[EL] ELB News and Commentary 9/16/15
Rick Hasen
rhasen at law.uci.edu
Tue Sep 15 22:37:44 PDT 2015
“Supreme Court Heads Back into Political Thicket”
<http://electionlawblog.org/?p=76004>
Posted onSeptember 15, 2015 10:34 pm
<http://electionlawblog.org/?p=76004>byRick Hasen
<http://electionlawblog.org/?author=3>
I have writtenthis article
<http://electionlawblog.org/wp-content/uploads/hasen-oc-lawyer.pdf>for
the /OC Lawyer /(republished with permission). It begins:
The Supreme Court will be back in session next month, and once again
election law is on the docket. The Court is set to hear three
election law cases so far in the October 2015 term, with more likely
to come to the Court on an emergency basis as the 2016 elections
bring out the inevitable army of election lawyers fighting in the
voting wars. The three cases the Court will hear are on top of
twenty-nine election law cases decided with a written opinion in the
first decade of the Roberts Court. The Court long ago ignored
Justice Felix Frankfurter’s admonition to stay out of the “political
thicket.” Here is a quick look at what is at stake in the world of
elections in the upcoming term.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Democrats Lay Groundwork to Expand Use of ‘Super PACs’”
<http://electionlawblog.org/?p=76002>
Posted onSeptember 15, 2015 10:31 pm
<http://electionlawblog.org/?p=76002>byRick Hasen
<http://electionlawblog.org/?author=3>
Nick Confessore
<http://www.nytimes.com/2015/09/15/us/politics/democrats-seek-to-expand-use-of-super-pacs.html?ref=politics>for
the NYT:
Democrats are laying the groundwork for an ambitious reorganization
of their struggling network of “super PACs
<http://topics.nytimes.com/top/reference/timestopics/subjects/c/campaign_finance/index.html?inline=nyt-classifier>“
that would exploit the loopholes and legal gray areas that
Republicans have already used to raise hundreds of millions of
dollars for the 2016 campaign through such groups.
The plans, laid out by the party’s top election lawyers in an
emergency request filed with theFederal Election Commission
<http://topics.nytimes.com/top/reference/timestopics/organizations/f/federal_election_commission/index.html?inline=nyt-org>on
Friday, would pave the way for the creation of a host of newsuper
PACs
<http://topics.nytimes.com/top/reference/timestopics/subjects/c/campaign_finance/index.html?inline=nyt-classifier>tailored
to individual House and Senate candidates.
But the filing also suggests that Democrats would, if allowed, seek
to use tactics pioneered by Republican presidential candidates this
cycle, helping prospective candidates establish and raise money for
super PACs before they officially declare their intent to run.
Most strikingly, the lawyers are asking the commission to clarify
how declared candidates, their campaign staff and their volunteers
can help court donors for independent super PACs — even whether a
candidate could be the “special guest” at a super PAC “fund-raiser”
with as few as two donors. Its answer could have profound
ramifications for the 2016 campaign, particularly for Democrats who,
like Hillary Rodham Clinton, have been reluctant to engage too
closely with super PAC fund-raising….
The lawyers signing the request — Marc E. Elias, Ezra W. Reese,
Jonathan S. Berkon and Rachel L. Jacobs — work at Perkins Coie, the
marquee Democratic election firm, which also represents the party’s
congressional campaign committees, the presidential campaign of Mrs.
Clinton and a Democratic super PAC supporting her. Mr. Elias
declined to comment beyond the filing….
“I’m somewhat skeptical of theDemocratic Party
<http://topics.nytimes.com/top/reference/timestopics/organizations/d/democratic_party/index.html?inline=nyt-org>’s
motives,” said Lawrence M. Noble, a senior counsel of the Campaign
Legal Center, which has sought election commission sanctions against
a group of 2016 candidates for alleged campaign violations. “They’re
probably trying a combination — to embarrass the Republicans and
also to have an excuse for doing it themselves.”
