[EL] ELB News and Commentary 8/13/15
Rick Hasen
rhasen at law.uci.edu
Thu Aug 13 08:29:55 PDT 2015
“Texas House Battleground Could Hinge on Voter-ID Law in Flux”
<http://electionlawblog.org/?p=75311>
Posted onAugust 13, 2015 8:27 am
<http://electionlawblog.org/?p=75311>byRick Hasen
<http://electionlawblog.org/?author=3>
National Journal reports.
<http://www.nationaljournal.com/politics/texas-house-battleground-could-hinge-on-voter-id-law-in-flux-20150813>
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Posted incampaigns <http://electionlawblog.org/?cat=59>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter id
<http://electionlawblog.org/?cat=9>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“Road Ahead Murky After Voter ID Ruling”
<http://electionlawblog.org/?p=75309>
Posted onAugust 13, 2015 8:24 am
<http://electionlawblog.org/?p=75309>byRick Hasen
<http://electionlawblog.org/?author=3>
The /Austin Chronicle /reports.
<http://www.austinchronicle.com/news/2015-08-14/road-ahead-murky-after-voter-id-ruling/>
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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>
“Former lawmakers sit on tens of millions in campaign cash”
<http://electionlawblog.org/?p=75307>
Posted onAugust 13, 2015 7:43 am
<http://electionlawblog.org/?p=75307>byRick Hasen
<http://electionlawblog.org/?author=3>
USA Today:
<http://www.news-press.com/story/news/politics/2015/08/12/former-politicians-like-trey-radel-tons-campaign-cash/31522477/>
At least 141 former members of Congress retain campaign accounts
containing a total of more than $46 million, a USA TODAY analysis
found. Twenty are linked to campaign committees with more than
$500,000 each. Nearly one-third of the ex-lawmakers have been out of
office at least five years.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Jeb Bush Super PAC Donors Also Spend Big To Influence Washington”
<http://electionlawblog.org/?p=75305>
Posted onAugust 13, 2015 7:42 am
<http://electionlawblog.org/?p=75305>byRick Hasen
<http://electionlawblog.org/?author=3>
Paul Blumenthal reports
<http://www.huffingtonpost.com/entry/jeb-bush-super-pac_55ca586be4b0923c12be71c6?utm_hp_ref=politics&kvcommref=mostpopular>for
HuffPo.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
Top Recent Downloads in Election Law on SSRN
<http://electionlawblog.org/?p=75302>
Posted onAugust 13, 2015 7:37 am
<http://electionlawblog.org/?p=75302>byRick Hasen
<http://electionlawblog.org/?author=3>
Here
<http://papers.ssrn.com/sol3/topten/topTenResults.cfm?groupingId=991929&netorjrnl=jrnl>:
*RECENT TOP PAPERS*for all papers first announced in the last 60
days<http://papers.ssrn.com/publicRss/rssManagerInc.cfm?journalId=991929>
/14 Jun 2015 through 13 Aug 2015/
Rank Downloads Paper Title
1 102 *The Party’s Over: McCutcheon, Shadow Parties, and the Future of
the Party System*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2617747>
Joseph Fishkin
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=664357>andHeather
Gerken <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=101581>
University of Texas School of Law and Yale University – Law School
/Date posted to database: /13 Jun 2015
/Last Revised: /29 Jul 2015
2 72 *Election Law’s Path in the Roberts Court’s First Decade: A Sharp
Right Turn But with Speed Bumps and Surprising Twists*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2639902>
Richard L. Hasen
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=337>
University of California, Irvine School of Law
/Date posted to database: /6 Aug 2015
/Last Revised: /11 Aug 2015
3 54 *Introduction: The Burden of Modern Democracy*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2618771>
Samuel Issacharoff
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=48053>
New York University School of Law
/Date posted to database: /17 Jun 2015
/Last Revised: /18 Jun 2015
4 52 *Voting Rights at 50*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2635014>
Samuel Issacharoff
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=48053>
New York University School of Law
/Date posted to database: /24 Jul 2015
/Last Revised: /24 Jul 2015
5 49 *India’s Participatory Model: The Right to Information in
Election Law* <http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2625837>
Manoj Mate <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1698830>
Whittier Law School
/Date posted to database: /3 Jul 2015
/Last Revised: /3 Jul 2015
6 48 *Applying Section 2 to the New Vote Denial*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2622172>
Daniel P. Tokaji
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=359247>
Ohio State University (OSU) – Michael E. Moritz College of Law
/Date posted to database: /25 Jun 2015
/Last Revised: /30 Jun 2015
7 43 *The New Elections Clause*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2636007>
Michael T Morley
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2159971>
Barry University School of Law
/Date posted to database: /27 Jul 2015
/Last Revised: /27 Jul 2015
8 26 *Setting Congress Up to Fail*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2619421>
Margaret B. Kwoka
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=868438>
University of Denver Sturm College of Law
/Date posted to database: /18 Jun 2015
/Last Revised: /20 Jun 2015
9 22 *In Defense of Corporate Persons*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2639778>
Kent Greenfield
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=41901>
Boston College Law School
/Date posted to database: /5 Aug 2015
/Last Revised: /10 Aug 2015
10 19 *Independent Expenditures in Congressional Primaries after
Citizens United*
<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2620791>
Robert G. Boatright
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1189510>,Michael J.
