[EL] CCP v. Harris
Marty Lederman
lederman.marty at gmail.com
Tue Nov 10 09:01:51 PST 2015
I'm relieved that you've identified the "core divide" among us, Brad. Just
curious, however--who, in particular, do you think is on the "state can
exercise power over citizens for any reason or no reason at all" side of
the divide? Do you know of any public official, advocate, or member of
this list who has ever articulated or suggested such a view? Name names,
please -- because I really want to steer clear of such folks.
On Tue, Nov 10, 2015 at 11:43 AM, Smith, Brad <BSmith at law.capital.edu>
wrote:
> Joe,
>
>
>
> Some donors do do that, through organizations such as Donor’s Trust,
> which, of course, are also under assault from the speech and association
> regulatory advocates.
> http://www.greenpeace.org/usa/revealed-donors-trust-is-the-secret-atm-machine-for-climate-deniers/.
>
>
>
>
> But why should a person have to do that? If you and I get together over
> lunch, we don’t have to tell others about it, but nor do we have to put
> paper bags over our heads and be mystery guests to each other.
>
>
>
> Again, the question in CCP v. Harris is pretty simple: Must the state have
> a legitimate reason for demanding information on the associations of
> private citizens as a precondition to allowing them to associate and do
> business?
>
>
>
> We see here, I think, the core divide in how people view the relationship
> between government and governed. Some people insist that the state can only
> exercise power for some legitimate public reason. Others believe the state
> can exercise power over citizens for any reason or no reason at all, and
> the citizen must “prove” some type of harm that meets the satisfaction of
> the state or else comply. We see this divide in many issues: for example,
> in gun control debates one will often hear something like “There is no
> legitimate reason to own an assault rifle.” But of course, there are many
> “legitimate” reasons to own an assault rifle, at least in the eyes of many.
> Such reasons would include: “I like owning an assault rifle-it’s cool and
> makes me feel tough;” “I am a collector;” “I like shooting up old tin cans
> on my property;” “I like target shooting with an assault rifle;” “the
> thought that people own assault rifles makes Dianne Feingold angry, and I
> think that’s cool;” and a gazillion more. Note that such reasons may not
> withstand the state’s interest in preventing ownership of assault rifles.
> But they are perfectly “legitimate” reasons, at least if one believes that
> we begin with a general entitlement to “the pursuit of happiness,” and if
> one recognizes that “happiness” is a subjective quality. Whether the
> government can still regulate ownership of such weapons is a different
> question from whether any of the reasons just given are legit.
>
>
>
> In other words, if people want to give to charities without having their
> giving made public, why won’t you let them?
>
>
>
> One answer might, “the public needs to know who is behind political
> giving.” But that won’t wash in California, because the AG says the info is
> not for public consumption (although apparently it may be, with, it
> appears, over 1400 such file placed on line), and because the organizations
> to which the regulation applies are not engaged in politics, as least not
> as that has been traditionally defined by the FEC, the FPPC, the IRS, or
> California laws and officials. Of course, one could get around the second
> point by offering some new theory of what “political” giving is, so that we
> can measure the state interest. But it is simply a dodge to say that one
> favors “reasonable regulation” without defining what “reasonable” is, and
> one that makes any debate pretty much impossible, along the lines of
> debating “which weights more, an average size sheep or an animal I’m
> thinking about but won’t tell you what it is.”
>
>
>
> In any case, in California, the AG doesn’t say she needs it to identify or
> publicize “political spending,” but rather says she needs the info for some
> unidentified “law enforcement” purposes. Is that enough? Would that be
> enough for you to overcome the 4th, 5th, and 6th amendments? Why not?