Should the commission deadlock on the request by refusing to act on
it or splitting in a 3-to-3 vote, Mr. Noble said, “most of the
aggressive lawyers will say it gives them a green light” to engage
in similar tactics.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“The Lobbyist With a Six-Figure Government Job”
<http://electionlawblog.org/?p=76000>
Posted onSeptember 15, 2015 10:29 pm
<http://electionlawblog.org/?p=76000>byRick Hasen
<http://electionlawblog.org/?author=3>
Eric Lipton for the NYT
<http://www.nytimes.com/2015/09/15/us/politics/jeffrey-farrow-lobbying-government-contractor.html?ref=politics>:
In this city with a grand tradition of government officials who pass
through the revolving door into a world of big paychecks, Jeffrey
Farrow stands apart.
While earning more than $100,000 a year as executive director of a
tiny federal agency called theCommission for the Preservation of
America’s Heritage Abroad <http://heritageabroad.gov/Home.aspx>,
which has only one full-time federal employee, Mr. Farrow has
simultaneously helped collect as much as $750,000 a year in lobbying
fees. His clients have included the governments of Puerto Rico and
the Republic of Palau, a tiny island nation in the western Pacific.
Mr. Farrow was at once a federal government bureaucrat and lobbyist.
The revolving door did not even have to spin.
He managed this feat while running one of dozens of agencies that
can get lost in the vast United States government — this one
responsible for identifying and helping preserve cemeteries and
historic buildings in Eastern and Central Europe that are important
to American Jews and others, including Orthodox Christians from Kosovo.
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Posted inlobbying <http://electionlawblog.org/?cat=28>
“”Breyer v. Colbert: A comedian, a U.S. Supreme Court justice, and a
missed opportunity.” <http://electionlawblog.org/?p=75998>
Posted onSeptember 15, 2015 10:22 pm
<http://electionlawblog.org/?p=75998>byRick Hasen
<http://electionlawblog.org/?author=3>
Matt Ford
<http://www.theatlantic.com/politics/archive/2015/09/breyer-colbert/405346/>in
the Atlantic:
Journalistic interviews with the justices are increasingly common
and often good,but rarely great;/New York/magazine’s 2013
conversation with Antonin Scalia is adelightful exception
<http://nymag.com/news/features/antonin-scalia-2013-10/>. All nine
of them speak often in public, although their audiences are usually
law schools, state bar associations, judicial conferences, or
similar law-related organizations. Some justices occasionally make
unconventional appearances, like Sonia Sotomayor’s visits to/The
Daily Show with Jon Stewart/
<http://thedailyshow.cc.com/extended-interviews/zt9pb9/sonia-sotomayor-extended-interview>and/Sesame
Street/ <https://www.youtube.com/watch?v=EHICz5MYxNQ>. But lawyers
talking to lawyers is the norm.
That could change, however. UC Irvine law professor Rick Hasen
provided some interesting data about their public appearances ina
recent study
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2611729>. All of
the current justices have been more public than their predecessors,
save for Justice Arthur Goldberg, who spoke frequently about
anti-Semitism during the 1960s. Scalia and Ruth Bader Ginsburg tend
to receive more press for their remarks, but Breyer actually holds
the record for the most public appearances by a justice since 1964.
Are these public appearances good for the Court? Judge Richard
Posner, a popular federal appellate judge in the Seventh
Circuit,disapproves
<http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=5091&context=journal_articles>of
what he calls the justices’ “public intellectual” activities. At the
same time, he doesn’t see them as a threat to the Court’s
legitimacy, since institutional support for the Court remains
relatively high. Besides, he adds, few Americans can even identify
individual justices. Colbert also observed before his chat with the
justice that 3 percent of Americans know who Breyer is. The rest, he
joked, confuse him with Mr. Burns from/The Simpsons/, with whom the
justice shares a vague resemblance.
