[EL] ELB News and Commentary 11/2/15
Rick Hasen
rhasen at law.uci.edu
Mon Nov 2 08:09:39 PST 2015
tice Kennedy Heed Justice Kennedy: Money Buys Influence”
<http://electionlawblog.org/?p=77167>
Posted onNovember 2, 2015 8:08 am
<http://electionlawblog.org/?p=77167>byRick Hasen
<http://electionlawblog.org/?author=3>
I have writtenthis oped <https://t.co/U5gjWqIMfa>for the National Law
Journal. it begins:
Many people know of Justice Anthony Kennedy’s controversial 2010
Supreme Court opinion in_*/Citizens United v. Federal Election
Commission
<http://www.law.cornell.edu/supct/html/08-205.ZS.html>/*_, in which
he assured the American people that independent spending in
elections cannot corrupt or create the appearance of corruption, and
that “ingratiation and access” aren’t corruption.
Few people know of Kennedy’s opinion a year earlier in/_*Caperton v.
Massey <http://www.law.cornell.edu/supct/html/08-22.ZO.html>*_/, in
which the Court held that $3 million in independent spending
supporting a candidate for the West Virginia Supreme Court by a
litigant with a $50 million case before that Court created enough of
a problem with ingratiation and access to require the judge to
recuse himself from hearing that case.
New revelations from that litigant and one of the justice involved
demonstrate that Kennedy was right in/Caperton/to be concerned about
the troubling role of big money in securing ingratiation and access
with elected officials, a lesson which he should have carried over
to/Citizens United/.
It concludes:
One conversation to come out at trial, however, caught the ear of
Hofstra law professor James Sample, an expert in judicial elections,
who passed it along to me. In the recorded telephone conversation,
Blankenship is talking to a woman (whom prosecutors identified as a
girlfriend), lamenting the fact that a picture of Blankenship and
Maynard was “all over WSAZ,” a West Virginia television station. Oh
well, Blankenship laments, “I won…saved Massey $70 million.”
That’s right, the ingratiation and access that Blankenship pursued
of Supreme Court justices through independent spending in West
Virginia paid off handsomely for his company.
Money doesn’t matter? Come on. Even Benjamin, speaking at a
conference at the University of Virginia last week,*_admitted as
much <http://electionlawblog.org/?p=76987>_*: “I was tone deaf in
not recusing myself in/Caperton/.”
You might think that the world we have lived in since/Citizens
United/would have given Kennedy second thoughts. But in*a recent
interview
<http://www.nationallawjournal.com/id=1202740827841?keywords=minow&publication=National+Law+Journal>*with
Harvard law dean Martha Minow, Kennedy*defended his decision
<http://electionlawblog.org/?p=77126>*in/Citizens United,/and said
disclosure is an answer to the problem of money in politics.
Disclosure is not enough to stop people like Blankenship from buying
influence. All of his contributions and spending were disclosed, but
it did not stop what Kennedy in/Caperton/called Blankenship’s
“disporoportionate” influence.
Kennedy in/Caperton/was right. Big money, even nominally independent
big money, can ingratiate, provide access, and give disproportionate
influence. If only Kennedy in/Citizens United/would have listened.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,judicial
elections <http://electionlawblog.org/?cat=19>,Supreme Court
<http://electionlawblog.org/?cat=29>
“In Two Corruption Cases, the Culture of Albany Will Go on Trial”
<http://electionlawblog.org/?p=77206>
Posted onNovember 2, 2015 8:07 am
<http://electionlawblog.org/?p=77206>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT
<http://www.nytimes.com/2015/11/02/nyregion/in-two-corruption-cases-the-culture-of-albany-will-go-on-trial.html?ref=politics&_r=0>:
In separate federal courthouses in Lower Manhattan this month, two
of the most powerful men in New York are about to go on trial, an
extraordinary spectacle centering on allegations of corruption,
bribery and nepotism in the state’s highest chambers of political power.
But even as the men, AssemblymanSheldon Silver
<http://topics.nytimes.com/top/reference/timestopics/people/s/sheldon_silver/index.html?inline=nyt-per>,
the former speaker, and State Senator Dean G. Skelos, the former
majority leader, fight the charges and try to restore their
reputations, something else will also be on trial: the culture of
Albany, the state capital.
Court papers in the two cases suggest that testimony in Federal
District Court will expose in granular detail what watchdog groups
say is a seamy world where big money and politics have long
intersected with government.
