The law of politics and the politics of law: election law, campaign finance, legislation, voting rights, initiatives, redistricting, and the Supreme Court nomination process
Rick Hasen's web log

"Foreigners and campaign advertising"

This post appears at the Economist's "Democracy in America" blog.

"Reinforcing Voting as a Communal Act"

Terri Ens has this comment at Moritz.

Just Wondering Department

Is anyone (perhaps Floyd Abrams?) who has celebrated Citizens United going to step up and take issue with my arguments and argue in favor of the constitutionality of limits on foreign spending in elections? Or offer a persuasive way of distinguishing limits on foreign spending from the reasoning in CU barring limits on corporate spending?

Supreme Court Grants Cert in Case Involving Petition Clause

Today the Supreme Court agreed to hear a case involving the petition clause of the First Amendment. The question presented is "Whether state and local government employees may sue their employers for retaliation under the First Amendment’s Petition Clause when they petitioned the government on matters of private concern." SCOTUSBlog's page is here. Election law prof Dan Ortiz is counsel of record for petitioners. My earlier coverage of this case is here. I'm particularly interested in this issue because of my current paper on lobbying and the First Amendment (to be posted soon on SSRN).

Thanks to a reader for the heads up.

Breaking News: Supreme Court, Without Comment, Denies Stay Request in Family PAC Case

SCOTUSBlog: "The Supreme Court has refused to free the Family PAC ballot measure organization to raise unlimited funds in the remaining three weeks before the election in Washington State. The denial of a plea to vacate a Ninth Circuit Court stay came in a one-sentence order Tuesday afternoon. The full Court acted after Justice Anthony M. Kennedy referred the application to it."

"After the Other Shoe Drops"

I've written this blog post at The American Interest Online. It is a follow up to my American Interest article on Citizens United in the July/August issue. In that article, written in June, I wrote:

But it is easier to understate the importance of the case. First, it has become apparent that corporations and trade associations, such as the Chamber of Commerce, now feel as though a cloud has been lifted on their election-related activities. What was of questionable legality before is clearly legal now. Full-blown corporate involvement in Federal elections likely awaits the striking down of rules prohibiting corporations from making contributions to independent expenditure committees, so that corporations will not risk losing their customers by identifying with one side or the other in a candidate election. They will hide behind groups with innocuous names like "Americans for a Strong America" and other such anodyne labels.

Brooks Jackson Fact Checks the Democrats' Chamber Claims

Here. I am a huge fan of Brooks Jackson (especially this now-dated book), and miss his reporting on CNN.

"Analysis: Door to big, undisclosed campaign contributions swung open before Citizens United decision"

William Freivogel offers this analysis as a counterpoint to this NPR Fresh Air segment.

"Wis. Senate Debate Focuses on Free Speech"

The Johnson-Feingold debate tackles CU and disclosure.

NYT Turns Its Attention to "American Future Fund"

A key passage: "But interviews found that the group was started with seed money from at least one influential Iowa businessman: Bruce Rastetter, a co-founder and the chief executive of one of the nation's larger ethanol companies, Hawkeye Energy Holdings, and a rising force in state Republican politics. And hints of a possible agenda emerge from a look at the politicians on the American Future Fund's hit list. Most have seats on a handful of legislative committees with a direct say in the ethanol industry."

"A Lone Stance on Ad Spending; Montana Is Seeking to Uphold Campaign-Funding Curbs Jeopardized by a Supreme Court Ruling"

The WSJ offers this fascinating report.

"Ninth Circuit Sanity on Felon Disenfranchisement"

von Spakovsky blogs.

"SPIN METER: Foreign money in politics? Not proven"

AP offers this report.

Federal District Court in Hawaii Issues Preliminary Injunction Barring Enforcement of Contribution Limits as to Independent Expeinditure Committees; Court Rejects Attack on Contribution Limits to Committees that Make Contributions Directly to Candidates

You can find the federal district court's 26-page order here. See also this story.

"The 17th Amendment resurfaces as a campaign issue"

"The Fix" reports.

Brad Smith Responds to My Slate Piece

Here. To be clear, my proposal for random auditing would apply only to groups that engage in making independent expenditures and/or electioneering communications on a large scale, and subject to an as-applied exemption for groups that could be subject to government or other harassment. In addition, the information of the audits would not be made public, except when illegality is discovered.