>
>
>
> *Bradley A. Smith*
>
> *Josiah H. Blackmore II/Shirley M. Nault *
>
> * Professor of Law*
>
> *Capital University Law School*
>
> *303 East Broad Street*
>
> *Columbus, OH 43215*
>
> *(614) 236-6317 <%28614%29%20236-6317>*
>
> *bsmith at law.capital.edu <bsmith at law.capital.edu>*
>
> *http://www.law.capital.edu/faculty/bios/bsmith.asp
> <http://www.law.capital.edu/faculty/bios/bsmith.asp>*
>
>
>
> *From:* Joe Birkenstock [mailto:birkenstock at sandlerreiff.com]
> *Sent:* Tuesday, November 10, 2015 11:19 AM
> *To:* Sean Parnell; 'Rick Hasen'; Smith, Brad;
> law-election at department-lists.uci.edu
> *Subject:* Re: [EL] CCP v. Harris
>
>
>
> Well Sean, I’m afraid I’m also not interested in exploring the outer
> boundaries of “political” right now either. It’s an important topic, but
> unrelated to the question I have about CCP v. Harris.
>
>
>
> If a charitable donor is especially sensitive to disclosure, why not
> donate anonymously – not just privately, as in “let’s keep this between
> us,” but literally anonymously, as in the group itself doesn’t even know
> who gave the donation?
>
>
>
> So far as I know, it’s a perfectly legal and recognized option, reflected
> on page 6 of the Schedule B instructions here:
> https://www.irs.gov/pub/irs-pdf/f990ezb.pdf, and there’s a good writeup
> about the practice from several years ago here:
> http://go.bloomberg.com/political-capital/2012-07-26/anonymous-donations-can-remain-secret-despite-irs-requirement-to-disclose/.
> Point being: it’s not like this approach itself is a secret, so I think
> it’s fair to assume that well-advised donors know this option exists but
> choose not to use it.
>
>
>
> OTOH, I freely admit that I don’t have the tax chops that many others on
> this list have, so it’s entirely possible I’m just missing something –
> hence my question. If I am just missing something, I’d love to know more
> about the considerations here. But if not this approach would seem to make
> a lot of sense for charitable donors concerned about disclosure even to the
> IRS, much less the CA AG or other state charitable oversight agencies.
>
>
>
>
>
> ___________________________________
>
> Joseph M. Birkenstock
>
> Sandler Reiff Lamb Rosenstein & Birkenstock, P.C.
>
> 1025 Vermont Avenue, NW, Suite 300
>
> Washington, DC 20005
>
> 202.479.1111
>
> *also admitted to practice in CA
>
>
>
>
>
>
>
>
>
> *From: *<law-election-bounces at department-lists.uci.edu> on behalf of Sean
> Parnell <sean at impactpolicymanagement.com>
> *Date: *Monday, November 9, 2015 at 9:22 PM
> *To: *Richard Hasen <rhasen at law.uci.edu>, "'Smith, Brad'" <
> BSmith at law.capital.edu>, "law-election at department-lists.uci.edu" <
> law-election at department-lists.uci.edu>
> *Subject: *Re: [EL] CCP v. Harris
>
>
>
> OK, anybody else who generally favors disclosure of c3 donors under
> certain circumstances want to step up to the plate on this? I’m still in
> the increasing marginal returns stage myself on this particular topic…
>
>
>
> Sean
>
>
>
>
>
> *From:* Rick Hasen [mailto:rhasen at law.uci.edu <rhasen at law.uci.edu>]
> *Sent:* Monday, November 09, 2015 8:52 PM
> *To:* Sean Parnell; 'Smith, Brad'; law-election at department-lists.uci.edu
> *Subject:* Re: [EL] CCP v. Harris
>
>
>
> Sean,
> It is a great question but I'm afraid I've reached significantly
> diminishing marginal returns for continuing this discussion on the
> listserv. At some point I might invest more time in the question. I do
> recall thinking about it a lot in relation to the McConnell disclosure
> provisions, which went even broader than electioneering communications.
