[EL] ELB News and Commentary 12/19/19

Thu Dec 19 08:21:37 PST 2019

“The Decade of Citizens United”<https://electionlawblog.org/?p=108483>
Posted on December 19, 2019 8:18 am<https://electionlawblog.org/?p=108483> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this piece<https://slate.com/news-and-politics/2019/12/citizens-united-devastating-impact-american-politics.html> for Slate, part of their coverage<https://slate.com/tag/end-of-the-2010s> of the end of the decade. It begins:

In 2010, the largest reported individual contributors to federal campaigns in American politics were Robert and Doylene Perry, owners of Perry Homes, who donated about $7.5 million to support Republican and conservative candidates. In 2018, the largest reported contributors were casino magnate Sheldon Adelson and his wife, Miriam, who contributed about $122 million in outside money to support such candidates, representing a 16-fold increase over the Perrys’ 2010 contributions, according to data<https://www.opensecrets.org/overview/topindivs.php?cycle=2018&view=fc> collected by the Center for Responsive Politics. What explains this dramatic shift in American elections, where the wealthiest Americans get to have even greater influence over who is elected and what policies elected officials pursue? The Supreme Court’s 2010 opinion, Citizens United v. Federal Election Commission.

In 2010, Citizens United held that corporations have a First Amendment right to spend sums independently to support or oppose candidates for office. Looking at the amount of direct corporate spending in elections over the past decade, one might think that Citizens United was a bust. Few for-profit corporations spend money<https://www.journals.uchicago.edu/doi/abs/10.1086/680077> in their own names boosting or dissing  candidates. But this casehelped to usher in a sea change in American elections, and its influence on the decade that followed is hard to overstate. We’ve seen an explosion of outside, often-undisclosed money in elections, candidates’ skirting campaign finance rules by having shadow “super PACs,” and dangerous foreign interference in our elections. And that pivotal opinion contains all the tools the Supreme Court needs to get rid of remaining campaign contribution limits.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, Supreme Court<https://electionlawblog.org/?cat=29>

“Trump Impeached for Abuse of Power and Obstruction of Congress”<https://electionlawblog.org/?p=108480>
Posted on December 19, 2019 8:07 am<https://electionlawblog.org/?p=108480> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2019/12/18/us/politics/trump-impeached.html>:

The House of Representatives on Wednesday impeached President Trump<https://www.nytimes.com/2019/12/19/podcasts/the-daily/impeachment-trump-democrats.html?action=click&module=Briefings&pgtype=Homepage> for abuse of power and obstruction of Congress, making him the third president in history to be charged with committing high crimes and misdemeanors and face removal by the Senate.

On a day of constitutional consequence and raging partisan tension, the votes on the two articles of impeachment<https://www.nytimes.com/interactive/2019/12/18/us/politics/trump-impeachment-vote.html> fell largely along party lines, after a bitter debate that stretched into the evening and reflected the deep polarization gripping American politics in the Trump era.

Only two Democrats opposed the article on abuse of power, which accused Mr. Trump of corruptly using the levers of government to solicit election assistance from Ukraine in the form of investigations to discredit his Democratic political rivals. Republicans were united in opposition. It passed 230 to 197, with Speaker Nancy Pelosi gaveling the vote to a close from the House rostrum.

On the second charge, obstruction of Congress, a third Democrat joined Republicans in opposition. The vote was 229 to 198.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Brennan Center Releases Guide for Election Officials to Prepare for Cyberattacks and Malfunctions”<https://electionlawblog.org/?p=108478>
Posted on December 19, 2019 7:57 am<https://electionlawblog.org/?p=108478> by Rick Hasen<https://electionlawblog.org/?author=3>

Press release.<https://www.brennancenter.org/our-work/analysis-opinion/brennan-center-releases-guide-election-officials-prepare-cyberattacks-and>
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Posted in election administration<https://electionlawblog.org/?cat=18>, voting technology<https://electionlawblog.org/?cat=40>

Institute for Free Speech Asks Supreme Court to Take Case About Shielding Donor Information from California Attorney General’s Office<https://electionlawblog.org/?p=108476>
Posted on December 19, 2019 7:52 am<https://electionlawblog.org/?p=108476> by Rick Hasen<https://electionlawblog.org/?author=3>

You can find the cert. petition here<https://www.ifs.org/wp-content/uploads/2014/04/Becerra-Petition_Final-12.18.pdf>.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

