[EL] ELB News and Commentary 9/2/15
Rick Hasen
rhasen at law.uci.edu
Wed Sep 2 08:00:33 PDT 2015
Will @Lessig Reach His Fundraising Goal?
<http://electionlawblog.org/?p=75787>
Posted onSeptember 2, 2015 7:52 am
<http://electionlawblog.org/?p=75787>byRick Hasen
<http://electionlawblog.org/?author=3>
He’s at $734K <https://lessigforpresident.com/>, and says he needs to
reach $1 million by Labor Day in order to run for president.
Will he reach it? Will he nonetheless run if he falls a bit short?
(You can hear my ELB Podcast, Larry Lessig: Bold Campaign Reformer or
Don Quixote?at this link <https://electionlawblog.org/?p=75706>.)
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,ELB Podcast
<http://electionlawblog.org/?cat=116>
“Court Cases Leave States Stuck in Redistricting Limbo”
<http://electionlawblog.org/?p=75785>
Posted onSeptember 2, 2015 7:44 am
<http://electionlawblog.org/?p=75785>byRick Hasen
<http://electionlawblog.org/?author=3>
Stateline reports.
<http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2015/09/02/court-cases-leave-states-stuck-in-redistricting-limbo>
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Posted inredistricting <http://electionlawblog.org/?cat=6>
Ron Collins Features Excerpts from ELB Podcast Interview with Floyd
Abrams in His FAN <http://electionlawblog.org/?p=75783>
Posted onSeptember 2, 2015 7:36 am
<http://electionlawblog.org/?p=75783>byRick Hasen
<http://electionlawblog.org/?author=3>
AtConcurring Opinions
<http://concurringopinions.com/archives/2015/09/fan-75-first-amendment-news-justice-kagan-the-future-of-abood-the-strength-of-stare-decisis-the-relevance-of-garcetti.html>(scroll
down):
*Rick Hasen Interviews Floyd Abrams: Selected Excerpts *
*Screen Shot 2015-09-01 at 11.16.00 AM
<http://concurringopinions.com/wp-content/uploads/2015/09/Screen-Shot-2015-09-01-at-11.16.00-AM.jpg>*UCI
Law ProfessorRick Hasen
<http://www.law.uci.edu/faculty/full-time/hasen/>has done it again —
he has made the/Election Law Blog/ <http://electionlawblog.org/>even
more appealing. By way of yet more value added, the/ELB/ now has a
podcast component. The second podcast consists of an interview
withFloyd Abrams <http://www.cahill.com/professionals/floyd-abrams>.
/Abstract/: Is more money in elections good or bad for our
democracy? Would it be better to lift all limits on money in
elections? What is the Supreme Court doing in the area of free
speech? What of the new decision in /Reed v. Town of Glibert
<http://caselaw.findlaw.com/us-supreme-court/13-502.html>/? And what
of academics and their views of the First Amendment?
→ Listen to audio feedhere <https://soundcloud.com/rick-hasen> (31
minutes)
Here are a few excerpts from that interview:
* Campaign Disclosure Requirements:/Abrams: /“[Rick,] I think you
are right to say that in [/Citizens United/] Justice Kennedy did
not anticipate the way disclosure would play out . . . on the
ground. I doubt very much it would change his overview of what
the First Amendment protects and doesn’t protect in this area.
My own view . . . [is] that disclosure requirements are
constitutional, in general, apart from . . . ./NAACP
<http://caselaw.findlaw.com/us-supreme-court/357/449.html>//–/like
situations [in which] the mere fact that disclosure is so likely
to have a such chilling effect on the ability of citizens to
participate in the political process . . I don’t think that has
occurred, and as a generality I don’t think [much of it] occurs.
And more broadly, when it does occur . . . , I think that’s fine
— that’s part of the system, too. The fact that the Federal
Election Commission is itself immobilized, for political
reasons, is not something that I think the Constitution has to
take into account. It would be a good thing, in my view, if
there were more disclosure, and/Citizens United/holds that it
would be constitutional if that occurred.”
