[EL] Brock/Johnston and poor memories

[robert.mutch at rcn.com]

Brad, 


I agree with Carl Klarner that you made good points about the Johnston-Brock piece in The Hill. The former senators or The Hill should have done some basic fact-checking. I suspect that Johnston and Brock vividly remember not liking Buckley , but don't remember the details of campaign finance law when they were running for office. 


But there's no evidence that they changed their minds about limits. They did vote against the original Senate version of the 1974 amendments, but that was probably because they opposed public funding, not limits (Republicans and Southern Democrats tended not to like public funding.) Their support for limits can best be judged by how they voted in 1973, when the Senate had passed an earlier version of the FECA amendments (S. 372). That bill might have become the new law if the House had acted on it before Senators Kennedy and Scott introduced their public funding measure. The 1973 bill had contribution and expenditure limits, and passed the Senate 82-8. Johnston and Brock both voted for it. 


Bob Mutch 

----- Original Message -----

From: "Brad Smith" <BSmith at law.capital.edu> 
To: "law-election at UCI.edu" <law-election at uci.edu> 
Sent: Thursday, January 28, 2016 3:39:16 PM 
Subject: Re: [EL] Brock/Johnston and poor memories 



Former Senators J. Bennett Johnston (D-La.) and William E. Brock, (R-Tenn.) in The Hill : 
Both of us were elected to the Senate in the 1970s, and ran our campaigns under the Federal Election Campaign Act. FECA put caps on contributions and banned corporations from giving at all. Campaign spending was limited and independent expenditures were prohibited. … 
This system worked, and we’re extremely proud to have earned our seats in this manner. The money was sufficient to fund a good campaign with enough media to get the message out, and we could be sure it was our ideas, not our fundraising prowess, that won the day. 

----------- 
Well, this is interesting. In fact, neither Senator Johnston nor Senator Brock ever ran a campaign for federal office in which “campaign spending was limited” or “independent expenditures were prohibited,” let alone both. That’s because independent expenditures were not prohibited until the Federal Election Campaign Act amendments of 1974, which were struck down by the Supreme Court before either man ran another race. Indeed, Senator Brock ran 7 campaigns for federal office (I think): for House in 1962, ’64, ’66, and ’68, and for Senate in 1970, ’76, and ’92. He lost the last two of those listed. In all of his successful campaigns for federal office, there were no “caps on contributions,” at least not on individual contributions, because caps on individual contributions were, again, not in place until the 1976 election. Johnston ran 4 races for federal office (1972, ’78, ’84, and ’90), none under limits on independent expenditures and the last three under contribution limits. 

It is also worth noting that Brock benefitted from independent expenditures on his behalf in the 1970 Senate campaign against Al Gore, Sr.—almost certainly over an inflation adjusted $1 million coordinated by White House alone. It appears that Brock also outspent Gore in direct spending by quite a bit. 

Finally, while I don’t begrudge people changing their minds, it may still be worth noting that both Senator Johnston and Senator Brock voted against cloture on bill (i.e. to allow a filibuster to continue), and against final passage of the Senate version of the 1974 FECA Amendments that imposed those limits (though both eventually voted for the Conference Committee report). Senator Brock also introduced an amendment that would have exempted the Senatorial and Congressional Campaign Committees of the parties from contribution limits. And Brock voted against tabling an amendment offered by Senator Buckley that would have removed total contribution and spending limits on candidates from the bill. 


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 
bsmith at law.capital.edu 
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] On Behalf Of Rick Hasen 
Sent: Thursday, January 28, 2016 11:04 AM 
To: law-election at UCI.edu 
Subject: [EL] ELB News and Commentary 1/28/16 
“Voter Registration Doesn’t Point to Iowa Surge for Sanders or Trump” 



Posted on January 28, 2016 8:02 am by Rick Hasen 

Nate Cohn for NYT’s The UpShot. 


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Posted in campaigns , election administration “Nominating Cruz Or Trump Might Not Doom Down-Ballot Republicans” 



Posted on January 28, 2016 7:54 am by Rick Hasen 

Harry Enten for 538. 


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Posted in campaigns “Why I Dropped Out” 



Posted on January 28, 2016 7:48 am by Rick Hasen 

Part II in the New Yorker from Lessig. 


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Posted in campaign finance , campaigns , political parties “Political Money: New Best-Selling Book Genre?” 



