[EL] ELB News and Commentary 3/4/14
Rick Hasen
rhasen at law.uci.edu
Mon Mar 3 20:52:32 PST 2014
"SW Indiana county finds 3,700 uncounted 2012 votes"
<http://electionlawblog.org/?p=59217>
Posted on March 3, 2014 8:41 pm <http://electionlawblog.org/?p=59217>by
Rick Hasen <http://electionlawblog.org/?author=3>
Oops!
<http://www.theindychannel.com/news/local-news/sw-indiana-county-finds-3700-uncounted-2012-votes>
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Posted in election administration <http://electionlawblog.org/?cat=18>
"Email shows Lerner seeking deal with Issa"
<http://electionlawblog.org/?p=59215>
Posted on March 3, 2014 4:32 pm <http://electionlawblog.org/?p=59215>by
Rick Hasen <http://electionlawblog.org/?author=3>
/The Hill/
<http://thehill.com/blogs/on-the-money/domestic-taxes/199733-email-shows-lerner-seeking-deal-with-issa>reports.
<http://thehill.com/blogs/on-the-money/domestic-taxes/199733-email-shows-lerner-seeking-deal-with-issa>
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Posted in tax law and election law <http://electionlawblog.org/?cat=22>
"State election law violates First Amendment, DeWine says"
<http://electionlawblog.org/?p=59212>
Posted on March 3, 2014 3:25 pm <http://electionlawblog.org/?p=59212>by
Rick Hasen <http://electionlawblog.org/?author=3>
/Columbus Dispatch/
<http://www.dispatch.com/content/stories/local/2014/03/03/DeWine-Ohio-Election-law.html>:
"In a highly unusual move, Ohio Attorney General Mike DeWine yesterday
told the U.S. Supreme Court that the state's election law banning
candidates from making false statements with malice violates the
Constitution's guarantee of freedom of speech."
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Posted in campaigns <http://electionlawblog.org/?cat=59>, Supreme Court
<http://electionlawblog.org/?cat=29>
"David Curtis, Green Party Candidate for CA Sec. of State, Strongly
Supports Internet Voting" <http://electionlawblog.org/?p=59210>
Posted on March 3, 2014 2:21 pm <http://electionlawblog.org/?p=59210>by
Rick Hasen <http://electionlawblog.org/?author=3>
Brad Blog interview. <http://www.bradblog.com/?p=10520>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
internet voting <http://electionlawblog.org/?cat=49>, voting technology
<http://electionlawblog.org/?cat=40>
"Proposed Voter Bill of Rights ballot item refiled"
<http://electionlawblog.org/?p=59208>
Posted on March 3, 2014 2:05 pm <http://electionlawblog.org/?p=59208>by
Rick Hasen <http://electionlawblog.org/?author=3>
Cincinnati Enquirer
<http://news.cincinnati.com/apps/pbcs.dll/article?AID=/201403031430/NEWS010801/303030117>:
"The group of African-American leaders pushing the inclusion of a Voters
Bill of Rights in the Ohio Constitution has revised its amendment
summary and submitted new signatures after Attorney General Mike DeWine
rejected their initial attempt to get on the ballot."
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Posted in direct democracy <http://electionlawblog.org/?cat=62>,
election administration <http://electionlawblog.org/?cat=18>, The Voting
Wars <http://electionlawblog.org/?cat=60>
Larry Tribe: Constitutional Amendment to Overturn Citizens United a
Probable Dead End <http://electionlawblog.org/?p=59206>
Posted on March 3, 2014 12:49 pm <http://electionlawblog.org/?p=59206>by
Rick Hasen <http://electionlawblog.org/?author=3>
Interview
<http://www.concurringopinions.com/archives/2014/03/fac-1-first-amendment-conversations-larry-tribe-on-free-expression.html>
with Ron Collins:
*Question*: /As you know, this term the Court heard yet another
campaign finance case, McCutcheon v. FEC
<http://www.scotusblog.com/case-files/cases/mccutcheon-v-federal-election-commission/>.
