[EL] ELB News and Commentary 9/3/14
Rick Hasen
rhasen at law.uci.edu
Tue Sep 2 20:01:21 PDT 2014
"Judge Rejects Defense's Criteria for Convicting Ex-Governor as Jury
Gets Case" <http://electionlawblog.org/?p=64908>
Posted onSeptember 2, 2014 7:55 pm
<http://electionlawblog.org/?p=64908>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2014/09/03/us/as-ex-governors-graft-case-goes-to-jury-judge-defines-an-official-action.html?ref=politics>:
A key ruling by the judge was on the definition of an "official
action" taken by Mr. McDonnell during the period of the indictment.
The judge defined bribery as trading something of value "for
official actions by a public official --- in other words, quid pro quo."
Mr. McDonnell's defense has argued that the things he did for Mr.
Williams, such as introducing him to officials in his cabinet, were
trivial courtesies and not official acts. The judge rejected that
argument. He told jurors that official actions were not just a
governor's job description as codified by law. They also include
"actions clearly established by settled practice as part of public
office" --- that is, seemingly everything related to a governor's
administration.
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Posted inbribery <http://electionlawblog.org/?cat=54>
The State of Jefferson <http://electionlawblog.org/?p=64906>
Posted onSeptember 2, 2014 7:27 pm
<http://electionlawblog.org/?p=64906>byRick Hasen
<http://electionlawblog.org/?author=3>
KCRA
<http://www.kcra.com/politics/2-california-counties-ask-to-form-a-separate-state/27779920#%21bOR6eE>:
2 California Counties Ask to Form a Separate State.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
"Texas Voter ID Trial Begins" <http://electionlawblog.org/?p=64903>
Posted onSeptember 2, 2014 5:42 pm
<http://electionlawblog.org/?p=64903>byRick Hasen
<http://electionlawblog.org/?author=3>
Bloomberg reports.
<http://columbiadailyherald.com/news/nation/texas-voter-id-trial-begins>
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Posted inDepartment of Justice
<http://electionlawblog.org/?cat=26>,election administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Poll: Don't change election law for Rand Paul"
<http://electionlawblog.org/?p=64900>
Posted onSeptember 2, 2014 4:37 pm
<http://electionlawblog.org/?p=64900>byRick Hasen
<http://electionlawblog.org/?author=3>
/Courier-Journal/
<http://www.courier-journal.com/story/news/politics/rand-paul/2014/09/01/bluegrass-poll-two-thirds-oppose-changing-law-help-rand-paul-run-two-offices/14944351/>:
Kentucky Republican Rand Paul has suggested that he might run
simultaneously for the presidency and re-election to the Senate in
2016, but two-thirds of registered voters in the state --- including
a majority of Republicans --- oppose changing the law to make that
easier, according to the latest Bluegrass Poll.
As a matter of fact, only 15 percent of Kentucky registered voters
think Paul should run for both offices, the survey finds.
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Posted inballot access <http://electionlawblog.org/?cat=46>,campaigns
<http://electionlawblog.org/?cat=59>
"Libertarians protest Kasich ties to ballot decision"
<http://electionlawblog.org/?p=64898>
Posted onSeptember 2, 2014 3:58 pm
<http://electionlawblog.org/?p=64898>byRick Hasen
<http://electionlawblog.org/?author=3>
AP reports
<http://www.indeonline.com/article/20140902/NEWS/140909913/10580/NEWS>.
My earlier coverage ishere <http://electionlawblog.org/?p=64836>.
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Posted inballot access <http://electionlawblog.org/?cat=46>
"Testimony Begins in Trial Over Texas Voter ID Law"
<http://electionlawblog.org/?p=64896>
Posted onSeptember 2, 2014 3:33 pm
<http://electionlawblog.org/?p=64896>byRick Hasen
<http://electionlawblog.org/?author=3>
The /Texas Tribune/reports.
