[EL] ELB News and Commentary 12/17/15
Rick Hasen
rhasen at law.uci.edu
Wed Dec 16 21:10:56 PST 2015
ELB Podcast Episode 8. Pam Karlan: Voting Rights In America, 2016
<http://electionlawblog.org/?p=78405>
Posted onDecember 16, 2015 9:09 pm
<http://electionlawblog.org/?p=78405>byRick Hasen
<http://electionlawblog.org/?author=3>
What is the state of voting rights in the United States as we approach
the 2016 elections? Has the loss of a key portion of the Voting Rights
Act thanks to the Supreme Court’s /Shelby County/ decision made it
harder to register and vote? What tools do voting rights advocates have
to fight the latest efforts to restrict access to the ballot?
On Episode 7 of the ELB Podcast, we talk to Stanford Law Professor Pam
Karlan <https://law.stanford.edu/directory/pamela-s-karlan/>.
You can listen to the ELB Podcast Episode 8 onSoundcloud
<https://soundcloud.com/rick-hasen/elb-podcast-episode-8-pam-karlan-voting-rights-in-america-2016>orsubscribe
at iTunes
<https://geo.itunes.apple.com/us/podcast/elb-podcast/id1029317166?mt=2>.
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<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D78405&title=ELB%20Podcast%20Episode%208.%20Pam%20Karlan%3A%20Voting%20Rights%20In%20America%2C%202016&description=>
Posted inSupreme Court <http://electionlawblog.org/?cat=29>,The Voting
Wars <http://electionlawblog.org/?cat=60>,Voting Rights Act
<http://electionlawblog.org/?cat=15>
“Conservative groups helped gut Wisconsin election laws”
<http://electionlawblog.org/?p=78410>
Posted onDecember 16, 2015 8:30 pm
<http://electionlawblog.org/?p=78410>byRick Hasen
<http://electionlawblog.org/?author=3>
CPI tells a sad story.
<http://www.publicintegrity.org/2015/12/16/19056/conservative-groups-helped-gut-wisconsin-election-laws>
Share
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,election
administration <http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
“Adelson son-in-law orchestrated family’s purchase of Las Vegas
Review-Journal” <http://electionlawblog.org/?p=78408>
Posted onDecember 16, 2015 8:28 pm
<http://electionlawblog.org/?p=78408>byRick Hasen
<http://electionlawblog.org/?author=3>
The /Las Vegas Review-Journal /reports
<http://www.reviewjournal.com/news/las-vegas/adelson-son-law-orchestrated-familys-purchase-las-vegas-review-journal>(on
itself).
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
Ned Foley: Ballot Battles in the Nineteenth Century Were Beset by
Violence and Civil Strife; Not So in the Twentieth, and This
Progress is Reason to Hope for Even More
<http://electionlawblog.org/?p=78243>
Posted onDecember 16, 2015 8:00 pm
<http://electionlawblog.org/?p=78243>byRick Hasen
<http://electionlawblog.org/?author=3>
The following is the fourth of five guest posts byNed Foley
<http://moritzlaw.osu.edu/faculty/professor/edward-b-foley/>of Ohio
State, about his new bookBallot Battles: The History of Disputed
Elections in the United States
<https://global.oup.com/academic/product/ballot-battles-9780190235277?cc=us&lang=en&>:
ballotbattles
<http://electionlawblog.org/wp-content/uploads/ballotbattles.jpeg>
*Theme Four:*The nation has never fully fixed the institutional
inadequacy bequeathed by the Founders (as described in the first of
these five posts). When one compares the evolution of the nation’s
experience in handling high-stakes vote-counting disputes over the
entire course of U.S. history, the good news is that there has been
considerable institutional improvement. But, despite this progress,
there is room for much more. Although institutional reform in this
particular area of election law has been exceedingly difficult, the fact
that on the whole the nation’s capacity for handling vote-counting
disputes is significantly better now than it was throughout the
nineteenth century is reason for optimism that the nation can continue
to make progress on this front throughout the remainder of this current
century.
