating
> >is hard in the US. There are multiple veto-points. Other factors also
> >matter enacting legislation: partisanship, above all. The GOP had both
> >House majorities and a 60-40 edge in soft money fundraising during this
> >period.
> >
> >
> >
> >But the bill did pass in 2002. Why? Twenty percent of the GOP caucus in
> >both the House and the Senate voted for it. One might say conjecture that
> >the incumbent interests of this 20 percent overcame their partisan
> >interests.
> >
> >
> >
> >Party soft money was a real threat to holders of marginal seats. After
> >all, party leaders applied soft money to the task of defeating vulnerable
> >candidates of the other party.
> >
> >
> >
> >Is there any evidence that the 20 percent of Republicans who voted for
> >BCRA held more vulnerable seats than the 80 percent did not. There was
> >about an 8 point average difference in Bush's 2000 vote share between
> >districts represented by pro-BCRA members and those represented by
> >anti-BCRA Republicans. That vulnerable 20 percent may have seen needed
> >help in BCRA's soft money ban, at least as long as they could believe it
> >would also restrict outside groups.
> >
> >
> >
> >Of course, members from different districts and the same party may differ
> >in important ways. Republicans in competitive districts might be
> >ideologically different than those from safer districts. If reform
> >ideology and incumbent interest are highly correlated, you have an
> >identification problem.
> >
> >
> >
> >Still, I am inclined to think that BCRA may have been more than anything
> >else an effect of a larger change whereby Democratic (Republican)
> >districts are less likely to elect Republican (Democratic)
> >representatives.
> >
> >
> >
> >John Samples
> >
> >Cato Institute
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >On Tue, Jul 1, 2014 at 12:33 PM, Mark Schmitt <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
> > <tel:202%2F246-2350> 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>
> >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
> >
> > <tel:614.236.6317> 614.236.6317
> >
> >
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://law.capital.edu/faculty
> >/bios/bsmith.aspx&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0Jkmb
> >Fm5Z7N5GR80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSo
> >VEFSQ%3D%0A&s=422d7ccc78ec553c0ebbc6ad146cb9494cbe843a13483e7c342c2481fc9c
> >b582>
> >
> https://urldefense.proofpoint.com/v1/url?u=http://law.capital.edu/faculty/
> >bios/bsmith.aspx&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbF
> >m5Z7N5GR80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoV
> >EFSQ%3D%0A&s=422d7ccc78ec553c0ebbc6ad146cb9494cbe843a13483e7c342c2481fc9cb
> >582
> >
> >
> > _____
> >
> >
> >From: <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>
> >law-election-bounces at department-lists.uci.edu] on behalf of ReThink Media
> >[ <mailto:tyler at rethinkmedia.org> tyler at rethinkmedia.org]
> >Sent: Monday, June 30, 2014 7:56 PM
> >To: Sean Parnell
> >Cc: <mailto:law-election at UCI.edu> 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
> >
> > <mailto:tyler at rethinkmedia.org> tyler at rethinkmedia.org
> >
> >
> >
> >Sent from my phone
> >
> >
> >On Jun 30, 2014, at 7:24 PM, "Sean Parnell"
> ><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
> >
> > <tel:571-289-1374> 571-289-1374 (c)
> >
> > <mailto:sean at impactpolicymanagement.com> sean at impactpolicymanagement.com
> >
> >
> >
> >From: <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>
> >mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Tyler
> >Creighton
> >Sent: Monday, June 30, 2014 6:31 PM
> >To: <mailto:law-election at UCI.edu> 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
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://www.followthemoney.org/
> >database/StateGlance/state_candidates.phtml?s%3DTX%26y%3D2012%26f%3DH&k=06
> >%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R78VD
> >g28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=9e01868a
> >820da40f356e4bbb3f0ab2d615149619822e71027f9479ff409534bb> , 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
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://www.followthemoney.org/
> >database/StateGlance/state_candidates.phtml?s%3DTX%26y%3D2012%26f%3DS&k=06
> >%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R78VD
> >g28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=c105fa84
> >c2314d7dce08f6d9c996504677c3377788959072bd3dc75687eb1c42> for State
> >Senate candidates. A much more exhaustive look at contribution limits
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://www.brennancenter.org/s
> >ites/default/files/legacy/publ%250A%2520ications/Electoral.Competition.pdf
> >&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1
> >R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=e31
> >8e9681a2f0f78f5183acb05460bfbc9903485af55e7ea20930773b9bf3107> and
> >electoral competition by the Brennan Center (itself supported by this GMU
> >research
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://brennan.3cdn.net/825424
> >37c8f479e0e9_3em6iyowv.pdf&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXW
> >UHHd0JkmbFm5Z7N5GR80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if3
> >0lCrsorSoVEFSQ%3D%0A&s=56bf2ddfcadbd8973a9db0e9fb8568925f9cc4b188c6ce6e751
> >4015df9b6b968> ) 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
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://www.demos.org/publicati
> >on/fresh-start-impact-public-campaign-financing-connecticut&k=06%2F1%2Fwqq
> >QY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R78VDg28rg%3D%0
> >A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=afd7a4ff50ba822ecf
> >71d3b5a5ef2b1402f43f749a39c7a59da356a74e3b2667> and elsewhere, should be
> >your goal, not abolishment of all contribution caps.
