[EL] Lessig memo

Fri Aug 14 11:05:56 PDT 2015

What about the exemption for volunteer time, which would seem to comfortably apply here?

Rick Hasen

Sent from my iPhone. Please excuse typos.

On Aug 14, 2015, at 10:36 AM, Bill Maurer <wmaurer at ij.org<mailto:wmaurer at ij.org>> wrote:

I don’t see on the FEC website where Lessig’s confidential memo to the Sanders campaign giving valuable advice—presumably for free—has been listed as an in-kind contribution. The Politico story doesn’t say when he wrote it, so perhaps the campaign has not had to report it yet. But I would think that this would qualify as a significant in-kind contribution that has to be reported by the Sanders campaign and I would be interested if either of them thought that that was the case.

Bill

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Friday, August 14, 2015 8:46 AM
To: law-election at UCI.edu<mailto:law-election at UCI.edu>
Subject: [EL] ELB News and Commentary 8/14/15

“House GOP lays out plan for Va. redistricting session”<http://electionlawblog.org/?p=75342>
Posted on August 14, 2015 8:42 am<http://electionlawblog.org/?p=75342> by Rick Hasen<http://electionlawblog.org/?author=3>

The latest<http://www.richmond.com/news/virginia/government-politics/article_ce6025a9-6358-513d-a261-9f34a2e78e9a.html> from Va. I expect a three-judge court will likely draw the lines.
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Posted in redistricting<http://electionlawblog.org/?cat=6>
“Louisiana Republican Party sues over campaign contribution limits to state political parties”<http://electionlawblog.org/?p=75340>
Posted on August 14, 2015 8:38 am<http://electionlawblog.org/?p=75340> by Rick Hasen<http://electionlawblog.org/?author=3>

The Advocate reports.<http://theadvocate.com/news/13169480-123/state-gop-sues-over-contribution>  I’ll have more on this suit coming Monday. As for why the last suit was dropped:

The Republican National Committee, along with the state party, sued the FEC last year over the same issue. But the RNC decided to drop the lawsuit.

“The Louisiana party still wanted to pursue it, so that’s why we have refiled,” Bopp said.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, political parties<http://electionlawblog.org/?cat=25>
“Virginia ex-governor’s corruption case on way to Court”<http://electionlawblog.org/?p=75338>
Posted on August 14, 2015 8:33 am<http://electionlawblog.org/?p=75338> by Rick Hasen<http://electionlawblog.org/?author=3>

Lyle Denniston<http://www.scotusblog.com/2015/08/virginia-ex-governors-corruption-case-on-way-to-court/>:

One of the highest-profile political corruption cases in years will soon be on its way to the Supreme Court.  Lawyers for former Virginia Governor Robert F. McDonnell told a federal appeals court<http://www.scotusblog.com/wp-content/uploads/2015/08/McDonnel-motion-to-stay-mandate-8-13-15.pdf> on Thursday that they will be taking his corruption case on to Washington and want him to be allowed to stay out of prison until the Justices act.  He has been free under an earlier court order after a federal jury in Richmond found him guilty of eleven criminal fraud counts, and the trial judge sentenced him to two years in prison.

In the new filing in the U.S. Court of Appeals for the Fourth Circuit, McDonnell’s legal team said it would ask the Court to review two questions of major importance in cases bringing public corruption charges: what kind of official action must follow a request to an officeholder for a favor, and whether the trial judge in this case failed to ask potential jurors if they had made up their minds about guilt based on the massive publicity that surrounded the case before the trial.

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Posted in bribery<http://electionlawblog.org/?cat=54>, Supreme Court<http://electionlawblog.org/?cat=29>
“DC Court Reformer Moving to New Job”<http://electionlawblog.org/?p=75336>
Posted on August 14, 2015 8:27 am<http://electionlawblog.org/?p=75336> by Rick Hasen<http://electionlawblog.org/?author=3>

Legal Times:<http://www.nationallawjournal.com/legaltimes/id=1202734663912/DC-Court-Reformer-Moving-to-New-Job>

How courts systems find their judges is having a spotlight moment. Comedian John Oliver unspooled a 13-minute argument against judicial election donations in February. Presidential candidate and Sen. Ted Cruz has called for retention elections of U.S. Supreme Court justices<http://www.nationallawjournal.com/id=1202732789255?keywords=supreme+court+judicial+election&publication=National+Law+Journal>. And this month Justice at Stake, one of the most visible groups opposing the politicization of judicial seats, will lose its executive director.