Simply put, the nineteenth century suffered much more violence, and
threats of civil unrest, as a result of ballot-counting battles than the
twentieth century. From Pennnsylvania’s Buckshot War in Pennsylvania
1838 to Arkansas’s Brooks-Baxter War in 1872 to Kansas’s Legislative War
of 1893, military confrontation over counting ballots in close elections
was not uncommon. The lowest moment came at the end of the nineteenth
century, when one of the candidates in Kentucky’s 1899 election for
governor was assassinated by his political opponent during the fight
over counting votes in that election.
There were also harrowing episodes in which armed conflict was narrowly
averted. Maine, for example, in 1879 almost had its own internal civil
war, but a leading hero of the national Civil War a decade earlier once
again put his own life on the line in an effort to prevent bloodshed
over the outcome of elections in his home state. Joshua Chamberlain, who
earned his accolades at Gettysburg, was able to rise above partisan
strife to resolve the conflict peaceably. It was a prime example of
individual virtue stepping in to make up for an institutional deficiency
(a dynamic described generally in the previous post).
There was one instance above all others for which America, as a nation,
should be especially grateful that military confrontation was averted
(albeit narrowly) over an electoral outcome. This dicey episode
occurred during the Civil War when Congress convened after the midterm
elections of 1862. There is a lot worth saying about these midterm
elections, and interested readers are invited to explore the relevant
section of Chapter Four. What is especially striking—and generally not
well known—is that Lincoln was prepared to use military force to prevent
the Clerk of the House of Representatives from siding with Democrats
over Republicans in a fight over which candidates had valid certificates
of elections that entitled to them to be seated at the beginning of the
new congressional session. The Republicans, however, won a key vote that
foiled the Democrats’ plot even after having received some assistance
from the Clerk—and so, fortunately, Lincoln did not need to send troops
onto the floor of the House in order to keep control of the chamber in
Republican hands. If he had done so, it would have been an act of
Executive interference with the Legislature’s organization of itself
that would have been unparalleled in American history and arguably a
kind of coup d’etat antithetical to basic democratic values.
In the twentieth century, the risk of military confrontation over
vote-counting essentially disappears, obviously a very salutary
development. What accounts for it? Part of the explanation is cultural,
but some of it is surely institutional. In the nineteenth century, the
institution empowered to decide major contested elections, including
those for governor, was in most cases the state’s legislature. But the
legislature was the setting in which partisan passions were most
unfettered, and in this context there was the greatest risk of these
passions spilling over into outright violence—both in the legislative
chambers themselves but also on the statehouse grounds as armed
supporters of both sides congregated into a face-off between two militia
forces.
By contrast, even in the nineteenth century, when a major disputed
election was settled in court, it tended to be settled without the same
risk of violence. Relatedly, the judicial settlement conferred much
greater legitimacy than legislative settlement. As the use of the
judiciary increased in relative frequency as the twentieth century
progressed, and the use of the legislature correspondingly diminished,
the overall trend was more peaceable resolution pursuant to the rule of
law—rather than as a result of sheer political power.
Not that state courts were always pure in their virtue when handling
these cases. The point is a comparative one. In the aggregate, major
vote-counting disputes are handled better if resolved in court than in
the legislature, and the Republic seemed to be learning this lesson as
it grew in political maturity during its second century.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
“Evenwel, Equal Representation Depends on Justice Kennedy”
<http://electionlawblog.org/?p=78403>
Posted onDecember 16, 2015 11:03 am
<http://electionlawblog.org/?p=78403>byRick Hasen
<http://electionlawblog.org/?author=3>
Kathay Feng blogs.
<http://www.huffingtonpost.com/kathay-feng/evenwel-equal-representat_b_8808078.html>
Share
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Some Troubling Omnibus Riders Removed but Two Left in Would
Encourage ‘Dark Money’ Abuses: Statement of Trevor Potter, Legal
Center President” <http://electionlawblog.org/?p=78401>
Posted onDecember 16, 2015 11:02 am
<http://electionlawblog.org/?p=78401>byRick Hasen
<http://electionlawblog.org/?author=3>
See here.