> >
> >
> >
> >
> >Tyler Creighton | <mailto:tyler at rethinkmedia.org> tyler at rethinkmedia.org
> > | Media Associate
> >
> >
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://rethinkmedia.org/&k=06%
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> >28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=bb60ccca6
> >0eca34fedf71ec781d2f00e6eab88ae1bc2e220923031ffcd605673> ReThink Media |
> ><tel:%28202%29%20449-6960> (202) 449-6960 office |
> ><tel:%28925%29%20548-2189> (925) 548-2189 mobile
> >
> >
> ><
> https://urldefense.proofpoint.com/v1/url?u=https://twitter.com/rethinkdem
> >ocrcy&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80Z
> >bdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&
> >s=84c22edbc073ddede9d3af6c2ad43a0419da5c5e3ebe65ac8572e1c5a1472cde>
> >@ReThinkDemocrcy |
> ><
> https://urldefense.proofpoint.com/v1/url?u=https://twitter.com/rethink_me
> >dia&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80Zbd
> >Pq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=
> >b2ce452d8535e23d1ee3d335933ee18303e3248cd6d19116b11d6d72bbee9a73>
> >@ReThink_Media |
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://www.twitter.com/tylercr
> >eighton&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR8
> >0ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0
> >A&s=c489e3c09f3ece59acca0aed68bd3a6187677d33f2ef7e1928900e1ab33afab9>
> >@TylerCreighton
> >
> >
> >
> >On Mon, Jun 30, 2014 at 3:46 PM, Rick Hasen <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 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 ?f
> ><
> https://urldefense.proofpoint.com/v1/url?u=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&k
> >=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R7
> >8VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=2d41a
> >293ef73525d29c5a5cedafb36b5758aedc1011e3282c0f1d711ad4a390d>
> >aux-nanimity? 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,
> ><mailto:rhasen at law.uci.edu> rhasen at law.uci.edu writes:
> >
> >
> >
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://electionlawblog.org/?p%
> >3D62877&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR8
> >0ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0
> >A&s=3a1a2f9702c30be63a8185bdf78028fc799338a13d8ae3bbd21a78cfe3f45449>
> >#HobbyLobby: When is Congress ?Wise?? When the Court Agrees with
> >Congress?s Wisdom
> >
> >
> >Posted on
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://electionlawblog.org/?p%
> >3D62877&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR8
> >0ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0
> >A&s=3a1a2f9702c30be63a8185bdf78028fc799338a13d8ae3bbd21a78cfe3f45449>
> >June 30, 2014 8:50 am by
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://electionlawblog.org/?au
> >thor%3D3&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR
> >80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%
> >0A&s=1885d0cc879d1544658f192da0c068d66d6dbdc64ae0f1095c5ca2bf6a3ccd94>
> >Rick Hasen
> >
> >Near the end of Justice Alito?s majority opinion in the
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://www.supremecourt.gov/op
> >inions/13pdf/13-354_olp1.pdf&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFn
> >XWUHHd0JkmbFm5Z7N5GR80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4i
> >f30lCrsorSoVEFSQ%3D%0A&s=800068bd85f1bdc1787537ce523efef90bd3d0f633af3f6ab
> >e68e66a74185417> Hobby Lobby 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
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://www.supremecourt.gov/op
> >inions/12pdf/12-307_6j37.pdf&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFn
> >XWUHHd0JkmbFm5Z7N5GR80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4i
> >f30lCrsorSoVEFSQ%3D%0A&s=4440086566242ca830562c536b6ea5178f787272206003c48
> >b5dfcc3e1c97e98> Windsor 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 ?f
> ><
> https://urldefense.proofpoint.com/v1/url?u=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&k
> >=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R7
> >8VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=2d41a
> >293ef73525d29c5a5cedafb36b5758aedc1011e3282c0f1d711ad4a390d>
> >aux-nanimity? 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 - office
> >949.824.0495 - fax
> >rhasen at law.uci.edu
> >
> https://urldefense.proofpoint.com/v1/url?u=http://www.law.uci.edu/faculty/
> >full-time/hasen/&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbF
> >m5Z7N5GR80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoV
> >EFSQ%3D%0A&s=6ab07a3a4ee26d875c740b758009abb80d45db04d83593ade85e2bfbe7da7
> >1df
> >
> https://urldefense.proofpoint.com/v1/url?u=http://electionlawblog.org/&k=0
> >6%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R78V
> >Dg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=567a15c
> >5c5ea78ae373798d0d855997636270d432f5fe82cd3c6b8167cfe1bc2
> >
> >
> >_______________________________________________
> >Law-election mailing list
> >Law-election at department-lists.uci.edu
> >
> https://urldefense.proofpoint.com/v1/url?u=http://department-lists.uci.edu
> >/mailman/listinfo/law-election&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVt
> >FnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ
> >4if30lCrsorSoVEFSQ%3D%0A&s=cf5a3b6304a6c06416b4ef3577824cd36248bfd5457a8dc
> >852f6cbaaa68ef307
> >
> >
> >
> >
> >_______________________________________________
> >Law-election mailing list
> >Law-election at department-lists.uci.edu
> >
> https://urldefense.proofpoint.com/v1/url?u=http://department-lists.uci.edu
> >/mailman/listinfo/law-election&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVt
> >FnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ
> >4if30lCrsorSoVEFSQ%3D%0A&s=cf5a3b6304a6c06416b4ef3577824cd36248bfd5457a8dc
> >852f6cbaaa68ef307
> >
> >
> >
> >
> >_______________________________________________
> >Law-election mailing list
> >Law-election at department-lists.uci.edu
> >
> https://urldefense.proofpoint.com/v1/url?u=http://department-lists.uci.edu
> >/mailman/listinfo/law-election&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVt
> >FnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ
> >4if30lCrsorSoVEFSQ%3D%0A&s=cf5a3b6304a6c06416b4ef3577824cd36248bfd5457a8dc
> >852f6cbaaa68ef307
> >
> >
> >
> >
> >
> >
> >
> >--
> >
> >John Samples
> >
> >Vice President and Publisher
> >The Cato Institute
> >1000 Massachusetts Avenue, NW
> >Washington, DC 20001
> >Phone: <tel:202.789.5248> 202.789.5248
> >Fax: <tel:202.842.2240> 202.842.2240
> >Cell: <tel:703-772-5977> 703-772-5977
> >Email: <mailto:jsamples at cato.org> jsamples at cato.org
> >Web:
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://www.cato.org/people/sam
> >ples.html&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5G
> >R80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D
> >%0A&s=42b7a6fe9f4e89f7ccfd0d9304bd06924531288ddf19407c973505536c36d040>
> >
> https://urldefense.proofpoint.com/v1/url?u=http://www.cato.org/people/samp
> >les.html&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR
> >80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%
> >0A&s=42b7a6fe9f4e89f7ccfd0d9304bd06924531288ddf19407c973505536c36d040
> >
> >-------------- next part --------------
> >An HTML attachment was scrubbed...