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Posted inCelebrity Justice <http://electionlawblog.org/?cat=109>,Supreme
Court <http://electionlawblog.org/?cat=29>
“Reform Groups Urge President Obama to Reject Campaign Finance
Riders in Appropriation Bills” <http://electionlawblog.org/?p=75996>
Posted onSeptember 15, 2015 10:18 pm
<http://electionlawblog.org/?p=75996>byRick Hasen
<http://electionlawblog.org/?author=3>
Press release:
<http://www.democracy21.org/money-in-politics/press-releases-money-in-politics/reform-groups-urge-president-obama-to-reject-campaign-finance-riders-in-appropriation-bills/>
Reform groups today wrote to President Obama strongly urging him to
reject all riders in appropriations bills, including four damaging
campaign finance riders, and to insist that clean FY 2016
appropriations legislation is sent to him for his signature.
The reform groups include: Campaign Legal Center, Citizens for
Responsibility and Ethics in Washington, Common Cause, Democracy 21,
Demos, Issue One, League of Women Voters, Public Citizen and U.S. PIRG….
According to the letter, “the four damaging campaign finance riders
that have already been added to House and Senate appropriations
bills” would:
– Prevent the White House from issuing an Executive Order requiring
disclosure of campaign finance activities by government contractors;
– Prevent the IRS from issuing new regulations to stop nonprofit
groups from misusing the tax laws to spend secret contributions in
federal elections;
– Prevent the SEC from issuing regulations to require public
corporations to disclose their campaign-finance activities to their
shareholders; and
– Repeal longstanding limits on the amounts that parties can spend
in coordination with their candidates.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Parties Reach Settlement in Alaska Native Voting-Rights Case”
<http://electionlawblog.org/?p=75994>
Posted onSeptember 15, 2015 10:16 pm
<http://electionlawblog.org/?p=75994>byRick Hasen
<http://electionlawblog.org/?author=3>
AP
<http://abcnews.go.com/US/wireStory/parties-reach-settlement-alaska-native-voting-rights-case-33669958>:
A
settlement<http://www.narf.org/2015/09/state-of-alaska-settles-in-historic-voting-rights-case/>has
been reached between the state andAlaska
<http://abcnews.go.com/topics/news/alaska.htm>Native plaintiffs who
sued in federal court over the translation of voting materials for
voters with limited English proficiency.
The proposed settlement filed Tuesday calls for the Alaska
lieutenant governor’s office to hire a full-time employee to
administer language assistance. Another significant provision in the
agreement calls for the official state election pamphlet to include
translations, plaintiffs’ attorney Natalie Landreth with the Native
American Rights Funds said Thursday.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
“Why Voting Matters: Large Disparities in Turnout Benefit the Donor
Class” <http://electionlawblog.org/?p=75992>
Posted onSeptember 15, 2015 10:14 pm
<http://electionlawblog.org/?p=75992>byRick Hasen
<http://electionlawblog.org/?author=3>
New Demos report.
<http://www.demos.org/publication/why-voting-matters-large-disparities-turnout-benefit-donor-class>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Square accepts your political donations with a tweet”
<http://electionlawblog.org/?p=75990>
Posted onSeptember 15, 2015 10:13 pm
<http://electionlawblog.org/?p=75990>byRick Hasen
<http://electionlawblog.org/?author=3>
The next frontier.
<http://www.engadget.com/2015/09/15/square-twitter-political-donations/>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“Report: America’s Aging Voting Machines Could Present Election
Problems” <http://electionlawblog.org/?p=75988>
Posted onSeptember 15, 2015 10:12 pm
<http://electionlawblog.org/?p=75988>byRick Hasen
<http://electionlawblog.org/?author=3>
Pam Fessler
<http://www.npr.org/sections/itsallpolitics/2015/09/15/440255752/report-americas-aging-voting-machines-could-present-election-problems?utm_source=npr_newsletter&utm_medium=email&utm_content=20150915&utm_campaign=npr_email_a_friend&utm_term=storyshare>for
NPR:
Voting machines around the United States are coming to the end of
their useful lives. Breakdowns are increasingly common. Spare parts
are difficult, if not impossible, to find. That could be a serious
problem for next year’s presidential elections.
Allen County, Ohio, election director Ken Terry knows how bad things
can get. In the last presidential election, he had to replace the
Zip disks — a 1990s technology — in the main machine his county uses
to count votes. The disks are no longer made. And when
he/finally/got some from the voting machine manufacturer:
“They actually had a coupon in them. They were sealed and
everything. And the coupon had expired in … 1999,” he said.
