[EL] ELB News and Commentary 12/30/15
Rick Hasen
rhasen at law.uci.edu
Wed Dec 30 10:09:37 PST 2015
David Frum on Republican Voter Suppression and Gerrymandering as
Political Strategy <http://electionlawblog.org/?p=78632>
Posted onDecember 30, 2015 10:07 am
<http://electionlawblog.org/?p=78632>byRick Hasen
<http://electionlawblog.org/?author=3>
@PeterBeinart
<http://www.theatlantic.com/magazine/archive/2016/01/why-america-is-moving-left/419112/>and
@DavidFrum<http://www.theatlantic.com/magazine/archive/2016/01/the-great-republican-revolt/419118/>both
have excellent political articles in the upcoming issue of/The
Atlantic/. Beinart’s pieces deal with the U.S. moving left, thanks in
large part to demographic change and changing attitudes of millennials.
(More on the changing demographics and the role of Latinos inJim
Rutenberg’s piece i
<http://www.nytimes.com/2015/12/20/magazine/block-the-vote.html>n the
NYT magazine.)
Frum’s piece deals with the rise of Trump voters, and how hard it will
be for Republicans to put together a winning coalition for president
even as they have success in many states. The Republican donor class is
disconnected from its core voters. Near the end of Frum’s piece, he goes
through four strategies for Republican resurgence. (1) Double down on
the message of the Republican donor class; (2) tactically concede to
things like the anti-immigrant sentiment of rank-and-file Republican
voters (3) true reform which moves the party to a position to capture a
majority of voters; or (4) what Frum calls “Change the Rules of the
Game.” On this fourth one he writes:
There are metrics, after all, by which the post-2009 GOP appears to
be a supremely successful political party. Recently, Rory Cooper, of
the communications firm Purple Strategies, tallied a net gain to the
Republicans of 69 seats in the House of Representatives, 13 seats in
the Senate, 900-plus seats in state legislatures, and 12
governorships since Obama took office. With that kind of grip on
state government, in particular,*Republicans are well positioned to
write election and voting rules that sustain their hold on the
national legislature*. The president may be able to grant formerly
illegal immigrants the right to work, but he cannot grant them the
right to vote. In this light, instead of revising Republican
policies to stop future Barack Obamas and Hillary Clintons, maybe
it’s necessary to revise only the party rules to stop future Donald
Trumps from confronting party elites with their own unpopularity.
(My emphasis.)
Frum appears to be thinking more about party rules to stop insurgent
candidacies like Trump’s, but the strategy seems more about the
Republican party has already been doing in places like Wisconsin and
Texas: making it harder for those likely to vote for Democrats to
register and vote, and engage in aggressive gerrymandering of districts.
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Posted inpolitical parties <http://electionlawblog.org/?cat=25>,The
Voting Wars <http://electionlawblog.org/?cat=60>
“For the Wealthiest, a Private Tax System That Saves Them Billions”
<http://electionlawblog.org/?p=78630>
Posted onDecember 30, 2015 9:28 am
<http://electionlawblog.org/?p=78630>byRick Hasen
<http://electionlawblog.org/?author=3>
The latest
<http://www.nytimes.com/2015/12/30/business/economy/for-the-wealthiest-private-tax-system-saves-them-billions.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news>in
the NYT’s excellent “Buying Power” series:
With inequality at its highest levels in nearly a century and public
debate rising over whether the government should respond to it
through higher taxes on the wealthy, the very richest Americans have
financed a sophisticated and astonishingly effective apparatus for
shielding their fortunes. Some call it the “income defense
industry,” consisting of a high-priced phalanx of lawyers, estate
planners, lobbyists and anti-tax activists who exploit and defend a
dizzying array of tax maneuvers, virtually none of them available to
taxpayers of more modest means.
In recent years, this apparatus has become one of the most powerful
avenues of influence for wealthy Americans of all political stripes,
including Mr. Loeb and Mr. Cohen, who give heavily to Republicans,
and the liberal billionaireGeorge Soros
<http://topics.nytimes.com/top/reference/timestopics/people/s/george_soros/index.html?inline=nyt-per>,
who has called for higher levies on the rich while at the same time
using tax loopholes to bolster his own fortune.
All are among a small group providing much of the early cash for the
2016 presidential campaign.
Operating largely out of public view — in tax court, through arcane
legislative provisions and in private negotiations with theInternal
Revenue Service
<http://topics.nytimes.com/top/reference/timestopics/organizations/i/internal_revenue_service/index.html?inline=nyt-org>—
the wealthy have used their influence to steadily whittle away at
the government’s ability to tax them. The effect has been to create
a kind of private tax system, catering to only several thousand
Americans….
“There’s this notion that the wealthy use their money to buy
politicians; more accurately, it’s that they can buy policy, and
specifically, tax policy,” said Jared Bernstein, a senior fellow at
the left-leaning Center on Budget and Policy Priorities who served
as chief economic adviser to Vice President Joseph R. Biden Jr.