"Foes question rule requiring city runoffs"

Interesting story from Arizona.

"Shutting Up Business: Democrats unleash the IRS and Justice on donors to their political opponents."

The WSJ offers this editorial.

"Un-American Influence: Could Foreign Spending on Our Elections Really Be Legal?"

I've just written this Jurisprudence commentary for Slate. It begins:

It's nothing new to accuse your political opponents of allowing foreign money to be used in a U.S. election, as President Obama did this week with the U.S. Chamber of Commerce. In 2008, Republicans demanded an audit of the Obama campaign, because federal law did not require the campaign to disclose contributions of less than $200, and Republicans said some of that money could be coming from foreign individuals or governments. Before that, Senate Republicans investigated Bill Clinton over possible Chinese government money influencing the 1996 election.

We owe the recurring controversy to the inadequacy of our campaign-finance disclosure laws, which don't allow for random audits of political committees to make sure the foreign money is kept out or segregated for nonpolitical purposes. And the Supreme Court reignited this issue in its divisive Citizens United opinion last term by specifically leaving open the question whether the ban on foreign spending in U.S. elections violates the First Amendment. As Democrats broadcast their breathless allegations that Republicans and the Chamber of Commerce are taking "secret foreign money to influence" the midterm elections, the real problem is why the logic of Citizens United can't justify a ban.

Read the State of Washington's Response to the Emergency Stay Request in the Family PAC Case

I have posted it at Scribd. My earlier coverage is here. Justice Kennedy may rule on this at any time, or refer it to the Court for a ruling.

Mazzone on Justice Thomas, Virginia Thomas, and CU

Mazzone: "Citizens United might be a bad decision for any number of reasons but it can't be because Justice Thomas's wife is an organizer."

"Shadowy players in a new class war"

E.J. Dionne on the Chamber, the allegations, and CU.

"Soros: I Can't Stop a Republican 'Avalanche'"

NYT's "The Caucus" briefly interviews George Soros.

"Obama Continues Attack on Chamber of Commerce"

WaPo reports.
More here.

"Election Board to Consider Fraud Charges"

Controversy in Titus County, TX.

"American People Hire High-Powered Lobbyist To Push Interests In Congress"

The Onion offers this report (via Lobbyists.info).

Final Version of My California Law Review Book Review of Heather Gerken's Democracy Index Now Available

You can find Election Administration Reform and the New Institutionalism at 98 California Law Review 1075 (2010).

"Report: Dems planted NJ tea party House candidate"

AP offers this report.

"It Appears They've Even Taken Secret Foreign Money to Influence Our Elections"

That's the unsubstantiated charge in a new DNC ad, "Stealing Democracy," against the Republicans and the Chamber.

As I told the NY Times, there's no proof that the Chamber has taken a penny of foreign money. But there's no way for us to know whether the Chamber, or anyone else engaged in election-related activity, is improperly using foreign money, unless we allow the FEC or another government agency the ability to audit the records of the political activities of such agencies. (These audits would not be made public unless there was proof of wrongdoing, and groups facing harassment should be exempt from the requirement).

I'll have more to say on the foreign money issue tomorrow in Slate.

Linda Greenhouse on Justice Breyer and Statutory Interpretation

Here.

"Topic of Foreign Money in U.S. Races Hits Hustings"

The NY Times offers this report. More from WaPo and the LA Times.

SCOTUSBlog on Family PAC emergency stay

Here. My earlier coverage is here.

"Voting Test Falls Victim to Hackers"

The NY Times offers this report.

"Activism of Thomas's Wife Could Raise Judicial Issues"

The NY Times offers this report. A snippet: "But to some people who study judicial ethics, Mrs. Thomas's activism is raising knotty questions, in particular about her acceptance of large, unidentified contributions for Liberty Central. She began the group in late 2009 with two gifts of $500,000 and $50,000, and because it is a 501(c)(4) nonprofit group, named for the applicable section of the federal tax code, she does not have to publicly disclose any contributors. Such tax-exempt groups are supposed to make sure that less than half of their activities are political."

NYT Profile of Munger Support for CA Redistricting Initiative

See here.