I gather you favor
<http://hive.slate.com/hive/how-can-we-fix-constitution/article/the-once-and-for-all-solution-to-our-campaign-finance-problems>
a constitutional amendment to curb what you see as the Court's
constitutional excesses in this area. Can you say a few words about
why you think it would be wise to amend the First Amendment? /
*Answer*: Actually, although I did assist my former student Adam
Schiff <http://en.wikipedia.org/wiki/Adam_Schiff> (D. Cal.) in
drafting a proposed constitutional amendment that I thought would be
better than the alternatives floating around at the time, and
although at one point I thought some such amendment would be wise to
consider seriously, I haven't joined forces with those who currently
urge vigorous pursuit of the amendment path, which I think probably
represents a political dead end. I think that there's both more
promise and less danger in pushing for greater transparency and
disclosure of the sort the Court held permissible in /Citizens
United/, for reforms in the laws determining how and when
corporations can spend their shareholders' money on speech, and for
possible ways to get around the Court's post-/Citizens United/
decision striking down the calibrated public finance mechanism at
issue in /Arizona v. Bennett
<http://www2.bloomberglaw.com/public/desktop/document/Arizona_Free_Enter_Clubs_Freedom_Club_PAC_v_Bennett_131_S_Ct_2806>
/(2011).
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"IRS hit from all political stripes on nonprofit rules"
<http://electionlawblog.org/?p=59204>
Posted on March 3, 2014 12:48 pm <http://electionlawblog.org/?p=59204>by
Rick Hasen <http://electionlawblog.org/?author=3>
Politico reports
<http://www.politico.com/story/2014/03/irs-hit-from-all-political-stripes-on-nonprofit-rules-104146.html>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
Curious Way to Try to Influence Supreme Court Justices: Insult Them
<http://electionlawblog.org/?p=59202>
Posted on March 3, 2014 12:06 pm <http://electionlawblog.org/?p=59202>by
Rick Hasen <http://electionlawblog.org/?author=3>
Footnote 15 of the Cato amicus brief
<http://object.cato.org/sites/cato.org/files/pubs/pdf/sba-list-merits-filed-brief.pdf>
in the Susan B. Anthony case (see my earlier coverage
<http://electionlawblog.org/?p=59195>) looks like a direct insult to the
Chief Justice:
Driehaus voted for Obamacare, which the Susan B. Anthony List said
was the equivalent of voting for taxpayer-funded abortion. Amici are
unsure how true the allegation is given that the healthcare law
seems to change daily, but it certainly isn't as truthy as calling a
mandate a tax.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
"The Mythology of Super PACs: Much Ado About (Almost) Nothing"
<http://electionlawblog.org/?p=59200>
Posted on March 3, 2014 11:09 am <http://electionlawblog.org/?p=59200>by
Rick Hasen <http://electionlawblog.org/?author=3>
Rob Kelner has written these remarks
<http://www.willamette.edu/wucl/resources/journals/review/pdf/Volume%2049/49-4%20KELNER%20ME%20Format.pdf>
published in the /Willamette Law Review. /A snippet:
Conventional wisdom ascribed to Super PACs the power to let special
interests and plutocrats buy the election. Super PACs were also
expected to raise and spend "dark money" that would allow special
interests to buy the election in secret.
With the 2012 election now behind us, we are in a position to
re-evaluate those myths. And with the benefit of hindsight, it is
fairly clear that all the froth and fear mongering about Super PACs
was seriously misguided. Super PACs, and even the Citizens United
decision itself, have turned out to be much ado about nothing. Or at
least, much ado about close to nothing.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"The Last Days of Disco: Why the American Political System is
Dysfunctional" <http://electionlawblog.org/?p=59197>
Posted on March 3, 2014 11:00 am <http://electionlawblog.org/?p=59197>by
Rick Hasen <http://electionlawblog.org/?author=3>
Jack Balkin has posted this draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2403508>on SSRN
(/Boston U. Law Review). /Here is the abstract:
Today, America's political system seems remarkably dysfunctional.
Many people believe that our 225-year-old Constitution is the
problem. But what looks like constitutional dysfunction is actually
constitutional transition, a slow and often frustrating movement
from an older constitutional regime to a new one.
Americans last experienced this sense of dysfunction during the late
1970s and early 1980s -- -the "last days of disco." The New
Deal/Civil Rights regime had gradually fallen apart and was replaced
by a new constitutional order -- the conservative regime in which we
have been living for the past three decades. By 1984, few people
argued that the country was ungovernable, even if they didn't like
President Reagan's policies.
In the same way, our current dysfunction marks the end of the
existing constitutional regime and the beginning of a new one. This
new regime may be dominated by the ascendant Democratic coalition of
young people, minorities, women, city dwellers and professionals
that elected Barack Obama in 2008 and 2012. Or insurgent populists
associated with the Tea Party may revive the decaying Republican
coalition and give it a second wind. As of yet, neither side has
been able to achieve a successful transition, leading to the current
sense of frustration.
