[EL] Chicago Voters endorse campaign finance reform

Wed Feb 25 22:31:19 PST 2015

Asked whether the city of Chicago and the state of Illinois should “reduce the influence of special interest money in elections by financing campaigns using small contributions from individuals and a limited amount of public money,” voters signaled yes by a 58-point margin, 79 percent to 21 percent<http://elections.chicagotribune.com/results/#category/chicago_referendums>.

Fortunately, the question presented to voters was unbiased.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
Sent: Thursday, February 26, 2015 12:56 AM
To: law-election at UCI.edu
Subject: [EL] ELB News and Commentary 2/26/15

Off to University of Alabama Voting Rights Act Symposium<http://electionlawblog.org/?p=70565>
Posted on February 25, 2015 9:55 pm<http://electionlawblog.org/?p=70565> by Rick Hasen<http://electionlawblog.org/?author=3>

Looking forward to this<http://www.law.ua.edu/calendar/event/50th-anniversary-of-the-voting-rights-act-symposium/>.

I’ll be talking about the Alabama redistricting case<http://www.scotusblog.com/?p=220511>, awaiting decision <http://www.scotusblog.com/?p=221453> at the Supreme Court.

Regular blogging resumes on Monday.

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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>
“Obama Calls Out America’s Dismal Voter Turnout: ‘Why Are You Staying Home?'”<http://electionlawblog.org/?p=70563>
Posted on February 25, 2015 9:51 pm<http://electionlawblog.org/?p=70563> by Rick Hasen<http://electionlawblog.org/?author=3>

HuffPo.<http://www.huffingtonpost.com/2015/02/25/obama-voter-turnout-immigration_n_6756606.html?utm_hp_ref=politics&ir=Politics>

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Posted in voting<http://electionlawblog.org/?cat=31>
“Kansas Senate advances bill giving Kobach power to prosecute election crimes”<http://electionlawblog.org/?p=70561>
Posted on February 25, 2015 9:45 pm<http://electionlawblog.org/?p=70561> by Rick Hasen<http://electionlawblog.org/?author=3>

What<http://www2.ljworld.com/news/2015/feb/24/senate-advances-bill-giving-secretary-state-power-/> could go wrong?

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
Josh Douglas: “The Right to Vote Amendment is Worth At Least One Candle: A Reply to Heather Gerken”<http://electionlawblog.org/?p=70559>
Posted on February 25, 2015 9:38 pm<http://electionlawblog.org/?p=70559> by Rick Hasen<http://electionlawblog.org/?author=3>

The following is a guest post from Josh Douglas<http://www.law.uky.edu/index.php?hid=93>:

A new constitutional amendment affirmatively granting the right to vote could have a significant impact on protecting voting rights for all Americans.  Most significantly – and perhaps paradoxically – we are likely to see the biggest effects of a federal amendment where we least expect it: in state courts.

Professor Heather Gerken, in a characteristically eloquent and well-reasoned new<http://electionlawblog.org/?p=70486>article<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2567394>, claims that pursuing a new constitutional amendment enshrining the right to vote is “not worth the candle.”  The heart of Professor Gerken’s argument is that the benefits of a new right-to-vote amendment do not justify the costs involved, particularly as Supreme Court Justices and other federal judges are unlikely to alter the scope of voting rights analysis given the likelihood that, to pass, the amendment’s language would have to be too vague.

But a constitutional amendment granting the right to vote does not need federal judges, or even the U.S. Supreme Court, to have a big impact.  That is because many state courts follow federal law even when construing their own state constitutions.  So a new provision in the federal Constitution, even if couched in broad platitudes, will have corollary effects on state constitutional law.

The doctrinal implication of a federal right-to-vote amendment depends on a concept known as “lockstepping,” which I discussed in this article<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2234762> analyzing state constitutional protection for the right to vote.

Many rights are listed in both federal and state constitutions.  Yet even when state constitutional protection is textually broader than what is afforded under the U.S. Constitution, many state courts simply follow – or lockstep – their state constitutions to be in line with the federal constitution.  The right to vote is a perfect example of this phenomenon.  Every state constitution<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2234762> (besides Arizona’s) affirmatively confers the right to vote to the state’s citizens, a broader grant than the lack of an explicit right within the U.S. Constitution.  Yet many state courts lockstep their state-level protection so that it is the same as the U.S. Supreme Court’s more restrictive interpretation of the federal right to vote.