Malbin
<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=557776>andBrendan
Glavin <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1887624>
Clark University, University at Albany (SUNY) and Campaign Finance Institue
/Date posted to database: /21 Jun 2015
/Last Revised: /21 Jun 2015
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“Lawmakers offer flurry of amendments to proposed congressional
districts map” <http://electionlawblog.org/?p=75300>
Posted onAugust 13, 2015 7:34 am
<http://electionlawblog.org/?p=75300>byRick Hasen
<http://electionlawblog.org/?author=3>
Miami Herald
<http://www.miamiherald.com/news/state/florida/article30959358.html>:
After days of listening to how their staff redrew Florida’s 27
congressional districts in relative seclusion, state legislators
Wednesday started taking their own turn at re-mapping the state.
By the end of the third day of the 12-day special session on
redistricting, at least eight state legislators were working on
alternative redistricting plans that, in some cases, would
significantly change an initial base map that lawmakers started
debating Monday. The result is that who represents millions of
Floridians in Congress is far from being resolved.
Meanwhile, U.S. Rep. Corrine Brown, D-Jacksonville, took a different
approach to halt the Legislature’s entire redistricting process
because of how it portends to change the 5th District she has
represented since 1993. Brown said she was filing a lawsuit calling
on the federal courts to block the Florida Supreme Court’s directive
to change her snaking Jacksonville-to-Orlando district because it
would reduce the percentage of black residents who are of voting age.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Voting Rights
Act <http://electionlawblog.org/?cat=15>
“Donors Descend on Schumer and Others in Debate on Iran”
<http://electionlawblog.org/?p=75298>
Posted onAugust 13, 2015 7:33 am
<http://electionlawblog.org/?p=75298>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT reports.
<http://www.nytimes.com/2015/08/13/us/politics/in-efforts-to-sway-iran-debate-big-money-donors-are-heard.html?_r=0>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Campaign Finance Reform PAC Wants to Be a Player in 2016″
<http://electionlawblog.org/?p=75296>
Posted onAugust 13, 2015 7:32 am
<http://electionlawblog.org/?p=75296>byRick Hasen
<http://electionlawblog.org/?author=3>
Roll Call reports.
<http://atr.rollcall.com/campaign-finance-reform-pac-wants-player-2016/>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“When Does a Candidate Become a Candidate?”
<http://electionlawblog.org/?p=75294>
Posted onAugust 13, 2015 7:30 am
<http://electionlawblog.org/?p=75294>byRick Hasen
<http://electionlawblog.org/?author=3>
Brad Smith
<http://dailycaller.com/2015/08/12/when-does-a-candidate-become-a-candidate/>for
the Daily Caller:
CLC wants the FEC to undertake a “fact-based” investigation to
determine the moment that Jeb Bush and others became “actual”
candidates, or began “testing the waters.” If that approach were the
law, there would be no clear rules defining when one crosses the
line from thinking about running to actually running, and Governor
Bush and other candidates could be subject to criminal penalties for
speaking about issues of importance to them, or for helping
like-minded candidates raise money.
