[EL] ELB News and Commentary 5/1/15
Rick Hasen
rhasen at law.uci.edu
Thu Apr 30 20:55:18 PDT 2015
Off to Yale <http://electionlawblog.org/?p=72160>
Posted onApril 30, 2015 8:51 pm
<http://electionlawblog.org/?p=72160>byRick Hasen
<http://electionlawblog.org/?author=3>
As I’ve noted <http://electionlawblog.org/?p=71783>, I’m delighted to be
on a plenary panel about campaign finance and the First Amendment with
Tabatha Abu El-Haj and moderated by Jack Balkin at Yale’s 3rdFreedom of
Expression Scholars conference
<http://isp.yale.edu/event/freedom-expression-scholars-conference-3/fesc-3-agenda> on
May 2 and 3. The conference isco-sponsored
<http://electionlawblog.org/du/event/freedom-expression-scholars-conference-3>by
the Floyd Abrams Institute at Yale–and I’ll be presenting the two
chapters of my upcomingPlutocrats United
<http://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453>book
which deal with First Amendment critics of reform, including Floyd.
Should be fun.
And thanks toRon Collins for the shoutout
<http://concurringopinions.com/archives/2015/04/fan-58-first-amendment-news-citizen-recordings-of-police-in-public-places-first-amendment-protection.html#more-97116>about
the book and conference.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72160&title=Off%20to%20Yale&description=>
Posted incampaign finance
<http://electionlawblog.org/?cat=10>,Plutocrats United
<http://electionlawblog.org/?cat=104>,Supreme Court
<http://electionlawblog.org/?cat=29>
James Sample on Williams-Yulee and The Future of Judicial Campaign
Regulation <http://electionlawblog.org/?p=72158>
Posted onApril 30, 2015 8:48 pm
<http://electionlawblog.org/?p=72158>byRick Hasen
<http://electionlawblog.org/?author=3>
The following is a guest post fromJames Sample
<http://law.hofstra.edu/directory/faculty/fulltime/sample/>of Hofstra,
who has been doing very important work in the area of judicial
elections, filling a key void left by Roy Schotland’s passing. Here are
James’s thoughts:
As Rick’sinitial post
<http://electionlawblog.org/?p=72092>indicated, Williams-Yulee is a
huge victory for those concerned with cash in the courtroom. It is,
moreover, a surprise victory for the broader
judicial-elections-are-different premise. I tend to believe that the
solicitation bans themselves are of little moment, and are perhaps
even occasionally counterproductive vis-a-vis their intended aims
insofar as they allow states and judicial candidates, having adopted
the patina of a solicitation ban, to pretend that the candidates are
unaware of who is contributing and/or spending. Whether, at some
point, that was accurate, it is rarely accurate in the internet age,
at least not where there is, as there certainly should be, robust
disclosure. As readers of Rick’s blog know well, contributors,
especially major contributors and major independent expenditure
supporters, know how to make their support known to those whom they
want to know. Is upholding the solicitation ban helpful for the
egregiously coercive in-person shakedown scenarios? Yes. The greater
value, though, of Williams-Yulee is Chief Justice Roberts’ emphatic
rejection of White’s elections-are-elections canard.
What I find most peculiar about the opinion, as Rick’s post noted of
course, is Chief Justice Roberts citing Caperton in which he
dissented so vigorously, while in Justice Kennedy’s dissent there is
nary a mention of Caperton, which he authored, but there is instead
a focus on White.
For Justice Kennedy, and despite Justice O’Connor’s years of work
and expressions of regret vis-a-vis White, any speculation as to an
eroding of the rigidity of his position in White was not only
premature, but inaccurate. The ex ante prohibition of speech,
regardless of the nature of the office being sought, is clearly, for
him, a constitutional non-starter even though, at least in the
extreme case, he supports Due Process as a basis of mandatory
disqualification based on expenditure support. On both the ex ante
and ex post aspects of that, Chief Justice Roberts is now in the
opposite camp in at least one narrow circumstance.
Combining the pertinent campaign finance decisions and the two major
“canons” decisions, I am left with one overriding impression in
terms of prospective judicial campaigns: Why would any judicial
candidate even bother soliciting contributions through their
campaign apparatus? Expenditures not contributions are, and will be
more than ever, the whole ball game.
Justice Kennedy takes an absolutist position that independent
expenditures unequivocally cannot corrupt (Citizens United,
McCutcheon etc…). In those decisions, not to mention in ATP v.