Bert Brandenburg will become president of the Appleseed public-interest law network this month. In his 14 years at Justice at Stake, awareness of the group’s mission has grown.

“What was most exciting and I’m proudest of was helping build a movement from scratch and put a new issue on the map of the American political landscape,” Brandenburg said, reflecting on his tenure. “We’re moving towards an enough-is-enough movement. I think getting cash out of the courtroom is the fastest growing democracy issue right now.”

It has been an absolute pleasure speaking to Bert and his group, and I will miss having his careful and thoughtful work in this arena. Good luck!
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Posted in election law biz<http://electionlawblog.org/?cat=51>
“Lerner slammed ‘evil and dishonest’ GOP inquisitors; Emails give a revealing look behind the scenes at the IRS leading up to the nonprofit targeting scandal”<http://electionlawblog.org/?p=75334>
Posted on August 14, 2015 8:22 am<http://electionlawblog.org/?p=75334> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico reports.<http://www.politico.com/story/2015/08/lerner-slammed-evil-and-dishonest-gop-inquisitors-121307.html?hp=t2_r>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>
The 2015 Election Law Teacher Database<http://electionlawblog.org/?p=75331>
Posted on August 14, 2015 8:16 am<http://electionlawblog.org/?p=75331> by Rick Hasen<http://electionlawblog.org/?author=3>

It is now available at this link<http://electionlawblog.org/wp-content/uploads/Election-Law-Database-2015.xlsx>.
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Posted in election law biz<http://electionlawblog.org/?cat=51>
Responses to NYT Magazine Piece on Voting Rights, Including Mine from Slate<http://electionlawblog.org/?p=75329>
Posted on August 14, 2015 7:48 am<http://electionlawblog.org/?p=75329> by Rick Hasen<http://electionlawblog.org/?author=3>

To be published<http://www.nytimes.com/2015/08/16/magazine/the-8-215-issue.html?_r=0> in this week’s magazine.
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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>
“McDonnell asks to remain free pending appeal to Supreme Court”<http://electionlawblog.org/?p=75327>
Posted on August 13, 2015 4:23 pm<http://electionlawblog.org/?p=75327> by Rick Hasen<http://electionlawblog.org/?author=3>

The Richmond Times-Dispatch reports.<http://www.richmond.com/news/local/crime/article_70c5766f-7d7e-5a08-b955-88a1f9f83d2d.html>
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Posted in bribery<http://electionlawblog.org/?cat=54>
“Federal Election Commission finally names top lawyer — sort of”<http://electionlawblog.org/?p=75325>
Posted on August 13, 2015 3:47 pm<http://electionlawblog.org/?p=75325> by Rick Hasen<http://electionlawblog.org/?author=3>

CPI reports.<http://www.publicintegrity.org/2015/08/13/17837/federal-election-commission-finally-names-top-lawyer-sort>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>
CA “Supreme Court affirms death penalty, rejecting ‘judicial election’ argument”<http://electionlawblog.org/?p=75323>
Posted on August 13, 2015 3:25 pm<http://electionlawblog.org/?p=75323> by Rick Hasen<http://electionlawblog.org/?author=3>

At the Lectern<http://www.atthelectern.com/supreme-court-affirms-death-penalty-rejecting-judicial-election-argument/>:

Among many other issues, the court rejects the defendant’s argument that he could not get a fair trial or appellate review because the superior court judge and the Supreme Court justices are all subject to judicial elections.  The opinion summarizes the argument:  “judges who are subject to election cannot be impartial because they might be removed from office if they rule in favor of a capital defendant.”  For a judge, elections might be like a crocodile in his or her bathtub<https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0CC4QFjACahUKEwis4tuJ16bHAhWTM4gKHearAW0&url=http%3A%2F%2Fdigitalcommons.law.scu.edu%2Fcgi%2Fviewcontent.cgi%3Farticle%3D1403%26context%3Dfacpubs&ei=zeDMVezHG5PnoATm14boBg&usg=AFQjCNEoAlLlCv_Mtu9U9OvSTfyf2ajIVw&sig2=z6tDhTvWmtkOzdqHRRMc0w&bvm=bv.99804247,d.cGU&cad=rja>, and the voters’ removal of Supreme Court justices might become more common than a hundred-year flood<http://www.atthelectern.com/the-specter-of-more-frequent-100-year-floods/>, but the court finds they do not present the “extreme facts” necessary to cast doubt on judicial impartiality.
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Posted in judicial elections<http://electionlawblog.org/?cat=19>
“Watchdogs Urge Supreme Court to Overturn Lower Court & Send Maryland Gerrymander Case to 3-Judge Panel”<http://electionlawblog.org/?p=75321>
Posted on August 13, 2015 1:59 pm<http://electionlawblog.org/?p=75321> by Rick Hasen<http://electionlawblog.org/?author=3>

Release<http://www.campaignlegalcenter.org/news/press-releases/watchdogs-urge-supreme-court-overturn-lower-court-send-maryland-gerrymander-case>:

Today, in Shapiro v. McManus, the Campaign Legal Center joined with Common Cause in filing an amici brief<http://www.campaignlegalcenter.org/sites/default/files/CLC%20%26%20Common%20Cause%20Amici%20Curiae%20Br.%20Shapiro%20v.%20McManus%20%2814-990%29%20SCOTUS%208-13-15.pdf> urging the U.S. Supreme Court to overturn a U.S. District Court decision which dismissed a challenge by voters to the blatant political gerrymander carried out by then-Governor Martin O’Malley and the Maryland state legislature in 2011.  The petitioners argue that their First Amendment rights were violated and they were discriminated against because of their political party affiliations when the state drastically redrew the sixth congressional district to unseat the incumbent Republican Member of Congress and ensure the election of a Democrat.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
Wow, This Exchange Between Marc Caputo and Rep. Brown Over FL Redistricting<http://electionlawblog.org/?p=75319>
Posted on August 13, 2015 12:51 pm<http://electionlawblog.org/?p=75319> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico:<http://www.capitalnewyork.com/article/florida/2015/08/8574280/brown-offers-fiery-rhetoric-no-data-claims-new-district>

Brown insisted that was the case, without providing specific statistics, and the following is a transcript of her responses to repeated questions from POLITICO Florida and the News Service of Florida about her claims.

QUESTION: “The statistics don’t show that [an African-American would not win the district].”

BROWN: “Yes it does.”

QUESTION: “Let me read these statistics. … These were run by two analysts: The African-American share of the 2012 and 2014 Democratic Primary was 63 percent. The primary. That’s the voters in the primary: 63 percent. The African-American share of the 2014 general election is 42 percent and the general election in 2012 was 46 percent. That is a minority-access seat by definition. That’s just African-Americans in that newly drawn District 5. How can you say it’s not a minority access seat?”

BROWN: “Because of the number of people that’s in that district—”

QUESTION: “These are voters. Those statistics are voters. That has nothing to do with prisons.”

BROWN: “Excuse me. Because of the number of voters in that district and the history in that district. And let’s be clear.”

QUESTION: “These are black voters we’re talking about. This is a minority-access seat according to the voting percentages. How can you say it’s not a minority-access seat?”

BROWN: “Listen. I say it’s not.”

QUESTION: “Based on what?”

BROWN: “I say it’s a nonperforming district.”

QUESTION: “I understand that if you say something you think it’s true. What’s your statistics? What are your numbers?

BROWN: “The point is — I’m not giving you the numbers.”

QUESTION: “Because you don’t have them.”

BROWN: “Excuse me, who are you?”

QUESTION: “Marc Caputo, with POLITICO.”

BROWN: “OK. Let me explain something to you, we will get you—”

QUESTION: “Why don’t you explain to me what the statistics are since you’ve cited them up there [while testifying in committee] but you don’t have them?”