<http://www.campaignlegalcenter.org/news/press-releases/some-troubling-omnibus-riders-removed-two-left-would-encourage-dark-money-abuses>
Share
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
The Wisconsin GAB is Dead: RIP <http://electionlawblog.org/?p=78399>
Posted onDecember 16, 2015 10:20 am
<http://electionlawblog.org/?p=78399>byRick Hasen
<http://electionlawblog.org/?author=3>
So sad <http://www.gab.wi.gov/node/3764>:
Today, Governor Walker signed into law Assembly Bill 388, which
eliminates the Government Accountability Board on June 30, 2016 and
replaces it with two separate commissions to oversee the
administration of elections and ethics.
Kevin Kennedy, director and general counsel of the G.A.B., said
Board Members and the staff are prepared to work with the Secretary
of the Department of Administration and the new Commissioners as
they are appointed to ensure a smooth transition to the new structure.
“We are professionals who care deeply about serving voters, local
election officials, candidates and officeholders, and the lobbying
community,” Kennedy said. “Our commitment is to ensure continuity
of service during the transition.”
The legislation sets out a process for legislative leaders and the
Governor to make appointments to both commissions. Once appointed,
new Commissioners will serve as non-voting members of the G.A.B.
starting in February as part of the transition process. To
accommodate this expanded, 18-member body, many G.A.B. meetings will
be held in the State Capitol. The new commissions will also be
meeting separately to select new agency administrators.
The Secretary of DOA is required to develop a plan for the
transition. Under the legislation, all current G.A.B. positions
will transfer to one of the two new commissions, but Kennedy does
not have rights to transfer and the current Elections and Ethics
Division administrators would have to apply for the new
administrator positions with each Commission if they wish to transfer.
“There are still many questions about how the transition will
happen, which we hope to answer in coming weeks,” Kennedy said.
“2016 is a busy Presidential election year, but we will do
everything we can to ensure a smooth transition and ensure the new
commissions get up to speed.”
Am I the only who sees irony in the new agency being the “Secretary of DOA”?
As I wrote in this oped <https://t.co/JcYNBpeDbz>:
Along other dimensions, things are bleaker. Since 2000, states have
not moved to get rid of those partisan decision makers, who decide
how to conduct recounts, where to put polling places, and how hard
to crack down on potential voter fraud. Florida, which had an
elected partisan secretary of state in 2000 (remember Katherine
Harris?) has made the position an appointed one, with the secretary
serving at the pleasure of the governor.
Leave it to Florida to make the position even more partisan. That
appointed secretary of state opposed the move to online voter
registration, a common-sense reform supported by Republican and
Democratic Florida legislators. In Wisconsin, the Republican state
legislature just voted to disband the Government Accountability
Board, a nonpartisan election administration body which had been
viewed as a model for fair election administration.
Wisconsin shows it is not just secretaries of state creating
problems. Republican legislatures have passed laws making it harder
to register and vote and Democratic legislatures passed laws to make
it easier. This emergence of red-state and blue-state election law
is troubling.
Share
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
Jan 22 Plutocrats United Event in DC, with Trevor Potter
<http://electionlawblog.org/?p=78396>
Posted onDecember 16, 2015 9:24 am
<http://electionlawblog.org/?p=78396>byRick Hasen
<http://electionlawblog.org/?author=3>
Announcement
<http://www.campaignlegalcenter.org/document/plutocrats-united-campaign-money-supreme-court-and-distortion-american-elections>:
Plutocrats United: Campaign Money, the Supreme Court, and the
Distortion of American Elections
Dec 16, 2015
The Campaign Legal Center, along with the American Constitution
Society and UCDC Law, is hosting an event on January 22, 2016:
*Plutocrats United: Campaign Money, the Supreme Court, and the
Distortion of American Elections*. Please join us for a
presentation by Richard L. Hasen with Trevor Potter as moderator and
commentator.
