[EL] ELB News and Commentary 11/9/15
Rick Hasen
rhasen at law.uci.edu
Mon Nov 9 07:48:23 PST 2015
“Democracy for GrownUps” <http://electionlawblog.org/?p=77408>
Posted onNovember 9, 2015 7:46 am
<http://electionlawblog.org/?p=77408>byRick Hasen
<http://electionlawblog.org/?author=3>
I have writtenthis review
<http://newramblerreview.com/book-reviews/law/democracy-for-grownups>of
Bruce Cain’sDemocracy More or Less
<http://www.amazon.com/Democracy-More-Less-Political-Cambridge/dp/1107612268>for
theNew Rambler Review. <http://newramblerreview.com/> It begins:
Modern American democracy is often messy, increasingly polarized,
sometimes stupefying, and surprisingly decentralized. Our Congress
functions (or doesn’t) mainly along party lines under rules set in a
Constitution more than 200 years old which does not recognize
political parties, and indeed was designed to stifle their
emergence. Divided government in times of polarized parties has
undermined accountability as each side can blame the other for
policy failures, and we lurch from one potential government shutdown
to another thanks in part to polarization and in part to internal
fighting within the Republican Party. Much power devolves to the
state and local level, where we often see one-party rule rather than
the partisan stalemate of Congress.
State one-partyism extends even to the rules for conducting
elections, where a majority of states use partisan election
officials to set the rules of the game and to carry out our
elections, and where state legislatures draw their own legislative
districts only mildly constrained by Supreme Court one-person,
one-vote requirements. Our campaign finance system is careening
toward deregulation, with a series of Supreme Court decisions and
partially enforceable congressional measures leading to the creation
of political organizations, some of which can shield their donors’
identities, allowing the wealthiest of Americans to translate their
vast economic power into political power. Money spent to influence
elections is complemented by money spent to influence public policy
through lobbying, creating a system in which those with great wealth
and organizational ability have a much better chance of having their
preferences enacted in law and having their preferred candidates
elected, than average Americans have.
It is no wonder that the reform impulse in American politics is
strong. States with the initiative process have experimented with
top-two primaries in which the top two vote getters, regardless of
party, go to a runoff, and redistricting reform featuring either
citizen commissions or substantive limits on legislative
self-dealing. The National Popular Vote movement seeks an end run
around the antiquated rules of the Electoral College, which violate
modern accepted principles of one-person, one-vote by giving small
states outsized power relative to their populations.
Reformers push a constitutional amendment to overturn the Supreme
Court’s decision in/Citizens United/and other cases which hamstring
the government’s ability to control money in politics. Good
government groups regularly clamor for redistricting reform (often
joined by the political party on the losing side of redistricting in
each state), expansion of voting rights for former felons and
others, and the end of corruption and patronage. Some even call for
constitutional conventions with citizen participants chosen by lottery.
But as Bruce Cain argues in his terrific new book, the never-ending
efforts at reform present tradeoffs, and attempts to achieve either
pure majoritarianism or government meritocracy can have unintended
and unwanted consequences. Further, many reform efforts are oversold
as a cure for all that ails American democracy. Cain argues for a
Goldilocks-like pluralist reform agenda which recognizes that busy
citizens lack interest in governing and capacity to make complex
decisions. Instead, politics is conducted through intermediaries
across the range of local, state, and national governing arenas.
Pluralism “prioritizes aggregation, consensus, and fluid coalitions
as a means of good democratic governance.” (p. 11)
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Posted intheory <http://electionlawblog.org/?cat=41>
ELB Podcast Episode 6. Nate Persily: Can the Supreme Court Handle
Social Science In Election Cases? <http://electionlawblog.org/?p=77303>
Posted onNovember 9, 2015 7:42 am
<http://electionlawblog.org/?p=77303>byRick Hasen
<http://electionlawblog.org/?author=3>
Can the Supreme Court handle social science evidence in election law
cases? Will lack of good data determine the outcome of the Supreme
Court’s upcoming one person, one vote decision in /Evenwel v. Abbott/?
What role will and should evidence play in assessing questions such as
the constitutionality of McCain-Feingold’s soft money ban or Texas’s
strict voter identification law.