“19 Things We Learned About Money in Politics in 2019”<https://electionlawblog.org/?p=108474>
Posted on December 18, 2019 2:35 pm<https://electionlawblog.org/?p=108474> by Rick Hasen<https://electionlawblog.org/?author=3>

Ciara Torres-Spelliscy list.<https://www.brennancenter.org/our-work/analysis-opinion/19-things-we-learned-about-money-politics-2019>
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Posted in campaign finance<https://electionlawblog.org/?cat=10>

“The Single-Subject Rule: A State Constitutional Dilemma”<https://electionlawblog.org/?p=108472>
Posted on December 18, 2019 1:10 pm<https://electionlawblog.org/?p=108472> by Rick Hasen<https://electionlawblog.org/?author=3>

Richard Briffault has posted this draft<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3499721> on SSRN (forthcoming, Albany Law Review). Here is the abstract:

Critics of the proliferation of omnibus legislation in Congress have suggested that state constitutions offer a potential solution. Forty-three state constitutions include some sort of “single-subject” rule, that is, the requirement that each act of the legislature be limited to a single subject. Many of these provisions date back to the early and mid-nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. Nor is the rule a relic from a bygone era. In the last two decades, state courts have used single-subject rules to invalidate laws dealing with, inter alia, firearms regulation, abortion, tort reform, immigration, local minimum wage laws, sex offenders, enhanced criminal penalties, and school vouchers.

Yet, despite having long been a part of the constitutional law of most states, the single-subject rule is deeply problematic. Courts and commentators have been unable to come up with a clear and consistent definition of what constitutes a “single subject.” Instead, persistent themes in the single-subject jurisprudence has been the inevitable “indeterminacy” of “subject” and disagreement over how deferential courts should be to legislatures.

Due to the slipperiness of “subject,” many analyses have focused on what are regularly said to be the primary purposes of the rule—the prevention of legislative logrolling and riders, and the promotion of a more orderly and informed legislative process—and have called for reframing the enforcement of the rule around the advancement of these goals. But determining whether a law is the product of logrolling, or whether a provision should be treated as a rider, will often be difficult. And it is far from clear that logrolls and riders are as pernicious as proponents of more vigorous enforcement of the single-subject rule assume. The more aggressive use of the single-subject rule urged by advocates as a means of thwarting “legislative chicanery” and “backroom politics” could also undo the cooperation and compromise necessary to get difficult but important legislation enacted.

This article examines the history and purposes behind the single-subject rule; recent state supreme court cases interpreting it; and the arguments for reframing the rule more tightly around the prevention of logrolling or riders. It finds that although the justifications for the rule – improved legislative deliberation, transparency, and public accountability – are admirable goals the state constitutional rule has not been and is unlikely to be an effective means of achieving those ends.
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Posted in legislation and legislatures<https://electionlawblog.org/?cat=27>

“Opinion: Will your 2020 vote actually get counted?”<https://electionlawblog.org/?p=108470>
Posted on December 18, 2019 11:15 am<https://electionlawblog.org/?p=108470> by Rick Hasen<https://electionlawblog.org/?author=3>

Michael Chertoff LAT oped.<https://www.latimes.com/opinion/story/2019-12-18/voting-cyber-security-hacking-elections>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

Is Race More Important Than Class in Considering Winners and Losers in the United States? New Book by Zoltan Hajnal Makes the Claim<https://electionlawblog.org/?p=108468>
Posted on December 18, 2019 11:05 am<https://electionlawblog.org/?p=108468> by Rick Hasen<https://electionlawblog.org/?author=3>

Coming next month, Zoltan L. Hajnal, Dangerously Divided: How Race and class Shape Winning and Losing in American Politics<https://www.cambridge.org/core/books/dangerously-divided/EB100CFD8A4414361F091AE97668F82B> (Cambridge 2020). Here is the book description:

As America has become more racially diverse and economic inequality has increased, American politics has also become more clearly divided by race and less clearly divided by class. In this landmark book, Zoltan L. Hajnal draws on sweeping data to assess the political impact of the two most significant demographic trends of last fifty years. Examining federal and local elections over many decades, as well as policy, Hajnal shows that race more than class or any other demographic factor shapes not only how Americans vote but also who wins and who loses when the votes are counted and policies are enacted. America has become a racial democracy, with non-Whites and especially African Americans regularly on the losing side. A close look at trends over time shows that these divisions are worsening, yet also reveals that electing Democrats to office can make democracy more even and ultimately reduce inequality in well-being.

I expect this deep empirical examination to be influential and challenged by others. Recommended.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

--
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
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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