Bullock, in which the Court refused the state of Montana even the
opportunity to stand in the well of the Supreme Court and say, to
the Court face-to-face, “Yes, independent expenditures can corrupt
and we have a documented empirical record contradicting the Court’s
conclusory assertions to the contrary.” Justice Kennedy and Chief
Justice Roberts are in lockstep on that. I.e., Chief Roberts is
copacetic with banning a signed letter seeking a modest
contribution, while Justice Kennedy is not. But neither is
particularly troubled by independent expenditure support totaling
six and sometimes seven figures per spender. It took facts as
extreme as those in Caperton to get Kennedy’s support for the modest
remedy of ex post recusal. Add in increasingly impotent coordination
realities, and no serious, sophisticated judicial candidate should
ever come close to needing to engage in the kind of direct
solicitation addressed in Williams-Yulee.
In sum, Williams-Yulee is indeed a victory for those who care about
the integrity of the courts. Our dear, late friend Roy Schotland
would love the judge’s-are-different emphasis. Roy would celebrate
the decision and rightly so. He would do so, however, in very much
the sober – and sobering – manner that Rick’s excellent LA Times
piece does in noting, in particular, that the “campaign finance
situation overall remains dire.”
Even in judicial elections, Williams-Yulee won’t change that.
Finally, there is one wonderful postscript that seemed almost
unthinkable until yesterday: there are now six justices on the
current Court who have, in at least one case, endorsed the premise
that judicial elections are different. Does that mean the Court
might uphold expenditure limits on judicial races? Almost certainly
not, but the possibility seems less distant today than yesterday.
And it certainly seems less distant than it did six years ago.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72158&title=James%20Sample%20on%20Williams-Yulee%20and%20The%20Future%20of%20Judicial%20Campaign%20Regulation&description=>
Posted injudicial elections <http://electionlawblog.org/?cat=19>,Supreme
Court <http://electionlawblog.org/?cat=29>
More Williams-Yulee SCOTUSBlog Symposium Entries
<http://electionlawblog.org/?p=72156>
Posted onApril 30, 2015 8:40 pm
<http://electionlawblog.org/?p=72156>byRick Hasen
<http://electionlawblog.org/?author=3>
Matt Streb
<http://www.scotusblog.com/2015/04/symposium-much-ado-about-nothing/>
Justice Joseph Grodin
<http://www.scotusblog.com/2015/04/symposium-the-distinctive-character-of-judging/>
Larry Baum
<http://www.scotusblog.com/2015/04/symposium-the-justices-premises-about-judicial-elections/>
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72156&title=More%20Williams-Yulee%20SCOTUSBlog%20Symposium%20Entries&description=>
Posted injudicial elections <http://electionlawblog.org/?cat=19>,Supreme
Court <http://electionlawblog.org/?cat=29>
“Lawmakers tell state Supreme Court no need to hurry in
redistricting case” <http://electionlawblog.org/?p=72154>
Posted onApril 30, 2015 8:38 pm
<http://electionlawblog.org/?p=72154>byRick Hasen
<http://electionlawblog.org/?author=3>
NC Policy Watch.
<http://pulse.ncpolicywatch.org/2015/04/28/lawmakers-tell-state-supreme-court-no-need-to-hurry-in-redistricting-case/>
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72154&title=%E2%80%9CLawmakers%20tell%20state%20Supreme%20Court%20no%20need%20to%20hurry%20in%20redistricting%20case%E2%80%9D&description=>
Posted inredistricting <http://electionlawblog.org/?cat=6>,Voting Rights
Act <http://electionlawblog.org/?cat=15>
“Roles of Presidential Super PACs Expanding”
<http://electionlawblog.org/?p=72152>
Posted onApril 30, 2015 5:23 pm
<http://electionlawblog.org/?p=72152>byRick Hasen
<http://electionlawblog.org/?author=3>
WSJ
<http://www.wsj.com/articles/roles-of-presidential-super-pacs-expanding-1430437766>:
The 2016 election cycle is seeing an expansion not just of super PAC
fundraising but of the PACs’ responsibilities. The main reason:
Super PACs can accept donations of unlimited size, while donations
to candidate campaigns, such as Carly for President, are capped at
$2,700 per election. The new arrangement means fewer donors, writing
larger checks, can bankroll the basics of electioneering, freeing
candidates from having to raise large sums in small increments. But
it also raises thorny questions, because super PACs and candidates
are barred by the Federal Election Commission from coordinating
their strategy and messages….
