[EL] Time magazine, Hillary Clinton, and Citizens United
Scarberry, Mark
Mark.Scarberry at pepperdine.edu
Thu Feb 4 08:56:28 PST 2016
Note Time magazine's cover picture of Clinton and what I think is an extremely fawning/softball interview. http://time.com/4206955/hillary-clinton-interview/. Print magazines are less influential than in the past, but perhaps Time has a strong online presence. Does it make money, or is it subsidized by some rich people (which would make this even worse)? This rather obvious bias makes me more convinced that CU is right. I don't doubt that there is a problem, as the "reform" advocates say, but the cure is worth than the disease. I wonder what Sanders thinks of this.
Time has to be free to do what it has done, but it's hard for me to see why media corporations should be treated differently from the rest of us, whether we similarly act through the corporate form or not.
Mark
Mark S. Scarberry
Pepperdine University School of Law
Sent from my iPad
On Feb 4, 2016, at 8:10 AM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
Ted Cruz, a Public Firebrand on Social Issues, Is Cooler When Wooing Donors”<http://electionlawblog.org/?p=79595>
Posted on February 4, 2016 8:05 am<http://electionlawblog.org/?p=79595> by Rick Hasen<http://electionlawblog.org/?author=3>
NYT reports.<http://www.nytimes.com/2016/02/04/us/politics/ted-cruz-a-public-firebrand-on-social-issues-is-cooler-when-wooing-donors.html?ref=politics>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“The political wars damage public perception of Supreme Court, Chief Justice Roberts says”<http://electionlawblog.org/?p=79593>
Posted on February 4, 2016 8:03 am<http://electionlawblog.org/?p=79593> by Rick Hasen<http://electionlawblog.org/?author=3>
Bob Barnes reports <https://www.washingtonpost.com/politics/courts_law/the-political-wars-damage-public-perception-of-supreme-court-chief-justice-roberts-says/2016/02/04/80e718b6-cb0c-11e5-a7b2-5a2f824b02c9_story.html> for WaPo.
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>
“Clinton blasts Wall Street, but still draws millions in contributions”<http://electionlawblog.org/?p=79591>
Posted on February 4, 2016 8:01 am<http://electionlawblog.org/?p=79591> by Rick Hasen<http://electionlawblog.org/?author=3>
WaPo reports.<https://www.washingtonpost.com/politics/clinton-blasts-wall-street-but-still-draws-millions-in-contributions/2016/02/04/05e1be00-c9c2-11e5-ae11-57b6aeab993f_story.html>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Does Big Money Still Matter? You Bet It Does”<http://electionlawblog.org/?p=79589>
Posted on February 4, 2016 7:58 am<http://electionlawblog.org/?p=79589> by Rick Hasen<http://electionlawblog.org/?author=3>
Eliza Newlin Carney<http://prospect.org/article/does-big-money-still-matter-you-bet-it-does> in TAP:
Good-government advocates are “oblivious to the failure of ‘big money’ to dictate the race,” wrote Bradley Smith, chairman of the Center for Competitive Politics, in a Wall Street Journal commentary<http://www.wsj.com/articles/thats-odd-big-money-isnt-buying-this-election-1454108285> headlined “That’s Odd, ‘Big Money’ Isn’t Buying This Election.” One of the contest’s “unexpected surprises,” wrote<http://www.vox.com/polyarchy/2016/2/1/10887576/trump-sanders-campaign-finance> New America senior fellow Lee Drutman, is how well Donald Trump and Bernie Sanders have done with such little backing from wealthy donors.
It’s easy to see why billionaire donors don’t look so influential anymore. Former Florida Governor Jeb Bush and his super PAC spent $14.9 million on the Iowa caucuses, but won just 5,238 voters (a mere 2.8 percent of the total GOP vote) and a single delegate. That added up to $2,845 per vote—a dismal showing that U.S. News & World Reportdubbed<http://www.usnews.com/news/blogs/data-mine/2016/02/02/bush-got-little-bang-for-his-buck-in-iowa> “by far the worst bang-for-the-buck performance” of any GOP candidate.