<http://www.texastribune.org/2014/09/02/texas-voter-id-case-first-national-test/>
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Posted inDepartment of Justice
<http://electionlawblog.org/?cat=26>,election administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
Time to Re-Up My Open Letter to Jonathan Tobin on Voter Fraud
<http://electionlawblog.org/?p=64894>
Posted onSeptember 2, 2014 3:20 pm
<http://electionlawblog.org/?p=64894>byRick Hasen
<http://electionlawblog.org/?author=3>
Tobin has just writtenThe Justice Department Voter ID Charade
<http://www.commentarymagazine.com/2014/09/02/the-justice-department-voter-id-charade-texas/>for
/Commentary./He's playing the same tired song about voter fraud, //I'm
still waiting for him to respond tomy open letter
<http://electionlawblog.org/?p=54875>:
*An Open Letter to Jonathan Tobin on Voter Fraud Allegations*
Posted on August 28, 2013 8:32 am
<http://electionlawblog.org/?p=54875> by Rick Hasen
<http://electionlawblog.org/?author=3>
Mr Tobin,
Is it possible for you to stop the bait and switch
<http://electionlawblog.org/?p=48568>? No one I know who has studied
this issue says there's no voter fraud (hence, the misleading title
of your piece: Are You Sure There's No Voter Fraud
<http://www.commentarymagazine.com/2013/08/27/are-you-sure-theres-no-voter-fraud-voter-id-detroi/>?).
It happens, especially with absentee ballots.
Instead, the claim is that there's almost no voter impersonation
fraud---the main type of fraud a voter id law would be designed to
prevent. For my book /The Voting Wars /I tried to find a single
instance where an election was thrown into question since 1980
<http://electionlawblog.org/?p=42150> by such fraud. I could not
find <http://electionlawblog.org/?p=19560> a single example. I found
lots of examples of absentee ballot fraud, and election officials
committing fraud. But because impersonation fraud is such a dumb and
inefficient way to steal an election, it is unsurprising that it
doesn't happen. You offer no such examples in your writing; just
innuendo.
And please don't tell me that this fraud is both widespread and
impossible to detect (to paraphrase Colin Powell's recent remarks).
There's not a single credible academic
<http://electionlawblog.org/?p=42251> who would agree. We have some
comparative numbers from News21
<http://electionlawblog.org/?p=48568> on prosecutions for these
kinds of crimes. Absentee ballot fraud is a real problem.
Impersonation fraud is negligible. There's no reason to believe that
impersonation fraud would be harder to catch. In fact, because it
would involve a lot of people going to polling places claiming to be
someone else, it would be easier to catch.
So spare me the unsubstantiated allegations. And if you are really
serious that voter fraud is a major problem, let's see you get
behind and advocate for the elimination of no excuse absentee
balloting before you attack phantom targets.
Sincerely,
Rick Hasen
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This entry was posted in fraudulent fraud squad
<http://electionlawblog.org/?cat=8>, The Voting Wars
<http://electionlawblog.org/?cat=60> by Rick Hasen
<http://electionlawblog.org/?author=3>. Bookmark the permalink
<http://electionlawblog.org/?p=54875>.
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Posted infraudulent fraud squad <http://electionlawblog.org/?cat=8>,The
Voting Wars <http://electionlawblog.org/?cat=60>
"The Problem of Voter Fraud" <http://electionlawblog.org/?p=64891>
Posted onSeptember 2, 2014 11:48 am
<http://electionlawblog.org/?p=64891>byRick Hasen
<http://electionlawblog.org/?author=3>
Michael Gilbert has postedthis
draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2488645>on SSRN
(forthcoming, /Columbia Law Review/). Here is the abstract:
Voter ID laws have provoked a fierce controversy in politics and
public law. Supporters claim that such laws deter fraudulent votes
and protect the integrity of American elections. Opponents, on the
other hand, argue that such laws --- like poll taxes and literacy
tests before them --- intentionally depress turnout by lawful
voters. A vast literature, including legal scholarship and opinions
of the Supreme Court, accept these two narratives. But these
narratives are wrong, or at least incomplete. This paper presents a
comprehensive analysis of the effects of voter ID laws, and it shows
that they can have surprising effects, including this: they can
exacerbate fraud. To illustrate, suppose that without a voter ID law
candidates A and B would receive 13 and 10 lawful votes,
respectively, and B would receive two fraudulent votes. Candidate A
wins non-fraudulently, 13 to 12. Now suppose that with a voter ID
law, candidates A and B would get nine and nine lawful votes,
respectively (less than before because of depressed turnout), and B
would get one fraudulent vote (less than before because of fraud
deterrence). Candidate B wins fraudulently, 10-9. The conditions
necessary for ID laws to have this effect are simple and may be
common. The paper captures this risk with a formula, the Election
Integrity Ratio, which judges and scholars could use to determine
when ID laws represent good policy --- and when they cause the very
problem they aim to solve. The paper has important implications for
constitutional law and public policy. It also has broad reach. Any
law that deters fraudulent votes while also depressing lawful votes
--- citizenship and residency requirements, for example, which are
used throughout the United States and around the world --- are
subject to the analysis herein.