Nevertheless, the transition to a new constitutional regime will be
far more difficult than those effected in 1932 and 1980. First, the
growth of the modern state and changes in the role of the presidency
mean that even the most politically adept and fortunate presidents
face greater obstacles to implementing transformative change than
they once did; they are less able than past reconstructive leaders
to disrupt existing institutions and clear the ground for a new
politics. This, by itself, does not prevent the emergence of a new
constitutional regime. But second, and perhaps more important, the
current transition will be especially difficult because we are near
the peak of a long cycle of increasing polarization between the
nation's two major political parties. That polarization greatly
raises the stakes of a transition to a new constitutional regime.
The defenders of the old order have every incentive to resist the
emergence of a new regime until the bitter end.
A long and frustrating transition will have important side effects.
First, a dysfunctional Congress tempts the Executive to act
unilaterally, by asserting inherent executive authority or by
creatively interpreting previous Congressional authorizations.
Future presidents may use these new sources of power even when the
period of dysfunction has passed.
Second, a period of sustained political dysfunction also tends to
empower the judiciary vis-à-vis Congress. Courts will feel freer to
assert themselves and will show Congress less deference. Moreover,
judges appointed by the older dominant party, late in the regime,
are less likely to engage in judicial restraint and more likely to
push the jurisprudential envelope. This helps explain some of the
Roberts Court's recent work. Assisted by conservatives in the lower
courts, and by energetic litigation campaigns by conservative civil
society groups, the Roberts Court appears to be solidifying and
extending the old regime's ideological and constitutional
commitments while it still can.
Our current political dysfunction will end, and a new constitutional
regime will emerge. Yet injuries to our politics caused by years of
political difficulty will remain. The coming constitutional order
will offer new possibilities for political reform, but it will also
bear the scars of previous struggles.
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Posted in legislation and legislatures
<http://electionlawblog.org/?cat=27>, political parties
<http://electionlawblog.org/?cat=25>, political polarization
<http://electionlawblog.org/?cat=68>
"[A]mici and their counsel, family members, and pets have all won
the Congressional Medal of Honor" <http://electionlawblog.org/?p=59195>
Posted on March 3, 2014 10:42 am <http://electionlawblog.org/?p=59195>by
Rick Hasen <http://electionlawblog.org/?author=3>
Above the Law flags
<http://abovethelaw.com/2014/03/best-amicus-brief-ever/> what it says
may be thebest amicus brief
<http://object.cato.org/sites/cato.org/files/pubs/pdf/sba-list-merits-filed-brief.pdf>ever
in the Susan B. Anthony false speech case. The brief is written by Ilya
Shapiro for Cato and others, including humorist P.J. O'Rourke.
I'm doubting <http://electionlawblog.org/?p=57900> the Supreme Court
reaches the merits of false campaign speech laws in this case, but I am
expecting a (perhaps unanimous) reversal of the Sixth Circuit. I think
that's the right result.
See also my piece, A Constitutional Right to Lie in Campaigns and
Elections? <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>
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Posted in campaigns <http://electionlawblog.org/?cat=59>
"Will a victory for McCutcheon usher a new era of corruption?"
<http://electionlawblog.org/?p=59193>
Posted on March 3, 2014 9:14 am <http://electionlawblog.org/?p=59193>by
Rick Hasen <http://electionlawblog.org/?author=3>
Paul Jossey blogs
<http://thereplawyer.blogspot.com/2014/03/will-victory-for-mccutcheon-usher-new.html>.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"Small Donors in Congressional Elections"
<http://electionlawblog.org/?p=59191>
Posted on March 3, 2014 9:00 am <http://electionlawblog.org/?p=59191>by
Rick Hasen <http://electionlawblog.org/?author=3>
Tyler Culberson, Michael McDonald and Suzanne Roberts have postedthis
draft <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2403861>on
SSRN. Here is the abstract:
Candidates raise substantial sums of money to compete in modern
federal elections. Many electoral reform efforts focus on curbing
the perceived undue influence of campaign donations by the wealthy.
An intriguing new reform direction encourages small donor
participation. To understand the potential effects of such reforms
we utilize new internal Federal Elections Commission campaign
finance data to examine patterns of small donor giving to candidates
in the 2006 to 2010 congressional elections. We find encouraging
small donors may be democratizing by expanding the scope of
participation, in that the supply of small donors is unrelated to
income levels. Unlike large donors who tend to give to incumbents,
small donors give indiscriminately to incumbents, their challengers,
and open seat candidates. Small donors give for the instrumental
reasons to affect the most competitive elections. However, we temper
reformers' enthusiasm, finding that ideologically extreme incumbents
tend to raise more money from small donors.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
--
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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