BROWN: “Listen, I’ll tell you what. I will be in court, with the case in court. And that’s where we’ll deal with this. Because the fact of the matter is, based on how the Florida Supreme Court drew the district, it disenfranchised the people that live in the Fifth Congressional District.”

NEWS SERVICE OF FLORIDA: “Barack Obama carried that district by more than 20 points. How can you say it won’t elect a Democrat?”

BROWN: “It won’t elect an African-American one. And it won’t elect a Democrat.”

NEWS SERVICE: “But Barack Obama carried it by 20 points.”

BROWN: “Well, we’ll see.”
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Voting Rights Act<http://electionlawblog.org/?cat=15>
Did Sanders Campaign Leak Lessig Memo on Campaign Reform as Campaign Issue?<http://electionlawblog.org/?p=75317>
Posted on August 13, 2015 12:34 pm<http://electionlawblog.org/?p=75317> by Rick Hasen<http://electionlawblog.org/?author=3>

@Lessig in the Daily Beast<http://www.thedailybeast.com/articles/2015/08/13/i-m-running-for-president-to-quit.html>:

This was the argument that I had made to Sanders directly, as Politico reported yesterday<http://www.politico.com/story/2015/08/bernie-sanders-larry-lessig-2016-campaign-121280.html>, citing a confidential memo I had written, and that was apparently leaked to Politico by the campaign. As I argued there:

Reform can’t be just one idea on a list. It can’t be something you talk about achieving “in the long run.” Nothing that you’re talking about doing is credible unless you achieve this reform first. What you need to do clearly is to demonstrate convincingly how you’re going to achieve at least the corruption, and voting parts of your program as the first thing you do.

This is important both politically and for credibility.

Politically: every Democrat is going to be talking about basically the same issues. You need to distinguish yourself from them by describing a credible plan to make certain these changes happen first.

Credibility: after the surge of support for you, the single strongest attack is going to be the “reality argument.” You’re talking about a string of reforms that simply cannot happen in the Washington of today. The “system is rigged.” If that rigging is good for anything, it is good for blocking basically everything you’re talking about.
The only response I’ve heard you give to that is that you’re beginning a revolution—making it sound like the mechanism of change is a bunch of people in the streets of D.C. Whether you believe that is possible or not, other people won’t. Indeed, talking like that only weakens your credibility.

The only credible way to talk about why you will get the change you want where no one else has or could is because you have a plan for making sure the “unrigging” of the “rigged system” happens first. If you have a convincing and credible plan for that, then the other changes you’re talking about don’t sound like mere fantasies.

Citizen equality can’t just be one issue on a list. It has to be the first issue—the one change that makes all other changes believable. For the first time in forever, The Wall Street Journal reports this issue is at the top of voters’ mind. You need to be the leader who makes it top of your platform as well.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Why did you add voting rights and gerrymandering to your reform proposal?”<http://electionlawblog.org/?p=75315>
Posted on August 13, 2015 12:27 pm<http://electionlawblog.org/?p=75315> by Rick Hasen<http://electionlawblog.org/?author=3>

Lessig for President FAQ<https://lessigforpresident.com/faq/#fancy-title-55cceeb695c49>:

Why did you add voting rights and gerrymandering to your reform proposal?
[cid:image002.png at 01D0D67B.F8CF21B0]

My work on this issue began with a focus on the way money corrupts the system. But pressed by many brilliant souls — Guy Charles, Rick Hasen, and others — I have come to see that the reason the system is “corrupt” is because it denies a fundamental equality of citizens. And once you recognize that, then all the other ways the system denies equality are also important. Though differently important. In my view, the motivation for denying equal voting rights is partisan — it benefits one party over the other. The motivation for denying equal representation is political — gerrymandering is a game both parties play, even if it benefits one party more than another. And the motivation for the corrupted system of funding campaigns is simply power — concentrating the funding in a few gives those few enormous power in the political system.