On Episode 6 of the ELB Podcast, we talk to law professor and political
scientist Nate Persily <http://persily.com/>of Stanford Law School, one
of the country’s leading redistricting and election law experts.
You can listen to the ELB Podcast Episode 6 onSoundcloud
<https://soundcloud.com/rick-hasen/elb-podcast-episode-6-nate>orsubscribe at
iTunes
<https://geo.itunes.apple.com/us/podcast/elb-podcast/id1029317166?mt=2>.
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Posted inELB Podcast <http://electionlawblog.org/?cat=116>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Democratic Group Called iVote Pushes Automatic Voter Registration”
<http://electionlawblog.org/?p=77406>
Posted onNovember 9, 2015 7:38 am
<http://electionlawblog.org/?p=77406>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT:
<http://www.nytimes.com/2015/11/10/us/politics/democratic-group-called-ivote-pushes-automatic-voter-registration.html?ref=politics&_r=0>
As Republicans across the country mount an aggressive effort to
tighten voting laws, a group of former aides to President Obama and
President Bill Clinton is pledging to counter by spending up to $10
million on a push to make voter registration automatic whenever
someone gets a driver’s license.
The change would supercharge the1993 National Voter Registration Act
<http://www.justice.gov/crt/about-national-voter-registration-act>,
known as the “motor voter” law, which requires states to offer
people the option of registering to vote when they apply for
driver’s licenses or other identification cards. The new laws would
make registration automatic during those transactions unless a
driver objected.
The group, called iVote — which is led byJeremy Bird
<http://www.nytimes.com/2012/04/30/us/politics/obama-campaign-confronts-voter-id-laws.html>,
who ran Mr. Obama’s voter turnout effort in 2012 — is betting that
such laws could bring out millions of new voters who have, for
whatever reason, failed to register even when they had the
opportunity at motor vehicle departments….
Kris W. Kobach, the secretary of state in Kansas and a Republican,
who has been a leading advocate of stricter voting laws, said he
opposed automatic registration because people who chose not to
register were clearly not interested in voting.
“The assumption that by making what is already easy automatic that
will somehow bring people to the polls is just erroneous,” Mr.
Kobach said. “I just think it’s a bad idea. It’s not going to
increase participation rates.”
Mr. Kobach has pushed for some of the nation’s most restrictive
voting laws, including one that requires proof of citizenship. He
said automatic registration would make that kind of check impossible.
“You’re going to end up with aliens on the voter rolls,” Mr. Kobach
said. “It’s inevitable that an automatic registration system would
result in many of them getting on.”
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,The Voting Wars
<http://electionlawblog.org/?cat=60>,voter registration
<http://electionlawblog.org/?cat=37>
“Inside the abandoned plans of Ted Cruz’s super PACs”
<http://electionlawblog.org/?p=77404>
Posted onNovember 9, 2015 7:32 am
<http://electionlawblog.org/?p=77404>byRick Hasen
<http://electionlawblog.org/?author=3>
Teddy Schleifer
<http://www.cnn.com/2015/11/08/politics/ted-cruz-super-pac-abandoned-plans/index.html>for
CNN:
The super PACs are staffed in part by a few individuals with no
formal political experience, including Neugebauer, who has been the
groups’ main fundraiser and formerly its chief executive officer —
in addition to one of its lead donors. The groups have only recently
begun hiring their first political professionals, including a new
professional fundraiser: Campbell Smith, a finance official at the
National Rifle Association, the super PACs confirmed to CNN.
The ditched buy is at the heart of the dispute between the campaign
and the super PAC — a dispute that spilled out into the public this
week, with several campaign advisers tellingPolitico
<http://www.politico.com/story/2015/11/ted-cruz-silent-super-pacs-2016-215422>that
they want to see Keep the Promise purchase advertising time
immediately. Campaigns and super PACs frequently read one another’s
messages in the press with a fine-toothed comb to learn thinking
that they cannot legally directly share with one another.