“That’s why these egregious loopholes exist, and why it’s so hard to
close them.”
Bernstein’s point is a key truth about American Politics and one I
explore in detail inPlutocrats United
<http://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453/ref=la_B0089NJCR2_1_7?s=books&ie=UTF8&qid=1430416698&sr=1-7>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Clinton Lawyer Marc Elias Predicts Record-Setting Voting Wars
Litigation This Election Season <http://electionlawblog.org/?p=78628>
Posted onDecember 30, 2015 9:23 am
<http://electionlawblog.org/?p=78628>byRick Hasen
<http://electionlawblog.org/?author=3>
I missed this nugget the first time throughJim Rutenberg’s excellent NYT
Magazine piece
<http://www.nytimes.com/2015/12/20/magazine/block-the-vote.html>on
Latino voting rights through the lens of Pasadena, TX:
The 2016 presidential election will be the first to take place after
the gutting of the V.R.A. and with all of these new laws potentially
in place. Civil rights lawyers are just as concerned about
provisions they don’t yet know about — the last-minute changes that
could deter voters in ways that were previously disallowed. North
Carolina, Virginia and Florida are among the states previously
covered in whole or in part by Section 5, and they will be closely
contested.Marc Elias
<https://www.perkinscoie.com/en/professionals/marc-e-elias.html>, a
longtime Democratic lawyer and the lead counsel for Hillary
Clinton’s presidential campaign, told me, ‘‘You are likely to see
more litigation over the fundamental right to vote this election
cycle than we have seen since the passage of the Voting Rights Act.’’
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>,Voting
Rights Act <http://electionlawblog.org/?cat=15>
“Corrine Brown files new challenge to congressional district
changes” <http://electionlawblog.org/?p=78626>
Posted onDecember 30, 2015 9:18 am
<http://electionlawblog.org/?p=78626>byRick Hasen
<http://electionlawblog.org/?author=3>
The Miami Herald reports.
<http://miamiherald.typepad.com/nakedpolitics/2015/12/corrine-brown-files-new-challenge-to-congressional-district-changes.html?utm_source=twitterfeed&utm_medium=twitter>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“Prominent Lawyer Outlines Nightmare Situations for G.O.P.
Convention” <http://electionlawblog.org/?p=78623>
Posted onDecember 30, 2015 9:14 am
<http://electionlawblog.org/?p=78623>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT:
<http://www.nytimes.com/politics/first-draft/2015/12/29/prominent-lawyer-outlines-nightmare-situations-for-g-o-p-convention/?ref=politics&_r=0>
Mr. Ginsberg outlined two events that would leave Republican leaders
scrambling to sort out who will represent the party in the general
election: a “clear cluster” and a “party buster.” In the first case,
several candidates would be hundreds of delegates short of winning
the nomination, creating a free-for-all that could last all four
nights or longer. In the second case, a candidate who is dozens of
delegates short of the 1,237 needed, could lead to subsequent
ballots with unbound delegates in flux and free to back other
candidates.
“This situation can unsettle any convention and would require whip
operations like no candidate has had for generations,” Mr. Ginsberg
wrote.
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Posted inpolitical parties <http://electionlawblog.org/?cat=25>
Ninth Circuit Rejects Americans for Prosperity Argument Against
Disclosure of Its Donor List to CA Attorney General
<http://electionlawblog.org/?p=78621>
Posted onDecember 30, 2015 9:12 am
<http://electionlawblog.org/?p=78621>byRick Hasen
<http://electionlawblog.org/?author=3>
The Ninth Circuit recently held that Center for Competitive Politics had
to turn over its list of donors to the California Attorney General’s
office for law enforcement purposes. Even though the lists are not
publicly disclosed, CCP argued that doing so infringed on its members’
constitutional rights. CCP tried to get this order reversed by the
Supreme Court but the Supreme Court declined to take up the case
<http://electionlawblog.org/?p=77396>.
Now Americans for Prosperity (a key Koch Brothers organization) and the
Thomas More Law Society argued that under the CCP case, they should be
entitled to an exemption from disclosure of their donor records to the
CA Attorney General on grounds that the First Amendment requires an
exemption from disclosure when disclosure could raise the risk of
harassment of donors. On this basis, a federal district judge (Judge
Manny Real, aquite controversial
<http://articles.latimes.com/2009/aug/16/local/me-judge-real16>district
court judge) issued a preliminary injunction barring the CA AG from
collecting these groups’ donor data on grounds these groups’ donors
reasonably faced harassment.
Yesterday an Ninth Circuit panel (Reinhardt, Fisher, Nguyen)unanimously
reversed in part
<http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/29/15-55446.pdf>, ruling
that the district court abused its discretion in holding there was a
reasonable threat of harassment of these groups donors on this record.
It kept in place, however, an injunction barring public release of this
information. The CA AG has said her office won’t be disclosing this
information, and there is a pending regulation to this effect. The
Ninth Circuit said that the injunction barring the public disclosure
then furthered California’s public policy.
