[EL] Clinton's "litmus test" for SCOTUS nominees

[Foley, Edward]

Did anyone besides me notice a little confusion in the scope of the litmus test that Hilary Clinton is apparently asserting with respect to potential nominees?

It’s been reported as a commitment on the part of nominees to overturn Citizens United, but the quote contained in both the New York Times and the L.A. Times indicates that the nominee’s commitment to overturn precedent would need to extend to the expenditure limit portion of Buckley.

Here’s how the L.A. Times is reporting it:

"The Supreme Court made a grave error with Citizens United," Clinton said before a roomful of party activists in Mason City, Iowa. “I will do everything I can to appoint Supreme Court justices who protect the right to vote and do not protect the right of billionaires to buy elections."  http://www.latimes.com/nation/politics/politicsnow/la-na-hillary-clinton-supreme-court-20150518-story.html

As all of us election folks know, there’s a gap between the first quoted sentence and the second.  Citizens United may indeed have been grave error, but it’s Buckley that protects the right of billionaires to spend independently, including presumably unlimited contributions to independent-spending-only PACs.

This morning’s NY Times report quoted only the second sentence: http://www.nytimes.com/politics/first-draft/2015/05/19/today-in-politics-clinton-says-citizens-united-would-guide-her-supreme-court-picks/

On this analysis, it appears that Clinton is asking a potential nominee to take a much bigger step in terms of up-front willingness to overturn settled precedent.  Citizens United  is new, from 2010, controversial from the get-to, and itself overruled in relevant part McConnell v. FEC from 2003.  Asking a nominee for a commitment to overturn Citizens United, while perhaps a bit eyebrow-raising, seems to me not nearly as big a deal as asking a nominee for a commitment to overturn the expenditure portion in Buckley, a 1976 decision that has been affirmed repeatedly over the decades, including in a Breyer opinion in Randall v. Sorrell (2006).

I’m no fan of the expenditure portion of Buckley, and it might be appropriate for the Supreme Court to overrule it at some point in a well-presented case.  But asking a potential nominee for an up-front commitment to do so seems very troublesome to me.  I was never a fan of apparent litmus tests to overrule Roe.  Supreme Court justices should come to every case with an open mind, in the sense that there is always the chance that new arguments in briefs (or at oral argument) will prove persuasive.  Moreover, much of constitutional litigation is in the line-drawing.  A Justice predisposed to overrule Roe might come to conclude that there is greater difficulty in drawing the line between Griswold  and Roe than previously realized—and thus reach a position in Casey (1992) not anticipated in Webster (1989).  Likewise, a Justice predisposed to overrule the expenditure portion of Buckley might come to think that the line between Buckley and Bellotti is trickier than first realized.

I can’t tell from the news stories how strict a litmus test Clinton is attempting to articulate—how firm the commitment/pledge she is expecting a nominee to make.  But I have to say that it makes me nervous.  I wonder if others—including others who have no love for Citizens United or the expenditure portion of Buckley—feel the same way.

Ned

[The Ohio State University]
Edward B. Foley
Director, Election Law @ Moritz
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law
Moritz College of Law
614-292-4288

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Monday, May 18, 2015 7:00 PM
To: law-election at UCI.edu
Subject: [EL] CCP emergency injunction denied by J. Kennedy/more news

Breaking: #SCOTUS Denies CCP Emergency Application on Donor Disclosure, With Chance to Renew Later<http://electionlawblog.org/?p=72572>
Posted on May 18, 2015 3:46 pm<http://electionlawblog.org/?p=72572> by Rick Hasen<http://electionlawblog.org/?author=3>

Rather than asking for a response from the state of California, Justice Kennedy (Circuit Justice for the 9th Circuit) has denied without prejudice CCP’s emergency application for a stay<http://sblog.s3.amazonaws.com/wp-content/uploads/2015/05/14A1179-Center-application.pdf>. The order is not yet online, but SCOTUSBlog reports<http://www.scotusblog.com/2015/05/no-protection-yet-for-groups-donor-privacy/> that Justice Kennedy allowed for the order to be renewed “in light of further developments.”

The case involves a requirement that 501c3’s like the Center for Competitive Politics provide unredacted copies of their IRS 990 forms to the State of California.  The 990s list all of the Center’s donors—information which is not released publicly. California does not want these documents for public disclosure, but for California’s law enforcement purposes.

Why would Justice Kennedy proceed this way, rather than order a response from CCP and then rule on the merits, either alone or with the entire Court?

One possibility is because the 9th Circuit has already stayed the mandate<http://electionlawblog.org/wp-content/uploads/Pages-from-14A1179-Center-application.pdf> in this case, although it declined to issue an injunction pending appeal.  (See Rule FRAP 41 and the Circuit comments<http://cdn.ca9.uscourts.gov/datastore/uploads/rules/rules.htm>.) With the mandate stayed, the State of California is unlikely to try to act until the Supreme Court rules on a cert. petition – – and if it does, as Lyle Denniston notes<http://www.scotusblog.com/2015/05/no-protection-yet-for-groups-donor-privacy/>, Justice Kennedy has kept the door open to CCP.

According to the circuit comments to FRAP 41, the fact that the 9th Circuit stayed the mandate means that the court has determined CCP has a non-frivolous argument to be made to the Supreme Court.

[This post has been updated.]


