[EL] Spending by billionaires

Mon Feb 1 09:47:02 PST 2016

Professor Hasen,

I found your op-ed in the New York Daily News interesting and challenging, even if I did not agree with it (I suspect we agree on what’s wrong with American politics, but diverge on what to do about it). I note that you published a piece decrying that those with “the greatest wealth have a much better chance to influence elections and public policy than the rest of us” in a newspaper owned by a billionaire who has a much better chance to influence elections and public policy than the rest of us by publishing his newspaper. Moreover, his paper regularly makes endorsements in federal and state elections using general treasury funds, exactly what reformers decry in Citizens United.

I have not been able to ever get a straight answer from those supporting campaign finance regulations as to why Mort Zuckerman’s (or the Grahams, Sulzburgers, Murdochs, etc. (but not Sheldon Adelson’s apparently)) spending in a general election is a great American tradition if it is sold at a newsstand, but if he spent the same amount of money and spread the same message in the form of flyers, television commercials, or radio spots, we’re on a slippery slope to Caudillo-land. Indeed, as I see it, if Mort Zuckerman has a piece on the editorial page saying “Vote for Hillary Clinton,” the reform community is okay with that, but if it is an ad on the facing page with the same text (hell, maybe even the same type), it’s a part of the plutocracy.

I once asked a local newspaper opinion writer here why his political advocacy using money was okay but the Kochs’ was not and he accused me of sophistry, but never answered the question.

I know that in your early writings, you had suggested that it was time to rethink the press exemption, but I believe you have backed off that view. Is that accurate? And, if so, why? And, if you have, isn’t the best way to fight the influence of people like Zuckerman to allow folks to speak as much as they wish in whatever form they wish, so that the voices of newspaper-owning billionaires does not drown out the voice of everyone else?

I realize you may have addressed this in your book, but I have not had an opportunity to read it yet—regardless, thanks in advance for any response,

Bill

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Monday, February 01, 2016 7:58 AM
To: law-election at uci.edu
Subject: [EL] ELB News and Commentary 2/1/16

“Federal trial in Voter ID lawsuits expected to wrap up”<http://electionlawblog.org/?p=79477>
Posted on February 1, 2016 7:53 am<http://electionlawblog.org/?p=79477> by Rick Hasen<http://electionlawblog.org/?author=3>

AP reports <http://www.statesville.com/news/state/ap/federal-trial-in-voter-id-lawsuits-expected-to-wrap-up/article_e423010e-99ff-5a53-ab9a-948616e9e8e7.html> from NC.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>
“Trump Condemns Cruz’s ‘Most Disgraceful’ Voter Violation Mailers”<http://electionlawblog.org/?p=79475>
Posted on February 1, 2016 7:52 am<http://electionlawblog.org/?p=79475> by Rick Hasen<http://electionlawblog.org/?author=3>

TPM reports.<http://talkingpointsmemo.com/livewire/trump-condemns-cruz-campaign-mailers>
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Posted in campaigns<http://electionlawblog.org/?cat=59>
“Donations, big and small, continue to pour into 2016 race”<http://electionlawblog.org/?p=79473>
Posted on February 1, 2016 7:51 am<http://electionlawblog.org/?p=79473> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/politics/billionaires-and-small-donors-help-pour-millions-into-2016-race/2016/01/31/c5d2d63c-c85e-11e5-88ff-e2d1b4289c2f_story.html>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Campaign-Finance Reports Suggest Long Battles for U.S. Presidential Elections”<http://electionlawblog.org/?p=79471>
Posted on February 1, 2016 7:50 am<http://electionlawblog.org/?p=79471> by Rick Hasen<http://electionlawblog.org/?author=3>

WSJ reports.<http://www.wsj.com/articles/campaign-finance-reports-suggest-long-battles-for-u-s-presidential-elections-1454331746>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“GOP, State Agree on Court Question to Resolve Election Law Dispute”<http://electionlawblog.org/?p=79469>
Posted on February 1, 2016 7:48 am<http://electionlawblog.org/?p=79469> by Rick Hasen<http://electionlawblog.org/?author=3>

KSL<https://www.ksl.com/?sid=38323362&nid=148&title=gop-state-agree-on-court-question-to-resolve-election-law-dispute&s_cid=queue-18>:

The Utah Republican Party and the state agreed on a question Friday to pose to the Utah Supreme Court to resolve their ongoing dispute over a new election law.

