[EL] ELB News and Commentary 7/7/16

Thu Jul 7 09:52:21 PDT 2016

Does the New Assault on Super PACs from Liberal “Dream Team” Have a Shot? Maybe, in this Post-Scalia World<http://electionlawblog.org/?p=84119>
Posted on July 7, 2016 9:50 am<http://electionlawblog.org/?p=84119> by Rick Hasen<http://electionlawblog.org/?author=3>

Larry Tribe, Richard Painter, Albert Alshuler, Norm Eisen, and Anne Weissman have joined together with the Free Speech for People team of Ron Fein, John Bonifaz and others to file this complaint with the FEC<http://freespeechforpeople.org/cms/assets/uploads/2016/07/FINAL-FEC-Complaint-PDF-7-7-16.pdf> seeking to attack<http://freespeechforpeople.org/breaking-news-free-speech-people-files-fec-complaint-end-super-pacs/> the SpeechNow decision, which opened up the door to Super PACs. The effort got this early coverage <https://www.washingtonpost.com/politics/can-super-pacs-be-put-back-in-the-box/2016/07/06/9beb18ba-43b1-11e6-8856-f26de2537a9d_story.html> from Matea Gold of WaPo.

This has been on the agenda of FSFP for a while, and in the past I have been very critical of these efforts. (Indeed, I have long criticized John’s efforts with the NVRI to support Jim Bopp’s cert. petition in the early 200s in the Randall v. Sorrell case when there was a real chance for the 2d Circuit to allow Vermont to experiment with spending limits in the interim. Instead, John decided to mount a mis-timed frontal attack on the spending limits holding of Buckley).  It seemed pretty clear with the Roberts Supreme Court that SpeechNow followed from precedents like Citizens United (cited 13 times in the DC Circuit opinion in Speech Now), and the later McCutcheon case. That is, if SpeechNow came before the Supreme Court while Justice Scalia was still on it, the government surely would have faced defeat, and the risk is that the Supreme Court could have made things even worse (such as by applying strict scrutiny to the review of campaign contribution limits). That’s why the government never tried to take SpeechNow to the Supreme Court after losing unanimously in the DC Circuit.

But now things have changed with the death of Justice Scalia, and there is a narrow path to a Supreme Court vicotry. There’s no way that the new complaint gets anywhere the the deadlocked FEC. If the FEC Republican commissioners won’t even enforce the weak disclosure laws we have, they are not going to bite on this. But this is teed up for eventual review in the courts. And I expect in the lower courts this complaint will gain no traction too. I argued and lost a SpeechNow type issue against Jim Bopp in the 9th Circuit, and it is pretty clear that under existing precedent a lower court is almost certain to say that following Supreme Court precedent, one has a constitutional right to make unlimited contributions to a group that makes only independent expenditures favoring or opposing a candidate, because such contributions and spending uncoordinated with the candidate can neither corrupt nor create the appearance of corruption.

So this means that in 2-3 years, we could have a case teed up before the Supreme Court. And what happens then?  If you can tell me who is sitting on the Supreme Court in 2-3 years I might have an answer for you. If we have a five-liberal/Democratic Justice majority on the Supreme Court, there’s a chance that the Court finds that such contributions can be constitutionally limited. There would be a way to write an opinion that does not formally overturn Citizens United but that limits Super PACs, an issue the Supreme Court has not squarely addressed. The Court could say that now there is evidence that these large contributions to independent groups at least create the appearance of corruption. That in turn could provide the first step in laying the groundwork for overturning Citizens United in a future case, much like the WRTL case laid the groundwork for the Court’s conservatives to overturn Austin and part of McConnell later in the Citizens United case.

To be clear—this is not the path I would want the Supreme Court to take to overrule CU (which I very much want to see). Rather than continuing to contort the definition of corruption, I’d like to see a liberal Supreme Court forthrightly embrace political equality<https://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453?ie=UTF8&*Version*=1&*entries*=0> as a reason for limiting money in elections, so long as it can be shown that the system will still allow ample means of communicating and having robust elections. (If that makes me a neolibera<http://online.liebertpub.com/doi/abs/10.1089/elj.2016.0382#utm_source=FastTrack&utm_medium=email&utm_campaign=elj>l, so be it.)  But I have no reason to believe the liberal Justices will be so forthright and intellectually honest should they decide to go down the path of eventually overruling Citizens United. They will do so incrementally, and by purporting to overturn as little beyond CU as possible.

