[EL] ELB News and Commentary: Buckley 40th Anniversary edition

Rick Hasen rhasen at law.uci.edu
Sat Jan 30 08:35:40 PST 2016


    “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 onJanuary 30, 2016 8:33 am 
<http://electionlawblog.org/?p=79426>byRick 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 asmall window
    <http://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453/>for
    change opening.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme 
Court <http://electionlawblog.org/?cat=29>


    “Federal trial on voter ID expected to wrap up Monday”
    <http://electionlawblog.org/?p=79424>

Posted onJanuary 30, 2016 8:31 am 
<http://electionlawblog.org/?p=79424>byRick Hasen 
<http://electionlawblog.org/?author=3>

The latest 
<http://www.journalnow.com/news/elections/federal-trial-on-voter-id-expected-to-wrap-up-monday/article_57b44ec4-5f2f-5063-90c8-0006dae3a40a.html>from 
North Carolina.

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,The Voting Wars 
<http://electionlawblog.org/?cat=60>,voter id 
<http://electionlawblog.org/?cat=9>,Voting Rights Act 
<http://electionlawblog.org/?cat=15>


    “That’s Odd, ‘Big Money’ Isn’t Buying This Election”
    <http://electionlawblog.org/?p=79422>

Posted onJanuary 30, 2016 8:28 am 
<http://electionlawblog.org/?p=79422>byRick Hasen 
<http://electionlawblog.org/?author=3>

Brad Smith 
<http://www.wsj.com/articles/thats-odd-big-money-isnt-buying-this-election-1454108285>in 
the WSJ on Buckley’s 40th:

    Hillary Clinton has tons of cash, but she can’t shake off Bernie
    Sanders. Donald Trump keeps threatening to spend his own money, but
    he hasn’t had to use much of it. He’s leading the Republican field,
    feasting on free media coverage, while spending a fraction of what
    his rivals, and super PACs promoting them, have spent. If his rivals
    hadn’t been able raise large sums the GOP race would probably be
    over—Mr. Trump’s celebrity, name recognition and charisma would
    already have carried the day.

My prebuttal in WaPo:Money Can’t Buy You Jeb But It Still Skews Politics 
<http://wapo.st/1KfwFqh>

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme 
Court <http://electionlawblog.org/?cat=29>


    “End Court-Ordered Corruption” <http://electionlawblog.org/?p=79420>

Posted onJanuary 30, 2016 8:24 am 
<http://electionlawblog.org/?p=79420>byRick Hasen 
<http://electionlawblog.org/?author=3>

Derek Cressman 
<http://www.usnews.com/opinion/articles/2016-01-29/reverse-buckley-v-valeos-40-years-of-campaign-finance-damage>on 
Buckley’s 40th anniversary.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>


    “Democratic super PAC aided by secret money”
    <http://electionlawblog.org/?p=79418>

Posted onJanuary 29, 2016 7:23 pm 
<http://electionlawblog.org/?p=79418>byRick Hasen 
<http://electionlawblog.org/?author=3>

CPI reports. 
<http://www.publicintegrity.org/2016/01/29/19210/democratic-super-pac-aided-secret-money>

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Posted incampaign finance <http://electionlawblog.org/?cat=10>


    “Sanders Campaign Introduces Text-to-Donate App”
    <http://electionlawblog.org/?p=79416>

Posted onJanuary 29, 2016 3:55 pm 
<http://electionlawblog.org/?p=79416>byRick Hasen 
<http://electionlawblog.org/?author=3>

NYT reports. 
<http://www.nytimes.com/politics/first-draft/2016/01/29/sanders-campaign-introduces-text-to-donate-app/?smid=tw-share>

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    “Politics and Policy Series – The New Wild West: Money and the 2016
    US Presidential Election” <http://electionlawblog.org/?p=79414>

Posted onJanuary 29, 2016 3:40 pm 
<http://electionlawblog.org/?p=79414>byRick Hasen 
<http://electionlawblog.org/?author=3>

This looks good 
<http://events.newschool.edu/event/politics_and_policy_the_new_wild_west_money_and_the_2016_us_presidential_election#.Vqv4R1M4E_W>at 
the New School in NY:

    Witness and question a highly influential panel of campaign
    operatives as they discuss the new Wild West world of campaign finance:

    –*Zach Allen*, Democratic fundraising consultant

    –*Raj Goyle*, Member, Obama 2012 National Finance Committee and
    former Kansas legislator

    –*Christina Greer*, Associate Professor of Political Science,
    Fordham University

    –*Jack Oliver*, Finance Chair, Right to Rise PAC, SuperPAC
    supporting Jeb Bush