It’s a reflection of the divided campaign finance world, where super
PACs are allowed to raise unlimited amounts of cash (donations must
still be reported to the Federal Election Commission), but the catch
is that campaign and super PAC officials aren’t allowed to
coordinate. Neugebauer’s pitch at The Broadmoor came without Cruz
staffers in the room, for instance, a donor said.
And amid increasing questions about the super PAC, campaign
officials are coming to the defense of Neugebauer, who left his role
at the super PAC in a shake-up, and are praising his ability to
incentivize two more eight-digit donations with a $10 million check
of his own.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“The battle over campaign finance reform is changing. Here’s how.”
<http://electionlawblog.org/?p=77402>
Posted onNovember 9, 2015 7:31 am
<http://electionlawblog.org/?p=77402>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo talks
<https://www.washingtonpost.com/news/the-fix/wp/2015/11/07/the-battle-over-campaign-finance-reform-is-changing-heres-how/>with
Josh Silver of represent.us.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Bauer on Justice Kennedy on Citizens United at Harvard
<http://electionlawblog.org/?p=77400>
Posted onNovember 9, 2015 7:23 am
<http://electionlawblog.org/?p=77400>byRick Hasen
<http://electionlawblog.org/?author=3>
Bauer blogs.
<http://www.moresoftmoneyhardlaw.com/2015/11/justice-kennedy-harva>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme
Court <http://electionlawblog.org/?cat=29>
Breaking: #SCOTUS❤️Political Disclosure, Denies Cert. in CCP v.
Harris <http://electionlawblog.org/?p=77396>
Posted onNovember 9, 2015 7:19 am
<http://electionlawblog.org/?p=77396>byRick Hasen
<http://electionlawblog.org/?author=3>
The Supreme Court, without noted dissent,has denied
cert.<http://www.supremecourt.gov/orders/courtorders/110915zor_4g25.pdf>in
Center for Competitive Politics v. Harris. The question concerns whether
CA AG Harris can have access toCCP <http://www.campaignfreedom.org/>’s
donor list for law enforcement purposes (and not for public disclosure)
or whether such access violates the First Amendment.
This cert. denial follows a string of cases in which the Supreme Court
has endorsed disclosure as the appropriate way to deal with political
activity (rather than campaign finance limits). These cases include
/McConnell v. FEC/, /Citizens United v. FEC/, and /Doe v. Reed/. Aside
from Justice Thomas (and to some extent Justice Alito), the Court has a
strong belief in the benefits of disclosure in providing valuable
information to voters, deterring corruption, and aiding in law
enforcement. It is clearJustice Kennedy is
upset<http://electionlawblog.org/?p=77126>that political forces have not
enhanced disclosure since /Citizens United/. There is no constitutional
impediment to it, except as to those groups which can demonstrate a
realistic threat of harassment.
The claims of harassment of contributors to conservatives causes have
turned out to be greatly exaggerated. I explore this most recently in
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in
the Internet Age <http://ssrn.com/abstract=1948313>, 27/Journal of Law
and Politics/557 (2012).
This is good news, although disclosure isfar from enough
<http://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453/ref=la_B0089NJCR2_1_7?s=books&ie=UTF8&qid=1430416698&sr=1-7>to
deal with other problems with our campaign finance system.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,Supreme Court
<http://electionlawblog.org/?cat=29>
“California’s ballot could be a blockbuster next November”
<http://electionlawblog.org/?p=77394>
Posted onNovember 8, 2015 7:05 pm
<http://electionlawblog.org/?p=77394>byRick Hasen
<http://electionlawblog.org/?author=3>
John Myers
<http://www.latimes.com/politics/la-me-pol-california-ballot-measures-2016-20151108-story.html>for
the LAT:
The list of measures is very much a work in progress. Most campaigns
are still gathering voter signatures or waiting for their proposals
to be vetted by state officials.
But political strategists have identified at least 15 — perhaps as
many as 19 –measures that all have a shot at going before voters
next fall.
The last time California’s ballot was that long was in November
2004, when there were16 propositions
<http://elections.cdn.sos.ca.gov/sov/2004-general/formatted_ballot_measures_detail.pdf>.
The March 2000 ballot had20
<http://elections.cdn.sos.ca.gov/sov/2000-primary/measures.pdf>.
