[EL] ELB News and Commentary 6/26/15
Rick Hasen
rhasen at law.uci.edu
Thu Jun 25 19:46:46 PDT 2015
Exhausted by Scalia’s Rhetoric <http://electionlawblog.org/?p=73787>
Posted onJune 25, 2015 7:42 pm
<http://electionlawblog.org/?p=73787>byRick Hasen
<http://electionlawblog.org/?author=3>
I read a lot of Justice Scalia opinions to writeThe Most Sarcastic
Justice <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2550923>,
and I have to say I really enjoyed reading those opinions—they were
pithy, smart, insightful and blunt. Much more fun than say, reading a
Breyer or Souter opinion with which I was much more likely to agree
substantively.
But something’s changed more recently.Mark Tushnet
<http://balkin.blogspot.com/2015/06/justice-scalia-as-stylist.html>puts
it like this: “contrary to the seemingly widespread view that Justice
Scalia is a splendid stylist, his snarkiness is getting tired.”
The question is this: has Justice Scalia’s rhetoric gotten more extreme,
or is it just that it’s the same routine, over and over, applied in new
cases. I think it is some of both.
The biggest problem is a kind of Chicken Little-ism. Every majority
opinion with which Scalia disagrees is dishonest, it means the end of
principled jurisprudence, it will lead to horrible consequences.
I think of the earlier opinion this term in the /Alabama Redistricting
/case <http://www.supremecourt.gov/opinions/14pdf/13-895_o7jq.pdf>.
There, Scalia opened his dissent with: “Today, the Court issues a
sweeping holding that will have profound implications for the
constitutional ideal of one person, one vote, for the future of the
Voting RightsAct of 1965, and for the primacy of the State in managing
its own elections. If the Court’s destination seems fantastical, just
wait until you see the journey.”
The opinion then went on to discuss standing and related issues, but
NEVER explained even why he thought the opinion would lead to such dire
consequences. We got the vituperativeness, but not the follow through.
It’s as though he’s tired. And it is making us tired of reading him.
Just wait till /Obergefell./
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
Marty Lederman on CJ Roberts’ Pragmatic Statutory Interpretation
<http://electionlawblog.org/?p=73785>
Posted onJune 25, 2015 7:34 pm
<http://electionlawblog.org/?p=73785>byRick Hasen
<http://electionlawblog.org/?author=3>
Dare not
raise<http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2015/scotus_roundup/supreme_court_2015_john_roberts_ruling_in_king_v_burwell.html>/Holy
Trinity Church/, but no need to.
My earlier post on the return of purposivism ishere.
<http://electionlawblog.org/?p=73760>
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Posted instatutory interpretation
<http://electionlawblog.org/?cat=21>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Montana moves to reveal corporate campaign spending”
<http://electionlawblog.org/?p=73783>
Posted onJune 25, 2015 7:26 pm
<http://electionlawblog.org/?p=73783>byRick Hasen
<http://electionlawblog.org/?author=3>
AP
<http://missoulian.com/news/local/montana-moves-to-reveal-corporate-campaign-spending/article_12714742-f2aa-5f16-80aa-f73a4be6a34c.html>:
Montana, a state that has long prided itself on strict campaign
finance laws, is giving up on barring corporations from political
spending and is instead attempting to expose every penny spent by
them in elections.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“IRS workers mistakenly erased tea party emails”
<http://electionlawblog.org/?p=73781>
Posted onJune 25, 2015 7:23 pm
<http://electionlawblog.org/?p=73781>byRick Hasen
<http://electionlawblog.org/?author=3>
AP
<http://www.csmonitor.com/USA/Justice/2015/0625/IRS-workers-mistakenly-erased-tea-party-emails-video>:
Investigators are blaming mistakes by IRS employees – not a criminal
conspiracy – for the loss of thousands of emails related to the tax
agency’s tea party scandal.
IRS workers erased 422 computer backup tapes that “most likely”
contained as many as 24,000 emails to and from former IRS official
Lois Lerner, who has emerged as a central figure in congressional
investigations, according to IRS’s inspector general.
