Commissioner Brad Smith's oped and the role of the FEC as interpreter of the Constitution

FEC Commissioner Brad Smith writes Stifling in Name of Reform in today's Washington Times. The oped concerns a decision the FEC had to make about how to treat a proposed advertisement in which a federal senator praises a candidate for mayor. From the oped:

Sounds innocent enough. However, under McCain-Feingold, no state or local political party, and no candidate for state or local office, can make any "public communication" that "promotes or supports" or "attacks or opposes" any federal candidate or officeholder unless paid for with federally regulated money.
Although Mr. Weinzapfel was seeking local office in Indiana, and the campaign was paying for the ad in accordance with Indiana and Evansville laws, his campaign could not run the ad if it "promotes or supports" or "attacks or opposes" Mr. Bayh.

Commissioner Smith concludes later in the oped:

It would have been very easy to conclude the ad "promotes" or "supports" Mr. Bayh — indeed, I would be hard-pressed to say it did not.
Nonetheless, I voted to approve the ad because of my belief that a straightforward reading of the statute would be blatantly unconstitutional.

Back when Brad Smith was being considered for a nomination to the FEC, I opposed the nomination. I consider Smith to be a person of great integrity and intellectual honesty, and I always believed (and continue to believe) that Smith, as FEC commissioner, would act to uphold the Constitution. The problem is that there are enough gray areas---room for interpretation of the Constitution not dictated by Supreme Court precedent---that a person's ideology necessarily plays a role in how that person will fill in the gray areas. Someone like Smith, who has written a book and numerous articles attacking the Supreme Court's interpretation of the Constitution in the campaign finance area, predictably resolves issues against regulation. The point should be kept in mind as other FEC nominees are considered for confirmation.

Public radio on democracy

Last week, public radio stations focused on issues of democracy. Ed Still has put together the links here.

"Bankrolling a New Path to the Primary"

The Washington Post offers this report, which begins: "The decisions of President Bush and former Vermont governor Howard Dean to forgo public financing will reshape future presidential contests, encouraging ideological candidates and weakening prospects of moderates, according to strategists and observers."

"Machine Politics in the Digital Age"

The New York Times business section offers this report on the Diebold electronic voting machine controversy.

"Dean to Forgo Public Financing"

See this New York Times report.

Intentional undervoting by minorities? And Where is Kaus on punch cards?

At a Federalist Society meeting regarding the recall that I participated in last month, Chapman law professor John Eastman raised the question of greater intentional voting by racial minorities. The suggestion was that members of minority groups might turn out to vote for certain minority candidates lower down the ballot, but fail to vote the top of the ticket. I indicated there that I did not know of any studies addressing the issue of intentional undervoting by minorities.

I have now come across a study that has examined this question and found that African-Americans do tend to undervote more than whites, but the difference is very small, a few tenths of a percentage point. See Michael Tomz and Robert P. Van Houweling, How Does Voting Equipment Affect the Racial Gap in Voided Ballots, 47 American Journal of Political Science 46, 57 (2003). The article is available to those whose libraries have an electronic subscription here.

Intentional undervoting by minorities certainly could not explain why there were about 11% of voters in Los Angeles that failed to cast a valid vote on the first part of the recall, compared to less than 1% in Alameda county, using touch screen machines, or the average 2.6% across the state (all of these are based on preliminary figures). (More on those figures here and here.)

And while we are on the subject of punch card errors, I am still waiting to hear from Mickey Kaus on his criticisms of Henry Brady. By now, I think Kaus would have to admit, Brady's position has been vindicated. Kaus told me he was going to blog about this soon after the recall, but I don't think he has.

UPDATE: John Eastman replies here. In response, let me note that I think there's no question now that (1) touch screen voting reduces intentional undervoting and (2) that minority preferences cannot explain the voting disparities between punch card counties and non-punch card counties. The statistics comparing undervoting and exit polls across to voting methods, if they hold up on final review of numbers (we don't have final numbers yet), will lead to the unassailable conclusion that punch card errors are responsible for this disparity across counties. The disparity is huge even taking touch screens out of the picture and just comparing to other voting technologies.

The Greens and Ralph Nader

Micah Sifry writes Ralph Redux? over at The Nation, which begins: "With a year to Election Day, Ralph Nader is quietly gearing up for his second serious bid for the presidency." Not all Green Party members are happy.

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
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rick.hasen@lls.edu
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