[EL] ELB News and Commentary 12/31/15
Rick Hasen
rhasen at law.uci.edu
Thu Dec 31 08:38:40 PST 2015
Will Republican Lawmakers Sue Pres. Obama Over How He Vetoed
Greenhouse Gas Law? <http://electionlawblog.org/?p=78664>
Posted onDecember 31, 2015 8:36 am
<http://electionlawblog.org/?p=78664>byRick Hasen
<http://electionlawblog.org/?author=3>
Keep your eye on this issue raised by Professor Robert Spitzer in a WaPo
oped
<https://www.washingtonpost.com/posteverything/wp/2015/12/30/president-obamas-recent-vetoes-were-unconstitutional-congress-should-sue-him/?postshare=7281451579226165&tid=ss_tw>:
In histwo
<https://www.whitehouse.gov/the-press-office/2015/12/19/memorandum-disapproval-sj-res-23>vetoes
<https://www.whitehouse.gov/the-press-office/2015/12/19/memorandum-disapproval-sj-res-24>,
Obama issued a so-called “protective return pocket veto,” whereby he
announced a pocket veto and titled his veto message “Memorandum of
Disapproval” (the name for a pocket veto message). But he then
proceeded to return the two bills to Congress — a return veto. The
justification for doing so is always the same: to “leave no doubt
that the bill is being vetoed.”
The problem is that this gambit creates doubt because it combines
two mutually exclusive actions: a regular veto and a pocket veto.
Even more troubling, the history behind this veto mashup — claiming
the exercise of a non-return pocket veto while simultaneously
returning the bill to Congress — is a presidential power grab
designed to stretch the no-override pocket veto into an absolute
veto that could be used whenever Congress is not in session, giving
the president the very power the Founders sought to deny the office.
This practicetraces to former President Gerald Ford’s administration
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1903888>, when
the president issued five such dual vetoes. Then-Sen. Edward Kennedy
challenged these vetoes in federal district court, where he
prevailed. Ford halted the practice and agreed to use a pocket veto
only at the end of a two-year session of Congress. Yet thepractice
was resuscitated
<http://www.amazon.com/Presidential-Veto-Touchstone-Presidency-Leadership/dp/0887068022/ref=sr_1_2?ie=UTF8&qid=1451439387&sr=8-2&keywords=the+presidential+veto>by
President George H.W. Bush, who claimed to pocket veto two bills
that he also returned to Congress. President Bill Clinton did the
same thing three times in 2000, and President George W. Bush
employed the practice once in 2007. Obama, meanwhile, has used the
maneuver five times out of seven total vetoes.
The Republicans’ option is clear: Sue the president, arguing that
the vetoes were facially unconstitutional because they combined two
mutually exclusive procedures, and because Congress had designated
legal agents to receive veto messages. Since Obama withheld his
signature, the two bills, instead of being vetoed, should have
become law without his signature after ten days.
An off the wall idea? Watch it move on the wall.
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Posted inlegislation and legislatures <http://electionlawblog.org/?cat=27>
No Wonder Donald Trump Opposes Va Loyalty Oath
<http://electionlawblog.org/?p=78662>
Posted onDecember 31, 2015 8:29 am
<http://electionlawblog.org/?p=78662>byRick Hasen
<http://electionlawblog.org/?author=3>
A few days ago,
<https://www.washingtonpost.com/local/virginia-politics/on-twitter-donald-trump-blasts-virginia-gop-for-loyalty-pledge/2015/12/27/96574f8c-ace3-11e5-b711-1998289ffcea_story.html>Donald
Trump tweeted against Virginia’s loyalty oath: “It begins, Republican
Party of Virginia, controlled by the RNC, is working hard to disallow
independent, unaffiliated and new voters. BAD!”
