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

[Smith, Brad]

I think that supports my original point ... over time, regardless of motivations of particular legislators, campaign finance regulation will tend to benefit incumbents. Regulations that are detrimental to incumbents will be more likely to be seen as a problem; regulations that are not detrimental to incumbents will be less likely to be seen as a problem. Regulations beneficial to incumbents will draw support that regulations detrimental to incumbents will not. This example demonstrates how coalitional politics may be used to shaped legislation to benefit incumbents, regardless of the intentions of other members of the coalition or original sponsors.

(Aside: I would strongly disagree that the millionaire's amendment was the "single provision" of McC-F motivated by incumbent protection. At a minimum, the congressional record clearly shows that incumbents were very worried about "outside" criticism and sought to limit it through the electioneering communications provisions. But this is really irrelevant to the simple point I made, reiterated above, that seemed to make this thread (which I did not begin) such a long one.)


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

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

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Mark Schmitt [schmitt.mark at gmail.com]
Sent: Monday, July 07, 2014 10:36 PM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign finance

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<mailto: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<mailto:law-election-request at department-lists.uci.edu>"
<law-election-request at department-lists.uci.edu<mailto:law-election-request at department-lists.uci.edu>> wrote:

>Send Law-election mailing list submissions to
>       law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
>
>To subscribe or unsubscribe via the World Wide Web, visit
>       https://urldefense.proofpoint.com/v1/url?u=http://department-lists.uci.ed
>u/mailman/listinfo/law-election&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LV
>tFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtY
>J4if30lCrsorSoVEFSQ%3D%0A&s=cf5a3b6304a6c06416b4ef3577824cd36248bfd5457a8d
>c852f6cbaaa68ef307
>or, via email, send a message with subject or body 'help' to
>       law-election-request at department-lists.uci.edu<mailto:law-election-request at department-lists.uci.edu>
>
>You can reach the person managing the list at
>       law-election-owner at department-lists.uci.edu<mailto:law-election-owner at department-lists.uci.edu>
>
>When replying, please edit your Subject line so it is more specific
>than "Re: Contents of Law-election digest..."
>
>
>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<mailto:sean at impactpolicymanagement.com>)
>
>
>----------------------------------------------------------------------
>
>Message: 1
>Date: Fri, 4 Jul 2014 12:08:02 -0700
>From: "Larry Levine" <larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>>
>To: "'Mark Schmitt'" <schmitt.mark at gmail.com<mailto:schmitt.mark at gmail.com>>,
>       "'law-election at UCI.edu'" <law-election at uci.edu<mailto:law-election at uci.edu>>
>Subject: Re: [EL] WARNING: SNARK AHEAD RE: Supreme Court and campaign
>       finance
>Message-ID: <000b01cf97bb$4781a130$d684e390$@earthlink.net<http://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>
>[mailto: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<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<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
> <tel:202%2F246-2350> 202/246-2350<tel:202%2F246-2350>
>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
>
> <tel:614.236.6317<tel:614.236.6317>> 614.236.6317<tel: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<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<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
>[ <mailto:tyler at rethinkmedia.org<mailto:tyler at rethinkmedia.org>> tyler at rethinkmedia.org<mailto:tyler at rethinkmedia.org>]
>Sent: Monday, June 30, 2014 7:56 PM
>To: Sean Parnell
>Cc:  <mailto:law-election at UCI.edu<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<mailto:tyler at rethinkmedia.org>> 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
>
> <tel:571-289-1374<tel:571-289-1374>> 571-289-1374<tel:571-289-1374> (c)
>
> <mailto:sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>> sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>
>
>
>
>From:  <mailto: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> [
><mailto: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<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<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<mailto:tyler at rethinkmedia.org>> tyler at rethinkmedia.org<mailto:tyler at rethinkmedia.org>
> |  Media Associate
>
>
><https://urldefense.proofpoint.com/v1/url?u=http://rethinkmedia.org/&k=06%
>2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R78VDg
>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<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 ?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<mailto:rhasen at law.uci.edu>> rhasen at law.uci.edu<mailto: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<mailto: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<mailto: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<mailto: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<mailto: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<mailto:jsamples at cato.org>> jsamples at cato.org<mailto: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...
>URL:
><https://urldefense.proofpoint.com/v1/url?u=http://department-lists.uci.ed
>u/pipermail/law-election/attachments/20140704/1a969819/attachment-0001.htm
>l&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq
>1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=04
>4be31f34543b9268361edf8f2f261c6bbb594d2282e31542d6202f0e6f680c>
>
>------------------------------
>
>Message: 2
>Date: Fri, 4 Jul 2014 15:36:49 -0400