>
> Rick
>
>
> On 11/9/15 5:37 PM, Sean Parnell wrote:
>
> Then, if you don’t mind, what definition of political activity would you
> like to see applied? For example:
>
>
>
> 1. Lobbying
>
> 2. Any communication published by a c3 that references a candidate,
> such as “*So Sen. McCain, who has gotten a great deal of positive press
> over the years with his crusade for campaign finance "reform" and
> repeatedly denounced the so-called "special interests" represented by
> lobbyists, must now explain how he can be friends with people who, as has
> so indelicately put it in the past, "corrupt" the government by
> representing their clients.*”*
>
> 3. Any communication published by a c3 that, while it does not
> directly reference a candidate by name, addresses policy positions that are
> closely identified with particular candidates (say, McCain-Feingold or the
> flat tax in 1996).
>
>
>
> There are other possibilities as well of course, these are just a few that
> come to mind.
>
>
>
>
>
> Sean Parnell
>
> President, Impact Policy Management, LLC
>
> 571-289-1374 (c)
>
> sean at impactpolicymanagement.com
>
> Alexandria, Virginia
>
>
>
> *This is from a piece I wrote on CCP’s blog back in 2008, here
> <http://www.campaignfreedom.org/2008/02/23/perhaps-an-update-to-im-just-a-bill-is-in-order/>.
> Judging by some of the past campaign finance regulations I’ve seen proposed
> in the past, it seems like the sort of thing that might be considered
> “political” by some.
>
>
>
>
>
>
>
> *From:* Rick Hasen [mailto:rhasen at law.uci.edu <rhasen at law.uci.edu>]
> *Sent:* Monday, November 09, 2015 7:08 PM
> *To:* Smith, Brad; Sean Parnell; law-election at department-lists.uci.edu
> *Subject:* Re: [EL] CCP v. Harris
>
>
>
> I believe it depends upon what one considers to be political activity,
> which does not have to match either the IRS's stated definition or its
> actual enforcement practices
>
>
>
> On 11/9/15 3:59 PM, Smith, Brad wrote:
>
> C3 groups do not, by definition, engage in politics. And that is this
> case, CCP v. Harris.
>
>
>
> Now if you wish to change the traditionally understood definition of
> politics to include a whole bunch more stuff (and note, for IRS –i.e.
> 990—purposes it is already much broader than it is for FEC/political
> reporting) then go at it. But that’s asking for a quite a change in the law.
>
>
>
> In short, by supporting the state here, you have already announced your
> support for “public disclosure of the information of c3 groups that do
> not engage in political activities.”
>
>
>
>
>
> *Bradley A. Smith*
>
> *Josiah H. Blackmore II/Shirley M. Nault *
>
> * Professor of Law*
>
> *Capital University Law School*
>
> *303 East Broad Street*
>
> *Columbus, OH 43215*
>
> *(614) 236-6317 <%28614%29%20236-6317>*
>
> *bsmith at law.capital.edu <bsmith at law.capital.edu>*
>
> *http://www.law.capital.edu/faculty/bios/bsmith.asp
> <http://www.law.capital.edu/faculty/bios/bsmith.asp>*
>
>
>
> *From:*law-election-bounces at department-lists.uci.edu [
> mailto:law-election-bounces at department-lists.uci.edu
> <law-election-bounces at department-lists.uci.edu>] *On Behalf Of *Rick Hasen
> *Sent:* Monday, November 09, 2015 6:34 PM
> *To:* Sean Parnell; law-election at department-lists.uci.edu
> *Subject:* Re: [EL] CCP v. Harris
>
>
>
> I think whatever is disclosed to the IRS should be disclosable to the AGs
> for enforcement purposes, provided of course that they can keep the
> information private (an allegation which I understand has not yet been
> considered in the case). I would not support public disclosure of the
> information of c3 groups that do not engage in political activities.
>
> On 11/9/15 1:18 PM, Sean Parnell wrote:
>
> I’m curious what you think, Rick (and any other “reformers”) about the
> policy as a stand-alone issue, i.e. not in regards to what a ruling one way
> or another might mean for the regulation of money in an explicit campaign
> context, but as a policy issue in and of itself should state AG’s be able
> to require the revelation of donors to c3 entities? And what would you
> think of a policy of mandated disclosure to the public of donors/members to
> c3 entities?