Of course, if we have a conservative majority on the Supreme Court at the time this case makes it there, I expect this effort will fail as it would have before Justice Scalia’s death.

So the new filing is a longshot move, but it is not crazy by any means at this point given the flux in which we find the Supreme Court.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D84119&title=Does%20the%20New%20Assault%20on%20Super%20PACs%20from%20Liberal%20%26%238220%3BDream%20Team%26%238221%3B%20Have%20a%20Shot%3F%20Maybe%2C%20in%20this%20Post-Scalia%20World&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>

“Federal judge to hear anti-Trump GOP delegate’s lawsuit”<http://electionlawblog.org/?p=84117>
Posted on July 7, 2016 9:26 am<http://electionlawblog.org/?p=84117> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/local/virginia-politics/federal-judge-to-hear-anti-trump-gop-delegates-lawsuit/2016/07/06/f762ddd2-43a6-11e6-8856-f26de2537a9d_story.html>

A federal judge on Thursday will hear a lawsuit brought by a Virginia delegate to the Republican National Convention who says Democrat Hillary Clinton will win the White House “in a landslide” if Donald Trump is the GOP nominee.

Carroll “Beau” Correll filed suit last month challenging a state law that requires delegates to vote on the first ballot for the candidate who won Virginia’s primary. He contends that the law conflicts with Republican National Committee rules and violates his right to vote his conscience.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D84117&title=%26%238220%3BFederal%20judge%20to%20hear%20anti-Trump%20GOP%20delegate%E2%80%99s%20lawsuit%26%238221%3B&description=>
Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>

Online Scalia Symposium<http://electionlawblog.org/?p=84115>
Posted on July 7, 2016 9:20 am<http://electionlawblog.org/?p=84115> by Rick Hasen<http://electionlawblog.org/?author=3>

At the Minnesota Law Review.<http://www.minnesotalawreview.org/headnote-issue/volume-101-scalia-symposium/>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D84115&title=Online%20Scalia%20Symposium&description=>
Posted in Supreme Court<http://electionlawblog.org/?cat=29>

“Voting Rights Group Sues Ga. Sec. of State Brian Kemp for Voter Registration Records”<http://electionlawblog.org/?p=84113>
Posted on July 7, 2016 9:10 am<http://electionlawblog.org/?p=84113> by Rick Hasen<http://electionlawblog.org/?author=3>

Project Vote release.<http://www.projectvote.org/press-releases/voting-rights-group-sues-ga-sec-state-brian-kemp-voter-registration-records/>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D84113&title=%26%238220%3BVoting%20Rights%20Group%20Sues%20Ga.%20Sec.%20of%20State%20Brian%20Kemp%20for%20Voter%20Registration%20Records%26%238221%3B&description=>
Posted in NVRA (motor voter)<http://electionlawblog.org/?cat=33>

“Agency Clears Mayor de Blasio and Nonprofit of Campaign Finance Violations”<http://electionlawblog.org/?p=84111>
Posted on July 7, 2016 9:09 am<http://electionlawblog.org/?p=84111> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT:<http://www.nytimes.com/2016/07/07/nyregion/agency-clears-mayor-de-blasio-and-nonprofit-of-campaign-finance-violations.html?_r=0>

The New York City Campaign Finance Board on Wednesday issued a blunt critique of a nonprofit closely linked to Mayor Bill de Blasio<http://topics.nytimes.com/top/reference/timestopics/people/d/bill_de_blasio/index.html?inline=nyt-per> that has used unlimited donations to advance<https://www.nytimes.com/2015/11/05/nyregion/mayor-de-blasios-hired-guns-private-consultants-help-shape-city-hall.html> his political agenda, denouncing the group’s behavior while clearing it and the mayor of any campaign finance violations.

The decision briefly soothed one irritant for Mr. de Blasio, a Democrat, whose administration is facing several different investigations<https://www.nytimes.com/2016/04/29/nyregion/the-de-blasio-inquiries-a-recap-and-whats-next.html> at once, including federal and local inquiries into the nonprofit’s fund-raising activities.

