[EL] The apocalypse

Mon Sep 22 06:51:07 PDT 2014

I'm sure some folks would agree to stop using the phrase "dark money" if you would agree to use the word "money" instead of "speech" in every instance where you currently use the word "speech" to refer to money.

Sent from my iPhone.  Please excuse the iTypos.

> On Sep 22, 2014, at 4:47 AM, "Smith, Brad" <BSmith at law.capital.edu> wrote:
> 
> While it's always nice to have someone state the obvious, this thread began from a Mother Jones story referring to the "dark money apocalypse." Leaving aside the many substantive objections to Tom's "obvious" statement (lack of empirical evidence; conflating bribery (illegal and so unlikely to be disclosed), contributions (already disclosed), and IEs (spender already disclosed - presumably he means to get more details about members); failure to consider any cost/benefit analysis; unwillingness to consider how the new information he wants publicly mandated is actually used and likely to be used in fact, no matter how you cut it, 3.7% of political spending isn't very much- certainly not enough to justify the rhetoric that has been blowing around since MSNBC began harping on "dark money" in 2012.
> 
> The rhetoric of "dark money" far exceeds the substance. And while this is hardly unusual in policy debates, we shouldn't start mistaking rhetoric with reality. News journalists and academics ought to be avoiding such loaded terms, which are used not to enlighten, but to obscure, and not to promote a reasoned consideration of the issue, but to promote an emotional response.
> 
> 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 Thomas J. Cares [Tom at tomcares.com]
> Sent: Friday, September 19, 2014 9:53 PM
> To: Election Law
> Subject: Re: [EL] The apocalypse
> 
> May I state the obvious?... If one pays 6 swing senators $50k each to vote against a piece of legislation in the public interest (illegal, and harmful to the republic whether its a personal bribe paid to them, or a campaign IE), accepting $50m as 3.7%, that would be a negligible 0.02%; nothing to see there.
> 
> If 4% of money in campaigns is dark (not to mention that it would be a much higher percentage in high-stakes competitive contests), it denies us any chance to investigate or be cognizant of conflicts of interest (and it is 200 times the sum in my hypothetical).
> 
> 
> Tom Cares
> 
> On Thursday, September 18, 2014, Tyler Creighton <tyler at rethinkmedia.org<mailto:tyler at rethinkmedia.org>> wrote:
> As Robert Maguire at the Center for Responsive Politics is keen to point out, the vast majority of dark money is spent in a handful of competitive races, and therefore, the informative comparison is dark money to total spending in these particular races, not dark money to all election spending in the cycle. In 2012, dark money made up around 5% of total cycle spending but was closer to 20% in the most competitive Senate races<http://www.commoncause.org/states/massachusetts/issues/money-in-politics/plea-for-a-pledge/overview.html> (except Massachusetts where the People's Pledge largely kept dark money out). By Election Day the percentages this year in AK, AR, LA, NC, etc. will likely be similar meaning dark money will play a big role in determining control of the Senate even if their spending is only 4% of spending across all races.
> 
> On its own, the Koch's network of dark money groups is responsible for funding one out of every 10 TV ads in all Senate races<http://www.publicintegrity.org/2014/09/04/15459/gop-s-senate-hopes-energized-koch-network-ad-blitz>. And on the left the dark money group Patriot Majority USA accounts for<http://www.publicintegrity.org/2014/09/03/15436/can-dark-money-group-help-democrats-keep-senate> about one out of every nine ads aired in the Arkansas Senate race, one of every eight in Louisiana and one of every 13 in North Carolina. Add it all up and yes you do get horror.
> 
> Tyler Creighton | tyler at rethinkmedia.org  |  Media Associate
> ReThink Media<http://rethinkmedia.org> | (202) 449-6960 office | (925) 548-2189 mobile
> @ReThinkDemocrcy<https://twitter.com/rethinkdemocrcy> | @ReThink_Media<https://twitter.com/rethink_media> | @TylerCreighton<http://www.twitter.com/tylercreighton>
> 
> On Thu, Sep 18, 2014 at 6:45 PM, Smith, Brad <BSmith at law.capital.edu> wrote:
> “Five Signs the Dark-Money Apocalypse Is Upon Us”<http://electionlawblog.org/?p=65617>
> Posted on September 18, 2014 7:18 am<http://electionlawblog.org/?p=65617> by Rick Hasen<http://electionlawblog.org/?author=3>
> 
> Andy Kroll <http://www.motherjones.com/politics/2014/09/dark-money-2014-elections-house-senate> for Mother Jones:
> 
> A milestone passed in late August: According to the Center for Responsive Politics<http://www.opensecrets.org/news/2014/08/dark-money-hits-50-million-most-still-to-come/>, dark-money groups—nonprofits created under the 501(c)(4)<http://www.irs.gov/Charities-&-Non-Profits/Other-Non-Profits/Social-Welfare-Organizations> and (c)(6)<http://www.irs.gov/Charities-&-Non-Profits/Other-Non-Profits/Business-Leagues> sections of the US tax code—had by then surpassed $50 million on elections.