Here are the expected 2016 ballot initiatives
<http://www.latimes.com/politics/la-me-pol-california-ballot-box-2016-20151108-story.html>
A number of political forces help explain why so many are lined up
now. For starters, there’s the2011 law
<http://www.leginfo.ca.gov/pub/11-12/bill/sen/sb_0201-0250/sb_202_bill_20110908_amended_asm_v97.html> that
moved everything but measures written by the Legislature to the
general election ballot. As a result, June primary ballots are now
almost barren of contentious campaigns.
There is also a lingering hangover from the state’s record-low voter
turnout in 2014: a new and extremely low number of voter signatures
needed to qualify an initiative for the ballot.
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Posted indirect democracy <http://electionlawblog.org/?cat=62>
“As Lawrence Lessig’s Long-Shot Bid Ends, What’s To Come For His Key
Issue?” <http://electionlawblog.org/?p=77392>
Posted onNovember 8, 2015 4:26 pm
<http://electionlawblog.org/?p=77392>byRick Hasen
<http://electionlawblog.org/?author=3>
Michel Martin
interviews<http://www.npr.org/2015/11/08/455243856/as-lawrence-lessigs-long-shot-bid-ends-whats-to-come-for-his-key-issue?utm_source=twitter.com&utm_campaign=politics&utm_medium=social&utm_term=nprnews>Lessig
for NPR.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Lawmakers Ponder New Redistricting Methods”
<http://electionlawblog.org/?p=77390>
Posted onNovember 8, 2015 1:03 pm
<http://electionlawblog.org/?p=77390>byRick Hasen
<http://electionlawblog.org/?author=3>
CBS Miami
<http://miami.cbslocal.com/2015/11/06/lawmakers-ponder-new-redistricting-methods/>:
Oliva, who is set to take over as speaker of the House after the
2018 elections, said in the wake of the failed session that he was
ready to consider an independent redistricting commission that would
recommend maps to the Legislature. The House and Senate also failed
to agree on a congressional redistricting plan during an August
special session.
“I’m for looking into it, because I certainly think that we need to
have maps that aren’t disputed halfway into the next Census,” Oliva
said.
At the same time, he pointed out some of the pitfalls for a commission.
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Posted incitizen commissions
<http://electionlawblog.org/?cat=7>,redistricting
<http://electionlawblog.org/?cat=6>
“‘SNL’ Gives Donald Trump Just 12 Minutes On Screen”
<http://electionlawblog.org/?p=77388>
Posted onNovember 8, 2015 12:59 pm
<http://electionlawblog.org/?p=77388>byRick Hasen
<http://electionlawblog.org/?author=3>
Variety
<http://variety.com/2015/tv/news/donald-trump-saturday-night-live-12-minutes-1201636040/>:
His minimal appearance on the show would suggestNBC
<http://variety.com/t/nbc/>was extremely cognizant of TV’s so-called
“equal time” rule, which mandates that U.S. broadcast and radio
stations that grant appearances to political candidates must provide
an equal amount of time to other candidates who request
it….Candidates who want equal time are not guaranteed to get what
Trump received. NBC could send them to various programs operated by
NBC News, or to NBC-owned stations or some of the network’s
affiliates. But other people striving for the office could certainly
gain publicity for themselves by making the request – and bring more
scrutiny to the broadcast network, which is owned by Comcast’s
NBCUniversal unit.
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Posted incampaigns <http://electionlawblog.org/?cat=59>
What To Do About Truthiness in Campaigns? Not Much
<http://electionlawblog.org/?p=77386>
Posted onNovember 8, 2015 12:54 pm
<http://electionlawblog.org/?p=77386>byRick Hasen
<http://electionlawblog.org/?author=3>
The New York Times notes that
truth<http://www.nytimes.com/2015/11/08/us/politics/candidates-stick-to-script-if-not-the-truth-in-2016-race.html?ref=politics>seems
to be a particular casualty of the 2016 election.
It might make one think of laws barring false campaign speech. But
there are serious constitutional impediments to such laws, as I explored
recently in A Constitutional Right to Lie in Campaigns and Elections?