But the failure of Bush or any other big spender to win an election says little about the actual role that money plays in politics and—perhaps more important—in policy-making. As a long list of self-financed millionaire candidates can attest, having the biggest wallet is no guarantee of success. And as election lawyer and author of the recent bookPlutocrats United Richard Hasen has noted<https://www.washingtonpost.com/opinions/money-cant-buy-jeb-bush-the-white-house-but-it-still-skews-politics/2016/01/14/7c920780-b554-11e5-9388-466021d971de_story.html>, the real issue is not just how political money boosts candidates, but how it helps big donors win the tax breaks, contracts, and policies they seek.
Also overlooked in the argument that money doesn’t matter is the ever-growing role that millionaire and billionaire donors are playing in elections other than the race for the White House. Super PACs, which may raise unlimited contributions if they don’t coordinate with candidates, are wading aggressively<http://prospect.org/article/super-pac-debate-spotlights-illegal-coordination> into not just House and Senate contests, but into gubernatorial, state legislative, mayoral, city council, and even school board races.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Plutocrats United<http://electionlawblog.org/?cat=104>
“New Path for Masking Super PAC Donors; Funds from limited liability companies grow, making it harder to know the name of the ultimate donors”<http://electionlawblog.org/?p=79587>
Posted on February 4, 2016 7:51 am<http://electionlawblog.org/?p=79587> by Rick Hasen<http://electionlawblog.org/?author=3>
WSJ reports.<http://www.wsj.com/articles/new-path-for-masking-super-pac-donors-1454546712>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Ryan backs voting rights bill — but tells black caucus it’s out of his hands”<http://electionlawblog.org/?p=79585>
Posted on February 4, 2016 7:51 am<http://electionlawblog.org/?p=79585> by Rick Hasen<http://electionlawblog.org/?author=3>
Interesting<http://thehill.com/homenews/house/268159-ryan-backs-voting-rights-bill-but-tells-black-caucus-its-out-of-his-hands>…
Speaker Paul Ryan (R-Wis.) told black lawmakers Wednesday that he supports new voting rights protections they’ve championed, but said he won’t bypass a committee chairman to move legislation, according to a Democrat who attended the gathering.
“He said it right in front of everybody — he said he supports the [Jim] Sensenbrenner bill,” Rep. Emanuel Cleaver (D-Mo.), former chairman of the Congressional Black Caucus (CBC), said after Ryan met with the group on Capitol Hill.
“So somebody was saying, ‘Well, why don’t you go tell your committee chair to do it?’ ” Cleaver added. “And he said, … ‘Look, I can’t do that.’
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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>, VRAA<http://electionlawblog.org/?cat=81>
“The Unenforceability of the Electoral Count Act’s Procedural Provisions”<http://electionlawblog.org/?p=79583>
Posted on February 4, 2016 7:45 am<http://electionlawblog.org/?p=79583> by Rick Hasen<http://electionlawblog.org/?author=3>
Chris Land has posted this draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2721210> on SSRN. Here is the abstract:
The Electoral Count Act governs the procedures used by Congress to tabulate Presidential election results every four years. The Act contains a number of provisions that purport to restrict debate, points of order, and other parliamentary motions that can be offered while certificates of vote are counted by the President of the Senate. These restrictions likely are unenforceable based on the Rules Clause of the Constitution and Supreme Court precedent interpreting this provision. Part II of this Article seeks to answer the threshold question of what institution counts our electoral votes — a constitutionally unique ‘Joint Session’ or merely a simultaneous meeting of the House and Senate. Part III analyzes the 1877 Electoral Commission and argues that this entity was a permissible delegation of Congressional authority. Part IV discusses the 2000 electoral count and contends that the provisions of the Electoral Count Act cited by Vice President Al Gore are unenforceable. Finally, Part V asserts that the enforceability of the Electoral Count Act is justiciable and federal court resolution would likely be a necessary last resort in the midst of a contested election.