And, to make matters worse, Terry said his voting machines use
memory cards that hold only 250 megabytes of data — a tiny fraction
of what you can store today on a $6 thumb drive. “You know, by
today’s standards that’s just absurd,” he said.
Allen County is by no means alone in dealing with antiquated voting
equipment. In Michigan, optical scan machines purchased in 2005 are
breaking down at an increasing rate. That can be frustrating for
voters and election workers, Oakland County election director Joe
Rozell said.
“We’ve all become experts with cans of compressed air, trying to
clear any debris or any pieces of paper that may have jammed the
ballot path,” he said.
Michigan is trying to get new machines for next year’s elections.
But that’s not the case in Ohio or most other states with aging
equipment. According to anew report by the Brennan Center for
Justice
<https://www.brennancenter.org/publication/americas-voting-machines-risk>at
New York University, 43 states will use some voting equipment next
year that’s at least 10 years old.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,voting technology
<http://electionlawblog.org/?cat=40>
“Pay-to-Play Rule Sticks Around for 2016″
<http://electionlawblog.org/?p=75986>
Posted onSeptember 15, 2015 10:09 pm
<http://electionlawblog.org/?p=75986>byRick Hasen
<http://electionlawblog.org/?author=3>
jason Abel has writtenthis oped
<http://www.steptoe.com/assets/htmldocuments/Pay%20to%20Play%20Sticks%20Around%20for%202016%20-%20Daily%20Journal%20-%20Jason%20Abel.pdf>for
the LA Daily Journal.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>
“The Unwilling Donor” <http://electionlawblog.org/?p=75984>
Posted onSeptember 15, 2015 10:07 pm
<http://electionlawblog.org/?p=75984>byRick Hasen
<http://electionlawblog.org/?author=3>
Jennifer Mueller has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2658351>on SSRN
(forthcoming, /Washington Law Review/). Here is the abstract:
or nearly 40 years, the Supreme Court has evaluated campaign finance
restrictions by weighing the First Amendment burden they place on a
donor eager to engage the political process against the government’s
interest in avoiding corruption of that process. Most recently, in
McCutcheon v. FEC, the Court struck down aggregate contribution
limits, allowing donors to give — and candidates and parties to
solicit — millions of dollars directly to candidates, parties, and
political action committees. Yet what should have been a significant
victory for big donors was greeted with dismay by many of the same.
There is growing evidence that the story we have been telling
ourselves about political money is, at best, incomplete, and that
many donors give only reluctantly, out of fear of political
repercussions. This Article examines the problem of the unwilling
donor and argues for the first time that it has significant
implications for campaign finance doctrine. Flipping the narrative
allows a fresh view of key concepts, including the need for systemic
campaign finance regulations, the Court’s current emphasis on quid
pro quo corruption, and the First Amendment interests of campaign
donors. Previous scholarship has overlooked the existence and
constitutional import of this alternative, “extortionate,” framework.
The Unwilling Donor steps into this critical gap. The Article first
provides an overview of the Supreme Court’s past campaign finance
jurisprudence, including McCutcheon, almost all of which is premised
on the notion of a willing donor. It then surveys empirical studies
and historical data to demonstrate that the unwilling donor, while
perhaps not a sympathetic character, is a very real one. The final
section of the Article contemplates the legal significance of the
unwilling donor problem, concluding that it is relevant to the
continued vitality of campaign finance efforts, to the Court’s
analysis of campaign finance restrictions, and to future litigation
strategies in this area.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
Bauer on “Watergate” <http://electionlawblog.org/?p=75982>
Posted onSeptember 15, 2015 10:05 pm
<http://electionlawblog.org/?p=75982>byRick Hasen
<http://electionlawblog.org/?author=3>
Bob <http://www.moresoftmoneyhardlaw.com/2015/09/watergate/>:
Watergate is associated with abuses but also with reforms– measures,
the “Watergate-era reforms,” intended to go some distance toward
solving the basic problems. For scholars, law professors and the
community of practitioners engaged with these reform enactments, the
new biographies of Nixon now being published are irresistible. Evan
Thomas,/Being//Nixon: A Man Divided/(2015); Tim Weiner,/One Man
Against the World/(2015). To borrow a sneering comment by Nixon, it
is easy to “wallow in Watergate.”