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>, 74/Montana
Law Review/53 (2013).
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Posted incampaigns <http://electionlawblog.org/?cat=59>
“In Seattle, a Campaign Finance Plan That Voters Control”
<http://electionlawblog.org/?p=77384>
Posted onNovember 8, 2015 12:52 pm
<http://electionlawblog.org/?p=77384>byRick Hasen
<http://electionlawblog.org/?author=3>
NYT editorial:
<http://www.nytimes.com/2015/11/08/opinion/sunday/in-seattle-a-campaign-finance-plan-that-voters-control.html?ref=opinion&_r=0>
In Tuesday, Seattle voters advanced the city’s reputation for
progressivism when they approved a bold and unusual campaign finance
reform plan. The plan will draw on real estate taxes to give every
registered voter $100 in “democracy vouchers” to spend on candidates
in the next city elections.
The 10-year, $30 million experiment in taxpayer subsidized elections
was approved by a 20 percent margin in an initiative that supporters
said was a reaction to the ability of affluent donors to dominate
campaigns. Under the plan, every voter will receive four $25
vouchers in every election cycle to be used only as campaign
contributions to candidates in city races.
Candidates are free to decline the money, but those who accept it
will have to observe lower campaign spending and contribution
limits, and agree to participate in at least three debates against
rivals. The program will be financed by a property tax levy that
works out to an estimated $9 a year on a $450,000 property. The
unusual initiative is being closely watched by government reform
groups in other parts of the nation, some of which helped finance
the effort to get the initiative approved.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Listen to the Oral Argument in Shapiro v. McManus Case
<http://electionlawblog.org/?p=77382>
Posted onNovember 8, 2015 12:40 pm
<http://electionlawblog.org/?p=77382>byRick Hasen
<http://electionlawblog.org/?author=3>
Here <https://www.oyez.org/cases/2015/14-990>, at Oyez.
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Posted inredistricting <http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Garcetti explains email endorsement mistake”
<http://electionlawblog.org/?p=77380>
Posted onNovember 8, 2015 12:31 pm
<http://electionlawblog.org/?p=77380>byRick Hasen
<http://electionlawblog.org/?author=3>
KPCC reports.
<http://www.scpr.org/news/2015/11/07/55516/garcetti-explains-email-endorsement-mistake/>
Los Angeles Mayor Eric Garcetti expanded Friday on an email gaffe
involving his endorsement of presidential candidate Hillary Clinton.
The Thursday email episode made headlines around the country.
Through a city email account, a communications staffer for the
mayorsent out an email
<http://www.scpr.org/news/2015/11/05/55483/la-mayor-endorses-clinton-in-2016-white-house-cont/>quoting
Garcetti endorsing Clinton for president. Just over an hour later,
that email was retracted.
Even later on Thursday, his campaign confirmed that Garcetti is
backing Clinton.
At an event downtown Friday afternoon, Garcetti called the email
from his office a mistake.
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Posted incampaigns <http://electionlawblog.org/?cat=59>
“Feds investigate Gov. Susana Martinez adviser Jay McClesky,
campaign funds” <http://electionlawblog.org/?p=77378>
Posted onNovember 8, 2015 12:26 pm
<http://electionlawblog.org/?p=77378>byRick Hasen
<http://electionlawblog.org/?author=3>
Santa Fe New Mexican
<http://www.santafenewmexican.com/news/local_news/federal-probe-targets-gov-s-top-adviser-mccleskey/article_6cb560e4-4c58-5b1d-b1b9-f64109f0a884.html>:
For the past several months, the FBI has been interviewing some
state Republicans about Gov. Susana Martinez’s fundraising
activities going back to her first run for governor.
One prominent New Mexico Republican, who spoke on the condition of
anonymity, confirmed being interviewed in recent months by federal
agents about funds from Martinez’s campaign, as well as money from
her 2011 inauguration committee, going to the governor’s political
consultant, Jay McCleskey.
This person also said agents asked questions about different
“fundraising vehicles,” such as political action committees, used by
Martinez’s political wing, though it was unclear what potential
violations federal agents are investigating.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,chicanery
<http://electionlawblog.org/?cat=12>
--
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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