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Posted in electoral college<http://electionlawblog.org/?cat=44>
“Alaska Speaks Up For Self-Government”<http://electionlawblog.org/?p=79581>
Posted on February 4, 2016 7:44 am<http://electionlawblog.org/?p=79581> by Rick Hasen<http://electionlawblog.org/?author=3>
Free Speech for People<http://freespeechforpeople.org/alaska-speaks-up-for-self-government/>:
On Monday, the State of Alaska filed an important legal brief setting forth a bold argument forself-government as a theory for limiting out-of-state money in local and state election campaigns. The state’s lawyers discussed the case with Free Speech For People while developing the brief, and we’d like to highlight this aspect of the argument….his argument draws support from a little-reported Supreme Court decision just two years afterCitizens United. The case of Bluman v. FEC involved a federal law<http://uscode.house.gov/view.xhtml?req=%28title:52%20section:30121%20edition:prelim%29>prohibiting foreign nationals from contributing or spending money in federal, state, or local elections. Two Canadians in the U.S. on temporary visas challenged the prohibition—after all, Citizens United had just a year before waxed poetic about how a ban on corporate political spending violated the prohibition against “distinguishing among different speakers, allowing speech by some but not others” and thereby “deprive[d] the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.” If corporations can spend unlimited money in elections, why couldn’t Mr. Bluman spend a few bucks to “print flyers supporting President Obama’s reelection and to distribute them in Central Park”?
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“The Strange Career of James Crow, Esquire”<http://electionlawblog.org/?p=79579>
Posted on February 4, 2016 7:42 am<http://electionlawblog.org/?p=79579> by Rick Hasen<http://electionlawblog.org/?author=3>
William Barber and Jonathan Wilson-Hartgrove<http://www.theatlantic.com/politics/archive/2016/02/jim-crows-new-legal-career/459879/> in The Atlantic:
Throughout the McCrory trial, NAACP lawyers made a strong case that the voter-ID component of this legislation places an unnecessary and undue burden on voters—especially poor and African American voters. A verdict is expected in a few weeks. But the case is really about much more than defeating voter-ID laws. It is about a central question of 21st-century American politics: Is a multiethnic democracy possible?
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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>
“Bush super PAC the biggest loser in ad wars”<http://electionlawblog.org/?p=79577>
Posted on February 4, 2016 7:40 am<http://electionlawblog.org/?p=79577> by Rick Hasen<http://electionlawblog.org/?author=3>
CPI video.<https://www.facebook.com/publici/videos/10153250484765723/>
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
EAC’s Brian Newby Defends His Actions Helping His Buddy Kobach<http://electionlawblog.org/?p=79575>
Posted on February 4, 2016 7:38 am<http://electionlawblog.org/?p=79575> by Rick Hasen<http://electionlawblog.org/?author=3>
Must-read Zach Roth <http://www.msnbc.com/msnbc/federal-agency-helps-red-states-make-voter-registration-harder> for MSNBC:
Newby’s move sparked instant criticism. In astatement<http://electionlawblog.org/?p=79529> posted online Tuesday, the panel’s lone Democratic commissioner, Vice Chair Thomas Hicks, wrote that Newby had acted “unilaterally,” and that his decision “contradicts policy and precedent established by the Commission.” Hicks noted that a 2015 EAC statement<http://www.eac.gov/assets/1/Documents/Organizational%20Management%20Policy%20Statement%20%28final%20adopted%202-24-15-cm%29.pdf%20%20%20%20> makes clear that the executive director lacks the authority to set policy, which must be done by the commissioners. Hicks said any change to the federal voter registration form would need to be voted on by the commissioners after a public comment period, neither of which occurred in this case.
“This is a shocking departure from two previous rejections by the EAC of requests to change the federal form along these lines, with no explanation, and, what’s worse, with no opportunity for public notice and comment,” said Dale Ho, the director of the ACLU’s voting rights program, which is suing Kobach over the proof-of-citizenship requirement, calling it “troubling on a number of levels.”…
In an interview with MSNBC, Newby conceded that he lacks the authority to change EAC policy. But he argued that changing the state-specific instructions that accompany the federal voter registration form, unlike changing the form itself, constituted an administrative matter, rather than a policy change— even though the agency had twice rejected Kansas’ requests to change the instructions. In fact, Newby said, he believes he’s required to change the instructions if a state asks him to.
“If a state requests that we modify the state-specific instructions based on their state law, yes, I believe that my role is to put those [changes] in our state-specific instructions,” Newby said.
If there’s a meaningful distinction between the federal form and the instructions that accompany the federal form, it was lost even on Kobach. In his court filing this week seeking to have the lawsuit against him dismissed, he referred to Newby’s decision thus: “On January 29, 2015 (sic), the EAC granted Kansas’s request to modify the Federal Form.”
William Lawrence, a Kansas lawyer who is challenging Kobach’s effort to remove the roughly 30,000 would-be voters who didn’t provide proof of citizenship, said the distinction Newby is seeking to draw doesn’t hold water….
