[EL] ELB News and Commentary 8/26/15
Rick Hasen
rhasen at law.uci.edu
Wed Aug 26 07:38:34 PDT 2015
“State elections watchdog files lawsuit against ‘LLC loophole'”
<http://electionlawblog.org/?p=75619>
Posted onAugust 26, 2015 7:36 am
<http://electionlawblog.org/?p=75619>byRick Hasen
<http://electionlawblog.org/?author=3>
News
<http://www.timesunion.com/local/article/State-elections-watchdog-files-lawsuit-against-6465696.php>from
New York.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Trump’s deadline to rule out a third-party bid: Sept. 30″
<http://electionlawblog.org/?p=75617>
Posted onAugust 26, 2015 7:31 am
<http://electionlawblog.org/?p=75617>byRick Hasen
<http://electionlawblog.org/?author=3>
CNN
<http://www.cnn.com/2015/08/25/politics/donald-trump-deadline-third-party-south-carolina?sr=nl_pol_082515_trumpscpledge&ct=t%28CNNPolitics_com_Nightcap_July_22_20157_22_2015%29>:
Donald Trump must rule out a third-party bid before October if he
wants to compete in South Carolina’s Republican primary, a crucial
test in the nominating contest.
Trump has repeatedly refused to rule out a third-party candidacy,
noting that he could use the threat of an independent bid as
leverage, but he cannot appear on the South Carolina primary ballot
unless he pledges to support the GOP nominee in the general election.
Trump said Tuesday when asked about the rule by reporters in Iowa
that his campaign is “looking into it.”
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Posted inballot access <http://electionlawblog.org/?cat=46>,campaigns
<http://electionlawblog.org/?cat=59>
What Did Bob Bauer Discuss with Joe Biden?
<http://electionlawblog.org/?p=75615>
Posted onAugust 26, 2015 7:26 am
<http://electionlawblog.org/?p=75615>byRick Hasen
<http://electionlawblog.org/?author=3>
Politico Playbook <http://www.politico.com/playbook/>quotes from a Glenn
Thrush article as follows:
*To the annoyance of the Clinton campaign*, Biden’s allies have
strategically leaked his modest, noncommittal doings to the media,
which have given otherwise ho-hum confabs with Elizabeth Warren and
President Obama’s former counsel Bob Bauer bombshell treatment
(Warren … offered her usual warning against bringing more Wall
Street executives into the White House; the Bauer sit-down was a
relatively dry give-and-take on state election laws and deadlines).
But theThrush article itself
<http://www.politico.com/story/2015/08/joe-beau-biden-president-hype-2016-121749.html#ixzz3jvnK0su7>[now]
says:
To the annoyance of the Clinton campaign, Biden’s allies have
strategically leaked his modest, noncommittal doings to the media,
which have given otherwise ho-hum confabs with Elizabeth Warren and
President Obama’s former counsel Bob Bauer bombshell treatment
(Warren, according to a person with knowledge of the interaction,
offered her usual warning against bringing more Wall Street
executives into the White House; the talk with Bauer, an old Biden
friend who worked with him closely in the White House, was intended
to be an informal, personal check-in session that was leaked against
the wishes of the participants).
Bauer’s firm, through Bauer’s partner Marc Elias, represents Hillary
Clinton’s campaign. It would not surprise me if there was pushback to
the original writing, and it would not surprise me if that original
reporting was inaccurate.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Legislative Delegations and the Elections Clause”
<http://electionlawblog.org/?p=75612>
Posted onAugust 26, 2015 7:20 am
<http://electionlawblog.org/?p=75612>byRick Hasen
<http://electionlawblog.org/?author=3>
Derek Muller has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2650432>on SSRN
(forthcoming, /FSU Law Review/). Here is the abstract:
Arizona State Legislature v. Arizona Independent Redistricting
Commission might be viewed as a dispute about the control over
redistricting, with a heavy emphasis on the perceived problems of
and solutions to partisan gerrymandering and incumbent entrenchment.
Or the case might be about the power of the people to wrest control
from an unresponsive legislature and pass their own laws via ballot
initiative. But that is not really this case. This Article notes
that it is something more nuanced. This case is less about the
ballot initiative or about partisan gerrymandering, and more about a
delegation of legislative power from the legislature to an unelected
agency.
The case turned almost exclusively on the definition of the word
“Legislature” as it appears in the Constitution, which has little
precedent in Supreme Court opinions except for a couple of
century-old cases of tangential relevance. But there is also a rich
history of interpreting and constructing the Elections Clause — but
it has occurred in Congress and in the states. These historical
election disputes were all but absent in the Supreme Court,
effectively ignored.
