[EL] ELB News and Commentary 11/25/14

Mon Nov 24 20:40:48 PST 2014

    "Response: Conscious Congressional Overriding of the Supreme Court,
    Gridlock, and Partisan Politics" <http://electionlawblog.org/?p=68634>

Posted onNovember 24, 2014 4:33 pm 
<http://electionlawblog.org/?p=68634>byRick Hasen 
<http://electionlawblog.org/?author=3>

Jim Buatti and I have postedthis 
draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2530114>on SSRN 
(forthcoming, /Texas Law Review See Also/).  Here is the abstract:

    In a pathbreaking 1991 study of congressional overrides, Yale law
    professor William N. Eskridge found a rise during the 1970s and
    1980s in the number of times that Congress consciously overrode
    Supreme Court interpretations of congressional statutes. As Eskridge
    explained his focus on deliberate congressional action, the term
    "override" does not "include statutes for which the legislative
    history --- mainly committee reports and hearings --- does not
    reveal a legislative focus on judicial decisions." Replicating
    Eskridge's methodology and updating the Eskridge study through 2012,
    we found that the number of conscious congressional overrides of
    Supreme Court statutory interpretations had fallen markedly after
    1991 and had slowed during the Obama presidency to a trickle.The
    Hasen study
    <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2130190>suggested that
    increased party polarization in Congress was responsible for the
    decline in overrides since the Eskridge study, as well as for the
    shift from bipartisan overrides to more partisan overrides. Now,in a
    fascinating and wide-ranging study
    <http://www.texaslrev.com/wp-content/uploads/EskridgeChristiansen-92-6.pdf>published
    in the Texas Law Review, Matthew E. Christiansen and Professor
    Eskridge disagree with some of the conclusions of the Hasen study,
    both on the extent to which overrides have declined in the 1990s and
    also whether political polarization will likely keep the number of
    overrides low for the foreseeable future during periods of divided
    government.The Christiansen-Eskridge study offers important and
    counterintuitive insights on the nature of congressional legislation
    enacted following Supreme Court statutory interpretation. However,
    as well explained by Professor Deborah Widiss in her perceptive
    analysis, the Christiansen-Eskridge study has shifted the meaning of
    "override" compared to the earlier Eskridge and Hasen studies.
    Instead of a study of conscious overrides, the Christiansen-Eskridge
    study uses new methodology to study cases in which congressional
    action consciously or unconsciously changed the understanding of a
    congressional statute as the Supreme Court had interpreted it. While
    unconscious overrides can be important to study for many reasons,
    they are less relevant for purposes of studying the Congress-Supreme
    Court dialogue.

    Importantly, however, the Christiansen-Eskridge methodology also
    provides a much better way of identifying conscious overrides than
    the methodology used in either the original Eskridge or Hasen
    studies, and it has led us to add 25 additional conscious overrides
    to the 1991-2012 period of the Hasen study. Nonetheless, looking
    only at conscious overrides identified in the Hasen study and
    augmented by the later Christiansen-Eskridge study, we conclude that
    the Christiansen-Eskridge study mostly supports the two main claims
    of the Hasen study: (1) conscious overrides are on the decline,
    precipitously so in recent years and (2) partisan polarization is to
    blame.

    This short Response makes four points. First, for purposes of
    measuring Congress-Supreme Court relations, it makes sense to limit
    a study of overrides to conscious overrides. Second, the Hasen study
    and Christiansen-Eskridge study, while differing in their
    particulars, are consistent in finding a marked decline in conscious
    overrides, especially during the Obama administration --- a trend
    which has continued through 2014. Third, committee reports and
    legislative history surprisingly do not appear to have become a less
    reliable way of identifying overrides. Fourth, political
    polarization best explains the decline in conscious overrides, and
    there is good reason to believe the trend will continue during
    periods of divided government, with spurts of (conscious) overriding
    during periods of united government, until political polarization
    diminishes.

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Posted inlegislation and legislatures 
<http://electionlawblog.org/?cat=27>,statutory interpretation 
<http://electionlawblog.org/?cat=21>,Supreme Court 
<http://electionlawblog.org/?cat=29>

    ELB Nominated in "Profs" Category for ABA Blawg 100
    <http://electionlawblog.org/?p=68631>

Posted onNovember 24, 2014 4:27 pm 
<http://electionlawblog.org/?p=68631>byRick Hasen 
<http://electionlawblog.org/?author=3>

I am pleased to announced that the Election Law Blog has once again been 
named to theABA Blawg 100 <http://www.abajournal.com/blawg100>. This 
year they have changed the categories somewhat, and I am listed in the 
"Profs" category along with some excellent law professor bloggers.