>From: Steve Kolbert <steve.kolbert at gmail.com<mailto:steve.kolbert at gmail.com>>
>To: Larry Levine <larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>>
>Cc: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto: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<mailto: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<mailto:steve.kolbert at gmail.com>
>@Pronounce_the_T
>
>
>On Fri, Jul 4, 2014 at 1:50 AM, Larry Levine <larrylevine at earthlink.net<mailto: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<mailto:steve.kolbert at gmail.com>]
>> *Sent:* Thursday, July 03, 2014 2:16 PM
>> *To:* larrylevine at earthlink.net<mailto: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<mailto:steve.kolbert at gmail.com>
>> @Pronounce_the_T
>>
>>
>>
>> On Thu, Jul 3, 2014 at 4:12 PM, Larry Levine <larrylevine at earthlink.net<mailto: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 --------------
>An HTML attachment was scrubbed...
>URL:
><https://urldefense.proofpoint.com/v1/url?u=http://department-lists.uci.ed
>u/pipermail/law-election/attachments/20140704/4995a806/attachment-0001.htm
>l&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq
>1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=e7
>941070116572998e82d3c4eaa269c6d477faaf43732c19acd6aecf8faf0080>
>
>------------------------------
>
>Message: 3
>Date: Fri, 4 Jul 2014 13:47:34 -0700
>From: "Larry Levine" <larrylevine at earthlink.net<mailto:larrylevine at earthlink.net>>
>To: "'Steve Kolbert'" <steve.kolbert at gmail.com<mailto:steve.kolbert at gmail.com>>
>Cc: law-election at uci.edu<mailto: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<http://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<mailto:steve.kolbert at gmail.com>]
>Sent: Friday, July 04, 2014 12:37 PM
>To: Larry Levine
>Cc: law-election at uci.edu<mailto: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<mailto:steve.kolbert at gmail.com>
>@Pronounce_the_T
>
>
>
>On Fri, Jul 4, 2014 at 1:50 AM, Larry Levine <larrylevine at earthlink.net<mailto: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<mailto:steve.kolbert at gmail.com>]
>Sent: Thursday, July 03, 2014 2:16 PM
>To: larrylevine at earthlink.net<mailto: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<mailto:steve.kolbert at gmail.com>
>@Pronounce_the_T
>
>
>
>On Thu, Jul 3, 2014 at 4:12 PM, Larry Levine <larrylevine at earthlink.net<mailto: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 --------------
>An HTML attachment was scrubbed...
>URL:
><https://urldefense.proofpoint.com/v1/url?u=http://department-lists.uci.ed
>u/pipermail/law-election/attachments/20140704/951f6edb/attachment-0001.htm
>l&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq
>1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=f6
>9c42a84fe6b00cad47c82b9dcb6e48590e10a13ccf6240126770a34c066214>
>
>------------------------------
>
>Message: 4
>Date: Sat, 5 Jul 2014 07:33:52 -0500
>From: "Schultz, David A." <dschultz at hamline.edu<mailto:dschultz at hamline.edu>>
>To: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto: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<mailto: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...
>URL:
><https://urldefense.proofpoint.com/v1/url?u=http://department-lists.uci.ed
>u/pipermail/law-election/attachments/20140705/bf9d8e01/attachment-0001.htm
>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<mailto:stephen.klein.esq at gmail.com>>
>To: "Schultz, David A." <dschultz at hamline.edu<mailto:dschultz at hamline.edu>>
>Cc: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto: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<mailto: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<mailto: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<mailto:Law-election at department-lists.uci.edu>
>>
>>https://urldefense.proofpoint.com/v1/url?u=http://department-lists.uci.ed
>>u/mailman/listinfo/law-election&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=L
>>VtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldg
>>tYJ4if30lCrsorSoVEFSQ%3D%0A&s=cf5a3b6304a6c06416b4ef3577824cd36248bfd5457
>>a8dc852f6cbaaa68ef307
>-------------- next part --------------
>An HTML attachment was scrubbed...
>URL:
><https://urldefense.proofpoint.com/v1/url?u=http://department-lists.uci.ed
>u/pipermail/law-election/attachments/20140705/7defaeba/attachment-0001.htm
>l&k=06%2F1%2FwqqQY9VYFo4IVhphQ%3D%3D%0A&r=LVtFnXWUHHd0JkmbFm5Z7N5GR80ZbdPq
>1R78VDg28rg%3D%0A&m=tWjflAMGSc1uXdsY8OHldgtYJ4if30lCrsorSoVEFSQ%3D%0A&s=8f
>801c650614aa3829f3feb10ae985bd288e7317c7495a613b1af39c6864d00d>
>
>------------------------------
>
>Message: 6
>Date: Sat, 5 Jul 2014 16:11:03 +0000
>From: sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>
>To: "Stephen Klein" <stephen.klein.esq at gmail.com<mailto:stephen.klein.esq at gmail.com>>,
>       law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>,  "Schultz, David A."
>       <dschultz at hamline.edu<mailto:dschultz at hamline.edu>>
>Cc: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto: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<mailto:stephen.klein.esq at gmail.com>>
>Sender: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>
>Date: Sat, 5 Jul 2014 08:50:06
>To: Schultz, David A.<dschultz at hamline.edu<mailto:dschultz at hamline.edu>>
>Cc: law-election at uci.edu<mailto:law-election at uci.edu><law-election at uci.edu<mailto:law-election at uci.edu>>
>Subject: Re: [EL] op-ed/Is there a First Amendment right to lie in
>politics?
>
>_______________________________________________
>Law-election mailing list
>Law-election at department-lists.uci.edu<mailto: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<mailto: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
>
>End of Law-election Digest, Vol 39, Issue 6
>*******************************************


NOTICE:  This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you.
_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
http://department-lists.uci.edu/mailman/listinfo/law-election

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140708/295b76f8/attachment.html>