Specifically, they will ask the court if a political party must permit its members to seek nominations for elected office by either or both of the methods spelled out in the law or if party may preclude a member from gathering signatures.

The GOP maintains the decision rests with the party, and it has chosen Utah’s longstanding caucus and convention system. The state contends the candidate has the option to seek the nomination at the convention or by collecting a requisite number of signatures allowed under SB54 or both.
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Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>
“White House race nearing $1 billion; Big-money super PACs have raised almost half of presidential cash”<http://electionlawblog.org/?p=79467>
Posted on February 1, 2016 7:23 am<http://electionlawblog.org/?p=79467> by Rick Hasen<http://electionlawblog.org/?author=3>

CPI reports<http://www.publicintegrity.org/2016/02/01/19220/white-house-race-nearing-1-billion>.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Diluting the Power of Big Money”<http://electionlawblog.org/?p=79465>
Posted on February 1, 2016 7:13 am<http://electionlawblog.org/?p=79465> by Rick Hasen<http://electionlawblog.org/?author=3>

Renee Loth column<http://www.bloomberg.com/politics/articles/2016-02-01/the-power-of-the-super-pac-wanes-as-trump-prepares-for-iowa-test?cmpid=BBD020116_POL> for the Boston Globe.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“The Power of the Super-PAC Wanes as Trump Prepares for Iowa Test”<http://electionlawblog.org/?p=79463>
Posted on February 1, 2016 7:12 am<http://electionlawblog.org/?p=79463> by Rick Hasen<http://electionlawblog.org/?author=3>

Bloomberg reports.<http://www.bloomberg.com/politics/articles/2016-02-01/the-power-of-the-super-pac-wanes-as-trump-prepares-for-iowa-test?cmpid=BBD020116_POL>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Adelson begins to play with his new toy”<http://electionlawblog.org/?p=79461>
Posted on February 1, 2016 7:06 am<http://electionlawblog.org/?p=79461> by Rick Hasen<http://electionlawblog.org/?author=3>

Ralston reports<https://www.ralstonreports.com/blog/adelson-begins-play-his-new-toy>:

Once upon a time, The Las Vegas Review-Journal editorial page was a bastion of libertarianism, arguing, among other things, that public money should not be used to subsidize stadium projects.

But on Sunday, after prominent stories given to the newspaper by its new owner, the RJ has switched its position and come out in favor of public money<http://www.reviewjournal.com/opinion/editorials/editorial-no-place-dome-stadium-proposal-must-do> for a new stadium being pushed by said owner, Sheldon Adelson, to possibly host the NFL Raiders. The editorial was featured on the home page of the site, right below a story<http://www.reviewjournal.com/business/stadium/public-funding-would-cover-two-thirds-unlv-stadium-costs> leading the site about public financing for the proposal, which already has catalyzed a blizzard of negative comments.
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Posted in campaigns<http://electionlawblog.org/?cat=59>
“Wall Street’s Donor Role Expands as Money Flows Into 2016 Election”<http://electionlawblog.org/?p=79459>
Posted on January 31, 2016 5:54 pm<http://electionlawblog.org/?p=79459> by Rick Hasen<http://electionlawblog.org/?author=3>

WSJ<http://www.wsj.com/articles/wall-streets-donor-role-expands-as-money-flows-into-2016-election-1454288426?mod=rss_US_News> on the rise of the plutocracy:

Wall Street is emerging as a particularly dominant funding source for Republicans and Democrats in the presidential election, early campaign-finance reports filed with the Federal Election Commission show. The trend comes even as candidates seek to cast themselves as uniquely able to take on the bankers and investors who contributed to the economy’s collapse almost a decade ago.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Trump’s Pitch Highlights that Ballots are Secret”<http://electionlawblog.org/?p=79457>
Posted on January 31, 2016 5:49 pm<http://electionlawblog.org/?p=79457> by Rick Hasen<http://electionlawblog.org/?author=3>

Political Wire<https://politicalwire.com/2016/01/31/trumps-pitch-highlights-that-ballots-are-secret/> highlights this aspect of a NYT repor<http://www.nytimes.com/2016/01/31/us/politics/ted-cruz-counters-donald-trump-with-targeted-approach-in-iowa.html?_r=0>t on tomorrow’s Iowa caucus. There’s no secret ballot on the Democratic side.

