Electionlawblog news and commentary 6/23/06

Hasen: More On VRA Compromise

I have received some private reactions to my call for compromise, some of it positive, some of it suggesting that I am emboldening opponents of the Act to stall further. Bob Bauer has posted these comments challenging the sincerity of Republican House members who have stalled VRA renewal, pointing to their support for discriminatory voter i.d. laws in Georgia.

I am certainly not intending to embolden opponents of the Act to stall the Act's passage. I would prefer by many magnitudes that H.R. 9 be adopted in its current form rather than have no adoption at all. But, as I've said before, I view the legislation as in serious danger of constitutional invalidation by the Supreme Court. Adopting proactive bailout could go a long way toward satisfying those concerns. While some have said I'm being "used" by opponents of the act to help them ultimately scuttle the Act, my calculation is different. It would be very hard for the Republican leadership not to renew the Act this term, leaving it as a campaign issue in the fall. But these opponents provide the opening for a compromise that can improve the act.

Expiring provisions of the VRA should be renewed, and renewed this session of Congress. But they should be improved before they are renewed. We'll see if the opponents are sincere in their hopes for compromise if they drop their proposal to change the trigger to 2004 and start suggesting more realistic and useful alternatives.

(By the way, though I support voter i.d. laws as part of a package of universal voter registration conducted by the government, I view both the earlier and current Georgia voter id laws as unconstitutional, a violation of section 2 of the voting rights act and a change that should not have been precleared under section 5 of the Act.)

"McCain-Feingold: A Good Start"

Trevor Potter has written this Washington Post oped. A snippet:

In response, I'd point out that McCain-Feingold -- or the Bipartisan Campaign Reform Act (BCRA), as the law is formally known -- didn't seek to remove money from politics. After all, we have no public funding for House and Senate candidates, and the presidential funding system is broken. Candidates and parties still need money to reach voters. The limited goal of the legislation was to remove the obvious corruption of six-figure individual contributions, and corporate and labor donations (increasingly solicited by elected federal officials) to national committee coffers. Sponsors argued that focusing on small individual contributions would force the parties back to the grass roots and away from White House soft-money 'coffees.' And the law has been an undisputed success in combating the corruption of huge soft-money contributions and an apparent success in re-energizing grass-roots supporters.

Potter, from the Campaign Legal Center, is not the only one from his organization to publish an oped this week. See Campaign Finance Loophole Makes Reform Possible in the San Jose Mercury News by Paul Ryan (on candidate controlled ballot measure committees) and Watch Proposed Earmark Reforms Very Carefully in Roll Call by Meredith McGehee.

Bob Bauer responds to Trevor's editorial here.

"Stanford Law Professor Pamela Karlan Concludes 2006 ACS National Convention"

You can catch the video or audio here. ACS offers this description of Pam's talk: "On Sunday, June 18, Stanford Law Professor Pamela Karlan delivered closing remarks at the 2006 ACS National Convention. Her insightful -- and witty -- reflections explored a wide range of legal and policy topics and brought the Convention to a close on an inspiring note. Professor Karlan's address includes a number of concrete suggestions for how lawyers, law students and other concerned citizens can get involved in promoting and practicing progressive legal and policy values. Summarizing the theme of the Convention, which addressed 'Democracy of the Rule of Law,' Professor Karlan suggested that 'we need a rule of law that's more than just a law of rules. We need laws that are just, and not just laws that satisfy the presentment clause.'"

"Court doesn't tip hand on voting-rights case"

The Monterey Herald offers this report on the oral argument in Padilla v. Lever before an en banc panel of the Ninth Circuit. (The article mistakenly says that the judges (whom the article referred to as "justices") usually take about 90 days to decide a case. That's true in California appellate state courts, which have a 90-day rule. The ruling in Padilla could come much more quickly, or much more slowly.

I listened to part of the oral argument yesterday, and I was surprised by just how much some of the judges were concerned about the question of mootness, querying whether a claim for declaratory relief now is enough, and whether this is an issue capable of repetition yet evading review. It would be a great shame if the court does not decide the issue on the merits, because, before the Padilla three-judge panel opinion was vacated, it caused a great deal of uncertainty in California not only for recall elections, but also for initiatives and referenda. It is in everybody's interest (except for jurisdictions that might want to use the uncertainty as a reason to remove measures from the ballot that the jurisdiction does not like) to clarify what the rules are going to be. Indeed, if the court dismisses this on grounds of mootness, the Ninth Circuit (perhaps en banc) is going to end up having to decide this issue eventually anyway, in either the Monterey case or another of the cases working their way through the appellate process.

"Bigotry Beneath the Fog"

Eugene Robinson offers this Washington Post column on the failure of the Republican leadership in the House to get a vote on VRA renewal this week.

"Yassky's Candidacy Threatens to Undermine Minority Voting Rights Protections"

Hardbeat news offers this oped.

Law and Politics Book Review Reviews Second Edition of Slabach Campaign Finance Anthology

Here.

"Nonprofits in Federal Elections: 527s, 501(c)s, and the Debate over Federal Campaign Finance and Tax Policies"

The Campaign Finance Institute and the Urban Institute are putting on this event on July 19. (Click on the link for rsvp information.) This looks like a terrific event that I'm sorry I will have to miss. Here is the schedule:

Scholars of the Constitution and civil society discuss the tensions inherent in designing campaign finance policy.

