[EL] more news 6/20/14
Rick Hasen
rhasen at law.uci.edu
Fri Jun 20 12:38:17 PDT 2014
"Here's $20 Million for Your Candidate: The Scott Walker case could
shred the remaining limits on influencing elections."
<http://electionlawblog.org/?p=62595>
Posted on June 20, 2014 12:24 pm <http://electionlawblog.org/?p=62595>by
Rick Hasen <http://electionlawblog.org/?author=3>
I have written thisnew jurisprudence essay
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/06/the_scott_walker_case_in_wisconsin_could_shred_the_remaining_limits_on_influencing.html>
at /Slate/. It begins:
I have no idea if Wisconsin Gov. Scott Walker is guilty
<http://www.washingtonpost.com/politics/wisconsin-gov-scott-walker-suspected-of-coordinating-with-outside-groups/2014/06/19/1c176676-f7ea-11e3-a3a5-42be35962a52_story.html>
of illegally coordinating his 2012 campaign against a recall with
outside groups, as Wisconsin prosecutors have accused him of doing
in documents just released by a federal appeals court. He denies it
<https://twitter.com/ZekeJMiller/status/479759504738091008>. Nor do
I know if Walker is actually dumb enough
<http://nymag.com/daily/intelligencer/2014/06/2016-gop-candidates-keep-getting-prosecuted.html>
to have sent this email
<http://www.nytimes.com/2014/06/20/us/scott-walker-wisconsin-governor.html?hp>,
included in the released documents, to Republican strategist Karl
Rove---an email that explains how one of Walker's main deputies
would be the point person coordinating activity between Walker's
campaign and a network of outside conservative and business
organizations headed by the Wisconsin Club for Growth.
Walker hasn't been charged, and a judge stopped the prosecutors from
further investigating last month, a ruling that is now on appeal.
That ruling should be reversed, because the main defense against the
state prosecution is one that, if successful, could bring down the
few remaining limits we have left on money in politics. It would
allow virtually unbridled coordination between outside groups and
candidates, giving money ever more influence over politicians and
elections.
It concludes:
If Randa's ruling stands on appeal, then the rules against
coordination between a candidate and outside groups would go out the
window in Wisconsin. That would be license for big donors to give
unlimited sums to groups that will do candidates' bidding. According
to the /Huffington Post/
<http://www.huffingtonpost.com/2014/06/19/scott-walker-investigation_n_5512463.html>,
the Wisconsin Club for Growth pulled in $20 million during 2011 and
2012, much of it from business and industry groups, including the
controversial Koch brothers
<http://www.slate.com/articles/news_and_politics/politics/2014/05/koch_brothers_explained_the_billionaire_libertarians_are_in_the_spotlight.html>.
The club then doled out the money
<http://www.washingtonpost.com/blogs/the-fix/wp/2014/06/19/how-the-state-of-wisconsin-alleges-scott-walker-aides-violated-the-law-in-1-chart/>
to other groups, with some of it, for example, ending up in the
hands of Wisconsin Right to Life, which could then run issue ads
about the recall targeted at its abortion-opponent constituency. It
all made a Big Business effort, paid for with Big Business money,
look appealingly grassroots.
So that's the future if Judge Randa's ruling stands---big money
being raised and channeled, in cooperation with a candidate to the
benefit of that candidate, obliterating the line between independent
and coordinated spending. There's a good chance the 7^th Circuit
will disagree with Judge Randa and hold the line against this. But
here's a more alarming scenario: The case winds up at the Supreme
Court. The conservative majority of justices has struck down
campaign finance limit after limit. Who knows what they would do
with the coordination rules? The only way to win on campaign finance
before the Roberts court is not to play
<http://www.slate.com/articles/news_and_politics/jurisprudence/2009/09/how_liberals_can_win_by_losing_at_the_roberts_court.html>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
chicanery <http://electionlawblog.org/?cat=12>, Supreme Court
<http://electionlawblog.org/?cat=29>
What Bond, Abramski, and Pom Wonderful Have in Common: The Enduring
Mystery of the Canons of Statutory Interpretation
<http://electionlawblog.org/?p=62588>
Posted on June 20, 2014 11:08 am <http://electionlawblog.org/?p=62588>by
Abbe Gluck <http://electionlawblog.org/?author=15>
Before the final cases of the Term overtake us, it is worth pausing a
moment on the connection shared by three cases handed down earlier this
month, each about radically different subjects, but giving rise to the
same misunderstandings about statutory interpretation: /Bond
<http://www.supremecourt.gov/opinions/13pdf/12-158_6579.pdf>/ (about the
reach of the Chemical Weapons Convention Implementation Act to a wife's
attempt to injure her husband's lover); /Pom Wonderful
<http://www.supremecourt.gov/opinions/13pdf/12-761_6k47.pdf>/ (a
deceptive labeling dispute between two drink makers); and /Abramski/
<http://www.supremecourt.gov/opinions/13pdf/12-1493_k5g1.pdf>(about the
straw purchase of firearms).