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> ><
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> >l&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq
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> >
> >------------------------------
> >
> >Message: 2
> >Date: Fri, 4 Jul 2014 15:36:49 -0400
> >From: Steve Kolbert <steve.kolbert at gmail.com>
> >To: Larry Levine <larrylevine at earthlink.net>
> >Cc: "law-election at uci.edu" <law-election at uci.edu>
> >Subject: Re: [EL] fundraising blackout rules (prev'ly "Re: WARNING:
> > SNARK AHEAD RE: Supreme Court and campaign finance")
> >Message-ID:
> > <CAA7gmAZFfcE0vsCaN5nVne6-q_=
> r9i1Bd-ogwK_2jxyCoQr_GA at mail.gmail.com>
> >Content-Type: text/plain; charset="iso-8859-1"
> >
> >First, I want to say thank you, Larry, for spurring me to look into the
> >question of fundraising blackouts. It's not an area I previously knew much
> >about, and I found it very interesting.
> >
> >Second, I don't have fully formed thoughts concerning the policy wisdom or
> >the effectiveness of fundraising blackout periods. My initial, gut
> >reaction
> >is to think that while blackouts are no panacea, they do more good than
> >harm. But again, I haven't given the subject much thought or seen any
> >evidence about either blackouts' benefits or drawbacks; I could certainly
> >be persuaded to change my mind.
> >
> >Third: the more interesting question, I think, is the one you initially
> >asked (and I have modified slightly): can a legislature enact an internal
> >legislative rule, similar to Florida House Rule Rule 15.3(b) and Florida
> >Senate Rule 1.361(1), imposing a limited, session-long fundraising
> >blackout
> >on sitting legislators alone, but not on non-officeholders? I've not
> >thought much about this, either, so I did some quick-and-dirty,
> >less-than-comprehensive investigating. And while it's not the slam-dunk I
> >assumed, it seems to me that the answer is yes, such a legislative rule
> >would be valid if appropriately drafted, and that Florida's dual rules are
> >appropriately drafted.
> >
> >Regarding the potential First Amendment issues, there is an excellent law
> >student comment surveying the law on the topic: Dru Swaim, State Session
> >Freeze Laws--Potential Solution or Unconstitutional Restriction?, 37
> >Seattle U. L. Rev. 255 (2013). First, Swain notes that at least two courts
> >have outright upheld blackout periods against challenges. Second, Swain
> >reports that only a single case, a district court opinion in Arkansas, has
> >invalidated a restriction applying only to incumbents and not to
> >challengers. Swain characterizes the decision as an outlier, both because
> >courts have not followed it, and for its reliance on distinguishable and
> >later-overturned precedent. Third, and particularly important here, Swain
> >points out that courts invalidating blackout laws view a blackout
> >provision's application to both challengers and incumbents as a reason *to
> >strike* the law -- *not* a factor in favor of its constitutionality --
> >since challengers cannot cast votes or take other official action during
> >session, and so contributions to challengers bear less of a risk of
> >corruption or its appearance. Indeed, the Florida Supreme Court
> >invalidated
> >an earlier statutory version of the state's fundraising blackout provision
> >in part because it applied to both officeholders and challengers; the
> >court
> >noted, however, that a more narrowly drafted blackout period would pass
> >constitutional muster. See State v. Dodd, 561 So. 2d 263 (Fla. 1990).
> >
> >One thing Swain fails to mention is an element unique to Florida's
> >blackout
> >rule, which cuts against potential challenges: Florida's provision is
> >enacted via legislative rule, while most (perhaps all, if the NCSL's list
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://www.ncsl.org/research/e
> >lections-and-campaigns/limits-on-contributions-during-session.aspx&k=06%2F
> >1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R78VDg28
> >rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=30020bf0801
> >fcbbb657dafe936f1b3c91d1f291da8bf21167f068db42b27fccf>
> >is still accurate) other blackout provisions are enacted in statute or
> >administrative provision.
> >
> >Courts, of course, are generally hesitant to interfere with the
> >legislature's internal rules and procedures. See, e.g., Nixon v. United
> >States, 506 U.S. 224 (1993) (holding that a challenge to Congress'
> >impeachment/removal of a district judge was a nonjustifiable political
> >question); Nat'l Ass'n of Social Workers v. Harwood, 69 F.3d 622 (1st Cir.
> >1995) (holding that legislative immunity bars a challenge to a state
> >legislative prohibition on private lobbyists, but not government
> >lobbyists,
> >from entering the state legislative chamber during session); Davids v.
> >Akers, 549 F.2d 120 (9th Cir. 1977) (finding, paradoxically, that judicial
> >review of state legislative committee assignments was not a political
> >question, but that "a judicially discoverable and manageable standard
> >cannot be found" and otherwise writing an opinion that directs courts to
> >stay out of internal legislative affairs); Common Cause v. Biden, 909 F.
> >Supp. 2d 9 (D.D.C. 2012) (holding, among other things, that a suit to
> >overturn the Senate's filibuster is a nonjusticiable political question),
> >aff'd, 748 F.3d 1280 (D.C. Cir. 2014) (recognizing that the Speech or
> >Debate Clause would bar a suit against the Senate or individual Senators
> >to
> >change the Senate's internal rules); Hastings v. United States, 837 F.
