[EL] ELB News and Commentary 1/16/15
Rick Hasen
rhasen at law.uci.edu
Fri Jan 16 07:53:56 PST 2015
“2016 presidential fundraising: What’s in a name?”
<http://electionlawblog.org/?p=69698>
Posted onJanuary 16, 2015 7:52 am
<http://electionlawblog.org/?p=69698>byRick Hasen
<http://electionlawblog.org/?author=3>
CBS News reports.
<http://www.cbsnews.com/news/2016-presidential-fundraising-whats-in-a-name/>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Brad Smith’s Comments on Advance Notice of Proposed Rulemaking in
Response to McCutcheon v. FEC” <http://electionlawblog.org/?p=69696>
Posted onJanuary 16, 2015 7:49 am
<http://electionlawblog.org/?p=69696>byRick Hasen
<http://electionlawblog.org/?author=3>
Here
<http://www.campaignfreedom.org/2015/01/16/brad-smiths-comments-to-advance-notice-of-proposed-rulemaking-in-response-to-mccutcheon-v-fec/>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>
“Democracy is drowning in a sea of dark money”
<http://electionlawblog.org/?p=69694>
Posted onJanuary 16, 2015 7:48 am
<http://electionlawblog.org/?p=69694>byRick Hasen
<http://electionlawblog.org/?author=3>
Fred
Wertheimer<http://blogs.reuters.com/great-debate/2015/01/16/democracy-is-drowning-in-a-sea-of-dark-money/>Reuters
opinion oped.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Regulatory Matters: On Fines, Supreme Court ‘Recommendations’, and
the FEC Hearing on Responses to McCutcheon”
<http://electionlawblog.org/?p=69692>
Posted onJanuary 16, 2015 7:47 am
<http://electionlawblog.org/?p=69692>byRick Hasen
<http://electionlawblog.org/?author=3>
Bauer blogs.
<http://www.moresoftmoneyhardlaw.com/2015/01/regulatory-matters-fines-supreme-court-recommendations-fec-hearing-responses-mccutcheon>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>
“Top 5 Ways Citizens United Harms Democracy & Top 5 Ways We’re
Fighting to Take Democracy Back” <http://electionlawblog.org/?p=69690>
Posted onJanuary 16, 2015 7:46 am
<http://electionlawblog.org/?p=69690>byRick Hasen
<http://electionlawblog.org/?author=3>
Liz Kennedy writes
<http://www.demos.org/sites/default/files/publications/Citizens%20United%20Top%205_0.pdf>for
Demos.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“California State Appeals Court Hearing Goes Badly for Minor
Parties” <http://electionlawblog.org/?p=69688>
Posted onJanuary 15, 2015 9:03 pm
<http://electionlawblog.org/?p=69688>byRick Hasen
<http://electionlawblog.org/?author=3>
Ballot Access News
<http://www.ballot-access.org/2015/01/california-state-appeals-court-hearing-goes-badly-for-minor-parties/>:
On January 15, the California State Appeals Court based in San
Francisco heard oral arguments in Rubin v Bowen, the case in which
minor parties sued to overturn the top-two primary system on the
grounds that the system disenfranchises voters in the general
election who wish to vote for minor party candidates.
The hearing began badly when the first question asked by any of the
three judges was to the attorney for the minor parties. The judge
asked whether or not, before Proposition 14, any voters were barred
from participating in the primaries. Then she amended her question
to ask specifically if independent voters were barred from voting in
partisan primaries. The correct answer is “No”, because between 2001
and the beginning of the top-two system in 2011, independent voters
were permitted to vote in all Democratic and Republican primaries
for congress and partisan state office.
Unfortunately, the attorney for the minor parties did not know this,
and he answered the question by saying that before Proposition 14,
independent voters were not permitted to vote in Democratic and
Republican primaries. The judge then interjected that 20% of the
voters were independents, which is true. Clearly this judge believed
that Proposition 14 enhanced voting rights for independents in the
primary, and nothing was said in the hearing to illustrate the truth.
The minor parties have stressed that ending all minor party
campaigns in June, five long months from the general election,
curtails their campaigns. The Washington state top-two system has
been upheld by the Ninth Circuit, but the Washington state primary
is in late August, and the California minor party briefs stressed
that there is a significant difference between early June and late
August, and that they at least should be given a hearing to present
facts about the concrete differences between Washington and
California. California requires all candidates for Congress and
partisan state office to file in March. But the attorney for the
intervenors told the judges that even March petition deadlines for
general election ballot access are constitutional, and he cited the
only published decision that upholds a March petition deadline for
independent candidates or minor parties, Lawrence v Blackwell, a 6th
circuit case from Ohio. No attorney told the court that Lawrence v
Blackwell is an outlier, and petition deadlines as early as March
have been struck down in Alaska, Arizona, Arkansas, Idaho, Kansas,
Maine, Maryland, Massachusetts, Missouri, Montana, Nevada, New
Jersey, New Mexico, North Carolina, North Dakota, Pennsylvania, and
Tennessee.