This seems like the right result. The claims of harassment of
contributors to conservatives causes have turned out to be greatly
exaggerated. I explore this most recently in Chill Out: A Qualified
Defense of Campaign Finance Disclosure Laws in the Internet Age
<http://ssrn.com/abstract=1948313>, 27/Journal of Law and Politics/557
(2012).
(h/tBloomberg
<http://www.bloomberg.com/politics/articles/2015-12-29/koch-brothers-group-can-be-asked-for-donor-list-by-california>)
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“How the Koch network rivals the GOP”
<http://electionlawblog.org/?p=78619>
Posted onDecember 30, 2015 8:57 am
<http://electionlawblog.org/?p=78619>byRick Hasen
<http://electionlawblog.org/?author=3>
Ken Vogel
<http://www.politico.com/story/2015/12/koch-brothers-network-gop-david-charles-217124>in
Politico:
Koch and his brother David Koch have quietly assembled, piece by
piece, a privatized political and policy advocacy operation like no
other in American history that today includes hundreds of donors and
employs 1,200 full-time, year-round staffers in 107 offices
nationwide. That’s about 3½ times as many employees as the
Republican National Committee and its congressional campaign arms
had on their main payrolls last month, according to POLITICO’s
analysis of tax and campaign documents and interviews with sources
familiar with the network. And the staggering sum the network plans
to spend in the 2016 election run-up ―$889 million
<http://www.politico.com/story/2015/01/koch-2016-spending-goal-114604>―
is more than double what the RNC spent in the previous presidential
cycle.
While rich donors have held considerable sway over the political
process in past eras, the Kochs’ network is different. Its mission
is in some ways more ambitious than the Republican Party’s ― to
fundamentally reshape American public life around a
libertarian-infused brand of conservatism ― but it also is
encroaching on the GOP’s traditional turf. The Koch network’s data
operation is now regarded by many candidates and campaigns as
superior to the party’s, and it has invested in efforts to become
the leading force on the right for training activists and
registering voters. Its biggest group, Americans for Prosperity,
plans to place full-time staff in all but eight states by late 2016
and aspires to copy the National Rifle Association’s broad-based
membership plan for longevity, according to a POLITICO
investigation. It found that the group has even discussed expanding
its influence by writing and pushing model state budgets, a
technique similar to the one used by the American Legislative
Exchange Council to push various state legislative initiatives.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,Plutocrats United
<http://electionlawblog.org/?cat=104>
The Need for Supreme Court Clarification of the Boundary Between
Crime and Legitimate Campaign Contributions
<http://electionlawblog.org/?p=78614>
Posted onDecember 30, 2015 4:16 am
<http://electionlawblog.org/?p=78614>byRichard Pildes
<http://electionlawblog.org/?author=7>
The Supreme Court has pending before it two cert. petitions involving
criminal convictions of former Governors, one from each party, in the
Blagojevich and McDonald cases. Both raise questions about where the
legal boundary is, in light of prior Supreme Court cases, between the
legitimate role of money in politics and criminal actions, such as
accepting bribes. When similar issues were before the Court in the case
involving former Governor Siegelman, in 2012, I filed an amicus brief,
along with my colleague Sam Issacharoff, explaining the doctrinal
confusion and uncertainty in this important area and the need for the
Court to re-engage with these issues, after the Court’s long absence
from the area. In light of the pending petitions in Blagojevich and
McDonald, I am linking here to
apost<https://electionlawblog.org/?p=30941>with that earlier amicus
brief, which explains the need for Supreme Court clarification of these
issues.
Here is a brief excerpt from that amicus brief in the Siegelman case:
In recent decades, this Court has decided only two major cases that
define the essential elements of the federal criminal law of
extortion or bribery in the context of federal anti-corruption
prosecutions of state or local public officials. Both cases date to
the early 1990s, in the initial stages of the substantial rise of
federal prosecutions of this sort. Yet as lower courts and academic
experts in this area have recognized, those two cases stand in
considerable tension with each other and have created ongoing
uncertainty and conflicts in the lower courts over issues as
fundamental as the appropriate boundary between core democratic
political activity and criminal bribery. … [T]his Court’s return to
these issues is necessary to resolve this tension and bring clarity,
certainty, and predictability to this highly-sensitive area of the
law of democracy—particularly given the ambitious use in recent
years by federal prosecutors of the honest-services bribery law, 18
U.S.C. § 1341 and § 1346, and the federal funds bribery law, 18
U.S.C. § 666, to allege criminal bribery involving state and local
officials based on otherwise protected political activity such as
campaign contributions. . . .
As former professor of law and Ninth Circuit Judge John Noonan wrote
in his comprehensive analysis of the issue: “Depending on the
decision of the prosecutor and the will of the judges, many
contributions could be classed as bribes.” John T. Noonan,
Jr.,/Bribes/651 (1984). When it comes to core democratic activities,
such as the soliciting and giving of campaign contributions, that is
an intolerable situation. . . .
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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