Yet the board appeared to find much that was troublesome, if not illegal, in the behavior of the group, the Campaign for One New York, which has amassed millions of dollars in donations to push for City Hall initiatives, including universal prekindergarten and an affordable housing policy.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D84111&title=%26%238220%3BAgency%20Clears%20Mayor%20de%20Blasio%20and%20Nonprofit%20of%20Campaign%20Finance%20Violations%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Here’s how presidential candidates sell your personal information”<http://electionlawblog.org/?p=84109>
Posted on July 7, 2016 9:05 am<http://electionlawblog.org/?p=84109> by Rick Hasen<http://electionlawblog.org/?author=3>

CNN reports.<http://money.cnn.com/2016/07/07/news/presidential-candidate-sell-donor-data/>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D84109&title=%26%238220%3BHere%26%238217%3Bs%20how%20presidential%20candidates%20sell%20your%20personal%20information%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>

“Special interests look to influence political conventions — discreetly”<http://electionlawblog.org/?p=84107>
Posted on July 7, 2016 9:05 am<http://electionlawblog.org/?p=84107> by Rick Hasen<http://electionlawblog.org/?author=3>

CPI reports<https://www.publicintegrity.org/2016/07/07/19899/special-interests-look-influence-political-conventions-discreetly>.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D84107&title=%26%238220%3BSpecial%20interests%20look%20to%20influence%20political%20conventions%20%E2%80%94%20discreetly%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, political parties<http://electionlawblog.org/?cat=25>

“‘A Republic—If You Can Keep It!’ An Agenda for Our Democracy”<http://electionlawblog.org/?p=84105>
Posted on July 7, 2016 9:04 am<http://electionlawblog.org/?p=84105> by Rick Hasen<http://electionlawblog.org/?author=3>

Trevor Potter speech:<http://www.campaignlegalcenter.org/news/appearances-publications-speeches/republic-if-you-can-keep-it-agenda-our-democracy>

On July 4th, 2016, CLC President Trevor Potter delivered this speech<http://www.campaignlegalcenter.org/sites/default/files/Chautauqua%202016%20Final.pdf> at The Chautauqua Institution, a non-profit organization. It is a historic lakeside community dedicated to the exploration of the best in human values and the enrichment of life….

Thank you, Tom, for that very kind introduction. It is truly wonderful to be at Chautauqua this week, and I am particularly honored to be asked to speak on the Fourth of July. The root and the fruit of July 4th, 1776 was independence—independence of mind and thought, independence from a political system built on wealth and privilege, independence to create a government where representatives would be responsive to the people, rather than to the aristocrats and monopoly interests which dominated the British Parliament.

Today, we are gathered in the heart of a beautiful and historic place that has its own role in American history, to reflect on the sacrifices made by those who lit the torch of liberty 240 years ago in Philadelphia. And today, we should ask what needs to be done to maintain those founding American ideals. The theme of this week at Chautauqua is Money and Power. What better way to launch the week than to talk about how we have attempted to navigate the relationship between these two words in our system of self-government? …

Watch the speech<http://www.youtube.com/watch?v=lNWxHzFYHlE>

Listen to the audio<https://beta.prx.org/stories/182217>

Read the speech<http://www.campaignlegalcenter.org/sites/default/files/Chautauqua%202016%20Final.pdf>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D84105&title=%26%238220%3B%26%238216%3BA%20Republic%E2%80%94If%20You%20Can%20Keep%20It!%26%238217%3B%20An%20Agenda%20for%20Our%20Democracy%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>

“Anti-Donald Trump Forces See Convention Coup as Within Reach”<http://electionlawblog.org/?p=84103>
Posted on July 6, 2016 4:03 pm<http://electionlawblog.org/?p=84103> by Rick Hasen<http://electionlawblog.org/?author=3>

WSJ:<http://www.wsj.com/articles/anti-donald-trump-forces-see-convention-coup-as-within-reach-1467839099?mod=e2twp>

Months after Donald Trump<http://topics.wsj.com/person/T/Donald-Trump/159> appeared to seal the Republican nomination<http://www.wsj.com/articles/donald-trumps-grip-tightens-on-gop-race-with-indiana-win-expected-1462315006> for president, anti-Trump forces still have one last chance to force a vote on the party’s convention floor that would throw open the GOP contest again.

It’s a long shot, but by some counts they are remarkably close to getting past the first hurdle next week in Cleveland.

Mr. Trump’s intraparty foes, led by a group of rogue delegates, are waging an intense behind-the-scenes effort to push the Republican National Convention’s Rules Committee for a vote on freeing delegates to back whom they wish, rather than being bound to Mr. Trump.

The presumptive nominee’s team is fighting back just as vehemently, with an organized campaign of dozens of aides and volunteers. It’s a power struggle that has prompted threats of reprisals and left many Republicans anxious that it could hurt the party’s prospects in November.