    –*Adam Smith*, Communications Director, Every Voice

    –*Ken Vogel*, Chief investigative correspondent, POLITICO

    Moderated by *Jeff Smith, *Assistant Professor, The New School.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    “Hot First Amendment Topics: Campaign Finance and the 2016 Election”
    <http://electionlawblog.org/?p=79411>

Posted onJanuary 29, 2016 3:33 pm 
<http://electionlawblog.org/?p=79411>byRick Hasen 
<http://electionlawblog.org/?author=3>

This looks like a great lineup fora program 
<http://electionlawblog.org/wp-content/uploads/Campaign-Finance-and-the-2016-Election-Flyer-1.pdf>by 
the ABA Section on Civil Rights and Social Justice:

    We will explore a number of hot topics in the constantly evolving
    world of federal campaign finance, including the role of Super PACs
    and their interactions with candidates, the state of the political
    parties, and recent campaign finance reform proposals.

    *Wednesday, February 17, 2016*

    *5:30 p.m. to 7:00 p.m.*

    *Allen & Overy LLP*

    *1101 New York Avenue, NW, 11**th**Floor*

    *Washington DC, 20005*

    */Reception to follow/*

    */Wine, beer, and hors d’oeuvres will be served/*

    *REGISTRATION REQUIRED: please RSVP**here*

    *Speakers*

    *Brad Deutsch*, Counsel to Bernie 2016, Garvey Schubert Barer

    *Donald F. McGahn*, Counsel to Donald J. Trump for President, Inc.,
    Jones Day

    *Commissioner Lee E. Goodman*, Federal Election Commission

    *Commissioner Ellen L. Weintraub*, Federal Election Commission

    *Moderator*

    *Claire Rajan*, Allen & Overy LLP; Co-Chair, ABA Section on Civil
    Rights & Social Justice First Amendment Rights Committee

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    Quote of the Day–Buckley v. Valeo Historical Edition
    <http://electionlawblog.org/?p=79409>

Posted onJanuary 29, 2016 1:12 pm 
<http://electionlawblog.org/?p=79409>byRick Hasen 
<http://electionlawblog.org/?author=3>

Why January 30 as the release date of the opinion?

    Justice Powell wrote to the other Justices that “[i]t is important
    to make that date if possible. The Act directs us to ‘expedite’ this
    case. It sounds more ‘expeditious’ for the record to show we brought
    the case down in January rather than February!”

Quoted in my article,The Untold Drafting History of Buckley v. Valeo 
<http://online.liebertpub.com/doi/abs/10.1089/153312903321578205?journalCode=elj>.

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Posted inUncategorized <http://electionlawblog.org/?cat=1>


    Listen to Chief Justice Burger Announce Buckley v Valeo Judgment –
    Exactly 40 Years Ago <http://electionlawblog.org/?p=79407>

Posted onJanuary 29, 2016 1:08 pm 
<http://electionlawblog.org/?p=79407>byRick Hasen 
<http://electionlawblog.org/?author=3>

Listen here<https://www.oyez.org/cases/1975/75-436>via Oyez to the 
announcement from Jan. 30, 1976.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme 
Court <http://electionlawblog.org/?cat=29>


    “Koch brothers convene donor retreat as dark money spending set to
    soar” <http://electionlawblog.org/?p=79405>

Posted onJanuary 29, 2016 12:21 pm 
<http://electionlawblog.org/?p=79405>byRick Hasen 
<http://electionlawblog.org/?author=3>

Peter Stone reports 
<http://www.theguardian.com/us-news/2016/jan/29/koch-brothers-donor-retreat-dark-money-2016-election?CMP=share_btn_tw>for 
The Guardian.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>


    “Bernie Sanders Tops His Rivals in Use of Outside Money”
    <http://electionlawblog.org/?p=79403>

Posted onJanuary 29, 2016 11:05 am 
<http://electionlawblog.org/?p=79403>byRick Hasen 
<http://electionlawblog.org/?author=3>

NYT 
<http://www.nytimes.com/2016/01/29/us/politics/bernie-sanders-is-democrats-top-beneficiary-of-outside-spending-like-it-or-not.html?smid=tw-share>:

    At many of these stops, he was accompanied by members of National
    Nurses United, a seven-year-old union, fanning out from a bright-red
    bus in matching red scrubs to corral potential Sanders votes.