There are accounts of kickbacks disguised as legitimate income;
no-show jobs for a lawmaker’s son; and the use of state money to
influence a doctor to refer clients to a favored law firm that, in
turn, paid millions of dollars to a lawmaker.
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Posted inbribery <http://electionlawblog.org/?cat=54>,chicanery
<http://electionlawblog.org/?cat=12>
“So, who really won? What the Bush v. Gore studies showed”
<http://electionlawblog.org/?p=77204>
Posted onNovember 2, 2015 7:58 am
<http://electionlawblog.org/?p=77204>byRick Hasen
<http://electionlawblog.org/?author=3>
CNN reports
<http://www.cnn.com/2015/10/31/politics/bush-gore-2000-election-results-studies/index.html>,
in connection with a show tonight: CNN Chief Political Analyst Gloria
Borger revisits the 2000 election in a CNN Special Report, “Bush v.
Gore: The Endless Election
<http://www.cnn.com/video/data/2.0/video/tv/2015/10/15/bush-vs-gore-the-endless-election.cnn.html>,”
Monday at 9 p.m. ET.
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Posted inBush v. Gore reflections <http://electionlawblog.org/?cat=5>
“BREAKING NEWS: EAC Hires New Executive Director And General
Counsel” <http://electionlawblog.org/?p=77202>
Posted onNovember 2, 2015 7:55 am
<http://electionlawblog.org/?p=77202>byRick Hasen
<http://electionlawblog.org/?author=3>
Doug Chapin
<http://editions.lib.umn.edu/electionacademy/2015/11/02/breaking-news-eac-hires-new-executive-director-and-general-counsel/>:
The U.S. Election Assistance Commission is almost back at full
strength with the announcement this morning that Johnson County, KS’
Brian Newby has been appointed the agency’s executive director and
Washington DC’s Cliff Tatum has been named general counsel….This is
tremendous news for the agency; Newby and Tatum are well-known to
their colleagues across the nation and are well-positioned to
continue the excellent work already begun by the three EAC
Commissioners. The appointments come just in time for the EAC to
kick into even higher gear for the 2016 election – a crucial period
not just for election officials across the nation but also the EAC
itself. [Now all we need is that fourth Commissioner … ]
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,Election Assistance Commission
<http://electionlawblog.org/?cat=34>,election law biz
<http://electionlawblog.org/?cat=51>
“Bill puts veil over campaign funding in Wisconsin”
<http://electionlawblog.org/?p=77200>
Posted onNovember 2, 2015 7:53 am
<http://electionlawblog.org/?p=77200>byRick Hasen
<http://electionlawblog.org/?author=3>
Patrick Marley
<http://www.jsonline.com/news/statepolitics/bill-court-ruling-could-alter-wisconsin-campaigns-b99606618z1-339181301.html>for
the/Milwaukee Journal-Sentinel/:
A bill that has passed the Assembly and could be considered by the
state Senate as early as Tuesday would make it much harder for
citizens to learn the background of who is financing candidates’
campaigns and codify a recent Wisconsin Supreme Court decision
allowing candidates to work closely with issue groups that don’t
have to disclose where they get their money.
The Republicanlegislation
<http://docs.legis.wisconsin.gov/2015/proposals/ab387>would also
allow unions and corporations to give money to political parties and
campaign committees controlled by legislative leaders. And wealthy
donors would be free to give as much as they wanted to those
entities, which could then pass them on to candidates.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Democratic Challengers and Open-Seat Candidates Have More Dollars
on Average – But the Number Running Is Way Down”
<http://electionlawblog.org/?p=77198>
Posted onNovember 2, 2015 7:52 am
<http://electionlawblog.org/?p=77198>byRick Hasen
<http://electionlawblog.org/?author=3>
The latest from theCampaign Finance Institute
<http://www.cfinst.org/default.aspx>:
eports recently filed by House candidates covering financial
activity through September 30th continue to show an advantage for
the Democratic Party among challengers and open seat candidates.
House Democratic challengers raised more than twice as much as their
Republican counterparts through September 30. Democrats running for
open seats raised 75% more than their GOP equivalents.
However, the small number of candidates who have thrown their hats
in the ring will weigh heavily on the party’s chances to close the
gap in the battle for majority control. Only 153 Democratic
challengers and open seat candidates have reported receipts with the
Federal Election Commission through September 30. This number of
non-incumbent candidates is well behind historic patterns, down from
the 269 at this time in 2013 and 365 in 2011.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Can cheap drinks get young adults to vote? One group thinks it’s
worth a shot.” <http://electionlawblog.org/?p=77196>
Posted onNovember 2, 2015 7:50 am
<http://electionlawblog.org/?p=77196>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo reports.