Well this new
analysis<http://www.nytimes.com/2015/12/31/upshot/donald-trumps-strongest-supporters-a-certain-kind-of-democrat.html?ref=politics>from
Nate Cohn of NYT’s The Upshot sheds light on Trump’s opposition:
He is strongest among Republicans who are less affluent, less
educated and less likely to turn out to vote. His very best voters
are self-identified Republicans who nonetheless are registered as
Democrats. It’s a coalition that’s concentrated in the South,
Appalachia and the industrial North, according to data provided to
The Upshot byCivis Analytics <https://civisanalytics.com/>, a
Democratic data firm.
Mr. Trump’s huge advantage among these groups poses a challenge for
his campaign, because it may not have the turnout operation
necessary to mobilize irregular voters.
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Posted inpolitical parties
<http://electionlawblog.org/?cat=25>,primaries
<http://electionlawblog.org/?cat=32>
“Marco Rubio Endorses Idea for Constitutional Amendment to Set
Congressional Term Limits” <http://electionlawblog.org/?p=78660>
Posted onDecember 31, 2015 8:23 am
<http://electionlawblog.org/?p=78660>byRick Hasen
<http://electionlawblog.org/?author=3>
And an Article V constitutional convention to boot.
<http://www.nytimes.com/politics/first-draft/2015/12/30/marco-rubio-endorses-idea-of-term-limits-for-federal-lawmakers-and-judges/?ref=politics&_r=0>
Focusing on term limits rather than the convention in some ways buries
the lede, as the constitutional convention could be much more far
reaching and radical.
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Posted inlegislation and legislatures
<http://electionlawblog.org/?cat=27>,term limits
<http://electionlawblog.org/?cat=65>
“How Obama failed to shut Washington’s revolving door”
<http://electionlawblog.org/?p=78658>
Posted onDecember 31, 2015 8:13 am
<http://electionlawblog.org/?p=78658>byRick Hasen
<http://electionlawblog.org/?author=3>
Josh Gerstein
<http://how%20obama%20failed%20to%20shut%20washington%27s%20revolving%20door%20%20read%20more:%20http//www.politico.com/story/2015/12/barack-obama-revolving-door-lobbying-217042#ixzz3vup8FNse>with
this year’s most important piece on lobbying:
The vow of a novice Chicago senator to freeze out lobbyists and nail
shut the revolving door was no throwaway line in Barack Obama’s
stump speech. It was central to the narrative animating his 2008
campaign: a promise of wholesale change to business as usual in
Washington. His presidency would be different.
Eight years later, here’s how different it looks: The top lobbyist
for the private health insurance industry that continues to battle
aspects of Obamacare is a former Health and Human Services official
who played a powerful role in implementing the legislation. The head
of the software industry’s lobbying group is a former Obama White
House appointee who oversaw the negotiation and enforcement of the
intellectual property rules essential to that business. And an Obama
aide deeply involved in crafting the White House’s broadband
Internet policy now serves as the chief lawyer for the telecom
industry group seeking to legally overturn those same rules.
All presidents back away from some of their most dramatic campaign
promises. But seven years into Obama’s presidency, the revolving
door shuttling officials out of his administration is spinning at a
rapid clip, and Obama has seen his campaign promise founder against
the deeply ingrained culture of selling government expertise in
Washington. “They were overpromising on something they could never
deliver,” said Melanie Sloan, former executive director of the
watchdog group Citizens for Responsibility and Ethics in Washington.
“It’s worse than doing nothing.”
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Posted inconflict of interest laws
<http://electionlawblog.org/?cat=20>,lobbying
<http://electionlawblog.org/?cat=28>
“The Consequences of California’s Top-Two Primary”
<http://electionlawblog.org/?p=78656>
Posted onDecember 31, 2015 8:09 am
<http://electionlawblog.org/?p=78656>byRick Hasen
<http://electionlawblog.org/?author=3>
The Atlantic
<http://www.theatlantic.com/politics/archive/2015/12/california-top-two-open-primary/421557/>:
One of the immediate impacts of the top-two primary was that it had
inadvertently created an incentive for candidates to broaden the
field, recruiting additional candidates to dilute support for their
most dangerous opponents.This became evident in the 2014
congressional race between Mike Honda and Ro Khanna.