    But the union is not just busing nurses into Iowa. The union’s
    “super PAC
    <http://topics.nytimes.com/top/reference/timestopics/subjects/c/campaign_finance/index.html?inline=nyt-classifier>”
    has spent close to $1 million on ads and other support for Mr.
    Sanders, the Democratic presidential candidate who has inspired
    liberal voters with his calls to eradicate such outside groups. In
    fact, moresuper PAC
    <http://topics.nytimes.com/top/reference/timestopics/subjects/c/campaign_finance/index.html?inline=nyt-classifier>money
    has been spent so far in express support of Mr. Sanders than for
    either of his Democratic rivals, including Hillary Clinton,
    according toFederal Election Commission<http://www.fec.gov/>records.

    “I do appreciate the irony,” said RoseAnn DeMoro, the executive
    director ofNational Nurses United
    <http://www.nationalnursesunited.org/>. “All things being equal, we
    would rather not be doing this. On the other hand, we want to see
    Bernie as president.”

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Posted incampaign finance <http://electionlawblog.org/?cat=10>


    “Why O’Malley Second Choices Matter in Iowa — and Huckabee’s May
    Not” <http://electionlawblog.org/?p=79401>

Posted onJanuary 29, 2016 11:01 am 
<http://electionlawblog.org/?p=79401>byRick Hasen 
<http://electionlawblog.org/?author=3>

Rob Richie blogs 
<http://www.huffingtonpost.com/rob-richie/why-omalley-second-choice_b_9111126.html>.

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Posted inalternative voting systems <http://electionlawblog.org/?cat=63>


    “Noble’s Dark Money Washing Machine Cycled $5.1M Into Arizona
    Governor, Corp. Commission Races In 2014; New Tax Filings Show
    Winners, Losers” <http://electionlawblog.org/?p=79399>

Posted onJanuary 29, 2016 10:59 am 
<http://electionlawblog.org/?p=79399>byRick Hasen 
<http://electionlawblog.org/?author=3>

Arizona’s Politics 
<http://arizonaspolitics.blogspot.com/2016/01/breaking-nobles-dark-money-washing.html>.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law 
and election law <http://electionlawblog.org/?cat=22>


    “Why the Iowa caucuses are horribly undemocratic”
    <http://electionlawblog.org/?p=79397>

Posted onJanuary 29, 2016 9:39 am 
<http://electionlawblog.org/?p=79397>byRick Hasen 
<http://electionlawblog.org/?author=3>

Zack Roth 
<http://www.msnbc.com/msnbc/iowa-caucuses-are-horribly-undemocratic>is 
of course correct.

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 inprimaries <http://electionlawblog.org/?cat=32>


    Mike Stern: Electoral Vote Counting in Congress
    <http://electionlawblog.org/?p=79395>

Posted onJanuary 29, 2016 8:29 am 
<http://electionlawblog.org/?p=79395>byRick Hasen 
<http://electionlawblog.org/?author=3>

Below is an important guest post from Mike Stern, who served as senior 
counsel to the U.S. House of Representatives, deputy staff director for 
the Senate Homeland Security and Governmental Affairs committee, and 
special counsel to the House Intelligence committee, blogs about 
congressional legal issues atPoint of Order 
<http://www.pointoforder.com/author/mstern/>.

    I have devoted myPoint of Order
    <http://www.pointoforder.com/>blogging in January to the subject of
    electoral vote counting in Congress, with specific attention to what
    would have happened had the Supreme Court deferred to Congress for a
    resolution of the controversy over Florida’s electoral votes
    following the 2000 presidential election. The inspiration for this
    topic came from arecent program
    <https://electionlawblog.org/?p=78380>hosted by the American
    Constitution Society to mark the 15^th anniversary of/Bush v. Gore/,
    531 U.S. 98 (2000). Several of the participants suggested that
    Congress is the constitutionally appropriate forum for resolving
    disputes over electoral votes and that Congress could have decided
    the 2000 election outcome without engendering a “constitutional
    crisis.” I have a different perspective, which stems in part from my
    involvement, as senior counsel to the House of Representatives at
    the time, in preparations for a possible congressional contest over
    Florida’s electoral votes. Many thanks to Rick Hasen for the
    opportunity to share that perspective at ELB.

    It should be noted first that the Constitution does not make
    Congress the judge of presidential elections. If anything,as I
    discuss here
    <http://www.pointoforder.com/2016/01/01/nobody-for-president/>, the
    text of the Constitution seems to go to some length to avoid any
    implication that the counting of electoral votes involves any
    discretion or judgment. At the least, it would be odd for the
    Supreme Court to give more deference to Congress’s role in counting
    electoral votes than it does to Congress’s express judicial
    authority with regard to congressional elections.