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Posted intax law and election law <http://electionlawblog.org/?cat=22>
“Bipartisan Overhaul of Dysfunctional FEC Introduced by
Representatives Kilmer and Renacci “
<http://electionlawblog.org/?p=73779>
Posted onJune 25, 2015 2:02 pm
<http://electionlawblog.org/?p=73779>byRick Hasen
<http://electionlawblog.org/?author=3>
Release
<http://www.campaignlegalcenter.org/news/press-releases/bipartisan-overhaul-dysfunctional-fec-introduced-representatives-kilmer-and>:
Today, Rep. Derek Kilmer (D-WA) and Rep. Jim Renacci (R-OH)
introduced a bipartisan bill to overhaul the Federal Election
Commission (FEC) and break the gridlock that has left the federal
campaign finance watchdog incapable of performing many of its most
important duties. The/Restoring Integrity to America’s Elections
Act/would reform an agency where enforcement actions and rulemakings
have ground to a halt in recent years despite a spike in apparent
violations and a pressing need to promulgate new rules in responses
to Supreme Court decisions striking down a number of longstanding
campaign finance laws. Representatives Lou Barletta (R-PA) and John
Carney (D-DE) are also original cosponsors of the bill.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>
“Members of Congress propose politicization of government contracts”
<http://electionlawblog.org/?p=73777>
Posted onJune 25, 2015 2:00 pm
<http://electionlawblog.org/?p=73777>byRick Hasen
<http://electionlawblog.org/?author=3>
Eric Wang has writtenthis oped
<http://thehill.com/blogs/congress-blog/politics/246056-members-of-congress-propose-politicization-of-government>in
The Hill.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Justice Alito Sends Conflicting Signals on Amicus Briefs in
Federalism Cases <http://electionlawblog.org/?p=73774>
Posted onJune 25, 2015 12:46 pm
<http://electionlawblog.org/?p=73774>byRick Hasen
<http://electionlawblog.org/?author=3>
I found this statement in Justice Alito’s dissent in the Fair Housing
case <http://www.supremecourt.gov/opinions/14pdf/13-1371_m64o.pdf>to be
curious:
The Court also stresses that “many of our Nation’s largest
cities—entities that are potential defendants in disparate-impact
suits—have submitted an/amicus/brief in this case supporting
disparate-impact liability under the FHA.”/Ante,/at 23–24.
This nod to federalism is puzzling. Only a minority of the States
and only a small fraction of the Nation’s municipalities have urged
us to hold that the FHA allows disparate-impact suits. And even if a
majority supported the Court’s position, that would not be a
relevant consideration for a court. In any event, nothing prevents
States and local government from enacting their own fair housing
laws, including laws creating disparate-impact liability. See 42 U.
S. C. §3615 (recognizing local authority).
Although Justice Alito says these shouldn’t count, he’s also saying that
if you do this, you want to get a lot of states and municipalities on board.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“New Rick Perry Super PAC Ad May Amount to an Illegally Large
Campaign Donation” <http://electionlawblog.org/?p=73772>
Posted onJune 25, 2015 12:14 pm
<http://electionlawblog.org/?p=73772>byRick Hasen
<http://electionlawblog.org/?author=3>
Shane Goldmacher
<http://www.nationaljournal.com/2016-elections/new-rick-perry-super-pac-ad-may-amount-to-an-illegally-large-campaign-donation-20150625>National
Journal:
A new ad from the super PAC supportingRick Perry
<http://www.nationaljournal.com/rick-perry-2016-election>may amount
to an illegally sized campaign contribution because it prominently
features official signs and paraphernalia from the Perry campaign.
The 30-second spot <https://www.youtube.com/watch?v=-IBzaX7vt18>,
which began airing in Iowa earlier this week, was paid for by the
Opportunity and Freedom PAC, which is led by former Perry chiefs of
staff Ray Sullivan and Mike Toomey.
The ad features footage from Perry’s announcement speech, including
a podium decorated with an official Perry campaign logo, a plane
emblazoned with the campaign’s insignia, and images of the crowd
waving official Perry presidential signs.
Federal election law states that broadcasting materials produced by
a campaign amounts to a campaign contribution. If the ad, which is
airing as part of a $145,350 buy that the super PAC recently
reported, is ruled to be such a contribution by election
authorities, then it would be above the legal limits of what Perry
can receive.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
NYT Reporter to Cover Plutocracy Beat
<http://electionlawblog.org/?p=73770>
Posted onJune 25, 2015 12:04 pm
<http://electionlawblog.org/?p=73770>byRick Hasen
<http://electionlawblog.org/?author=3>
Interesting development.
<http://publiceditor.blogs.nytimes.com/2015/06/25/is-greater-focus-on-the-superrich-right-for-the-times/?ref=topics>
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Posted inPlutocrats United <http://electionlawblog.org/?cat=104>
Chief Justice Roberts is Still Very Conservative
<http://electionlawblog.org/?p=73767>
Posted onJune 25, 2015 11:53 am
<http://electionlawblog.org/?p=73767>byRick Hasen
<http://electionlawblog.org/?author=3>
Josh Gerstein rounds up
<http://www.politico.com/story/2015/06/gop-conservatives-angry-supreme-court-chief-john-roberts-obamacare-119431.html>angry
conservative reactions to the Obamacare ruling. And of course they are
angry.