The rules barring coordination between campaigns and super PACs are
rarely enforced. The FEC often deadlocks on whether to investigate
complaints, resulting in no action. Criminal charges have been even
rarer in the years since super PACs gained prominence after the
Supreme Court’s Citizens United decision in 2010….
Because Mr. Bush hasn’t yet announced his candidacy, he legally can
solicit donations of unlimited size for the super PAC, a freedom
that formal candidates lose under FEC rules. Mr. Bush told donors
this week in Miami Beach that he had set a new GOP fundraising
record, though he didn’t disclose a total.
A longtime Bush adviser, Mike Murphy, is poised to run the super PAC
once it splits from the official campaign apparatus. Mr. Bush’s
super PAC will have its own team for gathering and analyzing voter
data, as well as its own press operations. There is also a separate
policy shop independent of the campaign. An aide to Mr. Bush said
the campaign, once it begins, won’t cede any of its data or voter
contact operations to the super PAC.
The $2,700 federal cap on an individual’s donation to a campaign was
designed to bar any one donor from having outsize influence on a
candidate. Critics say super PACs, which face no such limits, help
candidates circumvent the rule. At the same time, the FEC rule that
campaigns cannot coordinate their strategy with super PACs means
that candidates carry some peril in outsourcing campaign
responsibilities to a super PAC, campaign-finance experts warned.
See my earlier Slate piece,Jeb the Destroyer
<http://www.slate.com/articles/news_and_politics/politics/2015/04/jeb_bush_destroying_campaign_finance_rules_his_tactics_will_be_the_future.html>.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72152&title=%E2%80%9CRoles%20of%20Presidential%20Super%20PACs%20Expanding%E2%80%9D&description=>
Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>
“IRS May Be Trying to Stop Tax Exemption of Karl Rove’s Crossroads
GPS” <http://electionlawblog.org/?p=72149>
Posted onApril 30, 2015 5:08 pm
<http://electionlawblog.org/?p=72149>byRick Hasen
<http://electionlawblog.org/?author=3>
Bloomberg
<http://www.bloomberg.com/politics/articles/2015-04-30/irs-may-be-trying-to-stop-tax-exemption-of-rove-s-crossroads-gps>:
The IRS may be trying to block the tax exemption of one of the
largest politically active nonprofit groups, Crossroads Grassroots
Policy Strategies, an organization founded by Republican strategist
Karl Rove.
The oblique disclosure can be found between the lines of an
inspector general’s report released on Thursday, which said that 149
of 160 stalled applications from nonprofits with potential ties to
politics have been resolved. Of the other 11, six are in litigation
with the IRS — which Crossroads isn’t — and five have received
proposed denial letters or are appealing.
That suggests that the Internal Revenue Service has sent Crossroads
a denial letter. Crossroads is one of the most politically involved
nonprofit groups, and its bid for tax exemption is being closely
watched by campaign-finance lawyers.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72149&title=%E2%80%9CIRS%20May%20Be%20Trying%20to%20Stop%20Tax%20Exemption%20of%20Karl%20Rove%E2%80%99s%20Crossroads%20GPS%E2%80%9D&description=>
Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
“Judge: Legislature must release lawmakers’ calendars”
<http://electionlawblog.org/?p=72147>
Posted onApril 30, 2015 4:41 pm
<http://electionlawblog.org/?p=72147>byRick Hasen
<http://electionlawblog.org/?author=3>
AP
<http://www.utsandiego.com/news/2015/apr/30/judge-legislature-must-release-lawmakers-calendars/>:
“In the first ruling of its kind in California, a Sacramento County
judge says the state Legislature should release the appointment books,
meeting schedules and calendars of two lawmakers facing separate federal
corruption prosecutions.”
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72147&title=%E2%80%9CJudge%3A%20Legislature%20must%20release%20lawmakers%E2%80%99%20calendars%E2%80%9D&description=>
Posted inUncategorized <http://electionlawblog.org/?cat=1>
“California’s Political Reforms: A Brief History”
<http://electionlawblog.org/?p=72145>
Posted onApril 30, 2015 2:40 pm
<http://electionlawblog.org/?p=72145>byRick Hasen
<http://electionlawblog.org/?author=3>
New report<http://www.ppic.org/main/publication.asp?i=1147>from Eric
McGhee of PPIC.
Share
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72145&title=%E2%80%9CCalifornia%E2%80%99s%20Political%20Reforms%3A%20A%20Brief%20History%E2%80%9D&description=>
Posted inUncategorized <http://electionlawblog.org/?cat=1>
--
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
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150430/4eda224d/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150430/4eda224d/attachment.png>
View list directory