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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
“Three Pennsylvania Ballot Access Rules Declared Unconstitutional as Applied to Green and Libertarian Parties”<http://electionlawblog.org/?p=72570>
Posted on May 18, 2015 3:01 pm<http://electionlawblog.org/?p=72570> by Rick Hasen<http://electionlawblog.org/?author=3>

BAN reports.<http://ballot-access.org/2015/05/18/three-pennsylvania-ballot-access-rules-declared-unconstitutional-as-applied-to-green-and-libertarian-parties/>
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Posted in ballot access<http://electionlawblog.org/?cat=46>, third parties<http://electionlawblog.org/?cat=47>
“Clinton Friend’s Libya Role Blurs Lines of Politics and Business”<http://electionlawblog.org/?p=72568>
Posted on May 18, 2015 1:23 pm<http://electionlawblog.org/?p=72568> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT<http://www.nytimes.com/2015/05/19/us/politics/clinton-friends-libya-role-blurs-lines-of-politics-and-business.html>:

Mr. Gowdy’s chief interest, according to people briefed on the inquiry, is a series of memos that Mr. Blumenthal — who was not an employee of the State Department — wrote to Mrs. Clinton about events unfolding in Libya before and after the death of Col. Muammar el-Qaddafi. According to emails obtained by The New York Times, Mrs. Clinton, who was secretary of state at the time, took Mr. Blumenthal’s advice seriously, forwarding his memos to senior diplomatic officials in Libya and Washington and at times asking them to respond. Mrs. Clinton continued to pass around his memos even after other senior diplomats concluded that Mr. Blumenthal’s assessments were often unreliable.

But an examination by The New York Times suggests that Mr. Blumenthal’s involvement was more wide-ranging and more complicated than previously known, embodying the blurry lines between business, politics and philanthropy that have enriched and vexed the Clintons and their inner circle for years.
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Posted in campaigns<http://electionlawblog.org/?cat=59>
“Cheap And Fast, Online Voter Registration Catches On”<http://electionlawblog.org/?p=72566>
Posted on May 18, 2015 1:07 pm<http://electionlawblog.org/?p=72566> by Rick Hasen<http://electionlawblog.org/?author=3>

Pam Fessler reports <http://www.npr.org/sections/itsallpolitics/2015/05/18/407724279/cheap-and-fast-online-voter-registration-catches-on?utm_source=twitter.com&utm_campaign=politics&utm_medium=social&utm_term=nprnews> for NPR.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
“‘Gyrocopter’ Pilot Honored with Commemorative Stamp: Postal Worker’s Flight Against Big Money in Politics Celebrated”<http://electionlawblog.org/?p=72563>
Posted on May 18, 2015 11:42 am<http://electionlawblog.org/?p=72563> by Rick Hasen<http://electionlawblog.org/?author=3>

Better to laugh or cry at this parody<http://oversight.house-gov.us/release/Farenthold-issues-statement-doug-hughes-commemorative-stamp.html>?
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Posted in election law "humor"<http://electionlawblog.org/?cat=52>
“Active Firms and Active Shareholders: Corporate Political Activity and Shareholder Proposals”<http://electionlawblog.org/?p=72561>
Posted on May 18, 2015 10:02 am<http://electionlawblog.org/?p=72561> by Rick Hasen<http://electionlawblog.org/?author=3>

Geeyoung Min and Hye Young You have posted this draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2601181> on SSRN.  Here is the abstractL

Corporate political activity has become one of shareholders’ top concerns. We examine whether firms targeted by shareholder proposals show different campaign contributions and lobbying activities compared to non-targeted firms. We also ask whether different sponsors of shareholder proposals target different firms depending on the firms’ partisan orientation. Using data on S&P 500 companies during the period between 2007 and 2013, we find that firms that spend more on campaign contributions and lobbying are more likely to be targeted by shareholder proposals. After controlling for firms’ financial performance, governance characteristics and ownership structure, we also find that public pension funds and labor unions sponsors are more likely to target Republican-leaning firms, measured by the firms’ campaign contributions. This finding suggests that increasing corporate political activity can intensify a tension between management and public pension fund and labor union shareholders and lead to more activism by these shareholders.

(h/t Prof. Bainbridge<http://www.professorbainbridge.com/professorbainbridgecom/2015/05/evidence-for-political-targeting-of-republicans-by-shareholder-activists.html>)
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Racism Is Destroying the Right to Vote”<http://electionlawblog.org/?p=72559>
Posted on May 18, 2015 9:40 am<http://electionlawblog.org/?p=72559> by Rick Hasen<http://electionlawblog.org/?author=3>

Sean McElwee<http://www.demos.org/blog/5/18/15/racism-destroying-right-vote> at Demos:

[https://lh5.googleusercontent.com/R8sMoBCMlGHkAwO0w3owSjzS4nZzRod_zgFUdeVMh870OTkrtd5IUPjGBDcniS6PFDmOKchenPcx3u7u6DSxgjgljjFuz3Xq6APO5_r4al0iWOBLTqTOElHfaYvrXGK78KeCldc]

As the chart shows, the relationship between racial stereotyping and ease of access is strong. Although other variables certainly play a role, the R-squared value suggests about a quarter of a system’s ease of access can be explained by racial animus. This builds upon previous analysis. It suggests that while racial animus might not immediately predict the passage of a law, over time it can change the structure of a state’s voting system.


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Posted in Uncategorized<http://electionlawblog.org/?cat=1>



--

Rick Hasen

Chancellor's Professor of Law and Political Science

UC Irvine School of Law

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