Since Rick
states that his “call for
compromise” is based solely on his concern that the current legislation
“is as
in serious danger of constitutional invalidation by the Supreme Court,”
and I know
he’s sincere when he says that, I hope he’ll consider retracting his
suggestion
of increasing the threshold for Sec. 203 coverage by 5%.
I have not
heard one credible suggestion
that the formula for Sec. 203 coverage raises any constitutional
concerns.
Rick, are you suggesting that Sec. 203 as drafted is unconstitutional,
and if
so, since it is identical to Sec. 203 as it currently exists, that it
has
always been unconstitutional? If not, then no concerns about
constitutionality
are served by adopting a “compromise” with forces hostile to Sec. 203,
who are
in the extreme minority, that would eviscerate protections afforded to
limited
English proficient citizen voters all over the country. Indeed, Rick,
can you
tell us exactly what such an amendment to Sec. 203 would do to
coverage? If
not, and since this provision raises NO legitimate concerns about
constitutionality, such a suggestion is at least as unproductive as you
perceive the RenewTheVRA posting.
Finally,
regarding the issue of the
constitutionality of HR 9, it may be useful to do a partial tally of
those who
have assessed its constitutionality (I realize this isn’t complete, and
others
can feel free to add information to this list).
BELIEVE IT’S
UNCONSTITUTIONAL – Rick Hasen,
Ed Blum, Gerald Reynolds, Rick Pildes, Roger Clegg, Abigail Thernstrom,
Sam Issacharoff
(or more fairly, he seems to be more on the fence than these others and
seems
to think it may raise some constitutional issues).
BELIEVE IT’S
CONSTITUTIONAL – Pam Karlan, Nate
Persily, Laughlin McDonald, Ted Shaw, Chandler Davidson, Anita Earls,
Drew
Days, Debo Adegbile, the White House, the DOJ, every single civil
rights
practitioner who’s testified (some of whom have litigated cases
regarding the
constitutionality of the VRA), the civil rights community, 33 of the 34
voting
members of the House Judiciary Committee (including every Republican
but one), 152
House co-sponsors of HR 9, 38 Senate co-sponsors of S 2703 (including
several
Republicans, including Allen, Brownback, DeWine, Grassley, Hagel,
Johnson, and Warner),
and others (and I don’t know that it’s worth much, considering the
tremendous
qualifications of everyone on both these lists, but as is probably
obvious from
my postings, you can add me to this list as well).
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:
Still,
skeptics say: The
legislation was supposed to put an end to corrupt money in politics,
yet here
we have a series of scandals unfolding on Capitol Hill like implausible
B-movie
scripts.
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:
What
Principles of
American Democracy Are at Stake?
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 vehicles—PACs, 527s, and
501(c)s—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):
SEC. 9.
These provisions
shall be applied prospectively, and are severable. If any provision of
this act
or its application is held invalid, that invalidity shall not affect
other
provisions or applications that can be given effect without the invalid
provision or application. 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