> >Supp. 3 (D.D.C. 1993) ("The legal issue posed in Nixon [v. United States,
> >cited above] is identical to that [here] . . . ."); Brown v. Hansen, 27
> >V.I. 175 (D.V.I. 1992) (holding that issue of whether new territorial
> >legislative procedures were validly enacted was nonjusticiable political
> >question); Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham,
> >912
> >So.2d 204 (Ala. 2005) (rejecting, as nonjusticiable, question of internal
> >legislative procedure governing what constitutes a voting majority in
> >state
> >legislature); In re Jud. Conduct Comm., 751 A.2d 514 (N.H. 2000)
> >(rejecting, as nonjusticiable, action to force state legislative committee
> >investigating possible impeachment of a judge to allow investigators from
> >judicial branch agency with concurrent jurisdiction to attend all
> >proceedings of the legislative committee); State ex rel. Grendell v.
> >Davidson, 716 N.E.2d 704 (Ohio 1999) (rejecting, as nonjusticiable, an
> >action to require the state legislature to follow certain procedures);
> >Mecham v. Ariz. House of Reps., 782 P.2d 1160 (Ariz. 1989) (holding that
> >the courts have no jurisdiction to review the state legislature's
> >impeachment/removal decisions).
> >
> >Florida's courts, in particular, recognize the principle that the
> >judiciary
> >will generally stay out of the legislature's internal affairs. See Harden
> >v. Garrett, 483 So. 2d 409 (Fla. 1985) (holding that courts have no
> >jurisdiction to entertain election contests for state legislative seats,
> >in
> >light of state constitutional provision granting legislature the power to
> >judge its members' election returns); McPherson v. Flynn, 397 So. 2d 665
> >(Fla. 1981) (holding that courts have no jurisdiction to entertain a
> >challenge to the qualifications of a sitting state legislator, in light of
> >state constitutional provision granting legislature the power to determine
> >qualifications of members).
> >
> >There are of course, counter-examples. See, e.g., Bond v. Floyd, 385 U.S.
> >116 (1966) (permitting federal judicial intervention, ostensibly on First
> >Amendment grounds, into state legislative decision to bar black
> >representative-elect from taking office in the 1960s-era Georgia
> >legislature); Larsen v. Penn. Senate, 152 F.3d 240 (3d Cir. 1998)
> >(permitting federal judicial review of state legislative impeachment
> >proceeding). But the general trend is toward courts staying out of the
> >legislature's business. And if courts are generally not to inject
> >themselves into the internal legislative proceedings, then it seems
> >unlikely that they would invalidate a legislative rule imposing a
> >fundraising blackout, especially where that rule is narrowly drafted to
> >comply with the First Amendment.
> >
> >So if someone were to challenge Florida's dual legislative rules imposing
> >a
> >limited, session-long fundraising blackout on sitting legislators but not
> >on non-officeholders, the challenge would present a close call, but I
> >expect the rules to be upheld. And back to the broader discussion at
> >issue,
> >such limited-focus blackout periods are one example of a reform that does
> >not benefit incumbents.
> >
> >
> >Steve Kolbert
> >(202) 422-2588
> >steve.kolbert at gmail.com
> >@Pronounce_the_T
> >
> >
> >On Fri, Jul 4, 2014 at 1:50 AM, Larry Levine <larrylevine at earthlink.net>
> >wrote:
> >
> >> First, how long would you expect that to hold up under legal challenge?
> >>
> >> Second, what difference does it make for incumbents, who a far easier
> >>time
> >> raising funds than a challenger in most instances?
> >>
> >> I raise it as an example of how reforms always sound better than they
> >>are.
> >>
> >> Larry
> >>
> >>
> >>
> >> *From:* Steve Kolbert [mailto:steve.kolbert at gmail.com]
> >> *Sent:* Thursday, July 03, 2014 2:16 PM
> >> *To:* larrylevine at earthlink.net
> >> *Cc:* law-election at UCI.edu
> >> *Subject:* Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign
> >> finance
> >>
> >>
> >>
> >> With regard's to Larry's question regarding fundraising blackout periods
> >> applying only to incumbents, not challengers:
> >>
> >> Internal legislative rules in both chambers of the Florida Legislature
> >> prohibit fundraising during the 60-day annual legislative session. See
> >>Rules
> >> of the Florida House of Representatives
> >>
> >><
> https://urldefense.proofpoint.com/v1/url?u=http://www.myfloridahouse.gov
> >>/Sections/Documents/publications.aspx?PublicationType%3DReference%26Docum
> >>entType%3DThe%2520Rules%2520of%2520the%2520House%2520of%2520Representativ
> >>es&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80Zbd
> >>Pq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s
> >>=149e3322806fa10215a0edb24fad1b1e0a97ad561a7beec9507f82fdb50f555f>,
> >> Rule 15.3(b) (adopted 2012); Rules of the Florida Senate
> >>
> >><
> https://urldefense.proofpoint.com/v1/url?u=http://www.flsenate.gov/Publi
> >>shedContent/ADMINISTRATIVEPUBLICATIONS/rules.pdf&k=06%2F1%2FwqqQY9VYFo4IV
> >>hphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R78VDg28rg%3D%0A&m=tWjfl
> >>AMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=cc7cd19aeb90030506175d2cc4
> >>adf758cbc331e3d678c90e3215829de4b1cc4d>,
> >> Rule 1.361(1) (adopted 2012). These internal legislative rules do not
> >>apply
> >> to challengers, who may raise funds during the blackout period.
> >>
> >> I'm not aware of whether any incumbent has challenged either of these
> >> rules either in court or internally within the Legislature. However, as
> >>I
> >> recall, there is an official ruling or opinion (or something) in one
> >> chamber or the other (or perhaps both), finding that the blackout rules
> >>do
> >> not apply to legislators running for federal office and raising funds
> >>for
> >> their federal campaign.
