[EL] ELB News and Commentary 6/20/16

Mon Jun 20 07:46:33 PDT 2016

“Yes, Political Ads Are Still Important, Even for Donald Trump”<http://electionlawblog.org/?p=83669>
Posted on June 20, 2016 7:44 am<http://electionlawblog.org/?p=83669> by Rick Hasen<http://electionlawblog.org/?author=3>

Lynn Vavreck<http://www.nytimes.com/2016/06/21/upshot/yes-political-ads-are-still-important-even-for-donald-trump.html?ref=politics&_r=0> for NYT’s The Upshot:

The evidence suggests that campaign ads have small effects that decay rapidly — very rapidly — but just enough of the impact accumulates to make running more advertising than your opponent seem a necessity.

It sets off an arms race of ads as candidates try to neutralize or displace their opponents. But will the 2016 general election be different? Mr. Trump has used unconventional campaign tactics and has relied on free media to get his messages out. All of this may render advertising less relevant.

A study estimated<http://www.tandfonline.com/doi/abs/10.1080/10584609.2013.828143#.V2LtPuYrJGx> that most of the impact of an ad in a presidential election is gone within a day or two of its airing (I am one of the authors of this paper). In governor, congressional and Senate elections, the effects last a bit longer: three or four days. Fleeting effects on campaigns have been shown by various authors in the lab<http://pcl.stanford.edu/common/docs/research/iyengar/1996/goingneg.html>; in Canada<http://www.sup.org/books/title/?id=2796>; in the 2000<http://www.cambridge.org/us/academic/subjects/politics-international-relations/american-government-politics-and-policy/2000-presidential-election-and-foundations-party-politics> and 2004<http://pan.oxfordjournals.org/content/16/2/138.abstract> general elections; in the 2006<http://www.tandfonline.com/doi/abs/10.1080/10584609.2013.828143#.V1n8zVe4xGI> midterm elections; in the2012<http://press.princeton.edu/titles/10350.html> general election; and in field experiments in a Texas governor’s primary<http://journals.cambridge.org/download.php?file=%2FPSR%2FPSR105_01%2FS000305541000047Xa.pdf&code=b2e9b40d22056bf5d563057d88374391> in 2006 and a general election in 2014.

The takeaway from these studies is simple: Even though the effects from an ad imbalance are small and go away fast, candidates cannot allow them to pile up. Election Day may be far away, but candidates may still want to match their opponents’ daily advertising in the months before the vote because they care about publicly released news polls that convey information to voters — and donors — about their viability and the closeness of the race.
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Posted in campaigns<http://electionlawblog.org/?cat=59>

“Court Documents Show The IRS Focused Scrutiny On Conservative Groups”<http://electionlawblog.org/?p=83667>
Posted on June 20, 2016 7:36 am<http://electionlawblog.org/?p=83667> by Rick Hasen<http://electionlawblog.org/?author=3>

Peter Overby<http://www.npr.org/2016/06/17/482500386/court-documents-show-the-irs-focused-scrutiny-on-conservative-groups> for NPR:

Until now, what’s been missing is a list of the nonprofit groups that got special scrutiny — a list that presumably would show whether the agency had a political agenda or not.

Now, thanks to filings in a federal lawsuit in Ohio, there is such a list, with 426 names on it<https://www.scribd.com/doc/314961079/Irs-List>. And yes, it’s top-heavy with conservative groups:

— 62 had Tea Party or Tea Party Patriots in the name

— a additional 14 had Patriots in the name

— 30 groups had 9/12 or Liberty in the name (9/12 refers to groups inspired by conservative television personality Glenn Beck)

In all, 282 conservative groups were on the IRS list, about two-thirds of the total number of groups that got additional scrutiny.

The list also has 67 progressive organizations (16 percent of the total) and 21 nonpartisan civic groups, including three League of Women Voters chapters.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>

“Precedent in Statutory Interpretation”<http://electionlawblog.org/?p=83665>
Posted on June 20, 2016 7:33 am<http://electionlawblog.org/?p=83665> by Rick Hasen<http://electionlawblog.org/?author=3>

Lawrence Solan has posted this draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2792904> on SSRN (forthcoming, North Carolina Law Review). Here is the abstract:
In interpreting statutes, judges frequently refer to their obligation to take a back seat to the legislature, and to avoid substituting their own policy preferences for those of the legislature. This principle, “Legislative Primacy,” has been the most significant motivation for the movement against the use of such extrinsic evidence of legislative intent as a statute’s legislative history. This history is not enacted, and can be cherry-picked by judges or anyone else wishing to create a narrative that favors one side or the other.