Friday, January 22, 2016, 12:00 pm – 1:45 pm, University of
California Washington Center, 1608 Rhode Island Ave. NW Washington,
DC 20036.
Lunch will be provided at 11:30 to those who RSVP by January 18th.
RSVP at info at campaignlegalcenter.org or call (202) 736-2200.
Contact Tim Duong at tduong at campaignlegalcenter.org with any questions.
Download the flyer below.
PDF DOWNLOAD
<http://www.campaignlegalcenter.org/sites/default/files/UCDC%20Flyer_3.pdf>
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Posted incampaign finance
<http://electionlawblog.org/?cat=10>,Plutocrats United
<http://electionlawblog.org/?cat=104>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Unorthodox Lawmaking, Unorthodox Rulemaking”
<http://electionlawblog.org/?p=78394>
Posted onDecember 16, 2015 9:19 am
<http://electionlawblog.org/?p=78394>byRick Hasen
<http://electionlawblog.org/?author=3>
Gluck, O’Connell, and Po have postedthis
draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2699993>on SSRN
(forthcoming, /Columbia Law Review/). Here is the abstract:
The Schoolhouse Rock! cartoon version of the conventional
legislative process is dead, if it was ever an accurate description
in the first place. Major policy today is often the product of
“unorthodox lawmaking” and “unorthodox rulemaking” — deviations from
traditional process marked by frequent use of omnibus bills and
multiple agency implementation; emergency statutes and regulations
issued without prior comment; outsourcing to lawmaking commissions
and unconventional delegates; process shortcuts outside of
emergencies; presidential policymaking; and outside drafters, some
nonpartisan and others hyperpartisan. These unorthodoxies are
everywhere, and they have shifted the balance in the elected
branches and beyond, often centralizing power in actors — like party
leadership and the White House — not traditionally part of the core
lawmaking and rulemaking processes. These unorthodoxies are the new
textbook process.
The theories and doctrines of legislation and administrative law,
however, have paid little attention to these evolutions. The limited
commentary that does exist tends to lump all unorthodox policymaking
together or to preserve an artificial divide between their
legislative and administrative manifestations. But omnibus
policymaking is different from emergency policymaking — not only in
process and product, but in the challenges that each poses for
courts. And both forms of policymaking are different from
presidential policymaking, and so on. Unorthodoxies in one branch
are also closely linked to unorthodoxies in the other.
The “law crowd” — a group in which the value of process is deeply
instilled — tends to look upon these modern changes with suspicion.
But some unorthodoxies may in fact be beneficial to democracy, and
any assessment requires a much clearer understanding of what
legislative and administrative doctrines are for than we currently
have. Unorthodox policymaking may make the job of courts more
difficult by, for instance, making law messier or less transparent,
but is the role of courts to reflect how policy is made? Improve how
policy is made? Or advance different values altogether?
This Essay develops an account of today’s unorthodox lawmaking and
unorthodox rulemaking and substantiates the link between them. It
utilizes a new typology of unorthodoxies to explore the causes,
costs and benefits, and winners and losers associated with each
different kind of policymaking, and plays out the ways that the
theories and doctrines of legislation and administrative law might
respond to the modern context in which they now unquestionably operate.
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Posted inlegislation and legislatures
<http://electionlawblog.org/?cat=27>,political parties
<http://electionlawblog.org/?cat=25>,political polarization
<http://electionlawblog.org/?cat=68>
“Legislative Dysfunction and Political Accountability”
<http://electionlawblog.org/?p=78392>
Posted onDecember 16, 2015 9:17 am
<http://electionlawblog.org/?p=78392>byRick Hasen
<http://electionlawblog.org/?author=3>
Edward Stiglitz has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2629364>on SSRN.
