[EL] ELB News and Commentary 6/16/15
Rick Hasen
rhasen at law.uci.edu
Mon Jun 15 19:09:53 PDT 2015
“What Happens to Surplus Super PAC Money?”
<http://electionlawblog.org/?p=73514>
Posted onJune 15, 2015 7:05 pm
<http://electionlawblog.org/?p=73514>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT’s Taking Note
<http://takingnote.blogs.nytimes.com/2015/06/15/what-happens-to-surplus-super-pac-money/?ref=politics>ed
blog.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
The AIG Merits Ruling May Be Bizarre, But the Remedies Portion Makes
Great Sense <http://electionlawblog.org/?p=73512>
Posted onJune 15, 2015 6:57 pm
<http://electionlawblog.org/?p=73512>byRick Hasen
<http://electionlawblog.org/?author=3>
Andrew Ross Sorkin
<http://www.nytimes.com/2015/06/16/business/dealbook/surprise-ruling-finds-bailout-shorted-aig.html>writes
in the NY Times aboutthis decision <http://t.co/5Jyk4Lvn7C>from a
federal claims court judge:
When the Federal Reserve propped up A.I.G. in September 2008, unlike
its approach with most of the big banks, it threw out the company’s
chief executive and took control of 79.9 percent of the company,
nearly wiping out many of its shareholders. Taxpayers got all of
their money back, and then some, receiving a profit of more than $20
billion.
But in a stunning ruling, Judge Thomas C. Wheeler of the United
States Court of Federal Claims said on Monday that those terms were
too “draconian.” In other words, he suggested taxpayers should have
offered A.I.G. a more generous deal.
The judge’s decision could have far-reaching consequences should
another financial crisis occur — and if history is any guide, one
will. Legal experts say that the ruling, coupled with certain
provisions of the Dodd-Frank financial overhaul law enacted after
the crisis, makes it unlikely the government would ever rescue a
failing institution, even if an intervention was warranted.
Should that happen, and the government decides it is handcuffed by
the law from any intervention, taxpayers can thank Maurice
Greenberg, the company’s former chief executive and one of its
largest shareholders. He sued the government on behalf of
shareholders, contending its takeover was illegal and unfair to
investors. The judge largely sided with Mr. Greenberg, confounding
many legal experts who considered the case a long shot. A federal
judge had previously thrown the case out of court, calling Mr.
Greenberg’s accusations “worthy of an Oliver Stone movie.”
However, Judge Wheeler had a more sympathetic ear than his peers. He
determined that the takeover of A.I.G. was orchestrated to “maximize
the benefits to the government and to the taxpaying public.”
Contrary to the conventional wisdom — and common sense — he said
that goal was troubling. “The government’s unduly harsh treatment of
A.I.G. in comparison to other institutions seemingly was misguided
and had no legitimate purpose,” he wrote.
Still, the judge did not award any monetary damages to Mr.
Greenberg, making it a moral victory, but not an economic one. Mr.
Greenberg had sought $40 billion and has spent millions bringing his
case.
I can’t speak to the judge’s ruling on whether the federal government
exceeded its authority. But the court’s determination that there are no
damages seems to make perfect sense as a matter of remedies:
Ultimately, Starr must prove that it suffered some economic harm
from the Government’s taking or illegal exaction. In applying this
standard, the Court must consider the value of the Plaintiff’s
property but for the challenged government actions. In other words,
what would the value of Plaintiff’s property have been if the
Government had done nothing? Brown, 538 U.S. at 240-41 (plaintiffs
had lost nothing because they would not have received any interest
even in the absence of a challenged government program).
A closely analogous case is A&D Auto Sales, Inc. v. United States,
748 F.3d 1142 (Fed. Cir. 2014). At the trial court level, former
owners of Chrysler and General Motors car dealerships alleged an
uncompensated taking of their property from the
Government’s Troubled Asset Relief Program (“TARP”), 12 U.S.C. § 5211…
Applying the reasoning of A&D Auto Sales, the Court must examine
what would have happened to AIG if the Government had not
intervened. The inescapable conclusion is that AIG would have filed
for bankruptcy, most likely during the week of September 15-19,
2008. In that event, the value of the shareholders common stock
would have been zero. By loaning AIG $85 billion under the September
22, 2008 Credit Agreement, the Government significantly enhanced the
value of the AIG shareholders’ stock. While the taking of 79.9
percent equity ownership and the running of AIG’s business were not
permitted under the Federal Reserve Act, the Government did
not cause any economic loss to AIG’s shareholders, because as Mr.