This article addresses another source of evidence that is not enacted and subject to selective citation: judicial decisions. U.S. judges are relentless in citing themselves as reasons for deciding statutory cases. On occasion, citations demonstrate that the issue before the court has been decided. Most of the time, however, courts cite themselves to demonstrate coherence with a legal narrative, whether the law’s enactment history, the social history surrounding its enactment, the courts’ jurisprudence concerning other issues involving that statute, or the relationship between the law in question and the corpus juris.

Also included are citations to other cases that have employed the various canons of construction, and even cases that have applied everyday language one way or another.
This article has as its goal to evaluate these references in terms of which ones legitimately advance rule of law values. It does so by examining three five-to-four U.S. Supreme Court decisions in detail. Some citation practices, it argues, should be eliminated altogether. Others are legitimate if justified by analogical reasoning. Still others are legitimate as is.

The article further addresses the extent to which the use of citation is a by-product of common law reasoning infiltrating the statutorily-based legal system in which we now live.

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Posted in statutory interpretation<http://electionlawblog.org/?cat=21>

“Why Open Primaries Won’t Change Our Politics Much; Legislators elected from closed primary systems are no more or less extreme than those from open primary systems.”<http://electionlawblog.org/?p=83663>
Posted on June 20, 2016 7:31 am<http://electionlawblog.org/?p=83663> by Rick Hasen<http://electionlawblog.org/?author=3>

Seth Masket<https://psmag.com/why-open-primaries-wont-change-our-politics-much-f7a6f05e12#.pb2z755eb> for Pacific Standard.
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Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32>

“Anti-Trump delegates raising money for staff and a legal defense fund”<http://electionlawblog.org/?p=83661>
Posted on June 19, 2016 10:16 pm<http://electionlawblog.org/?p=83661> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo reports.<https://www.washingtonpost.com/news/post-politics/wp/2016/06/19/anti-trump-delegates-raising-money-for-staff-and-a-legal-defense-fund/>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

“Congressional Black Caucus balks at two political reforms being pitched by Bernie Sanders”<http://electionlawblog.org/?p=83659>
Posted on June 19, 2016 10:10 pm<http://electionlawblog.org/?p=83659> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/news/post-politics/wp/2016/06/19/congressional-black-caucus-balks-at-two-political-reforms-being-pitched-by-bernie-sanders/>:

The Congressional Black Caucus is voicing strong opposition to two key political reforms being sought by presidential candidate Bernie Sanders in the run-up to the Democratic National Convention: abolishing superdelegates and opening up Democratic primaries and caucuses to independent voters….

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

Dan Tokaji Guest Blogging June 24-July 4<http://electionlawblog.org/?p=83657>
Posted on June 19, 2016 10:06 pm<http://electionlawblog.org/?p=83657> by Rick Hasen<http://electionlawblog.org/?author=3>

The great Dan Tokaji <http://moritzlaw.osu.edu/faculty/professor/daniel-p-tokaji/> will be guest blogging on June 24-July 4. So please direct any tips etc. to him during that period.

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

“Revised election law lowering voting age in Japan to 18 takes effect”<http://electionlawblog.org/?p=83655>
Posted on June 19, 2016 10:05 pm<http://electionlawblog.org/?p=83655> by Rick Hasen<http://electionlawblog.org/?author=3>

Japan Today reports.<http://www.japantoday.com/category/politics/view/revised-election-law-lowering-voting-age-in-japan-to-18-takes-effect>
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>

Could Someone Legally Pay Donald Trump $150 Million to Leave Race?<http://electionlawblog.org/?p=83653>
Posted on June 19, 2016 10:00 pm<http://electionlawblog.org/?p=83653> by Rick Hasen<http://electionlawblog.org/?author=3>

This Politico story<http://www.politico.com/story/2016/06/donald-trump-cash-never-trump-224511> started the speculation (which seems completely unjustified), and it features a law professor saying this wouldn’t be a bribe.