If you are so inclined, please vote for ELB.  Since election law is my 
thing, it is worth noting that there are 13 categories and you have 13 
votes, but you need not limit your votes to one vote in each category. 
"Now, it's time for you, the reader, to take a shot. Let us know what 
you think about our choices.*Click here 
<http://www.abajournal.com/blawg100>to go to our voting page to vote for 
the best of the best.*Each person gets a total of 13 votes, to 
distribute as they see fit among the blogs they like, with a limit of 
one vote per person, per blog. Once you've used all 13 votes, you'll 
notice the "Vote Now!" buttons will disappear."

The upshot is you can vote for multiple folks in the law prof 
category--and you should!

BasicIllustratorFileLetter---CS 
<http://electionlawblog.org/wp-content/uploads/2014_banner_1.jpg>

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Posted inUncategorized <http://electionlawblog.org/?cat=1>

    "Republicans go head-to-head on redistricting reform"
    <http://electionlawblog.org/?p=68629>

Posted onNovember 24, 2014 3:45 pm 
<http://electionlawblog.org/?p=68629>byRick Hasen 
<http://electionlawblog.org/?author=3>

A complicated picture 
<http://www.cincinnati.com/story/news/2014/11/23/republicans-go-head-head-redistricting-reform/19464749/>in 
Ohio.

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Posted inredistricting <http://electionlawblog.org/?cat=6>

    "Barber-McSally ballot flight unleashes flood of records requests"
    <http://electionlawblog.org/?p=68627>

Posted onNovember 24, 2014 3:25 pm 
<http://electionlawblog.org/?p=68627>byRick Hasen 
<http://electionlawblog.org/?author=3>

Arizona Daily Star. 
<http://tucson.com/news/local/govt-and-politics/elections/barber-mcsally-ballot-flight-unleashes-flood-of-records-requests/article_21634277-8d35-55d2-9bf2-4de80161f331.html>

And seethis complaint <https://app.box.com/s/9c8ar088led9bndlm50m>filed 
by the Barber campaign.

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,recounts 
<http://electionlawblog.org/?cat=50>

    "More Alleged Dishonesty, Voter Fraud, From Modern Orthodox
    Developer Shalom Lamm And Satmar Hasidim"
    <http://electionlawblog.org/?p=68623>

Posted onNovember 24, 2014 2:49 pm 
<http://electionlawblog.org/?p=68623>byRick Hasen 
<http://electionlawblog.org/?author=3>

Really something 
<http://failedmessiah.typepad.com/failed_messiahcom/2014/11/more-apparent-dishonesty-voter-fraud-from-modern-orthodox-developer-shalom-lamm-and-satmar-hasidim-234.html>to 
watch here.

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Posted inchicanery <http://electionlawblog.org/?cat=12>

    "Democratic group to file complaint against GOP for 'secret' Twitter
    accounts" <http://electionlawblog.org/?p=68621>

Posted onNovember 24, 2014 2:46 pm 
<http://electionlawblog.org/?p=68621>byRick Hasen 
<http://electionlawblog.org/?author=3>

CNN reports. 
<http://www.cnn.com/2014/11/24/politics/fec-complaint-twitter-coordination/>

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Posted incampaign finance <http://electionlawblog.org/?cat=10>

    Ballot Order Effect in Top Two Race in CA Assembly District?
    <http://electionlawblog.org/?p=68619>

Posted onNovember 24, 2014 1:10 pm 
<http://electionlawblog.org/?p=68619>byRick Hasen 
<http://electionlawblog.org/?author=3>

How is a political novice poised to win against an incumbent in CA's 
39th assembly district?KPCC 
<http://www.scpr.org/news/2014/11/24/48260/political-shocker-newcomer-lopez-leads-bocanegra-i/>considers 
a number of intriguing theories, including this one:

    *Did ballot order make a difference?*

    There is another twist to this race, said Mitchell, who provides
    data to political candidates from both parties: Bocanegra's name
    appeared second on the ballot. The five preceding races on the page
    featured a Democrat first and a Republican second. Lopez and
    Bocanegra were both Democrats competing under California's new
    top-two system.

    "People are still not expecting to see two candidates with the same
    party in November," Mitchell said. "If they are Democrats, they are
    literally going down this page and voting for the first Democrat
    they see."

    Mitchell looked at six other races where members of the same party
    faced each other in both the primary and the general election. In
    each case, the candidate who went from the first position to the
    second on the ballot garnered a smaller percentage of the vote in
    the second position.

Be interesting to hear more about this.