> >>
> >>
> >>
> >> Steve Kolbert
> >> (202) 422-2588
> >> steve.kolbert at gmail.com
> >> @Pronounce_the_T
> >>
> >>
> >>
> >> On Thu, Jul 3, 2014 at 4:12 PM, Larry Levine <larrylevine at earthlink.net
> >
> >> wrote:
> >>
> >> Take, for instance, blackout periods. Can you prohibit an incumbent from
> >> raising funds during certain times like when the budget is being debated
> >> and not prohibit challengers during the same period?
> >>
> >>
> >>
> >>
> >>
> >-------------- next part --------------
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> >
> >------------------------------
> >
> >Message: 3
> >Date: Fri, 4 Jul 2014 13:47:34 -0700
> >From: "Larry Levine" <larrylevine at earthlink.net>
> >To: "'Steve Kolbert'" <steve.kolbert at gmail.com>
> >Cc: law-election at uci.edu
> >Subject: Re: [EL] fundraising blackout rules (prev'ly "Re: WARNING:
> > SNARK AHEAD RE: Supreme Court and campaign finance")
> >Message-ID: <000901cf97c9$2f6347d0$8e29d770$@earthlink.net>
> >Content-Type: text/plain; charset="us-ascii"
> >
> >I'll address only the first of your points: the effectiveness of blackout
> >periods. They are form without substance; they do nether harm nor good,
> >unless there is harm in the appearance of reform where the reform is
> >meaningless.
> >
> >Let's start with an acknowledgement that money will find its way into
> >politics no matter what we do. Now, let's acknowledge that certain
> >interest
> >groups are motivated to give money to incumbents, and/or to spend money
> >independently in support of incumbents. So, if a blackout period were to
> >begin 60 days before an election, then day 50 to 59 before that election
> >every incumbent would schedule fundraising events and dialing for dollars.
> >The net effect would not be to diminish contributions to incumbents by
> >interest groups, just change the calendar for those contributions. A
> >recently enacted blackout rule by the California State Senate covers a
> >period leading up to passage of the state budget. We can conclude every
> >restaurant in town will be booked solid with fundraising receptions for
> >the
> >month before the blackout begins and starting again the day after the
> >budget
> >deadline.
> >
> >Blackouts will have no effect on how much is given to an incumbent by any
> >particular contributor, only when the contribution is made. But the press
> >and the public will accept it as a proper reaction to two recent financial
> >scandals involving incumbent state senators.
> >
> >Larry
> >
> >
> >
> >From: Steve Kolbert [mailto:steve.kolbert at gmail.com]
> >Sent: Friday, July 04, 2014 12:37 PM
> >To: Larry Levine
> >Cc: law-election at uci.edu
> >Subject: Re: fundraising blackout rules (prev'ly "Re: [EL] WARNING: SNARK
> >AHEAD RE: Supreme Court and campaign finance")
> >
> >
> >
> >First, I want to say thank you, Larry, for spurring me to look into the
> >question of fundraising blackouts. It's not an area I previously knew much
> >about, and I found it very interesting.
> >
> >
> >Second, I don't have fully formed thoughts concerning the policy wisdom or
> >the effectiveness of fundraising blackout periods. My initial, gut
> >reaction
> >is to think that while blackouts are no panacea, they do more good than
> >harm. But again, I haven't given the subject much thought or seen any
> >evidence about either blackouts' benefits or drawbacks; I could certainly
> >be
> >persuaded to change my mind.
> >
> >Third: the more interesting question, I think, is the one you initially
> >asked (and I have modified slightly): can a legislature enact an internal
> >legislative rule, similar to Florida House Rule Rule 15.3(b) and Florida
> >Senate Rule 1.361(1), imposing a limited, session-long fundraising
> >blackout
> >on sitting legislators alone, but not on non-officeholders? I've not
> >thought
> >much about this, either, so I did some quick-and-dirty,
> >less-than-comprehensive investigating. And while it's not the slam-dunk I
> >assumed, it seems to me that the answer is yes, such a legislative rule
> >would be valid if appropriately drafted, and that Florida's dual rules are
> >appropriately drafted.
> >
> >Regarding the potential First Amendment issues, there is an excellent law
> >student comment surveying the law on the topic: Dru Swaim, State Session
> >Freeze Laws--Potential Solution or Unconstitutional Restriction?, 37
> >Seattle
> >U. L. Rev. 255 (2013). First, Swain notes that at least two courts have
> >outright upheld blackout periods against challenges. Second, Swain reports
> >that only a single case, a district court opinion in Arkansas, has
> >invalidated a restriction applying only to incumbents and not to
> >challengers. Swain characterizes the decision as an outlier, both because
> >courts have not followed it, and for its reliance on distinguishable and
> >later-overturned precedent. Third, and particularly important here, Swain
> >points out that courts invalidating blackout laws view a blackout
> >provision's application to both challengers and incumbents as a reason *to
> >strike* the law -- *not* a factor in favor of its constitutionality --
> >since
> >challengers cannot cast votes or take other official action during
> >session,
> >and so contributions to challengers bear less of a risk of corruption or
> >its
> >appearance. Indeed, the Florida Supreme Court invalidated an earlier
> >statutory version of the state's fundraising blackout provision in part
> >because it applied to both officeholders and challengers; the court noted,
> >however, that a more narrowly drafted blackout period would pass
> >constitutional muster. See State v. Dodd, 561 So. 2d 263 (Fla. 1990).
> >
> >One thing Swain fails to mention is an element unique to Florida's
> >blackout
> >rule, which cuts against potential challenges: Florida's provision is
> >enacted via legislative rule, while most (perhaps all, if the NCSL's list
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://www.ncsl.org/research/e
> >lections-and-campaigns/limits-on-contribution%250As-during-session.aspx&k=
> >06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R78
> >VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=a0a5d6
> >fb695b887ecc470daf90d1e266d8332f1c7d7bbc0ef77c5c4f026625a8> is still
> >accurate) other blackout provisions are
> >enacted in statute or administrative provision.