Studzinski said, “[twenty] percent of something [is] better than
[100] percent of nothing.” Studzinski, Tr. 6937. Under the economic
loss analysis, the Credit Agreement Class is entitled to zero damages.
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Posted inRemedies <http://electionlawblog.org/?cat=57>
“Where the billions spent on lobbying come from, in maps”
<http://electionlawblog.org/?p=73510>
Posted onJune 15, 2015 6:27 pm
<http://electionlawblog.org/?p=73510>byRick Hasen
<http://electionlawblog.org/?author=3>
The Fix reports.
<http://www.washingtonpost.com/blogs/the-fix/wp/2015/06/15/where-the-billions-spent-on-lobbying-come-from-in-maps/?postshare=7561434417005757>
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Posted inlobbying <http://electionlawblog.org/?cat=28>
I Hate When That Happens Dep’t <http://electionlawblog.org/?p=73508>
Posted onJune 15, 2015 6:20 pm
<http://electionlawblog.org/?p=73508>byRick Hasen
<http://electionlawblog.org/?author=3>
AP
<http://www.sanluisobispo.com/2015/06/15/3681000_distracted-gop-lawmaker-accidentally.html?rh=1>:
SACRAMENTO, CALIF.— A Republican lawmaker accidentally cast his
party’s first vote for the California budget in years because he was
distracted by Facebook.
Assemblyman Scott Wilk was the sole Republican to vote for
California’s record $117.5 billion spending plan Monday.
The Santa Clarita lawmaker later clarified he accidentally supported
the bill in the Capitol while opposing it on Facebook. He posted on
Twitter “My wife is right — I can’t multitask!”
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“Justices’ Words Are Combed for Clues as Major Decisions Loom at
Court” <http://electionlawblog.org/?p=73506>
Posted onJune 15, 2015 6:16 pm
<http://electionlawblog.org/?p=73506>byRick Hasen
<http://electionlawblog.org/?author=3>
Adam Liptak Sidebar column.
<http://www.nytimes.com/2015/06/16/us/politics/justices-words-combed-for-clues-on-major-pending-decisions.html?ref=politics>
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Juan Williams: Dems should not be losing voting-rights fight”
<http://electionlawblog.org/?p=73504>
Posted onJune 15, 2015 6:10 pm
<http://electionlawblog.org/?p=73504>byRick Hasen
<http://electionlawblog.org/?author=3>
This commentary
<http://www.msn.com/en-us/news/opinion/juan-williams-dems-should-not-be-losing-voting-rights-fight/ar-BBl9skY>originally
appeared in The Hill.
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>
“Kris Kobach: I Beg to Differ on New Law”
<http://electionlawblog.org/?p=73502>
Posted onJune 15, 2015 6:06 pm
<http://electionlawblog.org/?p=73502>byRick Hasen
<http://electionlawblog.org/?author=3>
Kobach
<http://www.kansascity.com/opinion/readers-opinion/as-i-see-it/article24500476.html>in
the KC Star:
Real double voting occurs when a person intentionally votes twice in
two different jurisdictions. And it happens with alarming
regularity. Indeed, it appears that quite a few non-Kansans saw the
media reports about Kansas’ close races for governor and senator
last November, and they decided to cast ballots in both Kansas and
their states of residence.
Rose similarly brushes aside the problem of aliens voting,
dismissing it as unlikely. Again the facts tell a different story.
For example, about 50 voted in a referendum in Seward County, Kan.,
in 1997. Yet, an even bigger problem is legal aliens voting. In
2014, a study by three professors at Old Dominion University and
George Mason University estimated that 6.4 percent of aliens voted
in the 2008 presidential election, and 2.2 percent voted in the 2010
midterm elections.
That works out to hundreds of thousands of votes, potentially
skewing the outcomes of close races across the country. But even a
small number would be unacceptable. Every time an alien votes, it
effectively cancels out the vote of a U.S. citizen. That’s why I
pushed for proof of citizenship to register in Kansas.
Sigh.
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Posted infraudulent fraud squad <http://electionlawblog.org/?cat=8>,The
Voting Wars <http://electionlawblog.org/?cat=60>
NJ Legislators Will Try Another Bill to Make Voting Easier
<http://electionlawblog.org/?p=73500>
Posted onJune 15, 2015 2:25 pm
<http://electionlawblog.org/?p=73500>byRick Hasen
<http://electionlawblog.org/?author=3>
Putting Gov. Christie
<http://hosted.ap.org/dynamic/stories/N/NJ_XGR_ELECTION_LAWS_NJOL-?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT>in
position to veto?