This Article examines the dispute over Arizona’s independent
redistricting commission largely through a critique of the
delegation of power from the legislature to an unelected entity. It
then examines the historical records from two sources. First, it
scrutinizes pre-Seventeenth Amendment discussions about the power to
delegate legislative power to the people. Second, it consider and
congressional adjudications about election disputes concerning the
proper role of the state legislature and delegations of the
lawmaking power to other entities. These two examinations conclude
that the historical understanding of the power of the “Legislature”
precluded a delegation of its power to another entity. It concludes
with some concerns about several justices’ conclusions in the case,
along with parting thoughts about the impact of these historical
records in future litigation.
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Posted inElections Clause
<http://electionlawblog.org/?cat=70>,legislation and legislatures
<http://electionlawblog.org/?cat=27>,redistricting
<http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Potential for Democratic Filibuster on Iran Deal Angers Key
Republican” <http://electionlawblog.org/?p=75610>
Posted onAugust 26, 2015 7:16 am
<http://electionlawblog.org/?p=75610>byRick Hasen
<http://electionlawblog.org/?author=3>
Fascinating
<http://www.nytimes.com/politics/first-draft/2015/08/26/potential-for-democratic-filibuster-on-iran-deal-angers-key-republican/?_r=0>from
the NYT:
With the tide flowing in President Obama’s favor on the Iran nuclear
deal, the architect of legislation that gave Congress a say in its
approval is none too happy about the possibility that the accord may
never reach a final vote.
Senator Bob Corker of Tennessee, chairman of the Senate Foreign
Relations Committee, said on Tuesday that it would be a travesty if
Democrats filibustered any resolution disapproving ofthe accord
between Iran and six world powers
<http://www.nytimes.com/interactive/2015/07/14/world/middleeast/iran-nuclear-deal-who-got-what-they-wanted.html>.
The Senate this spring voted, 98 to 1,in favor of the Iran Review
Act
<http://www.nytimes.com/2015/05/08/us/politics/iran-bill-republicans.html>,
which gave Congress the right to vote on a resolution of approval or
disapproval of a final deal.
Sarah Binder <https://twitter.com/bindersab/status/636538797837172736>:
“GOP senators now fret Dems might filibuster Iran disapproval res. Did
GOP overestimate Dem support when they devised rules for
debate?…’Expedited procedures’ in Senate typically ban filibusters.
That’s what makes them ‘expedited.’Why not this time?”
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Posted inlegislation and legislatures <http://electionlawblog.org/?cat=27>
“Georgia County Admits To Illegally Disenfranchising Voters”
<http://electionlawblog.org/?p=75608>
Posted onAugust 26, 2015 7:08 am
<http://electionlawblog.org/?p=75608>byRick Hasen
<http://electionlawblog.org/?author=3>
Think Progress
<http://thinkprogress.org/election/2015/08/26/3695039/county-admits-it-disenfranchised-voters-in-african-american-dominated-county/>:
Fulton County, Georgia admitted to illegally disenfranchising and
misleading voters in the 2008 and 2012 elections in a settlement
this month. For more than two dozen violations of state law —
including improperly rejecting eligible ballots and sending voters
to the wrong precincts — the county will pay a fine of$180,000
<http://www.ajc.com/news/news/local-govt-politics/state-approves-fulton-election-settlement/nnJj2/>.
To make sure the problems do not continue in the future, the county
has promised to spend an additional $200,000 onnew training software
<http://patch.com/georgia/roswell/fulton-spend-over-200000-improve-elections-process-0>for
their poll workers….The county, which includes Atlanta, has aheavily
African American
<http://quickfacts.census.gov/qfd/states/13/13121.html>voting
population and leans progressive,voting overwhelmingly
<http://www.politico.com/2012-election/results/president/georgia/>for President
Obama in 2008 and 2012. Asdetailed
<http://patch.com/georgia/roswell/state-fines-fulton-county-180000-election-law-violations-0>in
the new settlement, county elections officials misinformed the
precincts of who was coming to vote and when, failed to provide
absentee ballots to voters who requested them, and failed to put
voters who registered on time on the rolls, among other violations.
The head of Fulton County’s elections officewas fired
<http://www.11alive.com/story/news/politics/2014/07/09/sharon-mitchell-sues-fulton-county/12430351/>last
year, which she credits to her refusal to cover up the improper
purging of voters in 2012.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
“Three Cheers for Citizens United!”