> >
> >Courts, of course, are generally hesitant to interfere with the
> >legislature's internal rules and procedures. See, e.g., Nixon v. United
> >States, 506 U.S. 224 (1993) (holding that a challenge to Congress'
> >impeachment/removal of a district judge was a nonjustifiable political
> >question); Nat'l Ass'n of Social Workers v. Harwood, 69 F.3d 622 (1st Cir.
> >1995) (holding that legislative immunity bars a challenge to a state
> >legislative prohibition on private lobbyists, but not government
> >lobbyists,
> >from entering the state legislative chamber during session); Davids v.
> >Akers, 549 F.2d 120 (9th Cir. 1977) (finding, paradoxically, that judicial
> >review of state legislative committee assignments was not a political
> >question, but that "a judicially discoverable and manageable standard
> >cannot
> >be found" and otherwise writing an opinion that directs courts to stay out
> >of internal legislative affairs); Common Cause v. Biden, 909 F. Supp. 2d 9
> >(D.D.C. 2012) (holding, among other things, that a suit to overturn the
> >Senate's filibuster is a nonjusticiable political question), aff'd, 748
> >F.3d
> >1280 (D.C. Cir. 2014) (recognizing that the Speech or Debate Clause would
> >bar a suit against the Senate or individual Senators to change the
> >Senate's
> >internal rules); Hastings v. United States, 837 F. Supp. 3 (D.D.C. 1993)
> >("The legal issue posed in Nixon [v. United States, cited above] is
> >identical to that [here] . . . ."); Brown v. Hansen, 27 V.I. 175 (D.V.I.
> >1992) (holding that issue of whether new territorial legislative
> >procedures
> >were validly enacted was nonjusticiable political question);
> >Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham, 912 So.2d 204
> >(Ala. 2005) (rejecting, as nonjusticiable, question of internal
> >legislative
> >procedure governing what constitutes a voting majority in state
> >legislature); In re Jud. Conduct Comm., 751 A.2d 514 (N.H. 2000)
> >(rejecting,
> >as nonjusticiable, action to force state legislative committee
> >investigating
> >possible impeachment of a judge to allow investigators from judicial
> >branch
> >agency with concurrent jurisdiction to attend all proceedings of the
> >legislative committee); State ex rel. Grendell v. Davidson, 716 N.E.2d 704
> >(Ohio 1999) (rejecting, as nonjusticiable, an action to require the state
> >legislature to follow certain procedures); Mecham v. Ariz. House of Reps.,
> >782 P.2d 1160 (Ariz. 1989) (holding that the courts have no jurisdiction
> >to
> >review the state legislature's impeachment/removal decisions).
> >
> >Florida's courts, in particular, recognize the principle that the
> >judiciary
> >will generally stay out of the legislature's internal affairs. See Harden
> >v.
> >Garrett, 483 So. 2d 409 (Fla. 1985) (holding that courts have no
> >jurisdiction to entertain election contests for state legislative seats,
> >in
> >light of state constitutional provision granting legislature the power to
> >judge its members' election returns); McPherson v. Flynn, 397 So. 2d 665
> >(Fla. 1981) (holding that courts have no jurisdiction to entertain a
> >challenge to the qualifications of a sitting state legislator, in light of
> >state constitutional provision granting legislature the power to determine
> >qualifications of members).
> >
> >There are of course, counter-examples. See, e.g., Bond v. Floyd, 385 U.S.
> >116 (1966) (permitting federal judicial intervention, ostensibly on First
> >Amendment grounds, into state legislative decision to bar black
> >representative-elect from taking office in the 1960s-era Georgia
> >legislature); Larsen v. Penn. Senate, 152 F.3d 240 (3d Cir. 1998)
> >(permitting federal judicial review of state legislative impeachment
> >proceeding). But the general trend is toward courts staying out of the
> >legislature's business. And if courts are generally not to inject
> >themselves
> >into the internal legislative proceedings, then it seems unlikely that
> >they
> >would invalidate a legislative rule imposing a fundraising blackout,
> >especially where that rule is narrowly drafted to comply with the First
> >Amendment.
> >
> >So if someone were to challenge Florida's dual legislative rules imposing
> >a
> >limited, session-long fundraising blackout on sitting legislators but not
> >on
> >non-officeholders, the challenge would present a close call, but I expect
> >the rules to be upheld. And back to the broader discussion at issue, such
> >limited-focus blackout periods are one example of a reform that does not
> >benefit incumbents.
> >
> >
> >
> >Steve Kolbert
> >(202) 422-2588
> >
> >steve.kolbert at gmail.com
> >@Pronounce_the_T
> >
> >
> >
> >On Fri, Jul 4, 2014 at 1:50 AM, Larry Levine <larrylevine at earthlink.net>
> >wrote:
> >
> >First, how long would you expect that to hold up under legal challenge?
> >
> >Second, what difference does it make for incumbents, who a far easier time
> >raising funds than a challenger in most instances?
> >
> >I raise it as an example of how reforms always sound better than they are.
> >
> >Larry
> >
> >
> >
> >From: Steve Kolbert [mailto:steve.kolbert at gmail.com]
> >Sent: Thursday, July 03, 2014 2:16 PM
> >To: larrylevine at earthlink.net
> >Cc: law-election at UCI.edu
> >Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign
> >finance
> >
> >
> >
> >With regard's to Larry's question regarding fundraising blackout periods
> >applying only to incumbents, not challengers:
> >
> >Internal legislative rules in both chambers of the Florida Legislature
> >prohibit fundraising during the 60-day annual legislative session. See
> >Rules
> >of the Florida House of Representatives
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://www.myfloridahouse.gov/
> >Sections/Documents/publications.aspx?Publicat%250AionType%3DReference%26Do
> >cumentType%3DThe%2520Rules%2520of%2520the%2520House%2520of%2520Represe%250
> >Antatives&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5G
> >R80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D
> >%0A&s=c647b248a62cb98b9c8e0069bf39cb0589001b0260cdc25fbbee5d12d4e99063> ,
> >Rule 15.3(b) (adopted 2012); Rules of the Florida Senate
> ><
> https://urldefense.proofpoint.com/v1/url?u=http://www.flsenate.gov/Publis
> >hedContent/ADMINISTRATIVEPUBLICATIONS/rules.p%250Adf&k=06%2F1%2FwqqQY9VYFo
> >4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R78VDg28rg%3D%0A&m=tWj
> >flAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=92561246954acaf3d029c10a9
> >ac0026a452de2b2e32e110076345621278146ee> , Rule 1.361(1) (adopted 2012).