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“The Outlaw Candidate” <http://electionlawblog.org/?p=73498>
Posted onJune 15, 2015 2:22 pm
<http://electionlawblog.org/?p=73498>byRick Hasen
<http://electionlawblog.org/?author=3>
Larry Noble
<http://www.usnews.com/news/the-report/articles/2015/06/15/jeb-bush-presidential-candidate-campaign-finance-outlaw>on
Jeb Bush for U.S. News.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Russ Feingold’s PAC funded fees, salaries for former staffers,
himself” <http://electionlawblog.org/?p=73496>
Posted onJune 15, 2015 1:07 pm
<http://electionlawblog.org/?p=73496>byRick Hasen
<http://electionlawblog.org/?author=3>
Must-read
<http://www.jsonline.com/watchdog/noquarter/russ-feingolds-pac-funded-salaries-for-former-staffers-himself-b99518602z1-307322531.html>Daniel
Bice:
Former U.S. Sen.*Russ Feingold*— long a champion of campaign finance
reform — founded a political action committee that has given a mere
5% of its income to federal candidates and political parties.
Instead, nearly half of the $7.1 million that*Progressives United
PAC *has spent since 2011 has gone to raising more money for itself,
according to data compiled by*OpenSecrets.org*. The data also show
the group has paid another sizable chunk of money on salaries or
consulting fees for Feingold, his top aide and eight former staffers.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“En Banc Ninth Circuit Urged to Uphold Arizona Judicial Campaign
Laws” <http://electionlawblog.org/?p=73494>
Posted onJune 15, 2015 12:42 pm
<http://electionlawblog.org/?p=73494>byRick Hasen
<http://electionlawblog.org/?author=3>
Release
<http://www.campaignlegalcenter.org/news/press-releases/en-banc-ninth-circuit-urged-uphold-arizona-judicial-campaign-laws>:
On Friday, in/Wolfson v. Concannon/, the Campaign Legal Center
joined with other nonprofit groups concerned with the integrity of
the courts in filing an/amici curiae brief
<http://www.campaignlegalcenter.org/document/wolfson-v-concannon-amicus-brief>/urging
the/en banc/U.S. Court of Appeals for the Ninth Circuit to overturn
a three-judge circuit panel ruling striking down Arizona rules for
judicial campaigns.
The three-judge circuit panel struck down Arizona’s ban on judicial
candidates personally soliciting political contributions, as well as
its ban on judicial candidates endorsing, speaking in favor of or
campaigning for non-judicial candidates—but only as these bans apply
to non-judge candidates. In June 2014, the Legal Center and other
groups filed an/amici/brief urging the full Ninth Circuit to review
the ruling. In September 2014, the court agreed to rehear the
case/en banc/.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,judicial elections
<http://electionlawblog.org/?cat=19>
“On voter fraud, Christie keeps talking through his hat | Opinion”
<http://electionlawblog.org/?p=73492>
Posted onJune 15, 2015 12:32 pm
<http://electionlawblog.org/?p=73492>byRick Hasen
<http://electionlawblog.org/?author=3>
Frank Askin oped.
<http://www.nj.com/opinion/index.ssf/2015/06/on_voter_fraud_christie_keeps_talking_through_his.html>
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Posted infraudulent fraud squad <http://electionlawblog.org/?cat=8>,The
Voting Wars <http://electionlawblog.org/?cat=60>
A war within the Republican party? <http://electionlawblog.org/?p=73490>
Posted onJune 15, 2015 10:09 am
<http://electionlawblog.org/?p=73490>byHeather Gerken
<http://electionlawblog.org/?author=6>
Coauthored with Joseph Fishkin, University of Texas Law School
A recentstory
<https://www.yahoo.com/politics/the-koch-brothers-and-the-republican-party-go-to-121193159491.html>perfectly
embodied the central puzzle ina paper
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2617747>that we
recently published in the/Supreme Court Review/. The story tells about
the war between the Koch brothers and the Republican National Committee
over whose database of voter information will be used in 2016. It sounds
a little arcane, but voter data is the lifeblood of any campaign: who is
on your side, who do you need to persuade, who is a reliable voter, and
where do they live? Keeping track of all this and providing the
information to campaigns is a classic function of political parties—a
function that is central, as Jackpoints out
<http://balkin.blogspot.com/2015/06/the-party-as-database.html>, to what
parties do in the information age. In the past this function has been
carried out by the official parties. But now the Koch brothers have
built a database that is easier to use and well liked by campaigns. GOP
leaders, however, are nervous about having such an important campaign
instrument in the control of private actors rather than the formal party
structure. The story, in short, is about the war between the official
parties and what we call the shadow parties – the SuperPACs and
nonprofits now playing an increasingly important role in the electoral
process. These days the shadow parties are doing a lot more than taking
out some ads. They are taking over major functions once reserved for the
official parties.