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Posted inpolitical parties
<http://electionlawblog.org/?cat=25>,primaries
<http://electionlawblog.org/?cat=32>
“Political Self-Interest and the Question of Corruption”
<http://electionlawblog.org/?p=78654>
Posted onDecember 31, 2015 8:04 am
<http://electionlawblog.org/?p=78654>byRick Hasen
<http://electionlawblog.org/?author=3>
Must-read
<http://www.moresoftmoneyhardlaw.com/2015/12/political-self-interest-question-corruption/>Bob
Bauer:
Critics of the McDonnell prosecution have argued that elected
officials engage in “routine” political behaviors that should not be
confused with the “official acts.” Politicians are kind to their
campaign contributors and supporters, helping them where they can;
they exercise “influence” for their benefit, within acceptable
limits, solely to recognize and maintain these politically valuable
relationships. But this influence is not an exercise of government
power and it is not the “quid” that makes for quid pro quo corruption.
As presented, for example, ina well-crafted brief
<http://www.scotusblog.com/wp-content/uploads/2015/11/NAI_1500650116_1_Brief-of-Former-Federal-Officials-as-Amici-Curiae-in-Support-of-Petitioner_-No.-15-.pdf>by
former federal officials, the argument includes the insistence that
this routine behavior is also broadly “beneficial”, in the sense
that it is “essential to the day-today functioning of any
representative government.” Failure to allow for this activity
would “cast a shadow of illegality over legitimate, pro-democratic
activities,” such as hosting special events or providing privileged
access for contributors.
This is skillfully argued, but it is a point sure to run into
resistance because it does not squarely address the element of
political self-interest….
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Posted inbribery <http://electionlawblog.org/?cat=54>,chicanery
<http://electionlawblog.org/?cat=12>
“Two Joseph Deters on Hamilton County ballot”
<http://electionlawblog.org/?p=78652>
Posted onDecember 31, 2015 8:01 am
<http://electionlawblog.org/?p=78652>byRick Hasen
<http://electionlawblog.org/?author=3>
Oh Ohio.
<http://www.cincinnati.com/story/news/politics/elections/2015/12/30/two-joseph-deters-hamilton-county-ballot/78096418/>
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Posted incampaigns <http://electionlawblog.org/?cat=59>
“Political Party’s Lawsuit Challenges Conn. Election Law”
<http://electionlawblog.org/?p=78650>
Posted onDecember 30, 2015 4:58 pm
<http://electionlawblog.org/?p=78650>byRick Hasen
<http://electionlawblog.org/?author=3>
Connecticut Law Tribune
<http://www.ctlawtribune.com/id=1202746045196/Political-Partys-Lawsuit-Challenges-Conn-Election-Law?slreturn=20151130195344>:
The Libertarian Party has filed a lawsuit against the state of
Connecticut, challenging laws pertaining to gathering signatures on
petitions to place candidates on election ballots. Specifically, the
Libertarians object to a provision that requires Connecticut
residents to gather the signatures.
The lawsuit is part of a national effort by the Libertarians, the
nation’s third largest political party, which has resulted in
similar laws being overturned in 11 other states and the District of
Columbia.
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Posted inballot access <http://electionlawblog.org/?cat=46>
Correction of the Day: Bogus Voter Fraud Edition
<http://electionlawblog.org/?p=78647>
Posted onDecember 30, 2015 1:59 pm
<http://electionlawblog.org/?p=78647>byRick Hasen
<http://electionlawblog.org/?author=3>
AP
<http://www.lebanondailyrecord.com/news/state/article_de34bef3-9d36-58bc-8d7f-222b7e0dca27.html>:
“In a Dec. 27 story about a proposal to require photo identification for
voting, The Associated Press reported that Secretary of State Jason
Kander said voter fraud has not been a significant problem in Missouri.
The story should have said Kander told the AP that there has not been a
case of voter impersonation fraud in Missouri.”