But let’s put this into context: on racial issues, on campaign finance,
on states’ rights, abortion, Roberts is still very, very conservative.
He is more conservative than Justice Kennedy on many of these issues.
That he is not as conservative as Scalia, Thomas or Alito does not mean
he’s a liberal. It’s all relative.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Small number of possible voter fraud cases referred to county
prosecutors” <http://electionlawblog.org/?p=73765>
Posted onJune 25, 2015 11:43 am
<http://electionlawblog.org/?p=73765>byRick Hasen
<http://electionlawblog.org/?author=3>
News
<http://www.cleveland.com/open/index.ssf/2015/06/small_number_of_possible_voter_fraud_cases_referred_to_county_prosecutors.html>from
Ohio.
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Posted inchicanery <http://electionlawblog.org/?cat=12>,election
administration <http://electionlawblog.org/?cat=18>
“W.H., Watchdogs rail against ‘dark money’ provision tucked into
House bill” <http://electionlawblog.org/?p=73762>
Posted onJune 25, 2015 8:54 am
<http://electionlawblog.org/?p=73762>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo
<http://www.washingtonpost.com/news/powerpost/wp/2015/06/25/appropriations-bill-hobbling-campaign-disclosure-advances-as-white-house-considers-executive-order/>:
The House Appropriations Committee approved a spending bill last
week that included little-noticed provisions to hobble executive
branch efforts to mandate campaign finance disclosure by federal
contractors and other corporations.
The bill would also prohibit the IRS from moving ahead with a rule
defining political activity for nonprofits.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
King v. Burwell: The Return of “Purpose” in Statutory Interpretation
<http://electionlawblog.org/?p=73760>
Posted onJune 25, 2015 8:33 am
<http://electionlawblog.org/?p=73760>byRick Hasen
<http://electionlawblog.org/?author=3>
The Supreme Court’s decision inKing v. Burwell
<http://electionlawblog.org/wp-content/uploads/KINGVBURWELL.pdf>is
interesting not only in its result but in its application of statutory
interpretation.
Before the case, so much ink was spilled (and more virtual ink virtually
spilled) on the question of deference to the IRS’s interpretation of
ambiguity under the statute (under the so-called “Chevron” doctrine) as
well as principles of federalism, which were used to argue for results
for and against the Administration in the case. There were also
questions about the standing of various plaintiffs. There were arguments
about the intent of the drafters, and what MIT economist Gruber said, or
may have said, or may have misspoken about the way the law was supposed
to work. In the end, the Court rejected application of Chevron deference
to the IRS and federalism made no appearance. Nor did standing or Gruber
get discussed. Instead the Court’s analysis went basically like this:
The question whether tax subsidies applied to poor people in states that
did not set up their own health care exchange is important, so important
that it is hard to believe that Congress would have delegated that
question to an agency (and particularly to the IRS, whose job it is to
collect revenue not design health care policy). So there is no “Chevron”
deference on the question. The court has to use its tools of statutory
interpretation to decide the case. The law, read as a whole, is
ambiguous. It is certainly possible to read the challenged language as
giving subsidies only to people in state exchanges and not in the
federal exchange. But there are other parts of the law, read in context,
that only make sense if subsidies apply to those in state or federal
exchanges. In such an ambiguous case, it is the /purpose/of the law that
should govern.*“Congress passed the Affordable Care Act to improve
health insurance markets, not to destroy them. If at all possible, we
must interpret the Act in a way that is consistent with the former, and
avoids the latter.”*
This means of interpretation is important for a number of reasons.
First, it means that a new administration with a new IRS Commissioner
cannot reinterpret the law to take away subsidies. Second, it puts more
power into the hands of Congress over administrative agencies (and
therefore the executive), at least on issues at the core of
congressional legislation. Third, and most important as a general
principle, it rehabilitates a focus on the law’s /purpose/as a
touchstone to interpretation, over a rigid and formalistic textualism
that ignores real-world consequences. If followed through consistently,
this principle would greatly improve our statutory interpretation. As
Iwrote on this point in
/Slate/<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/07/d_c_circuit_and_4th_circuit_obamacare_rulings_the_perils_of_following_scalia.html>in
July, discussing the various lower court opinions on the Obamacare question:
Unless you are a lawyer or a glutton for punishment, you probably
want to avoid reading the newD.C. Circuit
<http://www.cadc.uscourts.gov/internet/opinions.nsf/10125254D91F8BAC85257D1D004E6176/$file/14-5018-1503850.pdf>and4^th
Circuit
<http://www.ca4.uscourts.gov/Opinions/Published/141158.P.pdf>opinions reaching
conflicting results on the legality of key provisions of the
Affordable Care Act—the parts that provide subsidies for Americans
who sign up for health insurance through the exchanges the law
created. The opinions are full of jargon parsing the intricacies of
the mammoth health care law. But well within the weeds of these
lawyerly discussions is a more fundamental question: Is it the
courts’ job to make laws work for the people, or to treat laws as
arid linguistic puzzles?