> 
> That is about 3.7% of political money this cycle, through September 9. Oh, the horror!
> 
> 
> 
> 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<tel: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 Rick Hasen [rhasen at law.uci.edu]
> Sent: Thursday, September 18, 2014 6:11 PM
> To: law-election at UCI.edu
> Subject: [EL] KSSEN breaking news/much more news
> 
> Breaking: In #KSSEN, Court Rules Taylor Off the Ballot: Analysis<http://electionlawblog.org/?p=65645>
> Posted on September 18, 2014 2:43 pm<http://electionlawblog.org/?p=65645> by Rick Hasen<http://electionlawblog.org/?author=3>
> 
> You can read the opinion here<http://www.kscourts.org/Cases-and-Opinions/opinions/SupCt/2014/20140918/112431.pdf>. Here are my thoughts:
> 
> 1. This is a unanimous, per curiam (unsigned) opinion from the Court holding that Democrat Chad Taylor’s name will not be on the ballot in the Kansas Senate race. This has political implications, as it will likely cause more Democrats to vote for independent Greg Orman instead of incumbent Republican Pat Roberts. It puts the seat, and perhaps the Senate, up for grabs. But there’s a wrinkle. There is still possible Court action now to force Democrats to name a new candidate to replace Taylor on the ballot.
> 
> 2. The Court took the narrowest path to reach this decision.  Despite many arguments<http://electionlawblog.org/?p=65498> offered by the partie<http://electionlawblog.org/?p=65459>s,  the court took a very narrow textual approach. It found that Taylor’s letter complied with the literal requirement of the statute, because he said he was withdrawing “pursuant to” the relevant section. The court concluded he “incorporated by reference” the standard that he was incapable of serving.
> 
> 3. In ruling this way, the court avoided a messy factual dispute <http://electionlawblog.org/?p=65309> over whether Taylor was promised by election officials that his letter was sufficient.  The court also sidestepped some uncertain legislative history as well as uncertain application of the doctrine of substantial compliance. It was about as simple and straightforward a way to decide the case as one could imagine. But…
> 
> 4. If the court was going to issue such a simple, straightforward unanimous ruling, why did it take so long?  No doubt more was going on behind the scenes than this simple ruling.  We probably will never know what was going on in judicial chambers. A cynic suggested to me the court delayed so much so there would be no time to litigate over whether Democrats have to name a replacement on the ballot.
> 
> 5. The big unanswered question is what happens to the other statute which appears to require Democrats to replace a withdrawn candidate on the ballot. The court totally sidesteps the issue, noting that “Nor do we need to act on Kobach’s allegation that a ruling for Taylor would require the Kansas Democratic Party State Committee to name his replacement nominee per K.S.A. 25-3905. The Kansas Democratic Party is not a party to this original action, and this court does not issue advisory opinions.”
> 
> 6. This leaves the ball in Kobach’s court. He can sue the Democrats to try to force them to name someone. But how could he sue and have Democrats hold a convention within the day before ballots are to be printed.  It will be hard for Kobach to say the printing can wait.  In this way we have the ideal situation for the Democrats, what I’ve termed the “Reverse Torricelli:<http://electionlawblog.org/?p=65319>” Democrats get to have the candidate they want removed from the ballot without having to name a replacement. It is sure to infuriate Republicans.
> 
> 7. This whole mess could have been avoided if Taylor would have done a better job with his letter, or if Kobach did not push the issue—and the evidence that his office had accepted non-complying letters before was damning to his case. The Court noted that Kobach submitted those letters after the deadline for filings, but seemed to praise him for doing it out of an “ethical obligation” to the court. In other words, if he just sat on letters his office just found which showed the inconsistent treatment of withdrawal letters in the past, it would have been deceptive to the court.
> 
> 8. So what happens next depends upon Kobach’s next move.  He has said he would sue Democrats to get them to name a replacement, but given the time frame now, and the fact that it may not be in Republicans’ political interests to let this fester any more, this may be the end.  [Update: Byran Lowry reports<https://twitter.com/BryanLowry3/status/512723360870981632>: "Kobach says Dem chair has been informed that she has 8 days to select a replacement candidate. #ksleg<https://twitter.com/hashtag/ksleg?src=hash> #KSSen<https://twitter.com/hashtag/KSSen?src=hash> #kseln<https://twitter.com/hashtag/kseln?src=hash>."  It is not clear how the 8 days fits into the existing ballot printing timeframe.]  [Second update: Kobach is moving the mailing to 8/27<https://twitter.com/BryanLowry3/status/512722314765406209>.  What does this say about what he represented to court about deadlines? Wow wow wow.]