<https://www.washingtonpost.com/local/virginia-politics/can-cheap-drinks-get-young-adults-to-vote-one-group-thinks-its-worth-a-shot/2015/10/30/6e09947e-7f05-11e5-afce-2afd1d3eb896_story.html?tid=sm_tw>
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Posted invote buying <http://electionlawblog.org/?cat=43>,voting
<http://electionlawblog.org/?cat=31>
“Our Campaign Finance Frankenstein; How the Supreme Court built a
monster out of America’s campaign finance law.”
<http://electionlawblog.org/?p=77194>
Posted onNovember 2, 2015 7:49 am
<http://electionlawblog.org/?p=77194>byRick Hasen
<http://electionlawblog.org/?author=3>
Anthony
Gaughan<http://www.usnews.com/opinion/articles/2015/10/30/blame-the-supreme-court-for-americas-campaign-finance-frankenstein>in
US News.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
“Cruz’s silent super PACs a growing worry for campaign”
<http://electionlawblog.org/?p=77192>
Posted onNovember 2, 2015 7:48 am
<http://electionlawblog.org/?p=77192>byRick Hasen
<http://electionlawblog.org/?author=3>
Sen. Cruz’s campaign uses @Politico
<http://www.politico.com/story/2015/11/ted-cruz-silent-super-pacs-2016-215422>to
communicate with its Super PAC.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“UK Election Law Society, Expert to Live-Blog Election Issues”
<http://electionlawblog.org/?p=77190>
Posted onNovember 2, 2015 7:35 am
<http://electionlawblog.org/?p=77190>byRick Hasen
<http://electionlawblog.org/?author=3>
Release:
<http://uknow.uky.edu/content/uk-election-law-society-expert-live-blog-election-issues>
The University of Kentucky Election Law Society and election law
expertJosh Douglas
<http://law.uky.edu/directory/joshua-a-douglas>will provide live
analyses on legal issues surrounding the Kentucky general election
Tuesday, Nov. 3, on their blog athttp://www.uky.edu/electionlaw/.
Share
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“D.C. law student takes case against Md. gerrymandering to Supreme
Court” <http://electionlawblog.org/?p=77188>
Posted onNovember 1, 2015 8:31 pm
<http://electionlawblog.org/?p=77188>byRick Hasen
<http://electionlawblog.org/?author=3>
Bob Barnes
<https://www.washingtonpost.com/politics/courts_law/dc-law-student-takes-case-against-md-gerrymandering-to-supreme-court/2015/11/01/51fd94a6-7cbc-11e5-b575-d8dcfedb4ea1_story.html>for
WaPo:
Steve Shapiro recently pulled his first all-nighter in years.
He worked until about 1 a.m. last month on an assignment for a class
at American University’s Washington College of Law, where he is a
first-semester 1L. From then until dawn, he pored over his brief due
at the U.S. Supreme Court, where his battle against Maryland’s
often-criticized gerrymandered congressional districts will be heard
this week in a case that bears his name.
At age 55, Shapiro is not the typical law school newbie; he’s more
often mistaken for a professor. It was his decades-long fight with
Maryland’s political leadership over redistricting that, in part,
fueled his decision to leave his job as a career federal employee
and enroll full time in law school.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Editorial: Republicans continue the war on voting rights”
<http://electionlawblog.org/?p=77186>
Posted onNovember 1, 2015 8:27 pm
<http://electionlawblog.org/?p=77186>byRick Hasen
<http://electionlawblog.org/?author=3>
St. Louis Post Dispatch editorial.
<http://www.stltoday.com/news/opinion/editorial-republicans-continue-the-war-on-voting-rights/article_340d5061-1e15-5d39-94d3-fb3fa1ddadf9.html>
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>
“Review ‘Give Us the Ballot’ is a sobering look at the modern
struggle for voting rights in America”
<http://electionlawblog.org/?p=77184>
Posted onNovember 1, 2015 7:12 pm
<http://electionlawblog.org/?p=77184>byRick Hasen
<http://electionlawblog.org/?author=3>
LAT
<http://www.latimes.com/books/reviews/la-ca-jc-ari-berman-20151101-story.html>.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
“Your State And Local Elections Are Now A Super PAC Playground”
<http://electionlawblog.org/?p=77181>
Posted onNovember 1, 2015 1:28 pm
<http://electionlawblog.org/?p=77181>byRick Hasen
<http://electionlawblog.org/?author=3>
Paul Blumenthal
<http://www.huffingtonpost.com/entry/2015-elections-super-pac_5633d165e4b0c66bae5c7bbb>for
HuffPo:
he influence of billionaires in the post-Citizens United era is in
no way limited to the 2016 presidential and congressional elections.
