Subject: news of the day 6/17/05
From: Rick Hasen
Date: 6/17/2005, 8:17 AM
To: election-law

"Ballot accord talks rev up"

The Sacramento Bee offers this report, with the subhead: "Democrats, governor's staff say they're trying to work out compromises on initiatives."


"Mr. Smith Quits Washington"

Ryan Sager offers this NY Post column.


How Smart Was It for Plaintiffs to Support Cert in the Vermont Spending Limits Case?

You can find six amicus briefs supporting the winning side of the Second Circuit Sorrell case here. Usually, of course, the side that wins in the Court of Appeals opposes a grant of cert. But for years it has been the mission of some of the amici, such as NVRI, to try to get the Supreme Court to reconsider that aspect of Buckley v. Valeo striking down spending limits as violating the First Amendment rights of speech and association. Here's a chance, the argument must be, to push the issue, by noting the circuit split, and lining up some heavy hitters (current and former Senators, state Secretaries of State, state judges, and attorneys general) on the winning side to support review to revisit this issue in a high profile case.

On reflection, I think this strategy could well backfire. I had predicted a cert denial in the earlier 10th circuit spending limits case, Homans, because I doubted that the Supreme Court would grant review to upset the settled law that spending limits violate the First Amendment under Buckley. And the Court denied cert.

Now I've been predicting a cert. grant, except noting the odd procedural posture: the Second Circuit has remanded for additional findings, and there's a chance that this issue goes away after the case comes back to the Second Circuit after remand. For this reason, Tom Goldstein concluded that it is "very, very unlikely" that cert. is granted.

After Tom posted his comment, I started thinking about why I am more confident (though far from certain) about a cert grant. And the reason is this: it is hard for me to imagine that Justices Kennedy, Scalia, Thomas and the Chief (four votes for cert, assuming no retirements) would want to allow a Second Circuit opinion holding that spending limits may be constitutional to remain on the books for the year to two years likely before the case returns to the Second Circuit. So the impetus for cert. granting is going to be coming from those who would reverse the holding of the Second Circuit. We can never be sure where O'Connor's vote would be, but she has been a supporter of the entire Buckley framework (maybe the last real supporter on the Court), and if I were Justice Breyer or Ginsburg (or Stevens or Souter), I wouldn't be betting that she'd vote to allow spending limits at this point. So those who might be more sympathetic to the arguments of the Vermont plaintiffs should want to vote to deny cert., so things can percolate in the lower courts and there can be some experimentation, at least in the Second Circuit, with spending limits.

So in the end this strikes me as a big gamble. Plaintiffs should be careful what they wish for: a decision to grant cert now might mean a losing decision down the line, whereas waiting this out for another half decade or so, depending upon the composition of the Court, could have been a wiser strategy.


Wynn and Shays Debate Campaign Finance Reform

I received the following announcement via e-mail:



"It’s Gettin’ Hot (Headed) in Here: The FEC's Internet Summer"

Allison Hayward offers this analysis.


First Circuit Weighs in on Rhode Island Campaign Finance Issue

Following up on this post, see here. 
-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
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