Posted on January 28, 2016 7:47 am by Rick Hasen 

Eliza Newlin Carney for TAP: 


Books about who pays for American elections rarely hit the bestseller lists, but a rash of new titles tackling the once-obscure topic of campaign financing signals that publishers now regard political money as popular fare. 
Whether your cup of tea is juicy details about the billionaire industrialists Charles and David Koch, like those New Yorker writer Jane Mayer dishes up in her 450-page narrative Dark Money , or rigorous legal analysis along the lines of what Richard L. Hasen delivers in Plutocrats United, the newly hot genre of political money has something to offer. 
For progressive organizers, California writer and activist Derek Cressman’s When Money Talks: The High Price of ‘Free’ Speech and the Selling of Democracy offers a how-to primer on how fed-up citizens can take action. For conservatives, law professor Richard Painter’s Taxation Only With Representation argues that campaign reforms would lead government to both spend less and regulate less. For those looking for a middle way, Wendell Potter and Nick Penniman explain in Nation on the Take how special interest money impacts the daily lives of ordinary Americans. 
None of these books will win fans in every quarter. Some reform advocates will wish that Mayer went beyond describing the problem to spelling out solutions. And some scholars will quibble that Hasen’s argument for legal fixes to promote “political equality” would not withstand constitutional muster. Conservatives will dismiss Cressman’s book out of hand, and liberals may argue that the books by Painter and by Potter and Penniman don’t go far enough. 




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Posted in campaign finance , Plutocrats United “The ‘Bleak’ History of Third-Party Presidential Bids” 



Posted on January 28, 2016 7:43 am by Rick Hasen 

Sahil Kapur reports for — wait for it! — Bloomberg. 


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Posted in ballot access , campaign finance , campaigns “Happy birthday to the case that was even worse than Citizens United” 



Posted on January 28, 2016 7:42 am by Rick Hasen 

Former Senators J. Bennett Johnston (D-La.) and William E. Brock, (R-Tenn.) in The Hill : 
<blockquote>

Both of us were elected to the Senate in the 1970s, and ran our campaigns under the Federal Election Campaign Act. FECA put caps on contributions and banned corporations from giving at all. Campaign spending was limited and independent expenditures were prohibited. The purpose of all this was to protect speech: the speech of those who couldn’t afford to contribute massive amounts but whose voice ought to be heard just as much by a candidate. 
This system worked, and we’re extremely proud to have earned our seats in this manner. The money was sufficient to fund a good campaign with enough media to get the message out, and we could be sure it was our ideas, not our fundraising prowess, that won the day. 
But in 1976, the Supreme Court got it wrong with Buckley v. Valeo: they decided that these reasonable limits on political spending to prevent corruption were a violation of the First Amendment. That case was the seed that reversed decades of jurisprudence, turned the Founders’ conception of free speech on its head and, more than thirty years later, germinated the infamous Citizens United decision. 
</blockquote>



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Posted in campaign finance , Supreme Court “Many 2016 candidates don’t disclose bundlers” 



Posted on January 28, 2016 7:40 am by Rick Hasen 

Fredreka Schouten for USA Today. 


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Posted in campaign finance , campaigns “Dark Money Dominates Political Ad Spending; Groups that don’t have to disclose their donors have accounted for almost two-thirds of political ad spending this cycle” 



Posted on January 28, 2016 7:38 am by Rick Hasen 

Bill Allison crunches the numbers. 


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Posted in campaign finance , tax law and election law Adam Lioz on Every Voice Podcast on Buckley at 40 



Posted on January 28, 2016 7:36 am by Rick Hasen 

Listen. 


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Posted in campaign finance , Supreme Court “Witness: Cultural differences cause photo ID headaches” 



Posted on January 27, 2016 7:34 pm by Rick Hasen 

The latest from the NC voter id trial. 


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Posted in election administration , The Voting Wars , voter id , Voting Rights Act “The mysterious case of rampant voter fraud has been solved” 



Posted on January 27, 2016 7:28 pm by Rick Hasen 

Tom Toles cartoon. 


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Posted in election administration , The Voting Wars “As Voter ID Laws Expand, Fewer People Are Getting Drivers Licenses” 



Posted on January 27, 2016 4:27 pm by Rick Hasen 

Brentin Mock for Citylab. 


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Posted in Uncategorized Big 9th Circuit Win in Judicial Campaign Restrictions Case 



Posted on January 27, 2016 2:24 pm by Rick Hasen 

The Ninth Circuit en banc has unanimously (with one concurring opinion) upheld three judicial conduct rules in Arizona. In Wolfson v. Concannon , a state judicial candidate challenged a rule that prevented him from personally soliciting contributions. He also challenged additional provisions which “prohibit him, while running for judicial office, from personally soliciting funds for a campaign for another candidate or political organization, publicly endorsing or making a speech on behalf of another candidate for public office, or actively taking part in any political campaign.” 
The court relied upon the Supreme Court’s decision last term in the Williams-Yulee case, an unusual case in which Chief Justice Roberts, joined by the four more liberal Justices, upheld Florida’s ban on personal solicitation of campaign contributions by judicial candidates. Aside from the lineup, what made Williams-Yulee unusual was that the Court applied strict scrutiny (usually “strict in theory and fatal in fact”) yet upheld the law. 
Today’s en banc Ninth Circuit opinion held the lower court judge erred in applying intermediate scrutiny, given Williams-Yulee , which was decided after the trial court (and Ninth Circuit panel) decision. But under strict scrutiny, the Ninth Circuit today held all three laws (and not just the personal solicitation provision) survived strict scrutiny: “Arizona can properly restrict judges and judicial candidates from taking part in political activities that undermine the public’s confidence that judges base rulings on law, and not on party affiliation.” 
Judge Berzon, concurring, wrote: 
<blockquote>