>
>
>
>
>
> Sean Parnell
>
> President, Impact Policy Management, LLC
>
> 571-289-1374 (c)
>
> sean at impactpolicymanagement.com
>
> Alexandria, Virginia
>
>
>
>
>
>
>
> *From:*law-election-bounces at department-lists.uci.edu [
> mailto:law-election-bounces at department-lists.uci.edu
> <law-election-bounces at department-lists.uci.edu>] *On Behalf Of *Rick Hasen
> *Sent:* Monday, November 09, 2015 4:07 PM
> *To:* law-election at department-lists.uci.edu
> *Subject:* Re: [EL] CCP v. Harris
>
>
>
> I'd also look at what the trial court did in Doe v. Reed and Protect
> Marriage, as described in my "Chill Out" piece.
>
> On 11/9/2015 12:58 PM, Bill Maurer wrote:
>
> Thanks, Richard, I’ve read that case numerous times. It seems to prove my
> point that the standard is actually applicable only after the harassment
> has already occurred.
>
>
>
> I would also note that, in practice, the application of the case has been
> that only the Socialist Workers Party has been able to demonstrate
> harassment. They are a pristine example of something that is truly sui
> generis.
>
>
>
> Bill
>
>
>
> *From:* Richard Winger [mailto:richardwinger at yahoo.com
> <richardwinger at yahoo.com>]
> *Sent:* Monday, November 09, 2015 12:49 PM
> *To:* Bill Maurer; Edward Still; Allen Dickerson
> *Cc:* law-election at uci.edu
> *Subject:* Re: [EL] CCP v. Harris
>
>
>
> read Brown v Socialist Workers '74 Campaign Committee, 459 US 87.
>
>
>
> Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147
>
>
> ------------------------------
>
> *From:* Bill Maurer <wmaurer at ij.org>
> *To:* Edward Still <still at votelaw.com>; Allen Dickerson <
> adickerson at campaignfreedom.org>
> *Cc:* "law-election at uci.edu" <law-election at uci.edu>
> *Sent:* Monday, November 9, 2015 12:33 PM
> *Subject:* Re: [EL] CCP v. Harris
>
>
>
> Rick’s commented that “There is no constitutional impediment to
> [disclosure], except as to those groups which can demonstrate a realistic
> threat of harassment.”
>
>
>
> I’ve never seen a discussion of what exactly a plaintiff would have to do
> to demonstrate a realistic threat of harassment. Wouldn’t evidence of a
> realistic threat be evidence of actual harassment (for instance, I don’t
> see those doing the harassing sending out a pre-harassment notice that they
> will be engaging in future harassment, although I suppose someone could do
> that)? And what about new groups with new issues? How are they supposed to
> demonstrate the realistic threat?
>
>
>
> In other words, I don’t see the “harassment” standard as protecting much
> of anything going forward—it is entirely backward looking and, for that
> reason, utterly useless as a protection against harassment in the first
> instance.
>
>
>
> That is exactly the point Brad made about the inadvertent disclosure
> analysis of the Ninth Circuit. The court essentially said, you can’t get
> protection from inadvertent disclosure until the information has been
> inadvertently disclosed. At which point, it doesn’t matter.
>
>
>
> And what’s the standard for harassment? Is it violence or coercion,
> because I’ve heard a number of commentators (including Justice Scalia)
> suggest that anything short of that is the price of being involved in
> politics? Be we already have laws against violence or coercion. So, are
> laws against assault supposed to be the things that demark the outer edge
> of how far the government can go in collecting information about those who
> decide to exercise their fundamental rights?
>
>
>
> Isn’t the real standard that anyone who participates in political activity
> in this country should be aware that by doing so they are opening
> themselves up to governmental scrutiny in perpetuity with no realistic
> protection against misuse of the information the government has collected?