Here is the abstract:
The inability of members of Congress to agree on legislation is
arguably generating a slow motion crisis in our separation of powers
system. Some legislative disagreements reflect genuine differences
in policy views, but other legislative disagreements reflect
dysfunction — public disagreement despite private agreement. Here, I
provide a theoretical account for legislative dysfunction driven by
the perverse effects of elections. The intuition is that in a
polarized environment, the mere act of agreement with the opposition
suggests to voters that the legislator may be misaligned with the
district, forcing re-election motivated legislators to disagree even
if they know that everyone would be best off with a legislative
agreement. Suggestive of this type of dysfunction, Congress has
increasingly turned to post-election voting to resolve critical
business. I examine the voting behavior of exiting and continuing
members during these recent post-election voting periods. Using a
differencing approach to address member and congressional
unobservables, I find that relaxing the re-election incentive
increases the likelihood of agreeing on legislation, particularly
for minority party members, and particularly on substantive votes. I
conclude with thoughts on institutional devices that might alleviate
problems of legislative dysfunction.
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Posted inlegislation and legislatures
<http://electionlawblog.org/?cat=27>,political parties
<http://electionlawblog.org/?cat=25>,political polarization
<http://electionlawblog.org/?cat=68>
“Riders on Party Spending Limits & Public Financing Left Out of
Omnibus But Other Damaging Campaign Finance Riders Included”
<http://electionlawblog.org/?p=78390>
Posted onDecember 16, 2015 9:15 am
<http://electionlawblog.org/?p=78390>byRick Hasen
<http://electionlawblog.org/?author=3>
Fred Wertheimer statement.
<http://www.democracy21.org/legislative-action/press-releases-legislative-action/riders-on-party-spending-limits-public-financing-left-out-of-omnibus-but-other-damaging-campaign-finance-riders-included/> See
also Fred’s comments in theupdate to this post
<http://electionlawblog.org/?p=78383>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
“The 2000 Election: Lessons Learned and the Road Ahead for Voting in
America” <http://electionlawblog.org/?p=78385>
Posted onDecember 16, 2015 8:48 am
<http://electionlawblog.org/?p=78385>byRick Hasen
<http://electionlawblog.org/?author=3>
This<http://www.civilrights.org/press/2015/advisory-15-years-after-bush-v-gore.html>looks
to be a great event on Dec. 17 (RSVP
<https://docs.google.com/forms/d/1tnRxqWbfHW2Az4mWs-O3BNrcdt6PCc8QmBtMRrNc7L0/viewform>):
The Leadership Conference on Civil and Human Rights and The NAACP
Voter Fund present
The 2000 Election:
Lessons Learned and the Road Ahead for Voting in America
8:30 – 9:00 a.m. 9:00 – 9:10 a.m.
9:10 – 10:30 a.m.
National Press Club
529 14th Street, NW Thursday, December 17, 2015 8:30 a.m. – 12:15 p.m.
Continental Breakfast
Opening Remarks: Wade Henderson, President &CEO,
The Leadership Conference on Civil and Human Rights
Panel # 1: Recap of The 2000 Election and Emergence of Modern
Election Protection
Moderator: Lisa Bornstein, The Leadership Conference on Civil and
Human Rights
Historic Voter Mobilization in 2000: Greg Moore, NAACP-National
Voter Fund
Lessons learned from Florida 2000 and Continuing Barriers to Voting:
Liz Kennedy, Demos
Outgrowth of Election Protection Programs: Marcia Johnson-Blanco,
Lawyers Committee for Civil Rights Under Law
Best Practices for Effective Election Administration: Allegra
Chapman, Common Cause Remarks: Findings from the 2000 Florida
Hearings of US Commission on Civil Rights:
Eddie Hailes, Advancement Project
Panel # 2: Election Administration and Voting Machine Integrity in
2016 Elections
Moderator: Adam Ambrogi, The Democracy Fund
Summary of Brennan Center Report on Voting Machines: Chris Famighelli,
Brennan Center at NYU
EAC Preparation for 2016 Elections: Thomas Hicks, US Election
Assistance Commission,
Update on Voting Machine Certification Process: Matt Masterson, US
Election Assistance Commission
How SOSs are preparing for the 2016 Elections: Leslie Reynolds,
National Association of Secretaries of State
10:30 – 10:40 a.m. 10:45 – 12:15 p.m.