There is, however, a separate, broader governmental basis for regulating judicial behavior that goes beyond a concern with biased decisionmaking in individual cases. That interest is society’s concern with maintaining both the appearance and the reality of a structurally independent judiciary, engaged in a decisionmaking process informed by legal, not political or broad, nonlegal policy considerations. 
</blockquote>

This decision, and especially its unanimity, shows that at least some courts will be reading Wiliams-Yulee broadly to uphold a variety of restrictions on judicial candidate political activities. I think that’s a good thing. 


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Posted in campaign finance , judicial elections “Husted: Voter signup shouldn’t be dangerous” 



Posted on January 27, 2016 2:07 pm by Rick Hasen 

Ohio SOS Husted : 
<blockquote>

In October, I joined victims’ advocates and members of the Ohio House and Senate to announce the Safe at Home initiative, which, once approved by the state legislature, will allow the victims of domestic violence, human trafficking and other crimes to apply for a confidential address that will shield their residence from public record. 
Safe at Home will create a registry of victim advocates from around Ohio who will be specially trained to help victims of stalking or other violence establish a confidential post office box within the Secretary of State’s Office. Any time one of the program participants needs to register their address with a company or government agency, they can use their PO box number in my office so their actual location can’t be found by the general public. Any mail received through that box will be forwarded to the victim’s private home address on a daily basis. 
</blockquote>



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Posted in election administration “Getting Big Money Out of Politics” 



Posted on January 27, 2016 1:43 pm by Rick Hasen 

I talked Plutocrats United with Radio Boston. Listen . 


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Posted in campaign finance , Plutocrats United “Why I Ran for President” 



Posted on January 27, 2016 10:46 am by Rick Hasen 

Lessig at The New Yorker. 


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Posted in campaign finance , campaigns “The Value of the Right to Vote” 



Posted on January 27, 2016 10:26 am by Rick Hasen 

Stephan Tontrup and Rebecca Morton have posted this draft on SSRN. Here is the abstract: 
<blockquote>


We conducted a mixed lab and field experiment during a naturally occurring election. We offered subjects the opportunity to relinquish their voting rights for money. Significantly more participants refused to sell their rights than later participated in the election. Subjects were more willing to accept money for abstention from voting, than for giving up the right to vote itself. In a second experiment we gave subjects an incentive to submit a vote. Before and after the election we measured participants ‘knowledge about the parties’ and their positions. Even though they would not have voted without the incentive, the participants improved their knowledge suggesting that they valued their vote. Our findings show that people derive strong utility from their democratic rights and status as a voter independently of participation in the election. Based on our results we develop a new concept of rights utility and conclude that low turnout does not translate into democratic apathy and should not be used to justify quorum rules and restrict direct participatory rights. 
</blockquote>




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Posted in theory , voting “Corporate political spending can stay secret in Wisconsin” 



Posted on January 27, 2016 10:24 am by Rick Hasen 

The Wisconsin Law Journal reports. 


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Posted in campaign finance “Inside the pro-Sanders groups taking on Clinton’s powerhouse allies” 



Posted on January 27, 2016 8:36 am by Rick Hasen 

Matea Gold for WaPo: 

<blockquote>

While she has powerhouse allies such as Planned Parenthood, the National Education Association and two big-money super PACs on her side, the pro-Sanders effort is being driven by a combination of self-directed activists and liberal organizations such as MoveOn and Democracy for America. 
The ad hoc network working on Sanders’s behalf is doing so in keeping with the spirit of his anti-establishment bid. But it is also employing professional political tactics, such as the use of entities that can raise and spend unlimited sums of money on campaigns, thanks to the Supreme Court’s Citizens United decision. 
In some ways, their efforts cut against Sanders’s insistence that, unlike Clinton, he does not have a super PAC flanking his campaign — a declaration he repeated Tuesday in Des Moines after leading a rally at a union hall attended by several nurses in red T-shirts. In other ways, they don’t. Although these entities can accept massive checks from individuals and corporations — a practice Sanders abhors — they do not appear to be doing so, relying instead on small donations from grass-roots supporters. 
“The difference is a pretty simple difference,” he said. “Hillary Clinton goes out raising money for her own super PAC. I don’t have a super PAC, and in the best of all possible worlds, which I hope to bring about, we will get rid of super PACs, we will overturn Citizens United. I do not have a super PAC, I’ve never raised a nickel for a super PAC, I don’t want a super PAC.” 
</blockquote>



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Posted in campaign finance , campaigns -- 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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