While the super-wealthy dominate those races, local and state
elections in 2015 are also attracting big money from Forbes-listed
billionaires and local wealthy interests that’s funneled through
super PACs.
Not all states, cities and municipalities hold elections on
even-numbered years. On Nov. 3, voters in Kentucky and Mississippi
will hold gubernatorial and legislative elections, and voters in New
Jersey and Virginia will vote on legislative candidates. Louisiana
held its pre-runoff election for governor and many other down-ballot
races on Oct. 24, and will hold a runoff on Nov. 21. Many other
cities and municipalities have held or will hold elections this
year, including Chicago, Philadelphia, Nashville and Dallas, among
many others.
Super PACs and nonprofits — in some cases connected to a single
candidate — have taken on a dominant role in many of these
elections. Super PAC spending on state and local elections often has
more of a direct influence on government than spending on the more
talked-about 2016 presidential election. In many cases, donations to
these unlimited money groups come from developers, contractors and
special interest groups looking to gain special favors from their
local government.
“When you look at smaller races, the relative importance of outside
spending increases, both in terms of outcome of election and
influencing policy,” said Rick Hasen, a University of California,
Irvine law professor and author of the forthcoming/Plutocrats
United: Campaign Money, the Supreme Court, and the Distortion of
American Elections./
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“How Jeb Bush may have just outsourced a key part of his campaign”
<http://electionlawblog.org/?p=77179>
Posted onNovember 1, 2015 1:24 pm
<http://electionlawblog.org/?p=77179>byRick Hasen
<http://electionlawblog.org/?author=3>
The Fix
<https://www.washingtonpost.com/news/the-fix/wp/2015/11/01/how-jeb-bush-may-have-just-outsourced-a-key-part-of-his-campaign/>:
The problem for the PAC is that it can’t coordinate legally with
Bush on where to spend that fortune. It has to do its own thing,
making educated guesses about where and how to advertise or
otherwise contact voters.
Unless, that is, there’s public information it can act on. Bush’s
campaign can’t call Right to Rise and say, “Hey, we need help in
Iowa.” It/can/however, make an internal document public for the
world — and the PAC — to see. Carpenter’s point? That was precisely
the plan.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Wisconsin Legislature should reject secrecy bill”
<http://electionlawblog.org/?p=77177>
Posted onNovember 1, 2015 1:08 pm
<http://electionlawblog.org/?p=77177>byRick Hasen
<http://electionlawblog.org/?author=3>
Daniel Weiner and Brent Ferguson have writtenthis oped
<http://m.jsonline.com/news/wisconsin-legislature-should-reject-secrecy-bill-b99605680z1-339024381.html>for
the /Milwaukee Journal-Seninel/:
SB 292 breaks sharply from Wisconsin’s tradition of openness and
transparency, allowing big donors to influence government without
public scrutiny. Current law requires all outside groups (such as
super PACs) that raise or spend over $300 for political purposes to
register and report their spending. Under the proposed law, in most
cases only groups whose “major purpose” is to produce ads that
explicitly ask viewers to vote for or against a candidate would be
required to register and report their spending.
And who gets to decide a group’s major purpose? Why, the group
itself. According to SB 292, a group’s “major purpose” is determined
by its own organizational documents or statements to the government.
It will be child’s play for political operatives to get around these
transparency protections.
Even if this were not the case, limiting disclosure to groups that
run ads explicitly asking viewers to vote for or against a candidate
means that the vast majority of super PAC and other outside spending
will stay in the shadows.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“A Board Member’s Guide to Corporate Political Spending”
<http://electionlawblog.org/?p=77175>
Posted onNovember 1, 2015 1:05 pm
<http://electionlawblog.org/?p=77175>byRick Hasen
<http://electionlawblog.org/?author=3>
Constance Bagley, Bruce Freed and Karl Sandstrom write for the Harvard
Business Review
<https://hbr.org/2015/10/a-board-members-guide-to-corporate-political-spending>.