In each of these cases, the Court considered well-worn interpretive
principles to get it out of the interpretive jam---the federalism canon
in /Bond/; the harmonization canon in /Pom Wonderful/; and the rule of
lenity in /Abramski/. What is surprising about the cases is that they
have, in fact, /surprised/ anyone, as they have, given how utterly
common these principles are. Also noteworthy is the way in which Court
itself in these cases seems to be having a much more explicit debate
about the nature of these presumptions and what triggers them it
typically does.
Start with /Bond/. Some commentators were eagerly anticipating a major
foreign affairs/treaty power opinion. Instead, many were aghast that the
Court avoided the hard constitutional questions raised by the case by
applying a mundane principle of statutory interpretation. Others were
even more infuriated that the Court allegedly "invented" the
interpretive principle that it used for this case. Commentators (see,
e.g., this piece in the National Review
<http://www.nationalreview.com/bench-memos/379363/bond-v-united-states-third-circuit-reversed-because-federalism-jonathan-keim>)
cheered on Justice Scalia for opposing application of this brand
new "federalism presumption"---the rule that ambiguous federal statutes
be construed not to intrude on traditional state domains. In fact, that
principle is neither new, nor does Justice Scalia oppose it. The
principle is a first-cousin of the presumption against preemption (which
has been around at least since the 1930s) and was itself announced in
/Gregory v. Ashcroft/, 501 U.S. 452 (1991) (joined by Justice Scalia)
and applied in case after case since then. The canon is so common that
not teaching it would be malpractice in any statutory interpretation
course. The worlds of statutory interpretation and constitutional law
are too inextricably intertwined at this point for any Court-watchers to
be surprised about the existence of these interpretive presumptions or
their decisive power in major, constitutional-law-implicating cases.
What Justice Scalia was objecting to was not the canon's existence but
/what triggers/ it. His argument was that the statute was not
sufficiently ambiguous to trigger the canon's application. /That's/ the
important doctrinal question that comes out of the Court's
opinion---whether federalism or any of the other 100 common policy
presumptions of statutory interpretation---require ambiguity to trigger
them or whether they can swoop in, armed with the mantle of
quasi-constitutional law, even if the text is clear.
/Abramski/ raises the same exact issue, in the opposite presentation.
This time it was Justice Scalia who was arguing for the application of a
canon---there, the rule of lenity. But the majority (through Justice
Kagan this time) clarified the statute for itself using other
tools---this time, statutory history and purpose---and so did not need
the rule of lenity. Like /Bond/, this is a fight about /when/ the many
different interpretive presumptions that are already in play apply any
individual case. As I have previously elaborated
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2213901>, the Court
remains woefully inconsistent about these matters. Justice Scalia
himself recently co-authored a 500-page treatise that passes judgment on
many of the canons but fails to discuss any system of applying them, any
way to make their application more consistent or even /what they are./
Most commentators (not I
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2213901>)
emphatically resist the idea that these interpretive presumptions are
some kind of judge-made law (indeed, that feeling is part of what is
driving the outrage about /Bond/). But anyone following these cases
should question whether it can really be said anymore (if it ever could
have been said) that these rules are not deciding cases, are not in fact
judicial creations and are not precedential. The canons of
constitutional avoidance, lenity, federalism and many more decided not
only these cases but also the vast majority of statutory cases ranging
from the health reform case to the Enron case. Isn't it time to
reevaluate their legal status and their importance?
A brief word about /Pom Wonderful/. Writing for the majority, Justice
Kennedy framed the case as resting on a potential conflict between the
Lanham Act and the Federal Food, Drug and Cosmetic Act. As he
described it (internal citations omitted):
"[T]his is a statutory interpretation case and the Court relies on
traditional rules of statutory interpretation. That does not change
because the case involves multiple federal statutes. Nor does it
change because an agency is involved. Analysis of the statutory
text, aided by established principles of interpretation, controls.