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>
“Millions of Voter Records Posted, and Some Fear Hacker Field Day”
<http://electionlawblog.org/?p=78645>
Posted onDecember 30, 2015 11:41 am
<http://electionlawblog.org/?p=78645>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT reports
<http://www.nytimes.com/2015/12/31/us/politics/voting-records-released-privacy-concerns.html?smid=tw-share>.
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Posted incampaigns <http://electionlawblog.org/?cat=59>,voting
technology <http://electionlawblog.org/?cat=40>
“The Political Consultant Racket” <http://electionlawblog.org/?p=78643>
Posted onDecember 30, 2015 11:38 am
<http://electionlawblog.org/?p=78643>byRick Hasen
<http://electionlawblog.org/?author=3>
Adam
Sheingate<http://www.nytimes.com/2015/12/30/opinion/campaign-stops/the-political-consultant-racket.html?smid=tw-share>NYT
oped:
Political consultantsearn fees and
commissions<http://www.degruyter.com/view/j/bap.2009.11.1/bap.2009.11.1.1243/bap.2009.11.1.1243.xml>by
turning the billions of dollars given to candidates, political
parties and “super PACs” — like Mr. Bush’s Right to Rise — into the
products and services of contemporary campaigns, especially TV (and
Internet) ads.
More money means more ads, and more ads means more money. However,
media saturation makes it more difficult to grab our attention,
requiring more ads, and more money and contributions, to reach the
electorate.
Consultants want their clients to win, but they also need their
businesses to survive. Despite mounting evidence that the effects of
TV on the electorate can beuncertain and often short-lived
<https://www.washingtonpost.com/news/wonk/wp/2013/01/20/political-ads-not-as-powerful-as-you-or-politicians-think/>,
television remains the single largest expenditure in most campaigns
because candidates think they need it to win — and because it is the
most reliable source of revenue and the most lucrative part of the
consulting business. The economic incentives of the consulting
industry are driving up the cost of campaigns.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Judge approves voting rights’ groups remap of Florida Senate”
<http://electionlawblog.org/?p=78641>
Posted onDecember 30, 2015 11:29 am
<http://electionlawblog.org/?p=78641>byRick Hasen
<http://electionlawblog.org/?author=3>
The /Miami Herald/reports
<http://miamiherald.typepad.com/nakedpolitics/2015/12/judge-approves-voting-rights-groups-remap-of-florida-senate.html?utm_source=twitterfeed&utm_medium=twitter>:
A judge on Wednesday approved a new map of Florida’s 40 Senate
districts drawn by a coalition of voting rights groups, dealing yet
another political and legal setback to the Republican-controlled
Legislature.
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Posted inredistricting <http://electionlawblog.org/?cat=6>
“In 2015, hope and fear on voting rights”
<http://electionlawblog.org/?p=78639>
Posted onDecember 30, 2015 11:10 am
<http://electionlawblog.org/?p=78639>byRick Hasen
<http://electionlawblog.org/?author=3>
Zack Roth
<http://www.msnbc.com/msnbc/2015-hope-and-fear-voting-rights>for MSNBC.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
Electionline’s “In and Out” List for 2016
<http://electionlawblog.org/?p=78637>
Posted onDecember 30, 2015 10:45 am
<http://electionlawblog.org/?p=78637>byRick Hasen
<http://electionlawblog.org/?author=3>
Election geeks rejoice
<http://www.electionline.org/index.php/electionline-weekly>!
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,election law "humor"
<http://electionlawblog.org/?cat=52>
CA Supreme Court to Issue Opinion Monday on Anti-Citizens United
Initiative <http://electionlawblog.org/?p=78634>
Posted onDecember 30, 2015 10:34 am
<http://electionlawblog.org/?p=78634>byRick Hasen
<http://electionlawblog.org/?author=3>
Appellate guru David Ettingerexplains
<http://www.atthelectern.com/multi-state-tax-opinion-filing-tomorrow-citizens-united-initiative-opinion-due-monday/>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,direct
democracy <http://electionlawblog.org/?cat=62>
--
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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