The anti-Trump camp needs the backing of 28, or one-quarter, of the 112 Convention Rules Committee members, in order to place the issue before the full convention. A Wall Street Journal survey suggests it could be close.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D84103&title=%26%238220%3BAnti-Donald%20Trump%20Forces%20See%20Convention%20Coup%20as%20Within%20Reach%26%238221%3B&description=>
Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>

“Could Voting Restrictions Be Trump’s Ace in the Hole?”<http://electionlawblog.org/?p=84101>
Posted on July 6, 2016 4:01 pm<http://electionlawblog.org/?p=84101> by Rick Hasen<http://electionlawblog.org/?author=3>

Zack Roth<http://www.nbcnews.com/news/us-news/could-voting-restrictions-be-trump-s-ace-hole-n604006> for NBC News. My response to the question:
1.      Extremely unlikely.
2.      Puts the emphasis on voting restrictions in the wrong place. As I’ve written<http://electionlawblog.org/?p=80522>: I also think this focus on turnout puts emphasis on the wrong place. The question is why make it harder for folks to vote when there is no good evidence these laws are serving antifraud or public confidence purposes.

[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D84101&title=%26%238220%3BCould%20Voting%20Restrictions%20Be%20Trump%26%238217%3Bs%20Ace%20in%20the%20Hole%3F%26%238221%3B&description=>
Posted in The Voting Wars<http://electionlawblog.org/?cat=60>

“Democrats Get Serious About Voting Rights”<http://electionlawblog.org/?p=84099>
Posted on July 6, 2016 1:01 pm<http://electionlawblog.org/?p=84099> by Rick Hasen<http://electionlawblog.org/?author=3>

Jonathan Bernstein<http://www.bloomberg.com/view/articles/2016-07-06/democrats-get-serious-about-voting-rights> for Bloomberg View.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D84099&title=%26%238220%3BDemocrats%20Get%20Serious%20About%20Voting%20Rights%26%238221%3B&description=>
Posted in Voting Rights Act<http://electionlawblog.org/?cat=15>

“Ballot order flip would put Republican’s name first”<http://electionlawblog.org/?p=84097>
Posted on July 6, 2016 11:38 am<http://electionlawblog.org/?p=84097> by Rick Hasen<http://electionlawblog.org/?author=3>

News from North Carolina<http://www.newsobserver.com/news/politics-government/politics-columns-blogs/under-the-dome/article87979992.html> (as you’d expect):

If signed by Gov. Pat McCrory, a change in state election law approved in the final hours of the 2016 legislative session would ensure the name of Phil Berger Jr. appears first on the ballot in his race against incumbent Court of Appeals Judge Linda Stephens in November.

If not for the legislation, Berger’s name would have appeared below Stephens’ on the November ballot through a random ballot-order method used by the state Board of Elections. Berger, a Republican, is the son of state Senate leader Phil Berger, an Eden Republican. The elder Berger voted for the bill that would result in his son’s name being listed first.

Numerous studies have shown that being listed first on a ballot can give that candidate at least a slight advantage, especially on down-ballot races like the Court of Appeals race where candidates aren’t as well-known as presidential or gubernatorial candidates, for example.
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D84097&title=%26%238220%3BBallot%20order%20flip%20would%20put%20Republican%E2%80%99s%20name%20first%26%238221%3B&description=>
Posted in campaigns<http://electionlawblog.org/?cat=59>, chicanery<http://electionlawblog.org/?cat=12>, election administration<http://electionlawblog.org/?cat=18>

“Hillary Clinton Super PAC Accepted $200,000 in Illegal Contributions from Government Contractor”<http://electionlawblog.org/?p=84095>
Posted on July 6, 2016 11:10 am<http://electionlawblog.org/?p=84095> by Rick Hasen<http://electionlawblog.org/?author=3>

CLC press release.<http://www.campaignlegalcenter.org/news/press-releases/hillary-clinton-super-pac-accepted-200000-illegal-contributions-government>
[hare]<https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D84095&title=%26%238220%3BHillary%20Clinton%20Super%20PAC%20Accepted%20%24200%2C000%20in%20Illegal%20Contributions%20from%20Government%20Contractor%26%238221%3B&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>

--
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<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160707/3646d8a2/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 1504 bytes
Desc: image001.png
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20160707/3646d8a2/attachment.png>