* /Buckley/Revisited: Hasen://“Would you like to see the Court go
further and strike down contribution limits to candidates and
parties as a First Amendment violation? First, would that be
constitutionally required? And second, would that be a good
state of affairs compared to where we are now? /Abrams/: “For
some time I thought the/Buckley v. Valeo/creation [of
distinguishing contributions from expenditures] . . . was sort
of [an] acceptable on-the-ground compromise. I must say that it
is increasingly difficult . . . from a First Amendment
perspective, and probably a more on-the-ground perspective, to
defend it. That is to say, it is very hard to come up with the
words — maybe I speak now too much as a litigator — . . . to
explain why it is that contributions are said to be more
inherently corrupting than individual or corporate or union
expenditures because, obviously, on the ground level they
approach and cross over each other very often. . . . [Thus,] it
really does get more difficult to defend . . . [/Buckley’s/]
half-way system . . . .”
* /Reed v. Town of Gilbert/: /Abrams/: “I do think that [/Reed/]
will lead to a major change. . . . I think one of the most
important lessons of this case is how close our [First
Amendment] law is becoming with respect to commercial speech as
it is in political speech. I think we are moving in that
direction. I don’t know that I would have moved all the way
there, but I think that is where we are going. This case tells
us that. We are not only going to have an expanded version of
what is content based, with all of the consequences of that, but
it is likely to apply as well in a large number of commercial
speech contexts, which makes it, if anything, even more of a
blockbuster decision. . . . One consequence of that may be that
strict scrutiny becomes less strict as we apply it. . . . One
of the arguments against it is [just that] . . . . [In that
regard,] Justice Breyer warned that strict scrutiny will become
less strict than it has been in the past. . . . [The ruling
in/Williams-Yulee
<http://www.supremecourt.gov/opinions/14pdf/13-1499_d18e.pdf>/]
may be a good example of this. . . . That may be a direction
that we go in. . . . Five years from now people like me . .
might be saying, ‘I would rather have the old strict scrutiny if
the price of cases like /Reed/. . . is that strict scrutiny is
not at all as strict as it was.’”
* The First Amendment & the Legal Academy:/Hasen/: When it comes
to defending broad readings of the First Amendment, “[d]o you
think something has changed in academia, and if so, what do you
attribute it to, and do you think the First Amendment runs the
danger of becoming another yet issue that divides the country
[along] partisan lines? /Abrams/: “Yes and yes. . . I am sorry
to say — but maybe one shouldn’t be naive about this — that an
awful lot of [academic] decsisionmaking . . . comes not from
[a] judgment about speech [protection], but what the topic
happens to be. Protests around abortion clinics are viewed by
some on the Left as more easily subject to restriction
than would be the case if they were protests around factories by
unions. I do think that scholars tend to be more liberal than
not, more left-of-center than not. I have to say this has come
to affect their judgment about the First Amendment and when it
applies and what it means. . .”
/There is much more and I urge readers to consult the entirety of
this engaging and illuminating interview/.
→ See also/ELB/Podcast Episode 3: “Larry Lessig: Bold Campaign
Reformer or Don Quixote?” (gohere
<https://soundcloud.com/rick-hasen/elb-podcast-episode-3-larry-lessig-bold-campaign-reformer-or-don-quixote>)
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,ELB
Podcast <http://electionlawblog.org/?cat=116>
“Corporations playing politics with ballot measures”
<http://electionlawblog.org/?p=75781>
Posted onSeptember 2, 2015 7:30 am
<http://electionlawblog.org/?p=75781>byRick Hasen
<http://electionlawblog.org/?author=3>
CPI reports.
