There are two types of election laws here. First is
election procedures, such the design of ballots, etc, that must be
determined by government laws. The second is campaign finance and campaign
speech. Here, there is no necessity for government to act since elections
can occur without any regulation of campaigns. The danger Brad and Paul speak
of, and others, is why our Founders sought to make government regulation of
campaigns unconstitutional in the most definitive way: mandating the Congress
"shall make no law." Unfortunately, some judges don't know what "no"
means. Jim Bopp
In a message dated 4/23/2011 8:58:41 A.M. Eastern Daylight Time,
lehto.paul@gmail.com writes:
On
4/22/11, Smith, Brad <BSmith@law.capital.edu> wrote:
> Dear
David,
> A constant theme in my scholarship, my legal briefs, and my
popular writing
> for many years has been that a major problem with
virtually all campaign
> finance measures - perhaps *the* major problem
- is that they are
> particularly prone to abuse for partisan
purposes.
This is the intractable problem of election law
generally.
Non-campaign finance laws that are nevertheless election laws
are made
by incumbents, the vast majority of whom anticipate
seeking
re-election under the laws they make for elections.
There is
not only partisanship in this, but a large issue regarding
the self-dealing
that is inherent in voting on the rules for one's own
re-election
campaign. Another very influential group when it comes to
election
laws - election officials - have a non-partisan bias to
engage in CYA by,
inter alia, avoiding the transparency that is the
predicate condition of
accountability.
Rephrased along the lines of the above, I would concur
with Brad Smith
that this is perhaps *the* major problem of election law,
one that
guarantees that we will be able to discuss, debate and
"reform"
election law eternally. Putting on a non-partisan hat and
delegating
election rule-making to a "non-partisan" group simply disguises
the
partisan preferences at hand (which are likely, but not
necessarily,
those favoring "moderation" or "moderate"
candidates).
The purpose of elections is solely to measure the will of
the people
like a nurse takes a temperature, and not to tamper with
the
thermometer to encourage the "correct" readings on the
thermometer.
Yet, this "tampering" flows from the unavoidable partisanship
of
everyone who would participate in elections, at least absent
the
strictest adherence and fidelity to the measurement of the will of
the
voters, come what may.
--
Paul R Lehto, J.D.
P.O. Box
1
Ishpeming, MI 49849
lehto.paul@gmail.com
906-204-4026
(cell)
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