The attorney for the state told the panel that the fact that few
minor party or independents qualify for the November ballot is
immaterial. In 1986, the U.S. Supreme Court upheld Washington
state’s old system, a blanket primary in which all candidates ran in
the September primary, and candidates who failed to get 1% of the
vote could not run in November. This case was Munro v Socialist
Workers Party, 479 US 189. The attorney for the state said that in
the Munro case, the law was constitutional even though only one
minor party candidate had managed to qualify for the November
ballot. Actually footnote 11 of the decision says that there were 45
minor party and independent candidates during the years the 1% rule
was in effect, and 40 of them passed the 1% vote test.
The judges were told by the attorney for the intervenors that the
top-two system is “exactly the same as California non-partisan
elections” that require runoffs. This is not true. In California
non-partisan elections that require run-offs if no one gets 50%, the
first round is an election because candidates can be, and usually
are, elected in the first round. By contrast, under California’s
top-two system, no one can be elected in June. Thus November is the
election itself, not a “run-off.” Unfortunately, one of the judges
said that the November election is a “run-off” and no voice was
raised to dispute that point.
A decision is expected in the next sixty days.
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Posted inpolitical parties
<http://electionlawblog.org/?cat=25>,primaries
<http://electionlawblog.org/?cat=32>
“Watchdogs File Comments in Post-McCutcheon FEC Rulemaking”
<http://electionlawblog.org/?p=69686>
Posted onJanuary 15, 2015 6:04 pm
<http://electionlawblog.org/?p=69686>byRick Hasen
<http://electionlawblog.org/?author=3>
Here
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=2755:january-15-2015-watchdogs-file-comments-in-post-mccutcheon-fec-rulemaking&catid=63:legal-center-press-releases&Itemid=61>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>
“‘Activist at heart’ Ann Ravel takes gavel at FEC”
<http://electionlawblog.org/?p=69684>
Posted onJanuary 15, 2015 6:02 pm
<http://electionlawblog.org/?p=69684>byRick Hasen
<http://electionlawblog.org/?author=3>
Watchdog
<http://watchdog.org/193057/ann-ravel-fec-campaign-finance/>goes after
FEC chair Ravel.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>
“Meet the Class of 2015″ <http://electionlawblog.org/?p=69682>
Posted onJanuary 15, 2015 1:53 pm
<http://electionlawblog.org/?p=69682>byRick Hasen
<http://electionlawblog.org/?author=3>
That’s the lead story in this week’sElectionline Weekly
<http://www.electionline.org/index.php/electionline-weekly>.
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Posted inelection administration <http://electionlawblog.org/?cat=18>
“RNC set to issue rules to cut, regulate, presidential debates”
<http://electionlawblog.org/?p=69680>
Posted onJanuary 15, 2015 1:51 pm
<http://electionlawblog.org/?p=69680>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo reports
<http://www.washingtonpost.com/politics/rnc-set-to-issue-rules-to-cut-regulate-presidential-debates/2015/01/15/6d381d72-9cf7-11e4-bcfb-059ec7a93ddc_story.html>.
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Posted incampaigns <http://electionlawblog.org/?cat=59>
“Lawsuit claims Dallas County’s commissioner districts discriminate
against white people” <http://electionlawblog.org/?p=69678>
Posted onJanuary 15, 2015 1:43 pm
<http://electionlawblog.org/?p=69678>byRick Hasen
<http://electionlawblog.org/?author=3>
The Dallas Morning News reports. <http://t.co/sveZjDix9O>
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“‘Dark Money’ and the McCutcheon Decision: Roberts Court Provides
Guidance for FEC Rulemaking” <http://electionlawblog.org/?p=69676>
Posted onJanuary 15, 2015 11:52 am
<http://electionlawblog.org/?p=69676>byRick Hasen
<http://electionlawblog.org/?author=3>
Public Citizen press release
<http://www.citizen.org/pressroom/pressroomredirect.cfm?ID=4374>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Special Edition: Expert Predictions for 2015″
<http://electionlawblog.org/?p=69674>
Posted onJanuary 15, 2015 11:51 am
<http://electionlawblog.org/?p=69674>byRick Hasen
<http://electionlawblog.org/?author=3>
January 2015 issue
<http://www.ncsl.org/research/elections-and-campaigns/states-and-election-reform-the-canvass-january-2015.aspx>of
The Canvass.