Provocative and recommended!
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>
"The Supreme Court's Cash Gift to Republican Candidates"
<http://electionlawblog.org/?p=64889>
Posted onSeptember 2, 2014 11:46 am
<http://electionlawblog.org/?p=64889>byRick Hasen
<http://electionlawblog.org/?author=3>
David Firestone blogs
<http://takingnote.blogs.nytimes.com/2014/09/02/the-supreme-courts-cash-gift-to-republican-candidates/?smid=tw-share>at
NYT's Taking Note ed. blog.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
New Lawsuits Filed Against Campaign Finance Disclosure
<http://electionlawblog.org/?p=64887>
Posted onSeptember 2, 2014 11:17 am
<http://electionlawblog.org/?p=64887>byRick Hasen
<http://electionlawblog.org/?author=3>
Bloomberg BNA breaking news report: "The challenge to federal disclosure
rules was filed Sept. 2 in federal district court in Washington,
D.C.Independence Institute v. Federal Election
Commission,<http://www.bloomberglaw.com/public/document/INDEPENDENCE_INSTITUTE_v_FEDERAL_ELECTION_COMMISSION_Docket_No_11>D.
D.C., Civil No. 14-1500, 9/2/14 ). The state disclosure challenge was
filed in federal district court in DenverIndependence Institute v.
Gessler
<http://www.bloomberglaw.com/public/document/Independence_Institute_v_Gessler_Docket_No_114cv02426_D_Colo_Sept>,
D. Colo., Civil No. 14-2426 9/2/14 )."
UPDATE: See the CCPpress release
<http://www.campaignfreedom.org/2014/09/02/lawsuit-challenges-mccain-feingold-disclosure-law/> andbackgrounder
<http://www.campaignfreedom.org/wp-admin/post.php?post=20201&action=edit>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Scott Brown Says Out-of-State Voters Should Come to N.H. Anyway to
Vote for Him" <http://electionlawblog.org/?p=64885>
Posted onSeptember 2, 2014 10:57 am
<http://electionlawblog.org/?p=64885>byRick Hasen
<http://electionlawblog.org/?author=3>
Just imagine how apoplectic the right would be if a Democrat madesuch a
joke.
<http://www.boston.com/news/politics/2014/09/02/scott-brown-says-out-state-voters-should-come-anyway-vote-for-him/H2MiPkS98JeMmNcV34EiCO/story.html>
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>
"Texas voter ID case to begin in Corpus Christi"
<http://electionlawblog.org/?p=64883>
Posted onSeptember 2, 2014 10:46 am
<http://electionlawblog.org/?p=64883>byRick Hasen
<http://electionlawblog.org/?author=3>
Tim Eaton
reports<http://www.mystatesman.com/news/news/texas-voter-id-case-to-begin-in-corpus-christi/nhDNL/?icmp=statesman_internallink_textlink_apr2013_statesmanstubtomystatesman_launch&__federated=1#0feadd31.257402.735478>for
the/Austin-American Statesman/.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Small Donations Fueled 'Most Wide-Open' Mayoral Race Last Year,
Board Says" <http://electionlawblog.org/?p=64881>
Posted onSeptember 2, 2014 10:36 am
<http://electionlawblog.org/?p=64881>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT:
<http://www.nytimes.com/2014/09/02/nyregion/small-donations-fueled-most-wide-open-mayoral-race-last-year-board-says.html?smid=tw-share&_r=0>
More than two-thirds of contributors living in New York City gave
$175 or less, and more than 90 percent of the total money raised in
campaigns came from individual donors, not political action
committees or unions. (Last year, for donations up to $175,
candidates received $6 in matching funds for every $1 they took in.)
Taken together, the 2013 elections, the board said, were "by some
measures, the most wide-open" since the program began.
Two candidates defeated wealthy men who paid for their own campaigns
in primary elections, the report noted. Joseph J. Lhota won the
Republican nomination for mayor despite being outspent three-to-one
by John A. Catsimatidis, the billionaire owner of the Gristedes
grocery store chain.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"The Tension Between Conservative Corporate Law Theory and Citizens
United" <http://electionlawblog.org/?p=64879>
Posted onSeptember 2, 2014 10:23 am
<http://electionlawblog.org/?p=64879>byRick Hasen
<http://electionlawblog.org/?author=3>
See here.