Bopp Files Emergency Stay Request with Justice Kennedy in Family PAC Case; Supreme Court Requests Response

Following up on this post, the Family PAC has now sought an emergency stay of the Ninth Circuit's stay of the district court's order. There's a press release at the top of the James Madison Center's website (no direct link), which quotes Jim Bopp as follows: "I I feel like my client is Goldilocks...its always too early or too late to protect my client's right to speak. But when the First Amendment is involved, the time is always just right for the court to step in to protect them. The courts must do more to protect First Amendment rights from government encroachment."

The docket is here, and I understand the Court has now asked the state of Washington to respond by noon Monday.

"More about vote-hacking incident revealed at council hearing"

The Washington Post offers this report. More from Joe Hall.

"Baucus sics IRS on political nonprofits, cites influence of conservative groups"

Allison Hayward has written this oped.

"Judicial Elections 2010: More States Join Trend of Costly Court Races"

The Brennan Center has issued this press release.

von Spakovsky Responds to Thernstrom and Clegg on NBP

Here.

Another Felony Disenfranchisement Case

This one from Wisconsin. As in Farrakhan v. Gregoire, the main argument is that the state's felony disenfranchisement law violates Section 2 of the VRA. But unlike Farrakhan and the other federal circuit court cases to have addressed the question, the Wisconsin case arises from a criminal prosecution for allegedly voting in violation of the state's law. You can find Defendants' brief in State v. Henderson/Maclin here and the State's brief here. The circuit court judge appears to be taking the argument very seriously.

"Rank the Vote" How to make sure Florida 2000 never happens again."

Nicholas Stephanopoulos has written this piece for TNR.

"Assessing OCE: Separating Rhetoric from Reality"

Meredith McGehee's analysis begins: "The Office of Congressional Ethics is under fire and certainly there is no shortage of Members calling for closing the office altogether or at least stripping it of powers in an attempt to bring it to heel. Either action would be a grave mistake if Congress is to have any hope of rehabilitating itself in the eyes of the public."

"Correcting Karl Rove's Erroneous Comments On Fox News Channel About Democracy 21 President Fred Wertheimer"

Here.

Making News: Not a Party Line Vote at FEC on AO

In the Google matter, the vote was 4-2.

"Election Administration 2010: Numbers to Watch"

That's Sean Greene's lead story in this week's Electionline Weekly.

"J'Accuse! President Obama Says Chamber of Commerce Using Foreign Funds to Influence US Elections"

ABC News reports.

Voter Fraud or Legitimate Voter Language Assistance?

I'd like to know more about this Missouri appeal. Is anyone considering application of federal protections for non-English speaking voters under the VRA?

"Dems Say U.S. Chamber Using Foreign Money on U.S. Races"

McClatchy offers this report. CCP asks if the Chamber is guilty until proven innocent. My view: If we had effective disclosure laws, no one would need to wonder about foreign spending by the Chamber, labor unions, or anyone else.

"Mary Cheney on the Murky World of Campaign Spending"

CBSNews.com reports.

"Changes Have Money Talking Louder Than Ever in Midterms"

The NY Times offers this report. It has this accompanying graphic.
The Times has now posted this accompanying article.

En Banc Ninth Circuit Unanimously Affirms District Court's Denial of Section 2 Voting Rights Act Felon Disenfranchisement Claim; Supreme Court Action in First Circuit Case Now Seems Very Unlikely

Via Howard Bashman come links to the per curiam opinion, Judge Thomas's narrower concurring opinion for four judges, and Judge Graber's opinion concurring in the judgment.

Though there are differences among the judges' opinions, the controlling language is from the per curiam opinion, which reads the possibility of a felon disenfranchisement case under VRA section 2 verry narrowly: "we hold that plaintiffs bringing a section 2 VRA challenge to a felon disenfranchisement law based on the operation of a states criminal justice system must at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent. Our ruling is limited to this narrow issue, and we express no view as to any of the other issues raised by the parties and amici. We also leave for another day the question of whether a plaintiff who has made the required showing would necessarily establish that a felon disenfranchisement law violates section 2." (original emphasis).

Both the Ninth Circuit case and the First Circuit case raise the VRA section 2 felon disenfranchisement issue. I originally predicted the Supreme Court would take the original Ninth Circuit case, continuing (from an earlier 9th Circuit case) to recognize a VRA section 2 felon disenfranchisement claim) unless the Ninth Circuit reversed the panel en banc. The en banc reversal of the panel decision is exactly what happened today.