A U.S. constitutional amendment affirmatively granting the right to vote would have a trickle down effect on these state courts.  No longer would state judges be able to lockstep the state constitution’s grant of voting rights with the U.S. Supreme Court’s narrow jurisprudence.  Instead, a state court that chooses to lockstep would follow the analogous explicit right within the U.S. Constitution, making the protection in the state and federal constitutions coextensive – and broader than it is now.

Having an affirmative constitutional right to vote makes a difference in judicial decision making at the state level.  Courts that currently lockstep their state constitutions with federal law tend to rule more narrowly toward voting rights; state courts that independently construe their state constitutional right-to-vote provisions as broader than federal law tend to rule more expansively toward voting rights.  The hot-button issue of voter ID provides a great example.  In 2008, the U.S. Supreme Court upheld Indiana’s voter ID law under the Equal Protection Clause of the Fourteenth Amendment.  Litigants then turned to state courts around the country, challenging voter ID laws under the state constitutions’ more explicit and broader right-to-vote provisions.  Courts that properly construed their state constitutions as going beyond the federal constitution, such as in Pennsylvania and Arkansas, invalidated the voter ID laws.  But courts that lockstepped their state constitutional protection with federal law, such as in Georgia and Wisconsin, generally upheld the state’s laws.  If there were a right-to-vote provision in the U.S. Constitution, it is more likely that these courts would have lockstepped their state constitutions with that broader federal protection.

Further, as I recount in a new article<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2495078>, state courts resolve tons of election law cases, dealing with voter ID, felon disenfranchisement, and the voting process, among others.  By and large, when state courts lockstep their state constitutions with federal law, they provide less protection to the right to vote.  Although lockstepping in this setting is itself problematic (for reasons I discuss in my article), a federal right-to-vote amendment would mitigate that concern.  Even if federal courts might be slow to adapt, state courts that currently lockstep would have to recognize this change in federal law and adjust accordingly.

A constitutional amendment granting the right to vote would thus have an impact that goes well beyond the federal judiciary.  It could affect hundreds or thousands of cases at the state level – which is, after all, where the majority of election litigation occurs.  This is a meaningful change that is worth the effort: in addition to its many other virtues – such as signaling the importance of voting rights and energizing people to care about this issue – a constitutional amendment can have a significant substantive effect on state court protection of the right to vote.

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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, voting<http://electionlawblog.org/?cat=31>
“Foreign governments gave millions to foundation while Clinton was at State Dept.”<http://electionlawblog.org/?p=70557>
Posted on February 25, 2015 5:04 pm<http://electionlawblog.org/?p=70557> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo<http://www.washingtonpost.com/politics/foreign-governments-gave-millions-to-foundation-while-clinton-was-at-state-dept/2015/02/25/31937c1e-bc3f-11e4-8668-4e7ba8439ca6_story.html?postshare=3671424911701912>:

The Clinton Foundation<https://www.clintonfoundation.org/> accepted millions of dollars from seven foreign governments during Hillary Rodham Clinton’s tenure as secretary of state, including one donation that violated its ethics agreement with the Obama administration, foundation officials disclosed Wednesday.

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Posted in conflict of interest laws<http://electionlawblog.org/?cat=20>
McGinley and McGahn on Aaron Schock Case<http://electionlawblog.org/?p=70555>
Posted on February 25, 2015 3:10 pm<http://electionlawblog.org/?p=70555> by Rick Hasen<http://electionlawblog.org/?author=3>

This could get interesting<http://www.politico.com/story/2015/02/schock-lawyers-up-115476.html>.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12>
“The Next Attack on Voting Rights; And why Democrats should fight for a constitutional right-to-vote amendment.”<http://electionlawblog.org/?p=70552>
Posted on February 25, 2015 2:00 pm<http://electionlawblog.org/?p=70552> by Rick Hasen<http://electionlawblog.org/?author=3>

Jamelle Bouie<http://www.slate.com/articles/news_and_politics/politics/2015/02/the_next_republican_attack_on_voting_right_democrats_should_fight_for_a.html> for Slate.

