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

Tue May 19 08:13:01 PDT 2015

Good catch, Ned: I did not parse it until you mentioned it.

I'll omit my impression of Hillary's first sentence.

As to the second sentence, I am betting that was produced or approved by
her Campaign Communications Team -- not so much by her advisors on Judicial
Nominees & Jurisprudence.

Nothing sounds better to Progressive voters eager to have Hillary tack
leftward than "[Millionaires and] Billionaires .... buying elections."

Best,

Steve
On May 19, 2015 11:00 AM, "Foley, Edward" <foley.33 at osu.edu> wrote:

>  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
>
>
>
> [image: 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.]
>
>
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72572&title=Breaking%3A%20%23SCOTUS%20Denies%20CCP%20Emergency%20Application%20on%20Donor%20Disclosure%2C%20With%20Chance%20to%20Renew%20Later&description=>
>
> 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/>
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72570&title=%E2%80%9CThree%20Pennsylvania%20Ballot%20Access%20Rules%20Declared%20Unconstitutional%20as%20Applied%20to%20Green%20and%20Libertarian%20Parties%E2%80%9D&description=>
>
> 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.*
>
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72568&title=%E2%80%9CClinton%20Friend%E2%80%99s%20Libya%20Role%20Blurs%20Lines%20of%20Politics%20and%20Business%E2%80%9D&description=>
>
> 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.
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72566&title=%E2%80%9CCheap%20And%20Fast%2C%20Online%20Voter%20Registration%20Catches%20On%E2%80%9D&description=>
>
> 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>
> ?
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72563&title=%E2%80%9C%E2%80%98Gyrocopter%E2%80%99%20Pilot%20Honored%20with%20Commemorative%20Stamp%3A%20Postal%20Worker%E2%80%99s%20Flight%20Against%20Big%20Money%20in%20Politics%20Celebrated%E2%80%9D&descript>
>
> 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>
> )
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72561&title=%E2%80%9CActive%20Firms%20and%20Active%20Shareholders%3A%20Corporate%20Political%20Activity%20and%20Shareholder%20Proposals%E2%80%9D&description=>
>
> 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:
>
>  *[image:
> 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.*
>
>
>
> [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D72559&title=%E2%80%9CRacism%20Is%20Destroying%20the%20Right%20to%20Vote%E2%80%9D&description=>
>
> Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>
>
>
>  --
>
> 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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