Why does this matter that Republican votes are secret? We’ve seen it before: people are sometimes reluctant to admit to pollsters how they plan to vote if they expect the pollsters to disapprove.  With Trump branded a racist and boor by some, this could cause people to lie to pollsters and then pollsters underestimate his support.
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Posted in campaigns<http://electionlawblog.org/?cat=59>
“November’s big ballot probably won’t be downsized by California’s new election law”<http://electionlawblog.org/?p=79455>
Posted on January 31, 2016 5:34 pm<http://electionlawblog.org/?p=79455> by Rick Hasen<http://electionlawblog.org/?author=3>

John Myers<http://www.latimes.com/politics/la-pol-sac-initiative-reform-november-ballot-20160131-story.html> for the LAT:

In a state where direct democracy is considered a birthright, activists have often bypassed legislators and asked voters to write laws at the ballot box.

But one year after the enactment of what was hailed as a major electoral reform to encourage compromise between the two lawmaking processes, there’s still skepticism of working inside the world of Sacramento politics.

Even from some politicians who work there.
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Posted in direct democracy<http://electionlawblog.org/?cat=62>
“The Jeb Bush Hatchet Man Who Might Accidentally Elect Donald Trump”<http://electionlawblog.org/?p=79453>
Posted on January 31, 2016 5:24 pm<http://electionlawblog.org/?p=79453> by Rick Hasen<http://electionlawblog.org/?author=3>

Jeb Bush Super PAC fundraising may matter<http://www.buzzfeed.com/mckaycoppins/the-jeb-bush-hatchet-man-who-might-accidentally-elect-donald#.uevZx71N0>, but not in the way you might think.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
Talk of Clinton Indictment Fueling Legal (But Mostly Political) Questions<http://electionlawblog.org/?p=79451>
Posted on January 31, 2016 2:46 pm<http://electionlawblog.org/?p=79451> by Rick Hasen<http://electionlawblog.org/?author=3>

Mike Allen’s Playbook<http://www.politico.com/playbook> leads with Peter Baker’s comments<https://www.youtube.com/watch?v=kqYefKMNGe4> on CNN: re Hillary emails: “Her problem at this point is NOT the Republicans. Her problem is the FBI and the Obama Justice Department. And what Democrats are quietly, absolutely petrified about is that come summer, … you find an indictment of people around her, of her, or a request for a special prosecutor — SOMETHING that just basically turns this into a complete DISASTER for the Democrats in which it’s too late to change horses.”

I’m hearing more talk from Republicans convinced that there will be such an indictment. Seth Barrett Tillman has even blogged<http://reformclub.blogspot.ie/2016/01/two-presidential-candidates-consistent.html> on what happens if such an indictment strikes at various points in the election. Tillman’s post got Jack Balkin’s<http://balkin.blogspot.com/2016/01/more-grist-for-law-professors-mill.html> attention, who says that the general issue deserves some academic attention.

Perhaps so. But this seems much more likely to be a political problem for Clinton than a legal one, given indications from the White House <http://www.weeklystandard.com/wh-clinton-wont-be-indicted-based-on-what-we-know/article/2000828> that no indictment appears in the cards. The immediate political question will be whether Bernie Sanders comes down heavier on this issue. At first he said no more about the “damn emails,” and now he said that it its a “very serious issue<http://www.cnn.com/2016/01/31/politics/bernie-sanders-hillary-clinton-emails-iowa/index.html>.”  But whatever Sanders throws will be much less than what I expect to see from Republicans after Clinton gets the Democratic nomination.
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Posted in campaigns<http://electionlawblog.org/?cat=59>
“The New Anti-Sanders Super PAC Is Funded By Anti-Clinton Donors”<http://electionlawblog.org/?p=79449>
Posted on January 31, 2016 2:29 pm<http://electionlawblog.org/?p=79449> by Rick Hasen<http://electionlawblog.org/?author=3>

Some three-dimensional chess<http://www.huffingtonpost.com/entry/esa-fund-anti-sanders-super-pac_us_56ae76cae4b0010e80ea89fa?4nsl9pb9=> from Joe Ricketts:

About a week ago, a super PAC bankrolled by a wealthy conservative donorannounced that<http://www.nytimes.com/politics/first-draft/2016/01/25/bernie-sanders-a-target-of-ads-by-republican-donor/> it would run an ad attacking Sen. Bernie Sanders (I-Vt.) for being too far along the ideological spectrum.

