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

[Joe La Rue]

For once, Rick and I agree.  In Buckley, the Supreme Court wrongly applied lesser scrutiny to contribution limits. It should have applied strict scrutiny, just as it did with regard to expenditure limits. After all, both types of limits serve to restrict speech. I can't believe that Rick and I agree about this.

What? That wasn't what Rick was saying? Oh. Nevermind.

Sent from my iPhone using voice recognition software. Please excuse any mistakes. 

> On Jan 30, 2016, at 09:35, Rick Hasen <rhasen at law.uci.edu> wrote:
> 
> “Loosening money’s grip on elections: How to change the billionaire-dominated campaign finance landscape, 40 years after Buckley vs. Valeo”
> Posted on January 30, 2016 8:33 am by Rick Hasen
> My piece 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 for change opening.
> 
> <share_save_171_16.png>
> Posted in campaign finance, Supreme Court
> “Federal trial on voter ID expected to wrap up Monday”
> Posted on January 30, 2016 8:31 am by Rick Hasen
> The latest from North Carolina.
> 
> <share_save_171_16.png>
> Posted in election administration, The Voting Wars, voter id, Voting Rights Act
> “That’s Odd, ‘Big Money’ Isn’t Buying This Election”
> Posted on January 30, 2016 8:28 am by Rick Hasen
> Brad Smith 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
> 
> <share_save_171_16.png>
> Posted in campaign finance, Supreme Court
> “End Court-Ordered Corruption”
> Posted on January 30, 2016 8:24 am by Rick Hasen
> Derek Cressman on Buckley’s 40th anniversary.
> 
> <share_save_171_16.png>
> Posted in campaign finance
> “Democratic super PAC aided by secret money”
> Posted on January 29, 2016 7:23 pm by Rick Hasen
> CPI reports.
> 
> <share_save_171_16.png>
> Posted in campaign finance
> “Sanders Campaign Introduces Text-to-Donate App”
> Posted on January 29, 2016 3:55 pm by Rick Hasen
> NYT reports.
> 
> <share_save_171_16.png>
> Posted in campaign finance, campaigns
> “Politics and Policy Series –               The New Wild West: Money and the 2016 US Presidential Election”
> Posted on January 29, 2016 3:40 pm by Rick Hasen
> This looks good 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.
> 
> <share_save_171_16.png>
> Posted in campaign finance, campaigns
> “Hot First Amendment Topics: Campaign Finance and the 2016 Election”
> Posted on January 29, 2016 3:33 pm by Rick Hasen
> This looks like a great lineup for a program 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, 11th 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
> 
> <share_save_171_16.png>
> Posted in campaign finance, campaigns
> Quote of the Day–Buckley v. Valeo Historical Edition
> Posted on January 29, 2016 1:12 pm by Rick Hasen
> 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.
> 
> <share_save_171_16.png>
> Posted in Uncategorized
> Listen to Chief Justice Burger Announce Buckley v Valeo Judgment – Exactly 40 Years Ago
> Posted on January 29, 2016 1:08 pm by Rick Hasen
> Listen here via Oyez to the announcement from Jan. 30, 1976.
> 
> <share_save_171_16.png>
> Posted in campaign finance, Supreme Court
> “Koch brothers convene donor retreat as dark money spending set to soar”
> Posted on January 29, 2016 12:21 pm by Rick Hasen
> Peter Stone reports for The Guardian.
> 
> <share_save_171_16.png>
> Posted in campaign finance, campaigns
> “Bernie Sanders Tops His Rivals in Use of Outside Money”
> Posted on January 29, 2016 11:05 am by Rick Hasen
> NYT:
> 
> 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” 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, more super PAC money has been spent so far in express support of Mr. Sanders than for either of his Democratic rivals, including Hillary Clinton, according to Federal Election Commission records.
> 
> “I do appreciate the irony,” said RoseAnn DeMoro, the executive director ofNational Nurses United. “All things being equal, we would rather not be doing this. On the other hand, we want to see Bernie as president.”
> 
> <share_save_171_16.png>
> Posted in campaign finance
> “Why O’Malley Second Choices Matter in Iowa — and Huckabee’s May Not”
> Posted on January 29, 2016 11:01 am by Rick Hasen
> Rob Richie blogs.
> 
> <share_save_171_16.png>
> Posted in alternative voting systems
> “Noble’s Dark Money Washing Machine Cycled $5.1M Into Arizona Governor, Corp. Commission Races In 2014; New Tax Filings Show Winners, Losers”
> Posted on January 29, 2016 10:59 am by Rick Hasen
> Arizona’s Politics.
> 
> <share_save_171_16.png>
> Posted in campaign finance, tax law and election law
> “Why the Iowa caucuses are horribly undemocratic”
> Posted on January 29, 2016 9:39 am by Rick Hasen
> Zack Roth is of course correct.
> 
> See my 2012 Slate piece: Kill the Caucuses! 
> 
> <share_save_171_16.png>
> Posted in primaries
> Mike Stern: Electoral Vote Counting in Congress
> Posted on January 29, 2016 8:29 am by Rick Hasen
> 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 at Point of Order.
> 
> I have devoted my Point of Order 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 a recent program hosted by the American Constitution Society to mark the 15th 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, 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 (see here and here) 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 12th amendment (where Bush undoubtedly would have won). This open question could well have meant 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.
> 
> <share_save_171_16.png>
> Posted in campaigns, electoral college
> “5 Ways the Supreme Court Was Wrong in Buckley v Valeo”
> Posted on January 29, 2016 7:39 am by Rick Hasen
> Demos blog.
> 
> <share_save_171_16.png>
> Posted in campaign finance, Supreme Court
> “The struggle to preserve a free political system; Reflections on Buckley v. Valeo forty years later”
> Posted on January 29, 2016 7:37 am by Rick Hasen
> John Bolton 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.
> 
> <share_save_171_16.png>
> Posted in campaign finance, Supreme Court
> 
> -- 
> 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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