<http://www.publicintegrity.org/2015/09/02/17925/corporations-playing-politics-ballot-measures>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“GAB head told former employee to tone down comments”
<http://electionlawblog.org/?p=75778>
Posted onSeptember 1, 2015 8:58 pm
<http://electionlawblog.org/?p=75778>byRick Hasen
<http://electionlawblog.org/?author=3>
Milwaukee Journal-Sentinel:
<http://www.jsonline.com/news/statepolitics/gab-head-defends-former-employee-in-comments-on-john-doe-b99568202z1-323725541.html>
The head of the state’s elections agency largely defended a former
employee Tuesday for how he discussed an investigation into Gov.
Scott Walker’s campaign in emails. However, Kevin Kennedy
acknowledged he had talked to the employee numerous times about
“toning it down.”
The state Supreme Court in Julyterminated the investigation
<http://www.jsonline.com/news/statepolitics/wisconsin-supreme-court-ends-john-doe-probe-into-scott-walkers-campaign-b99535414z1-315784501.html>into
the GOP White House hopeful’s campaign, saying the probe was without
basis.
In emails in 2013 and 2014, then-Government Accountability Board
lawyer Shane Falkaccused a special prosecutor of lying to the
<http://www.jsonline.com/news/statepolitics/gab-lawyer-prosecutor-lied-by-saying-walker-not-a-doe-target-b99566219z1-323265331.html>press
by saying Walker wasn’t a target of the probe and said the state was
run by billionaires and corporations because of a “bastardization of
politics.” Falk wrote if the prosecutor was trying to avoid
politics, he “better check Burke’s ad,” referring to Walker’s
opponent, Democrat Mary Burke.
Republicans have said the exchanges are the latest sign the
accountability board was biased against them.
“When you keep seeing signs of heavy partisanship, when you keep
smelling the smoke, you realize there’s a fire there,” said Sen.
Devin LeMahieu (R-Oostburg).
Kennedy, the accountability board’s director, said he appreciated
that Falk was blunt but added he had talked to him about his tone
when he worked for the agency. Falk last year left the
accountability board, which runs elections and oversees campaign
finance, lobbying and ethics laws.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,chicanery
<http://electionlawblog.org/?cat=12>
“Redistricting deadline comes and goes in Virginia”
<http://electionlawblog.org/?p=75776>
Posted onSeptember 1, 2015 8:40 pm
<http://electionlawblog.org/?p=75776>byRick Hasen
<http://electionlawblog.org/?author=3>
ABC
<http://wric.com/2015/09/01/redistricting-deadline-comes-and-goes-in-virginia/>:
Back in June a federal court ruled that Virginia’s third
congressional district had been illegally packed with black voters
to make surrounding districts safer for Republican incumbents,
ordering the lines be redrawn by September 1.
“The Virginia General Assembly has not met that deadline for
whatever reason and so the courts will probably now step in,” said
political analyst Richard Meagher.
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Posted inredistricting <http://electionlawblog.org/?cat=6>
“Redistricting case: Plaintiffs must provide map proposals”
<http://electionlawblog.org/?p=75774>
Posted onSeptember 1, 2015 8:38 pm
<http://electionlawblog.org/?p=75774>byRick Hasen
<http://electionlawblog.org/?author=3>
The latest
<http://www.montgomeryadvertiser.com/story/news/politics/southunionstreet/2015/09/01/redistricting-case-plaintiffs-must-provide-map-proposals/71519722/>on
the remand in the Alabama “racial gerrymandering” case:
Federal judges last week ordered black legislators challenging
Alabama’s legislative maps to come up with their own boundary lines.
The three-judge panel Friday told the Legislative Black Caucus and
the Alabama Democratic Conference to develop redistricting maps that
follow the guidelines established by the Legislature in 2012.
The proposal must be filed by Sept. 25. Plaintiffs have the option
of filing together or creating different plans. The state will have
28 days to respond.
The new proposals will not be the final word on the state’s district
lines. The judges will consider the maps as part of plaintiffs’
broader argument that the 2012 map had racial biases.