<http://electionlawblog.org/?p=75606>
Posted onAugust 26, 2015 7:07 am
<http://electionlawblog.org/?p=75606>byRick Hasen
<http://electionlawblog.org/?author=3>
Jack Shafer writes
<http://www.politico.com/magazine/story/2015/08/citizens-united-2016-121739.html#.Vd3GHNNVhHx>for
Politico.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Mega-donors extend ‘shelf life’ of struggling 2016 hopefuls”
<http://electionlawblog.org/?p=75604>
Posted onAugust 26, 2015 7:04 am
<http://electionlawblog.org/?p=75604>byRick Hasen
<http://electionlawblog.org/?author=3>
AFP reports.
<http://news.yahoo.com/mega-donors-extend-shelf-life-struggling-2016-hopefuls-073748966.html>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“State Contractors Aid Governors’ Campaigns”
<http://electionlawblog.org/?p=75600>
Posted onAugust 25, 2015 8:39 pm
<http://electionlawblog.org/?p=75600>byRick Hasen
<http://electionlawblog.org/?author=3>
WSJ:
<http://www.wsj.com/articles/state-contractors-aid-governors-campaigns-1440547616>
Campaigns and super PACs supporting four Republican governors
running for president raised at least $2.5 million in legal
donations from companies with state contracts or taxpayer subsidies,
illustrating potential conflicts of interest that may emerge when
candidates exit the primary and return home.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Bernie Sanders’s Success in Attracting Small Donors Tests
Importance of ‘Super PACs’” <http://electionlawblog.org/?p=75598>
Posted onAugust 25, 2015 8:35 pm
<http://electionlawblog.org/?p=75598>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2015/08/26/us/politics/bernie-sanders-success-in-attracting-small-donors-tests-importance-of-super-pacs.html?smid=tw-share&_r=0>(which
still puts “Super PACs” in quotes):
But Mr. Sanders’s fund-raising strategy will test the prevailing
notion in Washington that no candidate can successfully compete on
the national stage without tapping into the many millions of dollars
that have poured into super PACs since the Supreme Court’s Citizens
United decision in 2010.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“DC Circuit Spurns GOP Challenge to SEC Pay-to-Play Rule”
<http://electionlawblog.org/?p=75596>
Posted onAugust 25, 2015 8:09 pm
<http://electionlawblog.org/?p=75596>byRick Hasen
<http://electionlawblog.org/?author=3>
Brian Svoboda
<http://www.lawandpoliticsupdate.com/2015/08/dc-circuit-spurns-gop-challenge-to-sec-pay-to-play-rule/>:
The United States Court of Appeals for the District of Columbia
Circuit today left standing the Securities and Exchange Commission’s
“pay-to-play” rule, which bars investment advisers from providing
paid services to state and local governments when making certain
political contributions to state and local officials.
The court rejected as time-barred a challenge to the rule that was
brought by state Republican parties in New York and Tennessee. The
court held that the state parties brought their suit in the wrong
court and at the wrong time, saying that the Investment Advisers Act
required the challenge to be brought at the circuit court level and
within 60 days of promulgation. The SEC rule took effect in 2010;
the state parties sued in federal district court in 2014.
Informed investment advisers maintain strict procedures to comply
with the SEC rule, which affects some federal elections as well as
many non-federal elections. Four incumbent governors currently seek
the presidency: Chris Christie of New Jersey, Bobby Jindal of
Louisiana, John Kasich of Ohio, and Scott Walker of Wisconsin. The
court’s ruling leaves in place a barrier to fundraising in direct
support of their campaigns.
The opinion in New York Republican State Committee v. SEC is
availablehere
<http://www.cadc.uscourts.gov/internet/opinions.nsf/3B481AC095C6FC8985257EAC004EF7D7/$file/14-1194-1569555.pdf>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
Charles Koch “Flabbergasted” by Obama Criticism, Wants to Educate
Him About “Rent Seeking” <http://electionlawblog.org/?p=75594>
Posted onAugust 25, 2015 7:58 pm
<http://electionlawblog.org/?p=75594>byRick Hasen
<http://electionlawblog.org/?author=3>
Mike Allen
<http://www.politico.com/story/2015/08/charles-koch-blasts-obama-121746.html>:
Charles Koch hit back at criticism of “the Koch brothers” during
President Barack Obama’s energy speech in Las Vegas earlier this
week, saying he was “flabbergasted” by the attack and charging that
Obama made the dig as a favor to Senate Minority Leader Harry Reid
(D-Nev.), who appeared with him.