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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, Voting Rights Act<http://electionlawblog.org/?cat=15>
Today’s #SCOTUS Yates Ruling Tells Us Nothing About Obamacare Challenge: Analysis<http://electionlawblog.org/?p=70550>
Posted on February 25, 2015 12:18 pm<http://electionlawblog.org/?p=70550> by Rick Hasen<http://electionlawblog.org/?author=3>

Over at the CAC, Brianne Gorod<http://theusconstitution.org/text-history/3133/government%E2%80%99s-loss-supreme-court-today-may-signal-more-important-win-down-road> sees good things for the government’s position in King v. Burwell<http://www.scotusblog.com/case-files/cases/king-v-burwell/?wpmp_switcher=desktop>based on today’s ruling in the Yates (fish) case at the Supreme Court:

With the Supreme Court scheduled to hear oral argument inKing v. Burwell next week, those looking for clues as to what the Court will decide later this year when it rules inKing need look no further than a very different case the Court decided today.  InYates v. United States, the Court held, in a fractured 4-1-4 decision, that a provision of the Sarbanes-Oxley Act that bars the destruction of “tangible object[s]” does not apply to the destruction of fish (specifically, red grouper).  In their opinions in Yates, the plurality and the dissent didn’t agree about much, but there’s one thing they did agree on, and that principle is key to why the government should win in King: when you’re interpreting a law, context matters.

In King, the Court has been asked to decide whether the tax credits that put the “affordable” in the Affordable Care Act are available to all Americans who meet the income criteria, or only to those who purchase their insurance on state-run Exchanges.  When one looks at the whole statute in King, the answer is clear: tax credits are available to all Americans who qualify based on income, regardless of whether they purchase insurance on a state-run or a federally-facilitated Exchange.  The argument made by the law’s challengers rests on a facile reading of four words—“established by the State”—that appear in the formula for calculating the amount of the tax credit (not eligibility for it), as well as the argument that one need not look any further than those four words when trying to understand what the statute means.  Today’s opinion in Yates makes clear how wrong those arguments are.

I disagree, and think that Yates tells us nothing in how the Court will rule in the Obamacare challenge.  I say this for two reasons.

First, the general principles of statutory interpretation discussed by the Court (with the exception of the question of reliance on legislative history) are accepted, on at least a superficial level, by all nine Justices. Consider, for example, the rule that courts should read statutes in context. Here is what Justice Kagan in dissent says on this point: “That is not necessarily the end of the matter; I agree with the plurality (really, who does not?) that context matters in interpreting statutes.” “Really, who does not?” indicates the problem.  There are enough different rules of statutory interpretation that can push or pull in a case like Yates or King that stating the general principle does not bind any Justice to decide a case one way or another.

Second, most cases in most courts, including most cases at the Supreme Court, involve issues where precedent (and sometimes accepted means of interpretation) are a very good predictor of how a court will rule. That is, in many cases, judges (and Justices) do their best to apply close precedent to issues before the Court. (It is less true that means of interpretation are seen as precedential, but that’s not my main point). But in a small class of cases with a very strong ideological valence, you can throw the usual rules of interpretation out the window. The Justices are much more likely in these cases to be (subconsciously?) swayed by their ideological commitments, world view, and consideration of the consequences of a ruling than by application of earlier precedent.

I would not be surprised in the King case if both the majority and dissent cite Yates to support their side’s argument. But if anyone really thinks any Justice’s vote in King v. Burwell will depend upon what the Court did in Yates, I’d be very, very surprised.

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Posted in statutory interpretation<http://electionlawblog.org/?cat=21>, Supreme Court<http://electionlawblog.org/?cat=29>
“Chicago voters overwhelmingly endorse campaign finance reform”<http://electionlawblog.org/?p=70547>
Posted on February 25, 2015 11:18 am<http://electionlawblog.org/?p=70547> by Rick Hasen<http://electionlawblog.org/?author=3>

Al Jazeera<http://america.aljazeera.com/blogs/scrutineer/2015/2/25/chicago-voters-overwhelmingly-endorse-campaign-finance-reform.html>:

Chicago voters endorsed by a wide margin Tuesday a plan to institute public campaign financing and limit outside contributions<http://america.aljazeera.com/blogs/scrutineer/2015/2/19/chicago-initiative-seeks-to-give-small-donors-bigger-voice.html>. The ballot measure, though non-binding, begins a process that will now move to city and state government, where legislation would be drafted.