There is now no split on this question as the Supreme Court decides whether to hear the First Circuit case. It is unlikely to do so especially in light of the Solicitor General's invitation brief suggesting that the Court should not take the case in the absence of a circuit split, I now think it is exceedingly unlikely the Court will wade into this sensitive area of race an politics at this point. This is sure to disappoint Linda Greenhouse but I see it as better than the Supreme Court agreeing to hear the case.

"Democrats conflicted about election spending gap"

The LA Times offers this report.

" Withdrawn FEC Nominee Laments 'Broken' Confirmation Process: A Center Interview with Lawyer John J. Sullivan"

This interview appears on the website of the Center for Public Integrity.

A Huge Thank You to Dan Tokaji...

who did an excellent job filling in for me while I dealt with some pressing deadlines. Thanks Dan!

"In midterm elections, Washington lobbying becomes a line of attack for both parties"

The Washington Post offers this very interesting report. Coincidentally, I've just finished the first draft of a paper on lobbying (soon to be posted on SSRN) that begins with this point about lobbyists being excoriated by left and right.

"Republicans See a Political Motive in I.R.S. Audits"

The NY Times offers this report and this related blog post. In somewhat related news, the Washington Post offers Treasury Watchdog to Probe Austan Goolsbee.

"Confronting the Impact of Citizens United"

Justin Levitt has posted this draft on SSRN (forthcoming, Yale Law & Policy Review). Here is the abstract:

Perceived corporate power has spurred a recent populist backlash, on both political left and political right. In this atmosphere, the Supreme Court's 2010 decision in Citizens United v. Federal Election Commission, granting corporations the right to spend directly on express political advocacy, has become the target of particularly heated critique.

This Essay confronts the impact of Citizens United in two respects. Part I first reviews Citizens United's place in the campaign finance constellation. It argues that although the decision was a bold stroke in many ways, its impact on the scope of permissible campaign finance regulation is far less substantial than commonly assumed.

Even if Citizens United's incremental impact is mild, it nevertheless seems to have the feel of a final straw. The decision has provoked first furor, and then fear, with opponents invoking a broad vision of a dystopian political process overwhelmed by corporations. Yet rarely is the fear of corporate political spending articulated at a level of specificity conducive to assessing, or confronting, the perceived damage. Part II takes up the challenge, parsing the pragmatic concerns at the root of opposition to corporate political spending. It then offers responsive policy proposals - including an approach to protect against monopolization of media channels, an appealingly straightforward disclaimer label to mitigate voter misperception, and a novel application of a recusal obligation to combat the appearance of corruption - all well within the regulatory space undisturbed by Citizens United.

"Approximating Democracy: A Proposal for Proportional Representation in the California Legislature"

Allan Ides has posted this draft on SSRN (recently presented at the Reboot CA conference here at Loyola). Here is the abstract:

The State of California elects a bicameral legislature through a first-past-the-post electoral system. Beginning in 2012, the election of California state legislators will be through an open primary, two-round system. Neither of these electoral systems provides for proportional representation in the legislature. Accordingly, neither system leads to a truly representative democracy. The author recommends that the state adopt a proportional representation electoral system – specifically, a mixed-member system – as a more democratic alternative plurality/majority systems now in place or projected to be implemented in 2012. In addition, the author explains why the state legislature should be unicameral and increased in size from the current 120 legislators to 320.

"Donor names stay secret as nonprofits politick"

The Boston Globe offers this report.

"TX: Houston tea party group King Street Patriots may risk violating state, federal laws, experts say"

The Texas Independent offers this report.

"New Black Panthers: Coates' Testimony a 'Bombshell' -- Of the Self-Exploding Kind"

Michael Yaki of the U.S. Commission on Civil Rights has written this blog post.

"Supporters Say They Fear Hill Watchdog Will Be Killed or Gutted in Next Congress"

BNA offers this report.

"Late Ballots May Put Congress in Limbo"

AP offers this report.

Voting Group Complains About RNC Mailer That May Compromise Voter Privacy

A nonprofit called Long Distance Voter (LDV) has written this open letter to the RNC, complaining about an RNC mailer that included an LDV registration form. The forms are public and available for anyone to distribute. So what's the problem? The form was reprinted on postcard. Bcause it requires sensitive information, this could compromise voters' privacy and leave them vulnerable to identity theft, LDV complains. Also, the form has LDV's email address but doesn't mention the RNC, leading some recipients to believe it came from the nonprofit.