<http://blogs.law.harvard.edu/corpgov/2014/09/02/the-tension-between-conservative-corporate-law-theory-and-citizens-united/>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
"Don't let Arizona and Kansas get away with potentially
discriminatory voter registration rules"
<http://electionlawblog.org/?p=64877>
Posted onSeptember 2, 2014 10:22 am
<http://electionlawblog.org/?p=64877>byRick Hasen
<http://electionlawblog.org/?author=3>
LAT editorial.
<http://www.latimes.com/opinion/editorials/la-ed-proof-of-citizenship-voting-kansas-arizona-20140828-story.html>
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Posted inElection Assistance Commission
<http://electionlawblog.org/?cat=34>,Elections Clause
<http://electionlawblog.org/?cat=70>,NVRA (motor voter)
<http://electionlawblog.org/?cat=33>,The Voting Wars
<http://electionlawblog.org/?cat=60>
8th Circuit Strikes Down Law Barring Knowingly False Statements
About Ballot Measures <http://electionlawblog.org/?p=64874>
Posted onSeptember 2, 2014 10:10 am
<http://electionlawblog.org/?p=64874>byRick Hasen
<http://electionlawblog.org/?author=3>
The unanimous decision reversing the district court in 281 Care
Committee v. Arneson ishere
<http://electionlawblog.org/wp-content/uploads/281care.pdf>.
The result is not a surprise, given the Supreme Court's decision in
/U.S. v. Alvarez/and its more recent /Susan B. Anthony /case. Given the
result in this case, I expect the Supreme Court will not hear this case
if the government seeks cert. (In contrast, if the 8th Circuit came out
the other way I would have expected review).
I address the issues with regulating false campaign speech in/A
Constitutional Right to Lie in Campaigns and Elections?/
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>
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Posted incampaigns <http://electionlawblog.org/?cat=59>
"Why voter ID laws pose long term danger to GOP"
<http://electionlawblog.org/?p=64872>
Posted onSeptember 2, 2014 9:23 am
<http://electionlawblog.org/?p=64872>byRick Hasen
<http://electionlawblog.org/?author=3>
Paul Waldman writes
<http://www.washingtonpost.com/blogs/plum-line/wp/2014/09/02/why-voter-id-laws-pose-long-term-danger-to-gop/>for
The Plum Line.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
"Seeking Facts, Justices Settle for What Briefs Tell Them"
<http://electionlawblog.org/?p=64869>
Posted onSeptember 2, 2014 7:46 am
<http://electionlawblog.org/?p=64869>byRick Hasen
<http://electionlawblog.org/?author=3>
Must-read Adam Liptak Sidebar column
<http://www.nytimes.com/2014/09/02/us/politics/the-dubious-sources-of-some-supreme-court-facts.html?_r=0>on
the Supreme Court's increasing use of "facts" from amicus briefs.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
"Court to weigh use of race in drawing political lines"
<http://electionlawblog.org/?p=64867>
Posted onSeptember 2, 2014 7:43 am
<http://electionlawblog.org/?p=64867>byRick Hasen
<http://electionlawblog.org/?author=3>
Richard Wolf of /USA Today/ previews the Alabama racial gerrymandering
case
<http://www.usatoday.com/story/news/politics/2014/09/01/supreme-court-redistricting-race-alabama/14628029/>headed
to SCOTUS.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,Voting
Rights Act <http://electionlawblog.org/?cat=15>
Alaska Democratic Party Backs Independent Candidate
<http://electionlawblog.org/?p=64865>
Posted onSeptember 2, 2014 7:35 am
<http://electionlawblog.org/?p=64865>byRick Hasen
<http://electionlawblog.org/?author=3>
Alaska Dispatch News
<http://www.adn.com/article/20140901/walker-mallott-join-forces-governors-race>:
The Alaska Democratic Party broke with long tradition Monday when
its central committee voted 89-2 to not field a gubernatorial ticket
and instead put its weight behind the independent campaign of Bill
Walker and Byron Mallott.
The vote to support the fusion ticket was contingent on Walker
dropping his Republican Party affiliation. Mallott will quit as the
Democratic Party's nominee for governor, as will his running mate,
state Sen. Hollis French. But Mallott will remain a Democrat,
executive director Kay Brown said after the vote at party
headquarters in a Spenard bungalow.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,political
parties <http://electionlawblog.org/?cat=25>
The Latest on #MSSEN <http://electionlawblog.org/?p=64863>
Posted onSeptember 2, 2014 7:20 am
<http://electionlawblog.org/?p=64863>byRick Hasen
<http://electionlawblog.org/?author=3>
McDaniel
pushes<http://www.clarionledger.com/story/politicalledger/2014/09/01/mcdaniel-appeal-dismissal/14934265/>his
appeal decision to Wednesday.