Why not just focus on campaign finance reform?
[cid:image002.png at 01D0D67B.F8CF21B0]

The way we fund campaigns is a corruption of our constitutional design. We were promised a Congress “dependent on the people alone,” where “the People” meant, “not the rich more than the poor.” The politicians have given us a Congress dependent on the funders of campaigns — the rich more than all of us.

I have spent the last 8 years fighting to end this corruption.

But the reason this system is a corruption is because it denies citizens a basic commitment of a representative democracy — that it represent its citizens equally.

If we’re going to fight to correct that fundamental inequality of a representative system, we should fight to correct the other inequalities as well. We should fight to enact reform that gives all of us equal political power, and end the general sense that too many Americans have: that Congress doesn’t represent them.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“The Strangest Campaign Pledge; Why it makes sense to support a candidate who vows to straighten out democracy and then quit.”<http://electionlawblog.org/?p=75313>
Posted on August 13, 2015 10:18 am<http://electionlawblog.org/?p=75313> by Rick Hasen<http://electionlawblog.org/?author=3>

Eric Posner<http://www.slate.com/articles/news_and_politics/view_from_chicago/2015/08/lawrence_lessig_presidential_campaign_donate_before_labor_day_for_citizen.html?wpsrc=sh_all_tab_tw_bot> on Lessig at Slate:

So there is a mismatch between Lessig’s means—a dramatic run for office as an unprecedented “referendum president” who resigns as soon as his mandate is legislated—and his goal, which is at best incremental reform. In the past, he has argued with a great deal more persuasiveness that the only way to reform the political system is through a constitutional convention, and it is easier to see the logic of this position than to understand his campaign goals. Constitutional amendments really could go to the root of the problem—by limiting campaign contributions (and thus overturning Citizens United<https://en.wikipedia.org/wiki/Citizens_United_v._FEC>, which held that the First Amendment banned certain limits on political expenditures), restructuring the Senate (which is a highly unrepresentative body that favors rural interests), limiting the power of the Supreme Court, and perhaps creating a parliamentary system or something like it, which would avoid the twin problems of gridlock and presidential abuse of power that have long been troubling features of our system of separation of powers.

But most calls for constitutional conventions come these days from conservatives<http://www.washingtonpost.com/politics/conservative-lawmakers-weigh-bid-to-call-for-constitutional-convention/2015/04/04/b25d4f1e-db02-11e4-ba28-f2a685dc7f89_story.html>, who want to impose a balanced budget on the federal government and who have no interest in adopting Lessig’s electoral reforms—nearly all of which would benefit the Democratic party in the short term. And the results of a constitutional convention—where moneyed interests as well as all kinds of interest groups would play a big role—are unpredictable. Well, not entirely unpredictable. Under the amendment process of the Constitution, state legislatures can play an important role in selecting delegates and ratifying amendments. And while there is a means to circumvent their formal participation, they would probably influence the outcome. This matters. Republicans have vastly more control over state legislatures than Democrats do—in part because of the gerrymandering Lessig wants to end—so we can be pretty certain about the ideological tilt of any amendments that might ultimately be ratified, if not their content.

This is probably why Lessig has not adopted his earlier proposal of a constitutional convention to his presidential run. The rot goes too deep. But it also should raise doubts about whether the Citizen Equality Act can do any good.

Even if Lessig can’t win, or can’t do much more than hand over the reins to his vice president if he does win, his candidacy would bring a rare level of intelligence and political sophistication to the election and much-needed attention to the problem of electoral reform. For that reason, you might donate a little money to his campaign<https://lessigforpresident.com/donate/>. I did.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Texas House Battleground Could Hinge on Voter-ID Law in Flux”<http://electionlawblog.org/?p=75311>
Posted on August 13, 2015 8:27 am<http://electionlawblog.org/?p=75311> by Rick 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 in campaigns<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 on August 13, 2015 8:24 am<http://electionlawblog.org/?p=75309> by Rick 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 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>
“Former lawmakers sit on tens of millions in campaign cash”<http://electionlawblog.org/?p=75307>
Posted on August 13, 2015 7:43 am<http://electionlawblog.org/?p=75307> by Rick 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 in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

--

Rick Hasen

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UC Irvine School of Law

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