“It’s beneath the president, the dignity of the president, to be
doing that,” Koch said during a phone interview Tuesday…
That’s not the American way. That’s not progress. That’s not
innovation. That’s rent seeking, and trying to protect old ways of
doing business and standing in the way of the future.”
Obama continued: “I mean, think about this. Ordinarily, these are
groups that tout themselves as champions of the free market. If you
start talking to them about providing health care for folks who
don’t have health insurance, they’re going crazy: ‘This is
socialism, this is going to destroy America.’ But in this situation,
they’re trying to undermine competition in the marketplace, and
choke off consumer choice, and threaten an industry that’s churning
out new jobs at a fast pace.”
Koch shot back: “I don’t know whether he knows what that phrase
means, but ‘rent seeking,’ of course, is, in economic terms, is
getting the government to rig the system in your favor. And that’s
exactly what these so-called ‘renewable energy’ proponents are doing.”
I’m guessing that Obama, who taught at the University of Chicago, is
familiar with the term “rent-seeking.”
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“City clerks criticize Sacramento County elections office”
<http://electionlawblog.org/?p=75592>
Posted onAugust 25, 2015 4:21 pm
<http://electionlawblog.org/?p=75592>byRick Hasen
<http://electionlawblog.org/?author=3>
SacBee
<http://www.sacbee.com/news/investigations/the-public-eye/article29754133.html>:
The Sacramento County elections office published sample ballot
booklets last year with a number of errors: Omitted were a statement
from a Sacramento City Council candidate and a list of endorsed
candidates from the Democratic Party. Included was an argument in
favor of a Rancho Cordova tax measure – where the opponent’s
argument belonged.
The same year, Galt City Council members up for re-election received
incorrect information from the office about their ballot order. The
incumbents, including one who lost by a razor-thin margin, used the
information in campaign materials to tell voters how to select them.
Current and former city clerks in Sacramento, Galt and Rancho
Cordova say the elections office has become less reliable in the
past 18 months. The problems, they say, coincide with a decision by
Registrar of Voters Jill LaVine in January 2014 to reassign her
longtime campaign services manager. California cities generally
contract with counties to run elections, due to the high cost of
voting machines and personnel. City clerks, therefore, must work
closely with LaVine and the campaign services manager to try to
ensure elections run smoothly.
LaVine, who was appointed by the Sacramento County Board of
Supervisors in 2003, declined requests for an interview. In written
responses, she said the number of mistakes last year was relatively
small, “but even these few were not up to my standards. It was
clearly a rough year.” She said the office has changed its
procedures to prevent similar errors in the future, such as sending
proofs to a larger group of people before printing.
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Posted inelection administration <http://electionlawblog.org/?cat=18>
“Critics, watchdogs question stealth Cuba lobbying campaign”
<http://electionlawblog.org/?p=75589>
Posted onAugust 25, 2015 4:18 pm
<http://electionlawblog.org/?p=75589>byRick Hasen
<http://electionlawblog.org/?author=3>
The /Washington Examiner/reports.
<http://www.washingtonexaminer.com/critics-watchdogs-question-stealthy-cuba-lobbying-tactics/article/2570694>
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Posted inlobbying <http://electionlawblog.org/?cat=28>
“Experts Can’t Agree On Whether Voting-Booth Selfies Will Destroy
Democracy” <http://electionlawblog.org/?p=75587>
Posted onAugust 25, 2015 4:16 pm
<http://electionlawblog.org/?p=75587>byRick Hasen
<http://electionlawblog.org/?author=3>
HuffPo reports.
<http://www.huffingtonpost.com/entry/will-voting-booth-selfies-destroy-democracy-experts-disagree_55dc953ae4b0a40aa3ac3ed6?kvcommref=mostpopular>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“If you want to understand Donald Trump, look to the success of the
European far-right” <http://electionlawblog.org/?p=75585>
Posted onAugust 25, 2015 4:12 pm
<http://electionlawblog.org/?p=75585>byRick Hasen
<http://electionlawblog.org/?author=3>
Matt Yglesias
<http://www.vox.com/2015/8/25/9203405/trump-european-far-right>:
In a 2014 paper,law professor David Schleicher
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2526837>observed
that institutional differences between the US and Europe can end up
obscuring underlying similarities in the development of party politics.