Supportersmull a federal case, <http://t.co/Yq8PT9DcIf>which I think
cannot give the relief McDaniel wants.
And True the Vote's efforts to get access to sensitive voter
informationfailed in federal district court <http://t.co/RgzQWqIqUP>.
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Posted inrecounts <http://electionlawblog.org/?cat=50>
"Texas Voter ID Law Trial Begins in Corpus Christi"
<http://electionlawblog.org/?p=64861>
Posted onSeptember 2, 2014 7:16 am
<http://electionlawblog.org/?p=64861>byRick Hasen
<http://electionlawblog.org/?author=3>
The /Texas Tribune /reports.
<http://www.texastribune.org/2014/09/02/texas-voter-id-law-hits-federal-court-tuesday/>
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Will Texas Get Away With Discriminating Against Voters?"
<http://electionlawblog.org/?p=64859>
Posted onSeptember 2, 2014 7:15 am
<http://electionlawblog.org/?p=64859>byRick Hasen
<http://electionlawblog.org/?author=3>
Ari Berman writes
<http://www.thenation.com/blog/181433/will-texas-get-away-discriminating-against-voters#>for
/The Nation./
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
"Wealthy political donors seize on new latitude to give to unlimited
candidates" <http://electionlawblog.org/?p=64857>
Posted onSeptember 2, 2014 7:10 am
<http://electionlawblog.org/?p=64857>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo
<http://www.washingtonpost.com/politics/wealthy-political-donors-seize-on-new-latitude-to-give-to-unlimited-candidates/2014/09/01/d94aeefa-2f8c-11e4-bb9b-997ae96fad33_story.html>:
"Sabin and other wealthy political contributors have more access than
ever to candidates since the ruling in /McCutcheon v. Federal Election
Commission/. More than 300 donors have seized the opportunity, writing
checks at such a furious pace that they have exceeded the old limit of
$123,200 for this election cycle, according to campaign finance data
provided by the Center for Responsive Politics
<http://www.opensecrets.org/>, a nonpartisan research organization."
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
"Sunshine's Shadow: Overbroad Open Meetings Laws as Content-Based,
Distinct from Campaign Finance Disclosure Laws, and Constitutionally
Suspect" <http://electionlawblog.org/?p=64854>
Posted onSeptember 2, 2014 7:04 am
<http://electionlawblog.org/?p=64854>byRick Hasen
<http://electionlawblog.org/?author=3>
Steven Mulroy has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2476601>on SSRN.
Here is the abstract:
In this Article, Professor Mulroy discusses "strict" open meetings
laws applicable in many states to local legislators --- laws which
restrict substantive discussion of government business even among
two or three legislators (far short of a quorum) outside a properly
noticed public meeting, and/or which contain no exceptions for
sensitive, privacy-invasive topics which might legitimately warrant
private deliberation at early stages. Such laws are surprisingly
common and broad, and stand in stark contrast to the lack of such
restrictions applicable to most state legislators and all federal
legislators. Drawing on a novel Fifth Circuit case criticizing such
laws, Prof. Mulroy's prior Tennessee Law Review Article had argued
that such laws are overbroad speech restrictions.
This new Article draws on a new Fifth Circuit case upholding such
laws, and analyzes two relatively new arguments in the defense of
such laws. First, this Article argues that such strict "sunshine"
laws cannot be defended by analogizing them to campaign finance
disclosure laws upheld in the Supreme Court's Citizens United case
and its progeny, because the government interests justifying such
disclosure laws do not apply with equal force to strict sunshine
rules. In so doing, it discusses the 2014 Supreme Court decision in
McCutcheon v. Federal Election Commission. Second, it argues that
such laws are properly analyzed as "content-based" speech
restrictions triggering "strict scrutiny" constitutional review. In
so doing, the Article discusses the 2014 Supreme Court decision in
McCullen v. Oakley. It synthesizes the surprisingly muddled Supreme
Court guidance on when to analyze a speech restriction as
content-based, criticizes part of the current doctrine on this
question, and argues for a straightforward "purely facial" approach
which always treats a law as content-based if the law's application
turns on the content of the speech involved. Along the way, it
explains many of the counterintuitive, harmful effects of overbroad
sunshine laws, including their tendency to chill discussion, hinder
compromise, force inappropriate disclosure of sensitive information,
breed widespread noncompliance and contempt for the law, and
transfer power from legislators to unelected staff and lobbyists.