> >These internal legislative rules do not
> >apply to challengers, who may raise funds during the blackout period.
> >
> >I'm not aware of whether any incumbent has challenged either of these
> >rules
> >either in court or internally within the Legislature. However, as I
> >recall,
> >there is an official ruling or opinion (or something) in one chamber or
> >the
> >other (or perhaps both), finding that the blackout rules do not apply to
> >legislators running for federal office and raising funds for their federal
> >campaign.
> >
> >
> >
> >Steve Kolbert
> >(202) 422-2588 <tel:%28202%29%20422-2588>
> >steve.kolbert at gmail.com
> >@Pronounce_the_T
> >
> >
> >
> >On Thu, Jul 3, 2014 at 4:12 PM, Larry Levine <larrylevine at earthlink.net>
> >wrote:
> >
> >Take, for instance, blackout periods. Can you prohibit an incumbent from
> >raising funds during certain times like when the budget is being debated
> >and
> >not prohibit challengers during the same period?
> >
> >
> >
> >
> >
> >
> >
> >-------------- next part --------------
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> >l&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq
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> >9c42a84fe6b00cad47c82b9dcb6e48590e10a13ccf6240126770a34c066214>
> >
> >------------------------------
> >
> >Message: 4
> >Date: Sat, 5 Jul 2014 07:33:52 -0500
> >From: "Schultz, David A." <dschultz at hamline.edu>
> >To: "law-election at uci.edu" <law-election at uci.edu>
> >Subject: [EL] op-ed/Is there a First Amendment right to lie in
> > politics?
> >Message-ID:
> > <CAGGFpCzBDiOaWr8MdAifz2jAkSNyNDR5=
> qPXs-t8fWz9vKnW5Q at mail.gmail.com>
> >Content-Type: text/plain; charset="utf-8"
> >
> >For a position I am sure not overly popular on this listserv see my op-ed
> >in the Cleveland Plains Dealer ?Is there a First Amendment right to lie in
> >politics??
> >
> >
> https://urldefense.proofpoint.com/v1/url?u=http://www.cleveland.com/opinio
> >n/index.ssf/2014/07/is_there_a_first_amendment_rig.html%23incart_river&k=0
> >6%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R78V
> >Dg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=12e93eb
> >8748ee18b0e23fc1fcc331dcbc1c40050ca7c0b3f904b8e2af2a10576
> >
> >
> >--
> >David Schultz, Professor
> >Editor, Journal of Public Affairs Education (JPAE)
> >Hamline University
> >Department of Political Science
> >1536 Hewitt Ave
> >MS B 1805
> >St. Paul, Minnesota 55104
> >651.523.2858 (voice)
> >651.523.3170 (fax)
> >
> https://urldefense.proofpoint.com/v1/url?u=http://davidschultz.efoliomn.co
> >m/&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdP
> >q1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=6
> >39a2cff5d86d323059e6d9a150b4248beef9a707415e7e38eeda6f253289617
> >
> https://urldefense.proofpoint.com/v1/url?u=http://works.bepress.com/david_
> >schultz/&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR
> >80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%
> >0A&s=aa091946b2c098400d3ef38096619a5d0c00f648eca863b312d1914909ea62d0
> >
> https://urldefense.proofpoint.com/v1/url?u=http://schultzstake.blogspot.co
> >m/&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdP
> >q1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=0
> >e049317364ab7824ce5571de9825269eed0762dca25557f8fd08b0f0f467904
> >Twitter: @ProfDSchultz
> >My latest book: Election Law and Democratic Theory, Ashgate Publishing
> >
> https://urldefense.proofpoint.com/v1/url?u=http://www.ashgate.com/isbn/978
> >0754675433&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5
> >GR80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3
> >D%0A&s=235584983c5a781e3030b6c40727f94635efa7e05b5742a78babfe970149033a
> >FacultyRow SuperProfessor, 2012, 2013
> >-------------- next part --------------
> >An HTML attachment was scrubbed...
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> ><
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> >l&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq
> >1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=ad
> >59daf560059df4c0c996ca315dba1f9c521dc9b6b22f2fa98fbd3f05f848ce>
> >
> >------------------------------
> >
> >Message: 5
> >Date: Sat, 5 Jul 2014 08:50:06 -0400
> >From: Stephen Klein <stephen.klein.esq at gmail.com>
> >To: "Schultz, David A." <dschultz at hamline.edu>
> >Cc: "law-election at uci.edu" <law-election at uci.edu>
> >Subject: Re: [EL] op-ed/Is there a First Amendment right to lie in
> > politics?
> >Message-ID: <E1E635DB-9623-4A47-B31C-074590726684 at gmail.com>
> >Content-Type: text/plain; charset="utf-8"
> >
> >Do you also object to NYT v Sullivan? Politicians certainly have access
> >to the same civil remedies as the rest of us for slander and libel, it's
> >just next to impossible to win.
> >
> >Assuming there is a compelling governmental interest in detecting and
> >punishing political lies, what would the enforcement mechanism look like?
> >
> >Sent from my iPhone
> >
> >> On Jul 5, 2014, at 8:33 AM, "Schultz, David A." <dschultz at hamline.edu>
> >>wrote:
> >>
> >> For a position I am sure not overly popular on this listserv see my
> >>op-ed in the Cleveland Plains Dealer ?Is there a First Amendment right
> >>to lie in politics??