>
>
>
> Of course, a legitimate response to this is “We don’t care if people are
> harassed or their information misused.” But, why not say that?
>
>
>
> Bill
>
>
>
>
>
> *From:*law-election-bounces at department-lists.uci.edu [
> mailto:law-election-bounces at department-lists.uci.edu
> <law-election-bounces at department-lists.uci.edu>] *On Behalf Of *Edward
> Still
> *Sent:* Monday, November 09, 2015 9:04 AM
> *To:* Allen Dickerson
> *Cc:* law-election at uci.edu
> *Subject:* Re: [EL] CCP v. Harris
>
>
>
> The Questions Presented were:
>
> QUESTIONS PRESENTED
>
> 1. Whether a state official’s demand for all significant donors to a
> nonprofit organization, as a precondition to engaging in
> constitutionally-protected speech, constitutes a First Amendment injury.
>
> 2. Whether the “exacting scrutiny” standard applied in compelled
> disclosure cases permits state officials to demand donor information based
> upon generalized “law enforcement” interests, without making any specific
> showing of need.
>
> The cert petition is at http://electionlawblog.org/?p=74940.
>
>
>
>
> Edward Still
> Edward Still Law Firm LLC
>
> 429 Green Springs Hwy, STE 161-304
>
> Birmingham AL 35209
> 205-320-2882
> still at votelaw.com
> www.votelaw.com/blog
> www.edwardstill.com
> www.linkedin.com/in/edwardstill
>
>
>
> On Mon, Nov 9, 2015 at 10:48 AM, Allen Dickerson <
> adickerson at campaignfreedom.org> wrote:
>
> The point was to protect CCP's donors from scrutiny and potential leaks,
> inadvertent or otherwise, by a state AG who believed she was entitled to
> their identities without making any showing of need whatsoever. The case
> did not address the public informational interest behind campaign finance
> disclosure, which we couldn't do in any case because that wasn't the
> state's stated interest. Campaign finance simply wasn't involved.
>
>
>
> (Steve: the stated governmental interest was greater efficiency in
> exercising the AG's law enforcement duties).
>
>
>
>
>
>
> On Nov 9, 2015, at 11:34 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
> I think this case had the potential to undermine campaign disclosure rules
> if successful, and I think that was the point.
> And yes, I absolutely would have written the same comment if it were the
> Brennan Center or the ACLU suing the Texas AG.
> Rick
>
> On 11/9/2015 8:08 AM, Allen Dickerson wrote:
>
> Rick,
>
>
>
> Your post seriously misinterprets CCP v. Harris, a case that has nothing
> to do with political activity or campaign finance. California's
> registration policy applies only to 501(c)(3) organizations. And CCP, like
> all 501(c)(3) groups, is prohibited from engaging in political activity.
> The informational interest undergirding campaign finance disclosure simply
> isn't implicated here.
>
>
>
> A thought experiment: would you have written the same comment if the
> Brennan Center or ACLU had sued the Texas AG on the same claim?
>
>
>
> I recognize the ever-present danger of seeing campaign finance issues
> everywhere when that's one's area of expertise. But our case is a very poor
> fit for your political disclosure narrative.
>
>
>
> Best,
>
> Allen
>
>
>
>
> On Nov 9, 2015, at 10:48 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
> “Democracy for GrownUps” <http://electionlawblog.org/?p=77408>
>
> Posted on November 9, 2015 7:46 am <http://electionlawblog.org/?p=77408>
> by *Rick Hasen* <http://electionlawblog.org/?author=3>
>
> I have written this review
> <http://newramblerreview.com/book-reviews/law/democracy-for-grownups> of
> Bruce Cain’s Democracy More or Less
> <http://www.amazon.com/Democracy-More-Less-Political-Cambridge/dp/1107612268> for
> the New 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)*
>
> <share_save_171_16.png>
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77408&title=%26%238220%3BDemocracy%20for%20GrownUps%26%238221%3B&description=>
>
> Posted in theory <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 on November 9, 2015 7:42 am <http://electionlawblog.org/?p=77303>
> by *Rick 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 on Soundcloud
> <https://soundcloud.com/rick-hasen/elb-podcast-episode-6-nate> or subscribe
> at iTunes
> <https://geo.itunes.apple.com/us/podcast/elb-podcast/id1029317166?mt=2>.