In September of 2014, for example, Hillary Clinton appeared at a
“Steak fry” in the early caucus state of Iowa. Does paying for a
flight to Des Moines, buying a tank of gas, and eating a steak, more
than two years before an election make one a candidate? Under CLC’s
bizarre approach, it might. Or it might not. Guess wrong, and
Secretary Clinton could be fitted for an orange pantsuit.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Conservatives Beware: The Speech Police Are Coming For You”
<http://electionlawblog.org/?p=75292>
Posted onAugust 13, 2015 7:25 am
<http://electionlawblog.org/?p=75292>byRick Hasen
<http://electionlawblog.org/?author=3>
Paul Jossey writes
<http://thefederalist.com/2015/08/13/conservatives-beware-the-speech-police-are-coming-for-you/>for
The Federalist.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Nine Years Ago, Republicans Favored Voting Rights. What Happened?”
<http://electionlawblog.org/?p=75287>
Posted onAugust 12, 2015 7:08 pm
<http://electionlawblog.org/?p=75287>byRick Hasen
<http://electionlawblog.org/?author=3>
Jim Rutenberg follow up forNYT magazine.
<http://www.nytimes.com/2015/08/12/magazine/nine-years-ago-republicans-favored-voting-rights-what-happened.html?smid=tw-nytimes&_r=0>
As with Rutenberg’s earlier piece, I think this one really misses the
partisan element of the story, suggesting this Republican opposition is
really all motivated by race. I make that claim that the analysis needs
more nuance inthis Slate piece
<http://www.slate.com/articles/news_and_politics/politics/2015/08/how_to_save_the_voting_rights_act_voting_rights_shouldn_t_rely_on_parsing.html>,
and more broadly in myRace or Party?
piece<http://harvardlawreview.org/2014/01/race-or-party-how-courts-should-think-about-republican-efforts-to-make-it-harder-to-vote-in-north-carolina-and-elsewhere/>at
the /Harvard Law Review Forum./
Also, as I explain in 2006 the writing was already on the wall that
realignment was causing the Republicans to have partisan reasons to
oppose a broad voting rights act. This trend only accelerated with the
first Democratic DOJ in office during a redistricting year dealing with
preclearance.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
McCaskill Spokeswoman Says Allegation of Illegal Coordinating “Dumb”
<http://electionlawblog.org/?p=75285>
Posted onAugust 12, 2015 3:27 pm
<http://electionlawblog.org/?p=75285>byRick Hasen
<http://electionlawblog.org/?author=3>
Dave Helling
<http://www.kansascity.com/news/local/news-columns-blogs/the-buzz/article30939288.html>:
A McCaskill spokeswoman said any allegation of impropriety is dumb.
“A candidate is always free to give another candidate advice,” she
wrote.
I don’t think it’sthat simple. <http://electionlawblog.org/?p=75272>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Dispute Over Voter Guide Headed to Supreme Court”
<http://electionlawblog.org/?p=75283>
Posted onAugust 12, 2015 3:12 pm
<http://electionlawblog.org/?p=75283>byRick Hasen
<http://electionlawblog.org/?author=3>
CCP
<http://www.campaignfreedom.org/2015/08/12/dispute-over-voter-guide-headed-to-supreme-court/>:
The Center for Competitive Politics (CCP), America’s largest
non-profit dedicated to protecting political free speech rights,
issued the following statement in reaction to the Third Circuit
Court of Appeals ruling in the case of/Delaware Strong Families v.
Attorney General of the State of Delaware/://
“We’re disappointed that the 3rd Circuit declined to rehear the
Delaware Strong Families case, and we’ll now appeal to the Supreme
Court,”*said Allen Dickerson, Legal Director for CCP and counsel to
Delaware Strong Families (“DSF”).*
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
“Carl P. Leubsdorf: Why there’s hope for easing Texas’ voter ID law”
<http://electionlawblog.org/?p=75281>
Posted onAugust 12, 2015 3:04 pm
<http://electionlawblog.org/?p=75281>byRick Hasen
<http://electionlawblog.org/?author=3>
Dallas Morning News column
<http://www.dallasnews.com/opinion/latest-columns/20150812-carl-p.-leubsdorf-why-theres-hope-for-easing-texas-voter-id-law.ece>.