> 
> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D65645&title=Breaking%3A%20In%20%23KSSEN%2C%20Court%20Rules%20Taylor%20Off%20the%20Ballot%3A%20Analysis&description=>
> Posted in Uncategorized<http://electionlawblog.org/?cat=1>
> On 7th Cir WI Voter ID: “Down to the Haywire in the Badger State”<http://electionlawblog.org/?p=65643>
> Posted on September 18, 2014 2:35 pm<http://electionlawblog.org/?p=65643> by Rick Hasen<http://electionlawblog.org/?author=3>
> 
> Jon Sherman<http://www.huffingtonpost.com/jon-sherman/down-to-the-haywire-in-th_b_5845630.html>:
> 
> The court, however, was completely mistaken when it wrote that Wisconsin’s voter ID law is “materially identical” to the Indiana law upheld by the Supreme Court in Crawford v. Marion County Election Board. This is wrong in four ways.
> 
> First, Indiana’s ID law only applies to in-person voting, while Wisconsin’s applies to in-person and absentee ballots. In November 2012, 664,597 Wisconsin voters (21.57%) cast absentee ballots. Alabama is the only other state that requires photo ID from absentee voters; even Texas’s draconian voter ID law does not.
> 
> Second, Indiana accepts any photo ID that contains a name, bears an expiration date, and was issued by the U.S. or Indiana, while Wisconsin only accepts a Wisconsin driver’s license or ID card, military ID, U.S. Passport, certificate of naturalization which is no more than 2 years old, tribal ID, and certain student ID cards.
> 
> Third, Indiana permits indigent voters to sign an affidavit instead of presenting an ID.
> 
> Finally, Wisconsin only accepts student IDs if they contain a signature, an issuance date, and an expiration date no later than two years after the election. While the University of Wisconsin System has taken steps to have their schools issue separate voting IDs to students, it is unclear whether other private and technical colleges have taken similar steps. In Indiana, a student ID only needs to have an expiration date.
> 
> Not only is Indiana’s ID law more lenient than Wisconsin’s, but the Supreme Court’s decision in Crawford did not address the same legal issues. There was no Voting Rights Act claim in Crawford. Moreover, the Crawford plaintiffs’ counsel had assembled almost zero evidence of actual harm to voters, whereas the plaintiffs here have assembled an extensive record documenting ID-less voters who cannot vote or will experience great difficulty in obtaining this license to vote. What the record does not contain is any evidence that the DMV’s untested birth verification procedure will work. The plaintiffs needed to show copious evidence to win their injunction, but the state secured this win on the court’s blind faith.
> 
> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D65643&title=On%207th%20Cir%20WI%20Voter%20ID%3A%20%E2%80%9CDown%20to%20the%20Haywire%20in%20the%20Badger%20State%E2%80%9D&description=>
> Posted in 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>
> #KSSEN Decision to Be Released Around 5 PM Kansas Time<http://electionlawblog.org/?p=65641>
> Posted on September 18, 2014 2:04 pm<http://electionlawblog.org/?p=65641> by Rick Hasen<http://electionlawblog.org/?author=3>
> 
> Stay tuned….
> 
> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D65641&title=%23KSSEN%20Decision%20to%20Be%20Released%20Around%205%20PM%20Kansas%20Time&description=>
> Posted in Uncategorized<http://electionlawblog.org/?cat=1>
> “Voter Registration Modernization Bill Would Improve Outdated Election System”<http://electionlawblog.org/?p=65638>
> Posted on September 18, 2014 11:08 am<http://electionlawblog.org/?p=65638> by Rick Hasen<http://electionlawblog.org/?author=3>
> 
> Press release<http://www.brennancenter.org/press-release/voter-registration-modernization-bill-would-improve-outdated-election-system>: “U.S. Sen. Kirsten Gillibrand (D-N.Y.) today introduced the Voter Registration Modernization Act, which would provide national standards for secure and accessible online registration and help bring America’s election system into the 21st century.”
> 
> Did I ever mention I went to law school with the Senator?  I don’t think I’ve seen her since law school graduation (1991).
> 
> [Share]<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D65638&title=%E2%80%9CVoter%20Registration%20Modernization%20Bill%20Would%20Improve%20Outdated%20Election%20System%E2%80%9D&description=>
> Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter registration<http://electionlawblog.org/?cat=37>
> <http://electionlawblog.org/?p=65636>
> 
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