UPDATE: The incumbentconcedes 
<https://twitter.com/melmason/status/537022011550490624>.

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Posted inballot access <http://electionlawblog.org/?cat=46>,campaigns 
<http://electionlawblog.org/?cat=59>

    Report: CA Gov. Brown to Nominate Leondra Kruger to CA Supreme Court
    <http://electionlawblog.org/?p=68617>

Posted onNovember 24, 2014 11:26 am 
<http://electionlawblog.org/?p=68617>byRick Hasen 
<http://electionlawblog.org/?author=3>

So reports 
<https://twitter.com/CapitalAccounts/status/536959101926768641>Cheryl 
Miller of /The Recorder. /Kruger would be the first African-American 
Justice on the state Supreme Court since the departure of Justice Janice 
Rogers Brown (who now serves as a judge on the U.S. Court of Appeals for 
the D.C. Circuit).

Here's a 2010 profile 
<http://blogs.wsj.com/law/2010/08/10/doj-taps-34-year-old-for-high-ranking-position-in-sgs-office/>at 
WSJ's Law Blog when she joined the SG's office.

This may have been 
<http://www.csmonitor.com/USA/Justice/2011/1005/Supreme-Court-justices-find-government-line-in-church-state-case-amazing>Kruger's 
most controversial argument before the U.S. Supreme Court.

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Posted inUncategorized <http://electionlawblog.org/?cat=1>

    "California campaign spending boosts business-friendly Democrats"
    <http://electionlawblog.org/?p=68615>

Posted onNovember 24, 2014 11:22 am 
<http://electionlawblog.org/?p=68615>byRick Hasen 
<http://electionlawblog.org/?author=3>

SacBee reports. 
<http://electionlawblog.org/%20http://www.sacbee.com/news/politics-government/election/article4080395.html>

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>

    "Meet the New Super Donors" <http://electionlawblog.org/?p=68613>

Posted onNovember 24, 2014 10:55 am 
<http://electionlawblog.org/?p=68613>byRick Hasen 
<http://electionlawblog.org/?author=3>

Kevin Bogardus 
<http://www.campaignsandelections.com/magazine/2367/meet-the-new-super-donors>:

    "We used to have a standard fax, which we turned into an email, that
    would go out in response to solicitations that said something like
    Mr. O'Brien has hit his maximum or something like that," says
    O'Brien, founder of the OB-C Group, a high-profile lobby firm. "The
    cap did have a real world consequence. Once you hit it, you hit it."

    O'Brien was referring to the limit on a donor's overall campaign
    contributions, which stood at $123,200 per election cycle. The
    Supreme Court, however, obliterated the aggregate cap last April on
    First Amendment grounds with its McCutcheon v. FEC ruling.

    And with that, K Street's familiar refrain to candidates' pleas for
    campaign cash---"I've maxed out"---was no longer operative.
    Campaigns, meanwhile, interpreted McCutcheon as a hall pass for
    harassing K Street donors.

    In this free-fire fundraising environment, O'Brien is now liberated
    to give more and bother his relatives less.

    "I invariably hit the limit every cycle and if I felt the
    justification to go beyond that, I often sought the help of other
    family members for making donations on their own," O'Brien says. "In
    a sense, I used to see us over the limit anyway."

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,lobbying 
<http://electionlawblog.org/?cat=28>

    Sensible Reforms for Los Angeles in Jim Newton's Final LA Times
    Column <http://electionlawblog.org/?p=68611>

Posted onNovember 24, 2014 10:53 am 
<http://electionlawblog.org/?p=68611>byRick Hasen 
<http://electionlawblog.org/?author=3>

Here. 
<http://www.latimes.com/opinion/op-ed/la-oe-newton-column-government-fixes-20141124-column.html>

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Posted inUncategorized <http://electionlawblog.org/?cat=1>

    Conservatives Pile on Lessig/Mayday Disclosure Controversy
    <http://electionlawblog.org/?p=68608>

Posted onNovember 24, 2014 7:19 am 
<http://electionlawblog.org/?p=68608>byRick Hasen 
<http://electionlawblog.org/?author=3>

Paul Jossey 
<http://thereplawyer.blogspot.com/2014/11/larry-lessig-campaign-finances-leona.html>

Brad Smith 
<http://www.campaignfreedom.org/2014/11/22/does-larry-lessig-think-he-and-mayday-pac-are-above-the-law/> (replying 
toLessig's response 
<http://lessig.tumblr.com/post/103204564762/on-the-center-for-competitive-politics-complaint>)

WFB 
<http://freebeacon.com/issues/transparency-champion-allegedly-violates-transparency-laws/>

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Posted incampaign 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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