Some countries have proportional electoral systems that are quite
friendly to small new political parties that can grab 5 or 10
percent of the vote. In those kinds of countries, there is an
extremely strong incentive for newish political movements to found
new parties to represent them.
The United States, by contrast, has political parties that are very
“open.”
You don’t need to pay membership fees to vote in a Republican Party
primary, and there’s no formal institution like a “shadow Cabinet”
that officially speaks for the party while it is in opposition. The
party is, instead, a loosely defined network of individuals and
institutions that is collectively powerful and permeable. Combine
that with first-past-the-post voting, and forming a new political
party is a generally unappealing option. What you typically want to
do is act entrepreneurially/within/the structure of existing party
politics. This is whyBlack Lives Matter is pressing Hillary Clinton
<http://www.vox.com/2015/8/19/9174077/hillary-clinton-black-lives-matter>to
disavow old Democratic Party positions rather than running its own
candidates for office.
If the US had European-style political institutions, Trump would be
leading a European-style “far-right” party. Since it doesn’t, he’s
running a GOP primary campaign. But it’s gaining support for the
exact same reason that populist parties in Europe are.
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Posted inpolitical parties
<http://electionlawblog.org/?cat=25>,political polarization
<http://electionlawblog.org/?cat=68>
“Is Ind. law explicitly banning taking photographs in voting booth
unconstitutional?” <http://electionlawblog.org/?p=75583>
Posted onAugust 25, 2015 10:14 am
<http://electionlawblog.org/?p=75583>byRick Hasen
<http://electionlawblog.org/?author=3>
The Indiana Law Blog.
<http://indianalawblog.com/archives/2015/08/ind_law_is_indi_1.html>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
Jeffrey Rosen NYT Book Review of Berman Voting Rights Book
<http://electionlawblog.org/?p=75580>
Posted onAugust 25, 2015 9:11 am
<http://electionlawblog.org/?p=75580>byRick Hasen
<http://electionlawblog.org/?author=3>
It concludes
<http://www.nytimes.com/2015/08/30/books/review/give-us-the-ballot-by-ari-berman.html?_r=0>with
a note on race and party:
In 2014, the first election since 1965 without the preclearance
protections of the Voting Rights Act, voters in 14 states faced new
voting restrictions adopted by mostly Republican legislatures,
including a voter identification law in Texas and cutbacks on
same-day registration and early voting in North Carolina. The
Supreme Court allowed both laws to go into effect, over dissents
from Justice Ginsburg. But because the new voting restrictions were
arguably adopted to help Republicans rather than harm
African-Americans, the Supreme Court may continue to uphold them on
the grounds that the Constitution does not prohibit
hyperpartisanship by legislatures. Berman notes that “the number of
voters potentially affected by new barriers to the ballot box
exceeded the margin of victory in close races for Senate and
governor in North Carolina, Kansas, Virginia and Florida, according
to the Brennan Center for Justice.”
“Give Us the Ballot” is an engrossing narrative history rather than
constitutional analysis. Berman does not explore why justices who
are devoted to the original understanding of the Constitution have
repeatedly voted to narrow the scope of the Voting Rights Act with
the argument that the equal protection clause of the 14th Amendment
is colorblind. (In fact, as Justice John M. Harlan observed in his
1964 dissent from one of the original Supreme Court decisions
regarding “one man, one-vote,” the framers of the 14th Amendment
believed that the equal protection clause did not regulate voting or
apportionment at all.) Still, Berman vividly shows that the power to
define the scope of voting rights in America has shifted from
Congress to the courts, a result that would have surprised the
Reconstruction-era framers.
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>,Voting
Rights Act <http://electionlawblog.org/?cat=15>
“Larry Lessig Says He’d Give Joe Biden A Third Term as VP”
<http://electionlawblog.org/?p=75578>
Posted onAugust 25, 2015 8:26 am
<http://electionlawblog.org/?p=75578>byRick Hasen
<http://electionlawblog.org/?author=3>
Bloomberg reports.
<https://www.bloomberg.com/politics/articles/2015-08-24/larry-lessig-says-he-d-give-joe-biden-a-third-term-as-vp>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“Would more lobbying improve America”
<http://electionlawblog.org/?p=75576>
Posted onAugust 25, 2015 8:24 am
<http://electionlawblog.org/?p=75576>byRick Hasen
<http://electionlawblog.org/?author=3>
Politico reports.
<http://www.politico.com/agenda/story/2015/08/would-more-lobbying-improve-america-000206>
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Posted inlobbying <http://electionlawblog.org/?cat=28>
--
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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