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Posted inelection administration <http://electionlawblog.org/?cat=18>
“Why Obama Should Pardon Don Siegelman”
<http://electionlawblog.org/?p=69671>
Posted onJanuary 15, 2015 8:28 am
<http://electionlawblog.org/?p=69671>byRick Hasen
<http://electionlawblog.org/?author=3>
Jeffrey Toobin
<http://www.newyorker.com/news/daily-comment/obama-pardon-don-siegelman>makes
the case.
Jeff’s right. I talked about the Sieglman case in /Slate/ columns onJohn
Edwards
<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/04/john_edwards_should_not_be_prosecuted_for_campaign_finance_violations_.html>andTom
DeLay.
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/09/tom_delay_s_conviction_reversed_on_appeal.html> See
also my TPM piece onRick Perry
<http://talkingpointsmemo.com/cafe/rick-perry-and-the-criminalization-of-politics>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,chicanery
<http://electionlawblog.org/?cat=12>
“New Documents: Lerner Objected to IRS Deputy Director Visit to
Cincinnati Office During Congressional Inquiries into Tea Party
Targeting” <http://electionlawblog.org/?p=69669>
Posted onJanuary 15, 2015 8:16 am
<http://electionlawblog.org/?p=69669>byRick Hasen
<http://electionlawblog.org/?author=3>
Release
<http://www.judicialwatch.org/press-room/press-releases/irs-foia-batch-7-and-8/>:
“Judicial Watch today releaseda new batch of Internal Revenue Service
(IRS) documents
<http://www.judicialwatch.org/document-archive/irs-batch-7-8/>,
including a series of emails from former IRS official Lois Lerner to
then-Tax Exempt and Government Entities (TE/GE)Division Deputy Director
Joseph H. Grant
<http://www.irs.gov/uac/Newsroom/Grant,-Kay-Named-to-IRS-Leadership-Posts>strongly
objecting to his planned visit to the IRS Cincinnati office “smack dab
in the middle” of congressional inquiries into the IRS targeting of
conservative groups. Lerner also expresses concerns about a pending
investigation by the Treasury Inspector General for Tax Administration
(TIGTA) into the IRS’s handing of Tea Party applications.”
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
“Arlington Delegate Takes Aim at Gerrymandering”
<http://electionlawblog.org/?p=69667>
Posted onJanuary 15, 2015 8:13 am
<http://electionlawblog.org/?p=69667>byRick Hasen
<http://electionlawblog.org/?author=3>
News
<http://www.arlnow.com/2015/01/14/arlington-delegate-takes-aim-at-gerrymandering/>from
Va.
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Posted inredistricting <http://electionlawblog.org/?cat=6>
“The Sherlock Holmes Canon” <http://electionlawblog.org/?p=69665>
Posted onJanuary 15, 2015 8:12 am
<http://electionlawblog.org/?p=69665>byRick Hasen
<http://electionlawblog.org/?author=3>
Anita Krishnakumar has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545919>on SSRN.
Here is the abstract:
Many of the Supreme Court’s statutory interpretation cases infer
meaning from Congress’s failure to comment in the legislative
record. Colorfully referred to as the “dog that did not bark” canon,
after a Sherlock Holmes story involving a watchdog that failed to
bark while a racehorse was being stolen, the interpretive
presumption holds as follows: if a statutory interpretation would
significantly change the existing legal landscape, Congress can be
expected to comment on that change in the legislative record; thus,
a lack of congressional comment regarding a significant change can
be taken as evidence that Congress did not intend that
interpretation. Failure to comment arguments typically arise when
the Supreme Court considers the meaning of a statutory provision
that has been amended and an interpretation is advanced that
arguably would change the status quo. Surprisingly, this canine
canon of construction has received little theoretical attention —
and what little attention it has received has tended to be positive,
assuming that the canon leads courts to follow congressional intent.
But there are several practical and theoretical problems with the
assumptions underlying the canon. This essay examines how courts
employ the Sherlock Holmes canon in practice and explores the
canon’s normative and theoretical implications in detail.
Ultimately, it argues that the Sherlock Holmes canon should be
invoked only in rare cases, when there is special reason for courts
to expect or require Congress to comment on a change in the law.
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Posted instatutory interpretation <http://electionlawblog.org/?cat=21>
--
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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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