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>,Voting
Rights Act <http://electionlawblog.org/?cat=15>
President Obama Writes Letter to the Editor of NYT Magazine on
Voting Rights Piece <http://electionlawblog.org/?p=75274>
Posted onAugust 12, 2015 10:29 am
<http://electionlawblog.org/?p=75274>byRick Hasen
<http://electionlawblog.org/?author=3>
Here.
<http://www.nytimes.com/2015/08/16/magazine/president-obamas-letter-to-the-editor.html?smid=tw-share>
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>,Voting
Rights Act <http://electionlawblog.org/?cat=15>
Did Claire McCaskill Illegally Coordinate with Todd Akin’s Campaign?
<http://electionlawblog.org/?p=75272>
Posted onAugust 12, 2015 9:06 am
<http://electionlawblog.org/?p=75272>byRick Hasen
<http://electionlawblog.org/?author=3>
Inan earlier post <http://electionlawblog.org/?p=75264>, I described how
Sen.Claire McCaskill’s Politico oped
<http://www.politico.com/magazine/story/2015/08/todd-akin-missouri-claire-mccaskill-2012-121262.html#ixzz3ibuQmzPJ>shows
how it is possible to get outside groups to follow your lead without
breaking the coordination rules. The post was a responseto a tweet
<https://twitter.com/justinamash/status/631330536859009024>by Rep.
Justin Amash suggesting McCaskill engaged in illegal coordination.
However, when I wrote my post, I did not realize there wasa second
page<http://www.politico.com/magazine/story/2015/08/todd-akin-missouri-claire-mccaskill-2012-121262_Page2.html#.VctuXlNVhHw>to
the McCaskill oped, and that Rep. Amash wasactually referring
<https://twitter.com/justinamash/status/631490463967637504>to this part
of it:
A /Post-Dispatch /poll conducted July 23–25 showed Brunner leading
the race at 33 percent, followed by Steelman at 27, and Akin at 17.
But our polling showed the race was tightening, with Brunner still
up by a point or two and Steelman solidly in third. Then,
unexpectedly, the Akin camp took down one of his own ads that had
been so effective. In it Mike Huckabee, the former governor of
Arkansas and a leading voice in the conservative movement, endorsed
Akin and explained his reasoning looking straight into the camera.
It was powerful, but Akin’s camp replaced it with Akin talking about
“flames of freedom.” What were they thinking? Akin didn’t have money
for polling, but we had been tracking the numbers carefully and
concluded that he’d be in trouble if he didn’t get the Huckabee ad
back up.
On the Thursday before the election, I called Ron Gladney, the
husband of Rep. Jo Ann Emerson, a Republican from Missouri. I asked
him if he could get a message to the Akin camp to put the Huckabee
ad back up. Of course Gladney started laughing and asked, “Are you
kidding?” “No,” I replied. “If he gets the Huckabee ad back up by
Friday, he’s going to win.” I also placed a call to Michael Kelley,
a Democratic Party and labor operative who was friends with a former
Akin staffer, and asked him to convey the same message to the Akin
camp. A short time later my campaign manager, Adrianne Marsh, got a
call from the Akin campaign. The person on the line wanted to talk
to our pollster. Adrianne called me, and I gave clearance, allowing
Kiley to speak in broad generalities. Three hours later the Huckabee
ad was back up.
Rep. Amash contends this should count as illegal coordination, and I
think this does raise a serious question about coordination. The
Senator’s campaign was sending a message to the Akin campaign about what
strategy to follow. I hope that Sen. McCaskill’s campaign can respond
to questions about whether this communication crossed the line. If she
does, I will post or link to the response.
UPDATE: Here are the ruleson coordinated communications.
<http://www.fec.gov/pages/brochures/indexp.shtml#CC>
FURTHER UPDATE: I linked to the coordinated communications rules just
before I had to step away from the computer for a few hours. Those rules
might not apply to these facts (here’s Marc Elias arguingthey don’t
<https://twitter.com/marceelias/status/631569632747495425>and Justin
Amisharguing that they do
<https://twitter.com/justinamash/status/631582976745340928>). On
reflection, I think the stronger issue is whether McCaskill made an
unreported and excessive in kind contribution to the Akin campaign by
sharing the results of her polling data. If she gave the campaign
something worth more than the limit (which was probably $2600 in that
election) she’d be giving an in-kind contribution, and a contribution
worth that much would have to be reported.