One question that then comes up is: what in these narratives is the
nature of the elemental “corruption” that led to Nixon’s downfall?
There’s mention of campaign money, in the discussion of secretive
fundraising and the “hush money” that Nixon and his staff paid to
the Watergate burglars in return for their silence. But private
money–brought from the outside to corrupt the government from
within–is not the key, or a key, to the story.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
Rick Perlstein Remembers When Jimmy Carter Proposed Universal Voter
Registration and Ronald Reagan Raised the Specter of Fraud
<http://electionlawblog.org/?p=75980>
Posted onSeptember 15, 2015 10:03 pm
<http://electionlawblog.org/?p=75980>byRick Hasen
<http://electionlawblog.org/?author=3>
The Prophetic President
<http://washingtonspectator.org/the-prophetic-president/>:
Everyone loved to talk about voter apathy, but the real problem,
Carter said, was that “millions of Americans are prevented or
discouraged from voting in every election by antiquated and overly
restricted voter registration laws”—a fact proven, he pointed out,
by record rates of participation in 1976 in Minnesota, Wisconsin,
and North Dakota, where voters were allowed to register on election
day. So he proposed that election-day registration be adopted
universally, tempering concerns that such measures might increase
opportunities for fraud by also proposing five years in prison and a
$10,000 fine as penalties for electoral fraud.
He asked Congress to allot up to $25 million in aid to states to
help them comply, and for the current system of federal matching
funds for presidential candidates to be expanded to congressional
elections. He suggested reforming a loophole in the matching-fund
law that disadvantaged candidates competing with rich opponents who
funded their campaigns themselves, and revising the Hatch Act to
allow federal employees “not in sensitive positions,” and when not
on the job, the same rights of political participation as everyone else.
Finally, and most radically, he recommended that Congress adopt a
constitutional amendment to do away with the Electoral College—under
which, three times in our history (four times if you count George W.
Bush 23 years later), a candidate who received fewer votes than his
opponent went on to become president—in favor of popular election of
presidents. It was one of the broadest political reform packages
ever proposed.
It was immediately embraced. Legislators from both parties stood
together at a news briefing to endorse all or part of it. Two
Republican senators and two Republican representatives stepped
forward to cosponsor the universal registration bill; William Brock,
chairman of the Republican National Committee, called it “a
Republican concept.” Senate Minority Leader Howard Baker announced
his support, and suggested going even further: making election day a
national holiday and keeping polls open 24 hours. House Minority
Leader John Rhodes, a conservative disciple of Barry Goldwater,
predicted it would pass “in substantially the same form with a lot
of Republican support, including my own.”
A more perfect democracy. Who could find this controversial?
You guessed it: movement conservatives, who took their lessons about
Democrats and “electoral reform” from Republican allegations that
had Kennedy beating Nixon via votes received from the cemeteries of
Chicago.
Ronald Reagan had been on this case for years. “Look at the
potential for cheating,” he thundered in 1975, when Democrats
proposed allowing citizens to register by postcard. “He can be John
Doe in Berkeley, and J.F. Doe in the next county, all by saying he
intends to live in both places … Yes, it takes a little work to be a
voter; it takes some planning to get to the polls or send an
absentee ballot … That’s a small price to pay for freedom.” He took
up the cudgel again shortly after Carter’s inauguration, after
California adopted easier voter registration. Why not a national
postcard registration program? “The answer to that is the one the
American general gave to the German demand for surrender at the
battle of Bastogne in World War II:/Nuts/.…. Government by the
people won’t work if the people won’t work at it.”
He continued. “Why don’t we try reverse psychology and make it
harder to vote?”
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Posted inThe Voting Wars <http://electionlawblog.org/?cat=60>
--
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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