Newby admitted to MSNBC he’d been in contact with Kobach on the issue, as well as with the secretaries of state of Alabama and Georgia. He said there was nothing improper about doing so, or about not including the the EAC’s commissioners in his conversations with state officials.
“It wouldn’t have been proper to include the commissioners in any of the discussions I had with the secretaries of state,” Newby said. “It was really my jurisdiction, my process.”
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Posted in election administration<http://electionlawblog.org/?cat=18>, Election Assistance Commission<http://electionlawblog.org/?cat=34>, The Voting Wars<http://electionlawblog.org/?cat=60>
Greg Sargent on Clinton-Sanders Fight Over Clinton Wall St. Donations<http://electionlawblog.org/?p=79573>
Posted on February 4, 2016 7:34 am<http://electionlawblog.org/?p=79573> by Rick Hasen<http://electionlawblog.org/?author=3>
Good point:<https://www.washingtonpost.com/blogs/plum-line/wp/2016/02/04/this-one-moment-perfectly-captures-the-clinton-sanders-war-over-progressivism/>
In making this broad argument, Sanders is implicitly indicting not just Clinton, but President Obama and many Democrats who voted for Dodd-Frank financial reform. Indeed, that’s the essence of Sanders’ whole case: Obama achievements such as the Affordable Care Act and Dodd-Frank, while laudable, still fall woefully short of addressing the scale of our challenges and meeting the ideal of distributive justice that Sanders is championing. This, Sanders says, is because Obama failed to break the power of the oligarchy, both by failing to rally a large enough grassroots movement against it and by continuing to take money from it. On both fronts, Sanders will do otherwise.
And yet, at bottom, Sanders is not quite willing to say why it is that the acceptance of oligarchic money by specific individual Democratic politicians, such as Clinton or Obama, leads them directly to personally embrace policies that are insufficiently ambitious to address the soaring inequality that poses a quasi-extistential threat to the middle class and our political economy.
To be clear, as noted above, Sanders is also specifically criticizing Clinton’s policies, which is fair game, and more broadly, there’s nothing wrong with Sanders indicting the entire Democratic establishment. We should be debating the question of how big money paralyzes our system and skews Congressional policy-making in both parties towards the interests of the wealthy. But there are still fundamental unanswered questions at the heart of this Clinton-Sanders argument, and both candidates should fill this void. Clinton could do so by explaining why it is that accepting Wall Street moneydoes not constrain her in policy terms.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
“Sotomayor Tops Justices For Number of Public Appearances”<http://electionlawblog.org/?p=79571>
Posted on February 4, 2016 7:33 am<http://electionlawblog.org/?p=79571> by Rick Hasen<http://electionlawblog.org/?author=3>
Tony Mauro<http://www.nationallawjournal.com/supremecourtbrief/id=1202748764649/Sotomayor-Tops-Justices-For-Number-of-Public-Appearances?slreturn=20160104102247> for NLJ:
Kwan acknowledges she’s “positive we have missed things,” estimating that the site captures 80 percent of the justices’ appearances. Hosting organizations and institutions sometimes do not publicize visits at the request of justices or for other reasons. The court’s public information office only occasionally alerts the news media about upcoming justices’ off-the-bench talks.
The large total number of appearances—282 since July 2014—fits in with the growing sense that, as individuals, justices have become more visible in recent years.
Stepping Out: Justices’ Public Appearances Since July 2014
Sotomayor 53
Scalia 51
Ginsburg 49
Breyer 42
Alito 27
Kagan 23
Kennedy 17
Roberts 11
Thomas 9
Source: SCOTUS Map (scotusmap.com<http://scotusmap.com/>)
“It is not your imagination. Supreme Court justices are in the news more than ever,” University of California, Irvine School of law professor Richard Hasen wrote in aforthcoming article<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2611729>. Using data about justices’ appearances and press interviews since 1960, Hasen created a “Celebrity Index” by dividing the number of justices’ appearances by the number of years they served. Nine of the top 10 justices in the index are currently on the court.
Their increased visibility<http://www.nytimes.com/2015/06/02/us/politics/justices-get-out-more-but-calendars-arent-open-to-just-anyone.html> is also a function of modern technology, Hasen cautioned. Decades ago, justices could slip into town and even give a speech without being noticed. But now, Hasen said, justices are learning what police officers have come to know: “Once people have access to the Internet and a smartphone, anything spoken publicly is capable of being recorded … and eventually picked up by a wide audience.”