Asked whether the city of Chicago and the state of Illinois should “reduce the influence of special interest money in elections by financing campaigns using small contributions from individuals and a limited amount of public money,” voters signaled yes by a 58-point margin, 79 percent to 21 percent<http://elections.chicagotribune.com/results/#category/chicago_referendums>.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“The Relationship Market: How Modern Lobbying Gets Done”<http://electionlawblog.org/?p=70545>
Posted on February 25, 2015 11:16 am<http://electionlawblog.org/?p=70545> by Rick Hasen<http://electionlawblog.org/?author=3>

Very important analysis<http://ethics.harvard.edu/blog/relationship-market-how-modern-lobbying-gets-done> from Maggie McKinley and Thomas Groll over at Harvard’s Safra.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, legislation and legislatures<http://electionlawblog.org/?cat=27>, lobbying<http://electionlawblog.org/?cat=28>
“Senators Are Announcing Retirements Earlier. Fund-Raising Plays a Big Role.”<http://electionlawblog.org/?p=70543>
Posted on February 25, 2015 11:13 am<http://electionlawblog.org/?p=70543> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT’s “The Upshot:”<http://www.nytimes.com/2015/02/26/upshot/senators-are-announcing-retirements-earlier-fund-raising-plays-a-big-role.html?_r=0&abt=0002&abg=1>

If you’re a United States senator thinking about retiring before the November 2016 elections, the clock is ticking.

Since 1991, more than 80 percent of senators who have announced their retirements already did so by January of their election years. From 1920 through 1990, just 46 percent of retiring senators did the same, according to a new paper<http://www.gvpt.umd.edu/karol/Forcing%20their%20Hands__.pdf> by David Karol, a professor of government and politics at the University of Maryland.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, legislation and legislatures<http://electionlawblog.org/?cat=27>
Podcast with Michael Morley on Arizona Redistricting Case<http://electionlawblog.org/?p=70541>
Posted on February 25, 2015 11:12 am<http://electionlawblog.org/?p=70541> by Rick Hasen<http://electionlawblog.org/?author=3>
Northwestern University Law Review Online is pleased to announce its publication of apodcast<http://colloquy.law.northwestern.edu/main/2015/02/conversation-with-professor-michael-t-morley.html> with Professor Michael Morley discussing his recent essay, The Intratextual Independent “Legislature” and the Elections Clause<http://colloquy.law.northwestern.edu/main/2015/01/intratextual-legislatures.html>.

In the essay, Professor Michael Morley assesses the Constitution’s Elections Clause and how the Supreme Court might interpret the clause in Arizona State Legislature v. Arizona Independent Redistricting Commission (set for oral argument on March 2). The case will decide whether an Arizona voter initiative vesting congressional redistricting authority in an independent commission rather than the state legislature violates the Constitution’s Elections Clause. Morley employs “intratextualism” to interpret the Elections Clause, carefully assessing the use of “legislature” in other parts of the United States Constitution and founding-era state constitutions. This analysis leads Morley to conclude that the Arizona’s voter initiative is unconstitutional, because it completely removes the state legislature’s congressional redistricting authority.
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Posted in citizen commissions<http://electionlawblog.org/?cat=7>, Elections Clause<http://electionlawblog.org/?cat=70>, redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>
“Unlimited and Undisclosed: The Religious Right’s Crusade to Deregulate Political Spending”<http://electionlawblog.org/?p=70539>
Posted on February 25, 2015 11:06 am<http://electionlawblog.org/?p=70539> by Rick Hasen<http://electionlawblog.org/?author=3>

New Common Cause report<http://www.commoncause.org/research-reports/unlimited-and-undisclosed.html>:

Common Cause’s new report, “Unlimited and Undisclosed: The Religious Right’s Crusade to Deregulate Political Spending,” focuses on how one particular interest group has waged war on important campaign finance laws in order to allow more big money in our political system.

The new report explores:

  *   How religious right, anti-marriage equality, and anti-abortion organizations have served as plaintiffs in over 70 lawsuits challenging campaign finance laws over the last twenty years at the state, local, and federal level.
  *   How James Bopp, a prominent conservative attorney, uses Republican and religious right organizations as a vehicle to derail campaign finance laws, including in high profile cases such as Citizens United and McCutcheon, which have contributed to the flood of money in our elections.
  *   The political spending of religious right groups to support Republican candidates over the last two decades, and how it has increased since the Citizens United.
  *   The work of religious right groups against disclosure laws that would require big political spenders such as the National Organization for Marriage and the National Right to Life Committee to disclose their donors who give for the purpose of influencing elections.

>READ THE REPORT<<http://www.commoncause.org/research-reports/unlimited-and-undisclosed.pdf>

Unlimited and Undisclosed: The Religious Right’s Crusade to Deregulate Political Spending<http://www.commoncause.org/research-reports/unlimited-and-undisclosed.pdf>

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Posted in campaign finance<http://electionlawblog.org/?cat=10>

--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
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