>
>
>
> <share_save_171_16.png>
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77303&title=ELB%20Podcast%20Episode%206.%20Nate%20Persily%3A%20Can%20the%20Supreme%20Court%20Handle%20Social%20Science%20In%20Election%20Cases%3F&description=>
>
> Posted in ELB 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 on November 9, 2015 7:38 am <http://electionlawblog.org/?p=77406>
> by *Rick 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 the 1993 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 by Jeremy 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.”*
>
> <share_save_171_16.png>
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77406&title=%26%238220%3BDemocratic%20Group%20Called%20iVote%20Pushes%20Automatic%20Voter%20Registration%26%238221%3B&description=>
>
> Posted in election 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 on November 9, 2015 7:32 am <http://electionlawblog.org/?p=77404>
> by *Rick 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 telling Politico
> <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.*
>
> <share_save_171_16.png>
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77404&title=%26%238220%3BInside%20the%20abandoned%20plans%20of%20Ted%20Cruz%26%238217%3Bs%20super%20PACs%26%238221%3B&description=>
>
> Posted in campaign 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 on November 9, 2015 7:31 am <http://electionlawblog.org/?p=77402>
> by *Rick 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.
>
> <share_save_171_16.png>
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77402&title=%26%238220%3BThe%20battle%20over%20campaign%20finance%20reform%20is%20changing.%20Here%E2%80%99s%20how.%26%238221%3B&description=>
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>
> Bauer on Justice Kennedy on Citizens United at Harvard
> <http://electionlawblog.org/?p=77400>
>
> Posted on November 9, 2015 7:23 am <http://electionlawblog.org/?p=77400>
> by *Rick Hasen* <http://electionlawblog.org/?author=3>
>
> Bauer blogs.
> <http://www.moresoftmoneyhardlaw.com/2015/11/justice-kennedy-harva>
>
> <share_save_171_16.png>
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77400&title=Bauer%20on%20Justice%20Kennedy%20on%20Citizens%20United%20at%20Harvard&description=>
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
> Court <http://electionlawblog.org/?cat=29>
> Breaking: #SCOTUS <mime-attachment.png> Political Disclosure, Denies Cert.
> in CCP v. Harris <http://electionlawblog.org/?p=77396>
>
> Posted on November 9, 2015 7:19 am <http://electionlawblog.org/?p=77396>
> by *Rick 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 to CCP <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 is far 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.
>
>
>
> <share_save_171_16.png>
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77396&title=Breaking%3A%20%23SCOTUS%20%E2%9D%A4%EF%B8%8F%20Political%20Disclosure%2C%20Denies%20Cert.%20in%20CCP%20v.%20Harris&description=>
>
> Posted in campaign 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 on November 8, 2015 7:05 pm <http://electionlawblog.org/?p=77394>
> by *Rick 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 had 20
> <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 the 2011 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.*
>
> <share_save_171_16.png>
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77394&title=%26%238220%3BCalifornia%26%238217%3Bs%20ballot%20could%20be%20a%20blockbuster%20next%20November%26%238221%3B&description=>
>
> Posted in direct 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 on November 8, 2015 4:26 pm <http://electionlawblog.org/?p=77392>
> by *Rick 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.