<https://hbr.org/2015/10/a-board-members-guide-to-corporate-political-spending>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Election Board official: ‘Ignorance’ isn’t an excuse for campaign
violations” <http://electionlawblog.org/?p=77173>
Posted onNovember 1, 2015 1:02 pm
<http://electionlawblog.org/?p=77173>byRick Hasen
<http://electionlawblog.org/?author=3>
WNDU
<http://www.wndu.com/home/headlines/Election-Board-official-says-ignorance-isnt-an-excuse-for-campaign-violations-338517282.html>:
Election Board officials say “ignorance” is no excuse for failing to
comply with statefinance
<http://www.wndu.com/home/headlines/Election-Board-official-says-ignorance-isnt-an-excuse-for-campaign-violations-338517282.html#>laws,
but after a handful of candidates got in trouble for violations, the
board opted not to prosecute.
Wednesday, the Elkhart County Election Board decided not to forward
along three formal complaints filed against five candidates vying
for positions in Elkhart and Goshen.
(viaRobbin Stewart
<http://www.wndu.com/home/headlines/Election-Board-official-says-ignorance-isnt-an-excuse-for-campaign-violations-338517282.html>)
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Sacramento County elections office needs overhaul”
<http://electionlawblog.org/?p=77171>
Posted onNovember 1, 2015 1:00 pm
<http://electionlawblog.org/?p=77171>byRick Hasen
<http://electionlawblog.org/?author=3>
Brad Buyse
<http://www.sacbee.com/opinion/op-ed/soapbox/article41846487.html> oped
in the SacBee:
As a former employee of Sacramento County for 30 years – including
20 in the elections office and the last 12 as its campaign services
manager – I am indeed concerned about aconflict of interest in the
selection of who will review the elections office
<http://www.sacbee.com/opinion/editorials/article41635122.html>.
I left the elections office in January after a respectful career
because I no longer agreed with the vision of Registrar of Voters
Jill LaVine and the direction she and Assistant Registrar Alice
Jarboe were leading the voter registration and elections office.
What started out as a great office with exceptional service and
outstanding morale slowly eroded over the last few years to one
riddled with dysfunction, lack of trust in management and a lack of
support from LaVine.
When county executives, led by Paul Lake and Brad Hudson, announced
that the Election Center was the chosen vendor, it again brought up
concerns not just from me, but from others about the huge potential
for a biased audit and a blatant conflict of interest.
While working in the elections office, I traveled with LaVine and
Jarboe to Election Center conferences around the country, where they
spoke at panels and sat on boards and received cash reimbursements.
This close contact is clearly a conflict of interest for this audit
of the elections office.
The Election Center and its conferences and workshops helped my
fellow employees and me in our careers. But it is not the vendor
that would be the best to conduct this review. In my mind, there is
no way that former Registrar of Voters Ernie Hawkins, who is to lead
the review team, would acknowledge to the Sacramento County Board of
Supervisors at the conclusion of this audit that his recommendation
to promote LaVine to registrar was incorrect.
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Posted inconflict of interest laws
<http://electionlawblog.org/?cat=20>,election administration
<http://electionlawblog.org/?cat=18>
NYT Dives Deep into Arbitration Killing Consumer Class Actions and
More <http://electionlawblog.org/?p=77169>
Posted onNovember 1, 2015 12:58 pm
<http://electionlawblog.org/?p=77169>byRick Hasen
<http://electionlawblog.org/?author=3>
Must read.
<http://www.nytimes.com/2015/11/02/business/dealbook/in-arbitration-a-privatization-of-the-justice-system.html>
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Posted inRemedies <http://electionlawblog.org/?cat=57>
“FEC Deadlock Signaled by Rival Drafts on Super PACs”
<http://electionlawblog.org/?p=77165>
Posted onOctober 30, 2015 2:27 pm
<http://electionlawblog.org/?p=77165>byRick Hasen
<http://electionlawblog.org/?author=3>
Ken Doyle<http://www.bna.com/fec-deadlock-signaled-n57982062945/>for
Bloomberg BNA:
The Federal Election Commission appeared to be moving toward a
deadlocked vote in a ruling over the legality of activities by
single-candidate super PACs in the 2016 campaign.
Commissioners postponed a final vote following a discussion at a
commission meeting Oct. 29 of a key advisory opinion (AO 2015-09).
The vote on the ruling, requested by prominent Democratic election
lawyer Marc Elias, was delayed until the next scheduled FEC meeting
Nov. 10.
But, discussion at the FEC meeting indicated that the commissioners
were unlikely to reach consensus on some, if not all, the questions
raised in the Elias request.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,federal
election commission <http://electionlawblog.org/?cat=24>
--
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
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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