In today’s King v. Burwell, the Court said that in close cases, make the
law work the way Congress obviously intended it. That’s a very good thing.
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Posted instatutory interpretation
<http://electionlawblog.org/?cat=21>,Supreme Court
<http://electionlawblog.org/?cat=29>
#SCOTUS Fair Housing Decision May Have Effect on Voting Rights Act
<http://electionlawblog.org/?p=73758>
Posted onJune 25, 2015 7:29 am
<http://electionlawblog.org/?p=73758>byRick Hasen
<http://electionlawblog.org/?author=3>
This morning on a 5-4 vote the Supreme Court upheld the use of a
disparate impact test in a fair housing case. Justice Kennedywrote the
opinion <http://www.supremecourt.gov/opinions/14pdf/13-1371_m64o.pdf>,
joined by the Court’s four liberals and over four dissenting Justices.
A parallel issue arises under the effects test of Section 2 of the
Voting Rights Act. What does one have to show in the vote denial cases,
such as when voter id laws have a disparate impact on racial minorities?
Statistical disparities are not enough in the housing context, but
looking at them is ok provided there is proof of causality:
But disparate-impact liability has always been properly limited in
key respects that avoid the serious constitutional questions that
might arise under the FHA, for instance, if such liability were
imposed based solely on a showing of a statistical disparity.
Disparate-impact liability mandates the “removal of artificial,
arbitrary, and unnecessary barriers,” not the displacement of valid
governmental policies./Griggs/,/supra/, at 431. The FHA is not an
instrument to force housing authorities to reorder theirpriorities.
Rather, the FHA aims to ensure that those priorities can be achieved
without arbitrarily creatingdiscriminatory effects or perpetuating
segregation.
Unlike the heartland of disparate-impact suits targetingartificial
barriers to housing, the underlying dispute in this case involves a
novel theory of liability. See Seicsh-naydre, Is Disparate Impact
Having Any Impact? An Appellate Analysis of Forty Years of Disparate
ImpactClaims Under the Fair Housing Act, 63 Am. U. L. Rev.357,
360–363 (2013) (noting the rarity of this type of claim). This case,
on remand, may be seen simply as anattempt to second-guess which of
two reasonable approaches a housing authority should follow in the
soundexercise of its discretion in allocating tax credits for
low-income housing.
An important and appropriate means of ensuring that disparate-impact
liability is properly limited is to givehousing authorities and
private developers leeway to state and explain the valid interest
served by their policies.This step of the analysis is analogous to
the business necessity standard under Title VII and provides a
defense against disparate-impact liability. See 78 Fed. Reg. 11470
(explaining that HUD did not use the phrase “business necessity”
because that “phrase may not be easily understood to cover the full
scope of practices covered by the Fair Housing Act, which applies to
individuals, busi-nesses, nonprofit organizations, and public
entities”). As the Court explained in/Ricci/, an entity “could be
liable for disparate-impact discrimination only if the [challenged
practices] were not job related and consistent with business
necessity.” 557 U. S., at 587. Just as an employer may maintain a
workplace requirement that causes adisparate impact if that
requirement is a “reasonable measure[ment] of job
performance,”/Griggs/,/supra/, at 436, so too must housing
authorities and private developers be allowed to maintain a policy
if they can prove it is necessary to achieve a valid interest. To be
sure, the Title VII framework may not transfer exactly to the
fair-housing context, but the comparison suffices for present purposes…
In a similar vein, a disparate-impact claim that relies on a
statistical disparity must fail if the plaintiff cannot point to a
defendant’s policy or policies causing that disparity. A robust
causality requirement ensures that “[r]acialimbalance . . . does
not, without more, establish a primafacie case of disparate impact”
and thus protects defendants from being held liable for racial
disparities they did not create./Wards Cove Packing Co./v./Atonio/,
490 U. S. 642, 653 (1989), superseded by statute on other grounds,42
U. S. C. §2000e–2(k). Without adequate safeguards atthe prima facie
stage, disparate-impact liability mightcause race to be used and
considered in a pervasive way and “would almost inexorably lead”
governmental orprivate entities to use “numerical quotas,” and
seriousconstitutional questions then could arise. 490 U. S., at 653/./
I expect lower courts will look at this language in the Section 2 vote
denial cases.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,Voting
Rights Act <http://electionlawblog.org/?cat=15>
--
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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