Well did the Senator give Akin something of value? It looks like it.
After all, we know it is valuable to him because the Senator writes
“Akin did not have money for polling,” and she provided the information
he needed to clinch the primary (at least in the Senator’s telling).
Elias’s response
<https://twitter.com/marceelias/status/631572680202973184>to this point
is: “There’s no suggestion she shared ‘polling data’. She only ‘gave
clearance, allowing [pollster] to speak in broad generalities.” Perhaps
that distinction will work, but I still think the issue is a serious one
and merits a fuller analysis (and certainly fuller than I can give it
now). I’m not suggesting the Senator broke the law, but there is enough
here to justify a closer look.
I should add that there’s the potential to look not only at McCaskill’s
campaign but also Akin’s campaign.
P.S. Motive does not matter.Here’s a case
<http://openjurist.org/903/f2d/1247/goland-v-united-states>I worked on
as a clerk in which one contributor made an excessive in kind donation
in a California Senate race to a fringe candidate and claimed it was not
illegal because he was doing it to help draw votes away from the
Republican candidate to help the democratic candidate. He went to jail.
Michael Goland v. FEC.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
Quote of the Day–@Lessig Edition <http://electionlawblog.org/?p=75270>
Posted onAugust 12, 2015 7:31 am
<http://electionlawblog.org/?p=75270>byRick Hasen
<http://electionlawblog.org/?author=3>
“Ideally, I would resign in a day.”
–Larry Lessig, quoted in Politico, Dissent in Bernie Sanders’ camp; The
candidacy of Sanders adviser Larry Lessig could complicate matters.
<http://www.politico.com/story/2015/08/bernie-sanders-larry-lessig-2016-campaign-121280.html#ixzz3ibxRCzrg>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Now eligible to lobby, Eric Cantor chooses investment banking
instead” <http://electionlawblog.org/?p=75268>
Posted onAugust 12, 2015 7:28 am
<http://electionlawblog.org/?p=75268>byRick Hasen
<http://electionlawblog.org/?author=3>
Politico reports.
<http://www.politico.com/story/2015/08/now-eligible-to-lobby-eric-cantor-chooses-investment-banking-instead-121273.html>
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Posted inlobbying <http://electionlawblog.org/?cat=28>
“The Voting Rights Act Turned 50, But There’s Not a Lot to
Celebrate” <http://electionlawblog.org/?p=75266>
Posted onAugust 12, 2015 7:27 am
<http://electionlawblog.org/?p=75266>byRick Hasen
<http://electionlawblog.org/?author=3>
Brentin Mock
<http://www.nationaljournal.com/next-america/economic-empowerment/50th-anniversary-of-voting-rights-act-still-not-a-lot-to-celebrate-201508011>for
the National Journal.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
How Candidates Get Outside Groups to Help Without Coordinating
<http://electionlawblog.org/?p=75264>
Posted onAugust 12, 2015 7:24 am
<http://electionlawblog.org/?p=75264>byRick Hasen
<http://electionlawblog.org/?author=3>
Sen. Claire McCaskill
<http://www.politico.com/magazine/story/2015/08/todd-akin-missouri-claire-mccaskill-2012-121262.html#ixzz3ibuQmzPJ>on
her strategy to boost Akin in the Republican primaries:
My consultants put together a $1.7 million plan. Four weeks out we
would begin with a television ad boosting Akin, which my campaign
consultant Mike Muir dubbed “A Cup of Tea.” The production costs
were pretty low, about $20,000, because we didn’t have to film
anything. We just used pictures and voice-overs. We would spend
$750,000 at first and run it for eight or nine days. Then we’d go
back into the field and test to see if it was working. If it was,
we’d dump in more “McCaskill for Senate” money, and we’d add radio
and more TV in St. Louis and Kansas City. The second TV buy would
approach $900,000. We hoped that some of our friends watching the TV
ads would catch on and some of the outside groups would augment the
last week with mail and radio. Sure enough, a radio ad calling Akin
“too conservative” that went on the air in the closing days of the
primary was paid for by the Democratic Senatorial Campaign
Committee. We would later find out that their rural radio buy was
$250,000.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
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--
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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