The frequency of justices’ public events and where they take place provides “an interesting snapshot of where the justices’ like to spend time,” Kwan said. Justice Ruth Bader Ginsburg favors opera festivals in the summertime<https://glimmerglass.org/index.php/event/mainstage-guest-appearances/justice-ruth-bader-ginsburg/>, and Justice Stephen Breyer will attend “any event that will allow him to speak French,” Kwan joked.
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Posted in Celebrity Justice<http://electionlawblog.org/?cat=109>, Supreme Court<http://electionlawblog.org/?cat=29>
Robbin Stewart on Bob Bauer on Disclosure and Overreach<http://electionlawblog.org/?p=79569>
Posted on February 3, 2016 11:54 am<http://electionlawblog.org/?p=79569> by Rick Hasen<http://electionlawblog.org/?author=3>
Here<http://ballots.blogspot.com/2016/02/january-23rd-i-noted-that-ij-is.html>.
<share_save_171_16.png><https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D79569&title=Robbin%20Stewart%20on%20Bob%20Bauer%20on%20Disclosure%20and%20Overreach&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>
“Political Dynamism: A new approach to making government work again”<http://electionlawblog.org/?p=79567>
Posted on February 3, 2016 11:52 am<http://electionlawblog.org/?p=79567> by Rick Hasen<http://electionlawblog.org/?author=3>
The New America Foundation<https://www.newamerica.org/political-reform/political-dynamism/> will hold this event on Feb. 16, in connection with this new report<https://static.newamerica.org/attachments/12404-political-dynamism-2/political_dynamism.c416ce23ca23482b8da8f0feaf14dbb3.pdf> by Lee Drutman.
The answer, in short, is more politics: a political system that is fluid and competitive; a system that leverages diversity and creates opportunity for experimentation and change; a political system that expands, not limits, the combinatorial possibilities of political innovation and deal-making; a political system that helps citizens to aggregate and realize their interests in the most efficacious ways, rather than simultaneously expecting them to be super-engaged and expert while giving them few meaningful choices.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, political parties<http://electionlawblog.org/?cat=25>, political polarization<http://electionlawblog.org/?cat=68>
“Donald Trump Becomes the GOP’s Newest Voter-Fraud Fraudster”<http://electionlawblog.org/?p=79565>
Posted on February 3, 2016 11:43 am<http://electionlawblog.org/?p=79565> by Rick Hasen<http://electionlawblog.org/?author=3>
Ari Berman<http://www.thenation.com/article/donald-trump-becomes-the-gops-newest-voter-fraud-fraudster/> writes for The Nation.
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Posted in chicanery<http://electionlawblog.org/?cat=12>, fraudulent fraud squad<http://electionlawblog.org/?cat=8>
Ohio Supreme Court Rejects Election Challenge Because of Unreasonable Delay, In Part Because of UOCAVA Requirements<http://electionlawblog.org/?p=79563>
Posted on February 3, 2016 10:22 am<http://electionlawblog.org/?p=79563> by Rick Hasen<http://electionlawblog.org/?author=3>
Decision<http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-367.pdf>.
I’m a big believer in using laches (unreasonable delay) as a reason to kick more election suits out where candidates and groups sit on their rights.
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Posted in campaigns<http://electionlawblog.org/?cat=59>
NYRB on Clinton Money Machine<http://electionlawblog.org/?p=79561>
Posted on February 3, 2016 10:14 am<http://electionlawblog.org/?p=79561> by Rick Hasen<http://electionlawblog.org/?author=3>
Missed this<http://www.nybooks.com/daily/2016/01/30/clinton-system-donor-machine-2016-election/> from last week.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
“The steady flow of money feeding the presidential race”<http://electionlawblog.org/?p=79557>
Posted on February 3, 2016 7:40 am<http://electionlawblog.org/?p=79557> by Rick Hasen<http://electionlawblog.org/?author=3>
Scott Tong reports<http://www.marketplace.org/2016/02/02/elections/steady-flow-money-feeding-presidential-race> for Marketplace: “After all the caucusing in Iowa, a top tier of candidates is emerging. Underneath it all is a steady flow of money — so-called super PACs that are playing a larger role than ever before in the race to become the next president.”
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
--
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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