"New FEC commissioner wants limits on tribal campaign giving"

The Hill offers this report, which begins: "Hans von Spakovsky, installed by President Bush on the Federal Election Commission last month in a controversial recess appointment, has waded into a heated debate by publicly calling for stricter regulations on the political contributions of Indian tribes." One other snippet: "One attorney who frequently practices before the FEC said he was not surprised by von Spakovsky's positioning on the issue of tribal political contributions. 'He's proving himself to be a highly partisan Republican spokesperson on the commission, and I think the only explanation for that statement is that it reflects the current Republican Party position, particularly in the House,' said the attorney, who asked to remain anonymous to avoid directly challenging the new commissioner."

"Chicago Heights fights on; City Council votes 4-3 to challenge voting-rights ruling"

The Chicago Tribune offers this report.

"Bad Legislative Intent"

I have posted this draft paper on SSRN. I hope to send it out to law reviews soon but there is still plenty of time to make changes. Comments welcome! Here is the abstract:

This Article focuses on the role, if any, that a legislative body's "bad" intent in passing election laws should play when courts assess the constitutionality of those laws. For purposes of this Article, by "bad" intent in the election law area, I mean a legislative intent to protect incumbents, a political party, or the two major political parties, from political competition. I argue that, despite the arguments of some leading election law scholars, including Professor Richard H. Pildes, proof of such bad intent should be neither necessary nor sufficient for an election law challenge to succeed, though it should be relevant in getting courts to take a "hard look" at election laws. Rather than focus on intent, courts should primarily examine the effect of election laws on the rights of individuals and groups, and, when the effects are severe enough, carefully balance those bad effects against the stated and proven interests of the state in the election law.

Part I of this Article offers three reasons why proof of bad legislative intent should not be necessary to strike down an election law. First, bad election laws can emerge even when the legislature has noble intentions. Second, bad legislative intent sometimes is going to be difficult to prove. Legislators often will an incentive to hide incumbency or party-protecting intent. Third, a rule premised on proof of bad legislative intent will be easy to circumvent, and could quickly become useless rule for policing anti-competitive election laws.

Part II argues that proof of bad legislative intent should not be sufficient for courts to strike down election laws on constitutional grounds because the test will allow for more arbitrary and pretextual judicial decisionmaking. The risk exists because it is sometimes difficult to draw the line between good and bad legislative intent, even among the class of laws that appear to be driven, at least in part, by anticompetitive aims.

Part III then discusses my alternative to an intent-based test. I argue for a careful balancing of asserted state interests against the rights of individuals and groups to engage in collective action for political purposes. Although courts have purported to engage in balancing, balancing has been tepid (or even a sham) and its protections against legislative self-dealing largely illusory. I offer recent examples of the courts' weak balancing efforts. Courts should engage in closer means-ends scrutiny.

Finally, Part IV uses the analysis developed in the first three parts to offer some very tentative thoughts about how the arguments against reliance on bad legislative intent in the election law context might apply to other constitutional claims, such as Establishment Clause, free speech, and race discrimination claims.

In making my argument I draw on the legislative history behind the Washington state ballot access law at issue in the Munro v. Socialist Workers' Party case, before the Supreme Court in 1986. Readers familiar with this case at the Supreme Court level may be surprised by what I have uncovered.

"Alito to have 1 shot at influencing First Amendment this term"

Tony Mauro offers this column at the First Amendment Center on Justice Alito and the Vermont spending limits case.

-- 
Rick Hasen 
William H. Hannon Distinguished Professor of Law
Loyola Law School 
919 Albany Street 
Los Angeles, CA  90015-1211 
(213)736-1466 - voice 
(213)380-3769 - fax 
rick.hasen@lls.edu 
http://www.lls.edu/academics/faculty/hasen.html 
http://electionlawblog.org