>
> <share_save_171_16.png>
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77392&title=%26%238220%3BAs%20Lawrence%20Lessig%26%238217%3Bs%20Long-Shot%20Bid%20Ends%2C%20What%26%238217%3Bs%20To%20Come%20For%20His%20Key%20Issue%3F%26%238221%3B&description=>
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>, campaigns
> <http://electionlawblog.org/?cat=59>
> “Lawmakers Ponder New Redistricting Methods”
> <http://electionlawblog.org/?p=77390>
>
> Posted on November 8, 2015 1:03 pm <http://electionlawblog.org/?p=77390>
> by *Rick 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.*
>
>
>
> <share_save_171_16.png>
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77390&title=%26%238220%3BLawmakers%20Ponder%20New%20Redistricting%20Methods%26%238221%3B&description=>
>
> Posted in citizen 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 on November 8, 2015 12:59 pm <http://electionlawblog.org/?p=77388>
> by *Rick 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 suggest NBC
> <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.*
>
> <share_save_171_16.png>
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77388&title=%26%238220%3B%E2%80%98SNL%E2%80%99%20Gives%20Donald%20Trump%20Just%2012%20Minutes%20On%20Screen%26%238221%3B&description=>
>
> Posted in campaigns <http://electionlawblog.org/?cat=59>
> What To Do About Truthiness in Campaigns? Not Much
> <http://electionlawblog.org/?p=77386>
>
> Posted on November 8, 2015 12:54 pm <http://electionlawblog.org/?p=77386>
> by *Rick 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).
>
>
>
> <share_save_171_16.png>
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77386&title=What%20To%20Do%20About%20Truthiness%20in%20Campaigns%3F%20Not%20Much&description=>
>
> Posted in campaigns <http://electionlawblog.org/?cat=59>
> “In Seattle, a Campaign Finance Plan That Voters Control”
> <http://electionlawblog.org/?p=77384>
>
> Posted on November 8, 2015 12:52 pm <http://electionlawblog.org/?p=77384>
> by *Rick 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.*
>
>
>
> <share_save_171_16.png>
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77384&title=%26%238220%3BIn%20Seattle%2C%20a%20Campaign%20Finance%20Plan%20That%20Voters%20Control%26%238221%3B&description=>
>
> Posted in campaign finance <http://electionlawblog.org/?cat=10>
> Listen to the Oral Argument in Shapiro v. McManus Case
> <http://electionlawblog.org/?p=77382>
>
> Posted on November 8, 2015 12:40 pm <http://electionlawblog.org/?p=77382>
> by *Rick Hasen* <http://electionlawblog.org/?author=3>
>
> Here <https://www.oyez.org/cases/2015/14-990>, at Oyez.
>
> <share_save_171_16.png>
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77382&title=Listen%20to%20the%20Oral%20Argument%20in%20Shapiro%20v.%20McManus%20Case&description=>
>
> Posted in redistricting <http://electionlawblog.org/?cat=6>, Supreme Court
> <http://electionlawblog.org/?cat=29>
> “Garcetti explains email endorsement mistake”
> <http://electionlawblog.org/?p=77380>
>
> Posted on November 8, 2015 12:31 pm <http://electionlawblog.org/?p=77380>
> by *Rick 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 mayor sent 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.*
>
> <share_save_171_16.png>
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77380&title=%26%238220%3BGarcetti%20explains%20email%20endorsement%20mistake%26%238221%3B&description=>
>
> Posted in campaigns <http://electionlawblog.org/?cat=59>
> “Feds investigate Gov. Susana Martinez adviser Jay McClesky, campaign
> funds” <http://electionlawblog.org/?p=77378>
>
> Posted on November 8, 2015 12:26 pm <http://electionlawblog.org/?p=77378>
> by *Rick 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.*
>
> <share_save_171_16.png>
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D77378&title=%26%238220%3BFeds%20investigate%20Gov.%20Susana%20Martinez%20adviser%20Jay%20McClesky%2C%20campaign%20funds%26%238221%3B&description=>
>
> Posted in campaign 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
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
> --
>
> 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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> http://department-lists.uci.edu/mailman/listinfo/law-election
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> --
>
> 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
>
>
>
>
>
>
> --
>
> 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
>
>
>
>
>
> --
>
> 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
>
>
>
>
> --
>
> 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
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
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