“It’s an exercise, as we understand it, to help show whether the
state was trying to target black percentages in each district, and
thus sorting white and black voters by race,” James Blacksher, an
attorney for the plaintiffs, said Tuesday. “We believe our maps will
show they could have accomplished all their objectives in a way that
would not have split any precincts or sorted black voters from white
voters.”
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
“The Racial Equity Impact of Secret Political Spending”
<http://electionlawblog.org/?p=75772>
Posted onSeptember 1, 2015 3:08 pm
<http://electionlawblog.org/?p=75772>byRick Hasen
<http://electionlawblog.org/?author=3>
Demos
<http://www.demos.org/publication/racial-equity-impact-secret-political-spending>:
The Supreme Court’s decision in/Citizens United v. FEC/allowed
corporations to spend unlimited amounts of money to influence
American politics. But, the American public is kept from
understanding the full impact of new corporate money in politics
because of the explosion of secret political spending and the
failure to adopt common sense disclosure requirements.
Since/Citizens United/, more than $600 million in dark money has
been spent in U.S. elections through 501(c)(4) and (c)(6)
organizations that do not have to disclose their funders. Secret
corporate political spending threatens the integrity of our
democratic self-government, as those with the deepest pockets can
overwhelm other voices. This financial influence leads to the needs
and wants of corporations being prioritized and can skew important
public policy outcomes, often in ways that perpetuate racial
inequities. But while politicians typically know who is spending
money to support their political fortunes, the public is denied the
ability to properly assess when “elected officials are ‘in the
pocket’ of … moneyed interests.”^1
Many have called for measures that would pull back the curtain on
corporate political spending. Greater transparency of such spending
is particularly needed with respect to government contractors, who
are given taxpayer dollars to do the people’s business.^2 These
contractors often turn around and engage in political spending to
influence policies that preserve their profits at the public’s
expense, or affect contracting decisions. Government contractors
often heavily advocate for, and profit when the federal government
adopts, policies that disproportionately harm people of color and
other traditionally disenfranchised populations. An executive order
requiring government contractors to disclose their political
spending would help the public hold government contractors
accountable for political spending that benefits their bottom lines
while entrenching structural racism in our country.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law
and election law <http://electionlawblog.org/?cat=22>
Still No Ruling in Texas Redistricting Case
<http://electionlawblog.org/?p=75770>
Posted onSeptember 1, 2015 8:06 am
<http://electionlawblog.org/?p=75770>byRick Hasen
<http://electionlawblog.org/?author=3>
Some had speculated we’d get something by the end of August and the
changing of the law clerks. But no dice. The delay is inexplicable.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
Chutzpah Dep’t: Court Rejects Shelby County Plaintiffs’ Request for
$2 Million in Attorney’s Fees <http://electionlawblog.org/?p=75763>
Posted onSeptember 1, 2015 7:59 am
<http://electionlawblog.org/?p=75763>byRick Hasen
<http://electionlawblog.org/?author=3>
Attorney’s fees are sometimes available when a plaintiff seeks to
enforce a federal statute, including when a plaintiff seeks to enforce
the Voting Rights Act against a government entity. Shelby County, which
got the Supreme Court to strike down a key provision of the Voting
Rights Act, unbelievably sought/over $2 million/in attorney’s fees.
You can read the three opinions of the three judges on the Courthere
<http://www.cadc.uscourts.gov/internet/opinions.nsf/0D3C59EEC5A6760685257EB3004FCB53/$file/14-5138-1570822.pdf>,
but the result can be explained in one sentence from the majority
opinion by Judge Griffith: “We find Shelby County not entitled because
its lawsuit did not enforce compliance with the VRA and because Congress
did not intend to use fees to encourage the invalidation of the Act’s
provisions.”
Judge Tatel concurring: “Although I agree with Judge Griffith that
Shelby County is not entitled to recover attorneys’ fees, I find nothing
at all ‘difficult’ about the question whether the County is
even/eligible/for fees under section 14(e) of the Voting Rights Act.”
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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