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

Tue May 19 08:55:47 PDT 2015

This is a very common fudging of distinctions, on both sides. You saw a lot
of it in the debate about the proposed constitutional amendment.
Supporters, such as Sen. Franken, often said that it would simply restore
the law to where it was before Citizens United, SpeechNow and McCutcheon.
But the language of the amendment would also clearly allow limits on total
spending and independent spending, and the game would hardly be worth the
candle if all it did was reverse Citizens United. (It's not worth it
anyway, but that's an argument for another day.)

Similarly, in the WSJ op-ed by Don McGahn that Steve Hoersting sent to the
list last week, McGahn tells us that Clinton wants to "return American
elections to where they were in 2008, when her opponents and critics were
often muzzled in the public square." (Not muzzled effectively enough,
apparently -- 2008 was not Hillary Clinton's best year!) And then a few
sentences later, he calls her "the first candidate to make gutting the
First Amendment a central part of her platform." Did we not have a First
Amendment in 2008?

Ned's point is important. "Citizens United" has become a catch-all phrase
for everything going on with money in politics, both for people who want to
change it and those who don't. We could use some clarity about what people
actually want to change and what they don't. It's not *that* complicated.

Mark Schmitt
Director, Political Reform Program
<http://www.newamerica.org/political-reform/>, New America
<http://www.newamerica.org/>
202/246-2350
gchat or Skype: schmitt.mark
twitter: @mschmitt9 <https://twitter.com/@mschmitt9>

On Tue, May 19, 2015 at 11:13 AM, Steve Hoersting <hoersting at gmail.com>
wrote:

> 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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>
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