> >>
> >>
> >>
> https://urldefense.proofpoint.com/v1/url?u=http://www.cleveland.com/opini
> >>on/index.ssf/2014/07/is_there_a_first_amendment_rig.html%23incart_river&k
> >>=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R
> >>78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=12e
> >>93eb8748ee18b0e23fc1fcc331dcbc1c40050ca7c0b3f904b8e2af2a10576
> >>
> >>
> >> --
> >> David Schultz, Professor
> >> Editor, Journal of Public Affairs Education (JPAE)
> >> Hamline University
> >> Department of Political Science
> >> 1536 Hewitt Ave
> >> MS B 1805
> >> St. Paul, Minnesota 55104
> >> 651.523.2858 (voice)
> >> 651.523.3170 (fax)
> >>
> >>
> https://urldefense.proofpoint.com/v1/url?u=http://davidschultz.efoliomn.c
> >>om/&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80Zb
> >>dPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&
> >>s=639a2cff5d86d323059e6d9a150b4248beef9a707415e7e38eeda6f253289617
> >>
> >>
> https://urldefense.proofpoint.com/v1/url?u=http://works.bepress.com/david
> >>_schultz/&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5
> >>GR80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%
> >>3D%0A&s=aa091946b2c098400d3ef38096619a5d0c00f648eca863b312d1914909ea62d0
> >>
> >>
> https://urldefense.proofpoint.com/v1/url?u=http://schultzstake.blogspot.c
> >>om/&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80Zb
> >>dPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&
> >>s=0e049317364ab7824ce5571de9825269eed0762dca25557f8fd08b0f0f467904
> >> Twitter: @ProfDSchultz
> >> My latest book: Election Law and Democratic Theory, Ashgate Publishing
> >>
> >>
> https://urldefense.proofpoint.com/v1/url?u=http://www.ashgate.com/isbn/97
> >>80754675433&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7
> >>N5GR80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFS
> >>Q%3D%0A&s=235584983c5a781e3030b6c40727f94635efa7e05b5742a78babfe970149033
> >>a
> >> FacultyRow SuperProfessor, 2012, 2013
> >> _______________________________________________
> >> Law-election mailing list
> >> Law-election at department-lists.uci.edu
> >>
> >>
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> >>tYJ4if30lCrsorSoVEFSQ%3D%0A&s=cf5a3b6304a6c06416b4ef3577824cd36248bfd5457
> >>a8dc852f6cbaaa68ef307
> >-------------- next part --------------
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> >
> >------------------------------
> >
> >Message: 6
> >Date: Sat, 5 Jul 2014 16:11:03 +0000
> >From: sean at impactpolicymanagement.com
> >To: "Stephen Klein" <stephen.klein.esq at gmail.com>,
> > law-election-bounces at department-lists.uci.edu, "Schultz, David
> A."
> > <dschultz at hamline.edu>
> >Cc: "law-election at uci.edu" <law-election at uci.edu>
> >Subject: Re: [EL] op-ed/Is there a First Amendment right to lie in
> > politics?
> >Message-ID:
> >
> <385809966-1404576665-cardhu_decombobulator_blackberry.rim.net-1662709274
> >- at b11.c8.bise6.blackberry>
> >
> >Content-Type: text/plain
> >
> >David's op-ed actually lays out pretty clearly through his examples why
> >it would be a terrible idea. To have the government set "outer bounds" on
> >political speech.
> >
> >He cites the Swift Boat Vets as an example of the sort of speech he'd
> >presumably prohibit and punish, yet to the best of my knowledge nothing
> >substantial they ever said has been definitively shown to be false.
> >Ditto, for that matter, for most of Sen. Kerry's statements.
> >
> >I've never been in combat, but I'd imagine it's quite a bit more chaotic
> >and confusing than you typical car crash, about which witness and
> >participant statements are often wildly in conflict even when there is no
> >motivation (avoiding blame, etc). It's not at all surprising to me that
> >the accounts of Sen. Kerry and many of his fellow sailors conflict. I'm
> >frankly horrified that anyone would look at these conflicting statements
> >and assume it's appropriate for the government not only to definitively
> >determine the 'truth' of this matter but then proceed to actively
> >suppress and punish any dissent from that 'truth.'
> >
> >The matter of Obama's birth is even more disturbing in this context. Of
> >course the accusation is ludicrous, and I admit to not following it
> >closely for pretty much the same reason I don't follow the newest
> >developments in phrenology closely, but my recollection was most of the
> >statements by people pushing this story were along the lines of "I'm only
> >raising the question, he can end these questions by releasing the
> >long-form birth certificate" and the like. So now we're going to suppress
> >questions that may lead to false impressions?
> >
> >Oh, and false speech in commercial exchanges can be suppressed because it
> >constitutes fraud, which is a form of theft, at least from an economic
> >perspective.
> >
> >Sean
> >
> >
> >
> >Sent from my Verizon Wireless BlackBerry
> >
> >-----Original Message-----
> >From: Stephen Klein <stephen.klein.esq at gmail.com>
> >Sender: law-election-bounces at department-lists.uci.edu
> >Date: Sat, 5 Jul 2014 08:50:06
> >To: Schultz, David A.<dschultz at hamline.edu>
> >Cc: law-election at uci.edu<law-election at uci.edu>
> >Subject: Re: [EL] op-ed/Is there a First Amendment right to lie in
> >politics?
> >
> >_______________________________________________
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> >
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> >4if30lCrsorSoVEFSQ%3D%0A&s=cf5a3b6304a6c06416b4ef3577824cd36248bfd5457a8dc
> >852f6cbaaa68ef307
> >
> >------------------------------
> >
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> >
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> >852f6cbaaa68ef307
> >
> >End of Law-election Digest, Vol 39, Issue 6
> >*******************************************
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