The group, called ESA Fund, was reportedly backed by $600,000 in spending from TD Ameritrade executive Joe Ricketts. And its ad went after Sanders for supporting things like free college tuition, Medicare for all and tax hikes on the super rich.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“How a California senator plans to take on the City of Industry”<http://electionlawblog.org/?p=79447>
Posted on January 31, 2016 2:27 pm<http://electionlawblog.org/?p=79447> by Rick Hasen<http://electionlawblog.org/?author=3>

An important and underreported story.<http://www.dailynews.com/government-and-politics/20160130/how-a-california-senator-plans-to-take-on-the-city-of-industry>
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Posted in chicanery<http://electionlawblog.org/?cat=12>, voting<http://electionlawblog.org/?cat=31>
“NC’s new Voter ID rule narrows the right to vote”<http://electionlawblog.org/?p=79445>
Posted on January 31, 2016 2:24 pm<http://electionlawblog.org/?p=79445> by Rick Hasen<http://electionlawblog.org/?author=3>

Ned Barnett column<http://www.newsobserver.com/opinion/opn-columns-blogs/ned-barnett/article57519288.html> in the News and Observer.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9>
“Hedge fund managers shower millions on pro-Rubio super PAC”<http://electionlawblog.org/?p=79443>
Posted on January 31, 2016 2:20 pm<http://electionlawblog.org/?p=79443> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/news/post-politics/wp/2016/01/31/hedge-fund-managers-shower-millions-on-pro-rubio-super-pac/>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Finding solutions to the campaign finance crisis”<http://electionlawblog.org/?p=79441>
Posted on January 31, 2016 2:19 pm<http://electionlawblog.org/?p=79441> by Rick Hasen<http://electionlawblog.org/?author=3>

Norm Eisen and Curtlyn Krame<http://www.brookings.edu/blogs/fixgov/posts/2016/01/29-solutions-to-the-campaign-finance-crisis-eisen-kramer>r at Brookings.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
The Real Crime of the Caucus Process is Not Cruz’s Mailer but the Caucus Process Itself<http://electionlawblog.org/?p=79438>
Posted on January 31, 2016 2:05 pm<http://electionlawblog.org/?p=79438> by Rick Hasen<http://electionlawblog.org/?author=3>

Look<http://www.newyorker.com/news/news-desk/ted-cruzs-iowa-mailers-are-more-fraudulent-than-everyone-thinks?reload> at how Ryan Lizza’s piece on the Ted Cruz misleading mailers <http://electionlawblog.org/?p=79435> ends:

Donna Holstein, who was listed on one of them, was upset to learn that she had been given a failing grade and that her neighbors might be told whether she participates in the caucus or not. She told me that she has voted consistently but that she can’t this time because of a disability.

“I’m crippled, so I can’t go to the caucus,” Holstein said. She was not happy about being shamed in front of her neighbors. “That’s what you call a bully,” she said about Cruz’s tactics. “I wish he would quit.”

The caucus system is inherently discriminatory against those who are disabled, or who have to work or travel during caucus time.  See my 2012 Slate piece: Kill the Caucuses!<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/02/congress_should_kill_the_republican_and_democratic_state_caucuses_and_mandate_primaries_instead_.html>
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Posted in election administration<http://electionlawblog.org/?cat=18>, primaries<http://electionlawblog.org/?cat=32>
“Ted Cruz Defends Mailer Dubbed ‘Misleading’ By Iowa’s Secretary of State”<http://electionlawblog.org/?p=79435>
Posted on January 31, 2016 1:00 pm<http://electionlawblog.org/?p=79435> by Rick Hasen<http://electionlawblog.org/?author=3>

Pema Levy<http://www.motherjones.com/mojo/2016/01/ted-cruz-defends-voting-violation-mailer-iowa> for Mother Jones:

Ted Cruz on Saturday evening defended a mailer sent out by his campaign that has been criticized<http://www.nytimes.com/politics/first-draft/2016/01/30/iowa-official-criticizes-cruz-campaign-over-mailer/> by Iowa’s secretary of state as “misleading” and a violation of “the spirit of the Iowa caucuses.”

“I will apologize to no one for using every tool we can to encourage Iowa voters to come out and vote,” Cruz said, speaking to reporters before a rally in Sioux City, Iowa.