    Could Congress, though, have rendered a politically more legitimate
    verdict on the 2000 election than did the Supreme Court? Perhaps,
    but the better question might be whether Congress could have
    delivered/any/verdict at all. Had the Supreme Court allowed the
    Florida election contest to continue, and the Florida courts had
    ultimately found in favor of Al Gore, the most likely outcome
    (seehere
    <http://www.pointoforder.com/2016/01/14/how-to-count-to-270-the-electoral-count-act-and-the-election-of-2000/>andhere
    <http://www.pointoforder.com/2016/01/21/president-hastert-and-other-symptoms-of-a-constitutional-crisis/>)
    was a deadlock in which the Republican-controlled House voted to
    recognize the Bush slate of electors and the Senate (probably
    divided 50-50 between the parties with Vice President Gore breaking
    the tie) voted to recognize the Gore slate. This is true in part
    because the Electoral Count Act, the obscure statue enacted in 1887
    to break such deadlocks between the houses, would likely have been
    ineffective in the circumstances presented. And even if the statute
    had worked as intended, it had no mechanism to deal with wild cards
    such as an intervention by the Florida legislature or a struggle for
    control of the Senate.

    Perhaps most importantly, the Electoral Count Act is (deliberately)
    silent on a critical constitutional issue: what would happen if
    Congress did not count Florida’s electoral votes at all? Under one
    theory, Florida’s electors should then not be counted as part of the
    “whole number of Electors appointed,” reducing that number to 513
    and therefore giving Gore, who had 267 electoral votes, the majority
    needed to win the presidency. Under another theory, the “whole
    number” would remain at 538, meaning that no one would have a
    majority and throwing the election into the House of Representatives
    under the 12^th amendment (where Bush undoubtedly would have won).
    This open questioncould well have meant
    <http://www.pointoforder.com/2016/01/21/president-hastert-and-other-symptoms-of-a-constitutional-crisis/>that
    on January 20, 2001, there would have been four plausible positions
    as to who was entitled to exercise the powers of the presidency: (1)
    Bush; (2) Gore; (3) Dennis Hastert (who, as Speaker of the House,
    was next in the line of presidential succession); and (4) no one.

    Perhaps the Supreme Court should have rolled the dice and hoped that
    Congress would work out a solution to the election controversy. But
    no one should underestimate the chaos that it would have risked
    unleashing by doing so.

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Posted incampaigns <http://electionlawblog.org/?cat=59>,electoral 
college <http://electionlawblog.org/?cat=44>


    “5 Ways the Supreme Court Was Wrong in Buckley v Valeo”
    <http://electionlawblog.org/?p=79391>

Posted onJanuary 29, 2016 7:39 am 
<http://electionlawblog.org/?p=79391>byRick Hasen 
<http://electionlawblog.org/?author=3>

Demos blog. 
<http://www.demos.org/blog/1/29/16/5-ways-supreme-court-was-wrong-buckley-v-valeo>

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme 
Court <http://electionlawblog.org/?cat=29>


    “The struggle to preserve a free political system; Reflections on
    Buckley v. Valeo forty years later”
    <http://electionlawblog.org/?p=79389>

Posted onJanuary 29, 2016 7:37 am 
<http://electionlawblog.org/?p=79389>byRick Hasen 
<http://electionlawblog.org/?author=3>

John Bolton 
<http://www.aei.org/publication/the-struggle-to-preserve-a-free-political-system/>at 
AEI:

    The Court consumed over four hours for oral argument, an entire day
    on its calendar, thus an unprecedented amount.  Ralph led off the
    argument, attacking the constitutionality of the contribution and
    expenditure limitations, and his adversary was Archibald Cox, former
    Watergate Special Prosecutor and former Solicitor General.  Cox, a
    Harvard law professor, was also a Harvard and Harvard Law grad.
    Ralph, by contrast, was a Yale and Yale Law alumnus, and a Yale law
    professor.  He was also an avid football fan, so just before he rose
    to take the podium, I slipped him a note which read simply, “Go
    Yale, Beat Harvard.”

    Although our plaintiffs’ final victory was only partial, they
    established beyond cavil the First Amendment’s applicability to
    campaign-finance issues.  And the long series of decisions that has
    flowed from/Buckley/, with some up and downs along the way, has
    shredded much of what remained of the FECA.  The surreal structure
    of today’s statute is something no sane person would propose as
    original legislation, and the inherent unfairness and discriminatory
    effects of efforts to regulate free speech have only been
    exacerbated by the passage of time.

    Undoubtedly, the struggle to preserve a free political system will
    continue for as long as the republic lasts, but Ralph Winter  —  and
    AEI  —  will deserve a full measure of credit for protecting the
    First Amendment.  Ralph took an unpopular stand at a time of high
    emotion, argued it vigorously and well, and history has vindicated
    his analysis.  Forty years after/Buckley/, his constitutional theory
    that “money is speech” looks better than ever.

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Posted incampaign 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
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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