Share
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Posted inBush v. Gore reflections
<http://electionlawblog.org/?cat=5>,The Voting Wars
<http://electionlawblog.org/?cat=60>
BIG: Campaign Finance Disclosure Efforts Dealt Severe Blow in
Omnibus <http://electionlawblog.org/?p=78383>
Posted onDecember 16, 2015 7:58 am
<http://electionlawblog.org/?p=78383>byRick Hasen
<http://electionlawblog.org/?author=3>
While campaign finance reformers were busy fighting off an attempt by
Sen. McConnell to include a rider in the omnibus which would allow for
unlimited coordinated party spending with candidates, three other very
bad campaign finance provisions slipped into the must-pass congressional
omnibus as riders. All three relate to disclosure.
ViaJason Abe
<https://twitter.com/jasonaabel/status/677121803370778624>l, one
provision stops the IRS from engaging in rulemaking on 501c4 activity,
which would rein in shadow Super PACs who have been engaging in heavy
federal election activity without publicly disclosing their donors. A
second provision bars the SEC from adopting campaign disclosure rules
for certain corporations (something that campaign finance activists have
been agitating for for over a year). A third provision
<https://twitter.com/jasonaabel/status/677126791643967489>would prevent
a White House executive order (which the White House so far has shown no
indication of enacting) requiring certain campaign finance disclosures
from government contractors.
Together, assuming these remain in the omnibus signed by the President,
these provisions will ensure that the American public has much less
information than it needs to make informed and responsible choices about
who is funding the groups that are spending hundreds of millions of
dollars to influence our federal elections.
It mightseem like a victory for reformers
<https://twitter.com/marceelias/status/677131488274612224>that the
coordinated party provision is not in there. But, to begin with, that
provision fell because it had opposition not only from reformers but
also from the Freedom Caucus, which feared that opening party money
would allow the Republican Establishment to use money against tea party
conservatives in primaries. The Freedom Caucus has no problem with lack
of disclosure (so-called “dark money” in elections).
Second, while McConnell didn’t get all he wanted on campaign finance,
the two riders which made it in shows how the battle has shifted. Now
reformers can’t even get the disclosure that everyone used to agree was
crucial to fair elections.
Third, I’m sure there were lots of things unrelated to campaign finance
that Democrats had to fight about in the omnibus. Disclosure may seem
relatively unimportant given those battles. We’ll see. But Democrats
have not been the leaders on the issue of campaign finance reform that
Democratic leaders would like the base to think it is. And that failure
of leadership starts at the top, with President Obama. As I argue
inPlutocrats United
<http://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453/>,
he is the worst President we’ve had on campaign finance since Nixon.
UPDATE: Here is a clarification from Fred Wertheimer via email on the
government contractors’ point:
Some clarification of a somewhat confusing situation:
The rider that you refer to today regarding an Executive Order for
government contractors is not new but
has been included in the law for a number of years and was included
again in this year’s Omnibus spending bill.
It prevents an Executive Order requiring disclosure during the
bidding process for a contract. It is framed in terms
of not being able to require campaign finance disclosures as a
condition of submitting a bid. But it does not apply after the
bidding process is over
The Executive Order currently before the White House would apply to
government contractors after they
have received a contract.
A rider to prevent this latter kind of Executive Order that requires
disclosure after the bidding process is over and
the contract is received was in this year’s House Financial Services
Appropriations bill. It was successfully kept out
of the final Omnibus spending bill.
So the bottom line is that the White House still can issue an
Executive Order requiring disclosure of campaign finance activities
by government contractors who already have received the contract.
This is the Executive Order that the White House has been considering
and that reform groups have been advocating for many months.
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parties <http://electionlawblog.org/?cat=25>,Supreme Court
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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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