Our article begins with/McCutcheon v Federal Election Commission/, which
struck down the FECA’s caps on how much hard money in toto one donor
could give to candidates and party committees in a given year. It
quickly morphs into a rumination on the future of the party system.
That’s because/McCutcheon/can only be understood against the deep shifts
taking place in American politics.
By some measures, the parties are stronger than ever. Party identity is
very strong, and the Democratic Party and the Republican Party are at
the height of their power. Other measures suggest that the parties are
losing their grip on politics to “outside groups,” which have taken over
a startling array of core party functions. But these “outside groups”
are deeply and durably aligned with one party or the other. They are run
by consummate party insiders. That’s why we call them/shadow parties/.
For reasons we discuss, the shadow parties aren’t lone wolves. They are
deeply intertwined with the official parties and properly understood as
part of what we call the “the party writ large” – the large network of
donors, activists, and organizations that constitute the party.
The explosive growth of outside groups explains why many
campaign-finance supporters saw a silver lining to Shaun McCutcheon’s
suit. The crude version of the “silver lining” argument suggests
that/McCutcheon/will shore up the parties against outside spenders. The
more nuanced argument—and the emerging conventional wisdom in the
field—is that/McCutcheon/will level the playing field between the
official party leaders and the shadow parties by allowing donors to pour
more money into the official party structure.
We are skeptical. It’s not that the hoped-for effect won’t exist. It
will. Some funds that would have flowed to outside groups will seep back
into the official party structure. But we think the effect will be
modest. Moreover, the crude argument—pitting “outside” funders against
“the parties”—fundamentally misdiagnoses the problem. The real problem
with the growth of shadow parties has less to do with the “strength” or
“weakness” of the official parties relative to outside groups and more
to do with who exercises power/within/the parties writ large. What we
are witnessing is not outside spenders pulling power away from the
parties but an intraparty battle for the heart and soul of the party
writ large.
That’s precisely why the database story is so interesting. The Koch
brothers are part of the GOP writ large. This is an internecine war.
Indeed, as the story makes clear, it’s not just money that is flowing
away from the official parties toward the shadow parties; it’s talent
and authority. We are beginning to witness a brain drain of sorts, with
some of the most important and talented players in politics being housed
in the shadow parties. It’s not surprising that the Koch brothers’
shadow party has created a better campaign tool than the RNC. They are
running their organization with the funding, talent, and efficiency that
we typically associate with the private sector. But there is a tradeoff
there, and it’s a big one: private shadow party groups are beholden only
to their donors, not to the rest of the party.
Although we see this battle as an intraparty fight, its likely outcome
is one that “small-d” democrats ought to find disquieting. The parties
have been important sites of pluralist competition. The shift toward
shadow parties threatens to flatten the party structure and inhibit
pluralist politics. Money isn’t just shifting from one place to another
within the party writ large; it is shifting from one type of institution
to another, quite different type of institution. Compared to the
official parties, the shadow parties are more hierarchical and less
porous. They are closed to most and controlled by few. We are especially
concerned that the shift to the shadow parties will permanently squeeze
out the/party faithful/—the activists and highly engaged citizens who
serve as a bridge between everyday citizens and political elites—and
largely eliminate their already-diminished role within the party writ large.
As we’ll discuss tomorrow, the shift toward shadow parties raises
important questions not just about the future of American politics, but
about who/ought/to control political parties. We’ll turn to that
normative question in the next post.
Cross-posted on Balkinization.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,election law and constitutional law
<http://electionlawblog.org/?cat=55>,political parties
<http://electionlawblog.org/?cat=25>,Uncategorized
<http://electionlawblog.org/?cat=1> |TaggedCampaign finance
<http://electionlawblog.org/?tag=campaign-finance-2>,political parties
<http://electionlawblog.org/?tag=political-parties>,shadow parties
<http://electionlawblog.org/?tag=shadow-parties>
--
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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