A principle of interpretation is "often countered, of course, by
some maxim pointing in a different direction." It is thus
unsurprising that in this case a threshold dispute has arisen as to
which of two competing maxims establishes the proper framework for
decision. POM argues that this case concerns whether one statute,
the FDCA as amended, is an "implied repeal" in part of another
statute, /i.e./, the Lanham Act. POM contends that in such cases
courts must give full effect to both statutes unless they are in
"irreconcilable conflict"... Coca-Cola resists this canon and its
high standard. Coca-Cola argues that argues that the case concerns
whether a more specific law, the FDCA, clarifies or narrows the
scope of a more general law. The Court's task, it claims, is to
"reconcil[e]" the laws...."
The Court does not need to resolve this dispute. Even assuming that
Coca-Cola is correct that the Court's task is to reconcile or
harmonize the statutes and not, as POM urges, to enforce both
statutes in full unless there is a genuinely irreconcilable
conflict, Coca-Cola is incorrect that the best way to harmonize the
statutes is to bar POM's Lanham Act claim." Slip
<http://www.supremecourt.gov/opinions/13pdf/12-761_6k47.pdf> at. 8-9.
What is so bizarre about /Pom Wonderful/, and the reason I include it in
this post, is first, that Justice Kennedy begins the opinion with an
almost elementary lesson in statutory interpretation---noting that
conflict between canons is typical, and that "traditional canons"
(whatever those are!) control in all statutory cases regardless of how
many federal statutes or federal parties are involved. This seems to be
quite a basic statement for the Court to feel compelled to make, and one
it should not need to make in an era in which the vast majority of cases
the Court decides involve one or more federal statutes and the potential
application of the canons. Even so, and this is the second puzzling
aspect of /Pom Wonderful/, Justice Kennedy then completely avoids
answering the very question he presented--namely, how we are to resolve
the recurring issue of canon conflict. Instead, he adopts a purposive
and functional approach that discounts the canons altogether---but,
really, implicitly favors the rule of preferred by /Pom Wonderful/.
Where are we in the so-called "statutory interpretation wars"?
Commentators for years have been arguing that the big fights between
textualism and purposivsm are over. That may be true when it comes to
questions about those two interpretive philosophies, but, as this Term
has showed us, we have a long way to go before we arrive at any kind of
doctrinal stability, much less a coherent approach to the endeavor.
Cross-posted at Balkinization <http://http://balkin.blogspot.com/>
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
OpenSCOTUS Posts Justices' Financial Disclosure Reports Online
<http://electionlawblog.org/?p=62586>
Posted on June 20, 2014 11:00 am <http://electionlawblog.org/?p=62586>by
Rick Hasen <http://electionlawblog.org/?author=3>
See here
<http://www.scribd.com/collections/4555818/SCOTUS-Financial-Disclosures-2013>.
I love the efforts to slowly drag the Supreme Court into the 20th century.
(That is not a typo.)
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Posted in Uncategorized <http://electionlawblog.org/?cat=1>
"Sotomayor Expresses Concern Over Wealth Disparity in U.S."
<http://electionlawblog.org/?p=62584>
Posted on June 20, 2014 10:57 am <http://electionlawblog.org/?p=62584>by
Rick Hasen <http://electionlawblog.org/?author=3>
Tony Mauro reports.
<http://www.nationallawjournal.com/legaltimes/id=1202660205130/Sotomayor-Expresses-Concern-Over-Wealth-Disparity-in-US%3Fmcode=0&curindex=0&curpage=1>
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
"Mississippi's Black Voters Should Vote for Thad Cochran"
<http://electionlawblog.org/?p=62582>
Posted on June 20, 2014 10:39 am <http://electionlawblog.org/?p=62582>by
Rick Hasen <http://electionlawblog.org/?author=3>
Jamelle Bouie
<http://www.slate.com/blogs/weigel/2014/06/20/black_voters_in_mississippi_should_go_for_thad_cochran_in_the_run_off_election.html>
makes the case.
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Posted in campaigns <http://electionlawblog.org/?cat=59>, political
parties <http://electionlawblog.org/?cat=25>, political polarization
<http://electionlawblog.org/?cat=68>
"Top-Two Supporters File Brief in Rubin v Bowen, the Minor Party
Challenge to California's Top-Two System"
<http://electionlawblog.org/?p=62580>
Posted on June 20, 2014 9:46 am <http://electionlawblog.org/?p=62580>by
Rick Hasen <http://electionlawblog.org/?author=3>
Richard Winger comments
<http://www.ballot-access.org/2014/06/top-two-supporters-file-brief-in-rubin-v-bowen-the-minor-party-challenge-to-californias-top-two-system/>.
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Posted in ballot access <http://electionlawblog.org/?cat=46>, political
parties <http://electionlawblog.org/?cat=25>, primaries
<http://electionlawblog.org/?cat=32>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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