Earlier Saturday, the Cruz campaign came under fire for sending out a mailer, with the look of an official state document, that warns of a “voting violation.” It informs voters they are receiving the notice “because of low expected voter turnout in your area” and says a “follow-up notice” may arrive after the Iowa caucuses.

I’ve been getting questions about the legality of the Cruz mailer.

There is no federal law barring generally misleading campaign speech.  There are laws against intimidating voters, but I don’t think that’s what it is.

The alternative would be some kind of claim of common law fraud (a tort), but this could well be a stretch.

There are also first amendment issues related to regulating misleading campaign speech<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151618>.

Unless there’s something specific in Iowa law making this illegal (and unless such a law is constitutional), I think this kind of mailer is allowed.

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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“The Koch Network Has Already Spent $400 Million In Run-Up To 2016”<http://electionlawblog.org/?p=79433>
Posted on January 30, 2016 6:35 pm<http://electionlawblog.org/?p=79433> by Rick Hasen<http://electionlawblog.org/?author=3>

Tarini Parti<http://www.buzzfeed.com/tariniparti/the-koch-network-has-already-spent-400-million-in-run-up-to#.drOw39LnQ> reports for Buzzfeed from the Koch meeting in CA.

Koch’s comments at a resort in the California desert were part of his opening remarks for the annual winter meeting of the network, which intends to spend $889 million on conservative causes and candidates in line with the brothers’ political philosophy in the two-year 2016 election cycle. The network — called Freedom Partners — already spent just under $400 million in 2015, a top official revealed Saturday.

In his remarks, Koch also laid out four priorities for the network that he believes will change the country.

“The first one is to change, reverse the policies that are moving us toward…a society that is destroying opportunities for the disadvantage and creating welfare for the wealthy,” he said.

“The second one is the irresponsible, destructive spending by both political parties that is making people’s lives worse. And the third one is to get government at all levels — that is local, state and federal — to focus on the government’s primary responsibility to keep America safe instead of being distracted with all sorts of other objectives…And last, but not least — protecting free speech, which is the foundation of a free society.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>, tax law and election law<http://electionlawblog.org/?cat=22>
“Brooklyn Law School hosts Buckley v. Valeo discussion for case’s 40th anniversary”<http://electionlawblog.org/?p=79431>
Posted on January 30, 2016 6:34 pm<http://electionlawblog.org/?p=79431> by Rick Hasen<http://electionlawblog.org/?author=3>

The Brooklyn Eagle reports.<http://www.brooklyneagle.com/articles/2016/1/29/brooklyn-law-school-hosts-buckley-v-valeo-discussion-case%E2%80%99s-40th-anniversary>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
“A Landmark of Political Freedom”<http://electionlawblog.org/?p=79428>
Posted on January 30, 2016 6:33 pm<http://electionlawblog.org/?p=79428> by Rick Hasen<http://electionlawblog.org/?author=3>

Brooklyn Law<https://www.brooklaw.edu/%7E/media/F60BDCB6728444488A14CC5BAF437665.pdfI>:

As a young lawyer for the ACLU, Professor Joel Gora argued before the U.S. Supreme Court in the landmark Buckley v. Valeo case. Here he reflects on the history of the case and its continuing impact on campaign finance law.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
“Loosening money’s grip on elections: How to change the billionaire-dominated campaign finance landscape, 40 years after Buckley vs. Valeo”<http://electionlawblog.org/?p=79426>
Posted on January 30, 2016 8:33 am<http://electionlawblog.org/?p=79426> by Rick Hasen<http://electionlawblog.org/?author=3>

My piece<http://www.nydailynews.com/opinion/rick-hasen-loosening-money-grip-elections-article-1.2513936?cid=bitly> in today’s NY Daily News:

Forty years ago today, the Supreme Court decided Buckley vs. Valeo, a case that has distorted our thinking and talking about money in politics for nearly two generations and that has taken this country down a perilous path on campaign finance.

We should no longer mince words about the consequences for our representative government. Buckley, and its better-known offspring, 2010’s Citizens United vs. FEC, are leading us to plutocracy, a country in which those with the greatest wealth have a much better chance to influence elections and public policy than the rest of us.

Despite that bleak assessment, there’s a small window<http://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453/> for change opening.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

--

Rick Hasen

Chancellor's Professor of Law and Political Science

UC Irvine School of Law

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http://electionlawblog.org

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