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Posted inlegislation and legislatures <http://electionlawblog.org/?cat=27>
"The Uncertain Future of the Corporate Contribution Ban"
<http://electionlawblog.org/?p=64852>
Posted onSeptember 2, 2014 7:02 am
<http://electionlawblog.org/?p=64852>byRick Hasen
<http://electionlawblog.org/?author=3>
Richard Briffault has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2475908>on SSRN
(forthcoming/Valparaiso University Law Review/). Here is the abstract:
Concern about the role of corporate money has been a longstanding
theme in American politics. The first permanent federal campaign
finance law -- the Tillman Act of 1907 -- prohibited
federally-chartered corporations from making contributions in any
election and prohibited all corporations from making contributions
in federal elections. Subsequently amended, continued, and
strengthened over a century the federal corporate contribution ban
is still on the books. Twenty-one states also prohibit corporate
contributions to candidates in state elections.
The Supreme Court sustained the federal corporate contribution ban
as recently as 2003 in FEC v. Beaumont, but that decision and the
corporate contribution ban today rest on shaky ground. The Roberts
Court has demonstrated little respect for either legislated campaign
finance restrictions or the Court's own campaign finance precedents.
In Citizens United v. FEC, the Court struck down a ban on corporate
campaign spending. In so doing, it disavowed one of the
justifications Beaumont relied on and called into question another.
To be sure, Citizens United stressed that the case concerned only
spending not contributions and invoked the Court's longstanding
practice of applying more stringent review of spending rules than
contribution limits. But Citizens United's assertion of the First
Amendment rights of corporations surely casts a shadow on the
contribution bans. This year's decision in McCutcheon v. FEC --
which ratcheted up the Court's review of contribution restrictions
-- darkens that shadow still.
This paper argues that, assuming the Court continues to recognize
the constitutional validity of contribution limits and to apply a
less strict standard of review of contribution restrictions --
admittedly a big "if," a corporate donation ban ought to pass
constitutional muster. The ban advances two long-recognized public
interests that justify contribution restrictions: the protection of
the rights of politically dissenting shareholders, and the
prevention of the evasion of constitutionally valid limits on
individual donations to candidates. Although Citizens United
dismissed the shareholder-protection concern in the expenditure
context, shareholder protection is an important interest previously
acknowledged by the Court in cases dealing with contribution
restrictions, and a contribution ban is closely drawn to protect
that interest. So, too, the Court has long accepted the prevention
of the circumvention of individual-to-candidate contribution limits
as a constitutionally sufficient justification for other
contribution restrictions. The use of corporations to evade
disclosure requirements has become a regular occurrence since
Citizens United freed corporations to engage in independent
spending. If corporations could also make contributions, they could
easily become a means to avoid the donation limits on the people who
are closely associated with a corporation. Although McCutcheon
tightened the "fit" required between the important public interest a
campaign finance law is intended to sustain and the restrictions
imposed by that law, the corporate contribution ban is narrowly
tailored, and leaves room for other forms of campaign finance
activity for the individuals affiliated with the corporation.
In Citizens United and McCutcheon, the Court emphasized that
campaign finance restrictions cannot be justified by the goal of
reducing the political power of the wealthy. Although much of the
impetus for the corporate contribution ban is public anxiety over
corporate wealth and power, the shareholder-protection and
anti-circumvention justifications are not triggered by concern about
corporate wealth but, rather, reflect other key features of the
corporate form -- its artificial existence as a legal to achieve
ends desired by the individuals who have created it, and the
potential for those who control the corporation to exploit
shareholders. These two interests work in tandem, with
shareholder-protection having greater purchase for multi-shareholder
publicly-held entities, and anti-circumvention more relevant for
single-shareholder, closely-held or nonprofit corporations.
Together, they make the case for the corporate contribution ban for
reasons other than the equality-promoting goal that Citizens United
and McCutcheon so vehemently rejected.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
"Sky-high stakes in Texas voter ID trial"
<http://electionlawblog.org/?p=64850>
Posted onSeptember 2, 2014 7:00 am
<http://electionlawblog.org/?p=64850>byRick Hasen
<http://electionlawblog.org/?author=3>
Zack Roth reports
<http://www.msnbc.com/msnbc/sky-high-stakes-texas-voter-id-trial>for MSNBC.
Share
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
--
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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