"Chamber agrees to turn over records in mailer inquiry"

The San Jose Mercury News offers this report. A snippet: "San Jose election law requires independent campaigns that influence races for city council or mayor to be funded by individual contributions of no more than $250. COMPAC acknowledged its anti-Chavez campaign was funded by contributions that exceeded that limit but argued it was about 'issues' instead of candidates and therefore not subject to the limits." The article does not mention whether the PAC also plans to argue that contribution limits on independent expenditures violate the First Amendment, an issue that is subject to considerable debate.

"The High Court, Hoodwinked on Finance Data"

David Primo and Jeff Milyo have this Roll Call oped (paid subscription required), which begins: "The imminent Supreme Court decision in Randall v. Sorrell --the closely watched dispute over the permissibility of highly restrictive campaign spending and contribution limits in Vermont-- presents an opportunity to address the disconnect between scholarly research and the conventional wisdom about campaign finance reform. In short, the most current and best scientific evidence flies in the face of the promises made by reform advocates, and more disturbingly, it reveals that the court jurisprudence upholding campaign finance laws is built on a shaky empirical foundation." The oped is largely in response to an oped by Deborah Goldberg last week in the same newspaper.

The authors reference their recent article in the Election Law Journal, as well as other scholarly work. They write: "In fact, we are aware of no scholarly studies that yield consistent evidence of large and statistically significant effects of campaign finance regulations on electoral competitiveness. Yet in her op-ed, Goldberg misuses some of our own recent research to argue that the Supreme Court needn't be concerned that Vermont's low contribution limits may harm electoral competition."

Check Out the En Banc Panel Draw in Padilla v. Lever

Here (scroll down to Padilla case). Should be some fireworks at oral argument.

VRA Consideration in the House

I hear that the VRA renewal legislation is definitely coming up for consideration in the House next Wednesday (June 21). The House Rules Committee is going to consider amendments to the bill, but no determination has been made as to which amendments will be offered or whether amendments will be allowed.

Final Version of My Bad Legislative Intent article Now Available

You can now download the final version of my article Bad Legislative Intent, 2006 Wisconsin Law Review 843. (I won't have paper reprints for a number of weeks.) 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.

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