I think the question is whether it is illegal to pay a candidate to withdraw from a race. Such conduct is definitely illegal in some states, but it is not clear to me that such laws would apply in a federal election.

Dan Lowenstein’s seminal article<https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=32+UCLA+L.+Rev.+784&srctype=smi&srcid=3B15&key=2bbb68156a11fed3ade5a79e4475e167> on bribery in UCLA discusses a state law in California making this illegal (A person shall not . . . pay, solicit, or receive . . . any money or other valuable consideration . . . in order to induce a person not to become or to withdraw as a candidate for public office)

I cannot find an analogous federal law, and did find this in a federal election crimes manual<https://www.justice.gov/sites/default/files/criminal/legacy/2013/09/30/electbook-0507.pdf> from 2007:

(b) Promise of appointment by candidate: 18 U.S.C. § 599 This statute prohibits a candidate for federal office from promising appointments “to any public or private position or employment” in return for “support in his candidacy.” It is one of the few federal criminal laws specifically addressing campaign-related activity by candidates. It is a class statute that applies only to misconduct by federal candidates. Willful violations are two-year felonies; nonwillful violations are misdemeanors. Section 599 has potential application when one candidate attempts to secure an opponent’s withdrawal, or to elicit the opponent’s endorsement, by offering the opponent a public or private job. See also 18 U.S.C. § 600, discussed above. It also applies to offers of jobs by federal candidates to others to secure endorsements. While Section 599 does not reach offers or payments of money to secure withdrawal or endorsements, if the payment was not reported accurately, such matters may be prosecutable as a reporting violation of FECA under 2 U.S.C. §§ 434(b) and 437g(d) (my emphasis)

Any other potentially applicable law?

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Posted in bribery<http://electionlawblog.org/?cat=54>

Election Law Academics Update<http://electionlawblog.org/?p=83651>
Posted on June 19, 2016 9:48 pm<http://electionlawblog.org/?p=83651> by Rick Hasen<http://electionlawblog.org/?author=3>

Here’s my yearly roundup of election law academic hires, promotions moves, visits, accolades:

Jesse Allen<http://law.pitt.edu/people/jessie-allen> received tenure and was promoted to Associate Professor at the University of Pittsburgh School of Law

Joey Fishkin<https://law.utexas.edu/faculty/jrf84/> received tenure at UT Austin, and is visiting at Yale Law in 2016-17.

Tony Gaughan <http://www.law.drake.edu/faculty/?profileID=gaughanAnthony> received tenure and was promoted to full professor at Drake University Law School.

Grant Hayden<http://www.law.smu.edu/news/2016/april/smu-dedman-school-of-law-appoints-four-new-profess> is moving to SMU Law.

Kirsten Nussbaumer will be starting as Assistant Professor of Political Science and Law, Rutgers University, Camden in the fall.

Ciara Torres-Spelliscy<http://www.stetson.edu/law/faculty/torres-spelliscy-ciara/> was granted tenure by Stetson University College of Law.

Congratulations all!
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Posted in election law biz<http://electionlawblog.org/?cat=51>

“Commentary: A dysfunctional Supreme Court. Get used to it”<http://electionlawblog.org/?p=83649>
Posted on June 19, 2016 9:33 pm<http://electionlawblog.org/?p=83649> by Rick Hasen<http://electionlawblog.org/?author=3>

Herman Schwartz and William Yeomans Reuters oped.<http://www.reuters.com/article/us-scotus-commentary-idUSKCN0Z10BJ>
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Posted in Supreme Court<http://electionlawblog.org/?cat=29>

The Ultimate Woah If True Story<http://electionlawblog.org/?p=83645>
Posted on June 19, 2016 3:43 pm<http://electionlawblog.org/?p=83645> by Rick Hasen<http://electionlawblog.org/?author=3>

End of conservative Supreme Court: Clarence Thomas may be next to leave<http://www.washingtonexaminer.com/thomas-may-be-next-to-exit-supreme-court/article/2594317>.

Update: Justice Thomas’s wife says no way<https://www.facebook.com/GinniLThomas/photos/a.649025938463595.1073741828.645562822143240/1217081578324692/?type=3&theater>.
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Posted in 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<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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