* Richard Briffault, Columbia University Law School
* Leslie Lenkowsky, director, graduate programs, Indiana University Center on Philanthropy
* Kay Schlozman, Boston College and American Political Science Assn. Task Force on Inequality
* Michael J. Malbin (moderator), executive director, Campaign Finance Institute

PANEL II (1:30-2:45)

New Research on the Political Activities of Leading Nonprofit
Interest Groups in Recent Election Cycles

CFI staff presents new findings on how interest groups use a mixture of campaign finance vehiclesâ€”PACs, 527s, and 501(c)sâ€”in federal elections, and experts discuss the implications for campaign finance and tax policy.

* Steve Weissman, associate director for policy, Campaign Finance Institute
* Frances Hill, University of Miami Law School
* Elliot Mincberg, vice president, People for the American Way Foundation
* Elizabeth Boris (moderator), director, Center on Nonprofits and Philanthropy, Urban Institute

PANEL III (2:45-4:00)

Should Changes Be Made in Campaign Finance Tax Policies
Concerning Nonprofits' Political Activities?

CFI's Michael J. Malbin engages leading proponents of diverse perspectives in a lively discussion.

* Miriam Galston, George Washington University Law School and ABA Exempt Organizations Committee's Task Force on Section 501(c)(4) and Politics
* Gail Harmon, Harmon, Curran, Spielberg & Eisenberg Law Firm
* Craig Holman, legislative representative, Public Citizen
* David Keating, executive director, Club for Growth (invited)
* Marcus Owens, Caplin and Drysdale Law Firm and former director, IRS Division of Exempt Organizations
* Fred Wertheimer, president, Democracy 21

A new way of getting voters to vote on ballot measures?

Those of us in the election law field know that when Congress passed BCRA (the McCain-Feingold law), it included not only a provision defining the term "electioneering communications." It also provided a "backup definition" in case courts held that the "primary definition" was unconstitutional. The Supreme Court in the McConnell case upheld the primary definition against constitutional challenge, so it did not reach the propriety of using a backup definition in the bill.

Now comes word of a novel bill in the California legislature that would change law related to drug offenders. The draft bill provides the following in section 9 (new words in italics):

However, if any provision of this bill is found to be invalid, the entire legislative measure shall be submitted to the voters at the next general election.

I have never seen such a provision before. In beginning to think about this, I think it is not a bad idea, because the legislature gets to give both its first and second choices on the measure. (I'm not saying anything at all about the merits of the bill, which I know nothing about and have not read.) I have heard some people might think that this violates the California constitution, because it is not a proper way for the Legislature to put matters before voters. I have also heard the argument that this is bad policy, because the legislature doesn't have to stand up on record to put the matter before voters. I'd like to hear from others about both the constitutionality and desirability of this kind of provision.

Audio of Padilla v. Lever Oral Argument Now Available

Click here.

Debo Adegbile's Testimony Before the Senate Judiciary Committee on VRA Renewal

You can find it here. Again, I'm happy to post (or link) to other Senate VRA testimony if it is sent to me.

Horowitz on VRA Renewal

Donald Horowitz, professor of law and political science at Duke, has sent this letter on VRA renewal to Senator Specter.

Opponents of H.R. 9 VRA Renewal as "Hijack[ers]" and "Saboteurs"

This press release from the "Renew the VRA" project doesn't seem to me to be a productive way to move forward.

Judge McConnell on Justice Breyer on Campaign Finance

Writing this review of Justice Breyer's book, Active Liberty, in the Harvard Law Review, Judge Michael McConnell opines (p. 25 of the pdf):

Perhaps Justice Breyer means only that courts should be more attentive to empirical evidence of consequences, as opposed to focusing on abstract intentions. But again, his campaign finance example raises questions. Justice Breyer's account of the likely consequences of the campaign finance statute consists essentially of an uncritical recitation of the stated goals of the statute. The campaign laws "seek" to further a "democratic objective"; they "seek" to "democratize the influence that money can bring to bear upon the electoral process" (p. 47). Strikingly, he does not discuss the consequences predicted by the statute's opponents, such as the entrenchment of incumbents by making it more difficult for challengers to raise sufficient funds to overcome the advantages of incumbency, or the redirection of contributions to shadowy independent groups that would be less accountable to public opinion than are political parties and official campaigns. He explicitly defers to Congress's judgment on the ground that "the extent of the campaign finance problem" is a matter "about which the legislature is comparatively expert" (p. 49), without noting that it is also a matter about which incumbent legislators have a rather obvious conflict of interest.
At least in his concurrence in Shrink Missoui, Justice Breyer does note the incumbency protection problem. Shrink Missouri, 528 U.S. at 403-04 (Breyer, J., concurring) ("We should defer to [the legislature's] political judgment that unlimited spending threatens the integrity of the electoral process. But we should not defer in respect to whether its solution . . . significantly increases the reputation-related or media-related advantages of incumbency and thereby insulates legislators from effective electoral challenge.")

As I noted in a 2004 article, "Justice Breyer, in setting forth his participatory self-government rationale, has noted the Court's important role both in balancing competing constitutional interests and in 'evaluating the risk that reform legislation will defeat the very objective of participatory self-government itself; for example, where laws would set limits so low that by elevating the reputation-related or media-related advantages of incumbency to the point where they would insulate incumbents from effective challenge.' The Court, however, has failed to meaningfully balance or closely examine new campaign finance laws for self-dealing." (footnote omitted)

-- 
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