DC BOEE Response to Hacking of Online Voting Trial

Paul Stenbjorn, Director Information Services for the D.C. Board of Elections and Ethics, has written this response to the hacking of its digital vote by mail test.

McDonald's VAP and VEP Estimates

Not to be missed: Michael McDonald has released his estimates of the Voting-Age and Voting Eligible Population for 2010. See this post on Huffpost/Pollster, as well as this page on the US Elections Project website with a state-by-state VAP and VEP breakdown -- as well as columns on turnout to be filled in after the election.

"Feingold: Principled or Naive?"

In Politico's Arena, Rick Hasen weighs in on Senator Feingold's statement that he doesn't want help from the DSCC.

CCP Responds to Crossroads GPS and U.S. Chamber Allegations

The Center for Competitive Politics has issued this memo, responding to the Campaign Legal Center and Democracy 21's complaint against Crossroad GPS and Think Progress' allegation of foreign funding for the U.S. Chamber of Commerce's political activities, both noted here.

NIST Voting Systems Job Postings

The National Institute of Standards and Technology has two job postings, here and here, for computer security experts to work on HAVA voting systems issues, including the development of security standards.

"TIGTA to Investigate White House Disclosure of Confidential Taxpayer Data of Political Opponent"

Tax Prof Blog has this post (with links) on the Treasury Inspector General for Tax Administration's announcement of an investigation into "whether Obama Administration officials illegally accessed and disclosed confidential taxpayer information involving Koch Industries, a prominent critic of the Obama Adminstration."

"Voters to Weigh Mix of Ballot Initiatives"

The NYT has this report, discussing a few of the 155 measures on the ballots of 36 states.

"Secret donors fuel American Crossroads media buy"

Politico reports here.

Ninth Circuit Reinstates WA Law Regulating Ballot Measure Committees

The Ninth Circuit has issued this order in Family PAC v. McKenna, granting the state's request to stay a district court order declaring unconstitutional a Washington law limiting ballot measure committees to $5000 contributions in the 21 days before the election. Rick's earlier post on the case may be found here.

Update: Some of you may be wondering why you hadn't seen the district court's order. Turns out that it ruled from the bench and declined to follow up with a written order, but the transcript of proceedings is available here (courtesy of Bill Sherman)

"Woman, 81, jailed in vote-fraud case"

According to this report, she's accused of using the identity of her sister, who died in 1963, to vote twice in the 2008 election. She was caught when a routine scan of driver's license photos revealed that she had one under both her name and her sister's. Of course, because she had two licenses, a voter ID law wouldn't have prevented the alleged voting fraud.

The Voter ID Debate Comes to Kansas

The Witchita Eagle reports here. After this year's election, there's a good chance that Kansas will join Indiana and Georgia in requiring voters to have photo ID. It will probably have a Republican governor and legislature. In addition, the Republican candidate for Secretary of State, Kris Kobach -- in addition to being "the legal architect" of Arizona's immigration law -- is a strong supporter of tough ID laws

"Surge in early voting upends election playbooks"

The LA Times reports here on how the increase in early and absentee voting is affecting campaign strategy.

County Elections Board Sues Its County Commission to Pay for Election

This below-the-fold story from yesterday's Columbus Dispatch caught my eye, because it raises a problem familiar to local election officials: not having enough money to run elections. In this case, the board of elections in Morgan County, a small county in southeast Ohio, has sued its county commissioners (the entity that holds the pursestrings) seeking $29,000 in emergency funding for November's election. According to the special prosecutor representing the board, it "will have no choice but to lay off the entire staff and will not be able to pay the other expenses necessary for the upcoming election" without these funds. Although this is an extreme example, the shortage of resources faced by local election officials -- typically competing for scarce dollars against law enforcement, social services, jails, and other needs that seem more urgent -- is a widespread and persistent problem.

"Schwarzenegger Signs Law to Make Placement Agents Register as Lobbyists"

BNA has this report ($), which begins, "Gov. Arnold Schwarzenegger (R) signed three bills Sept. 30 to boost disclosure of campaign finances and the financial interests of those serving or running for positions on state or local pension system boards, including a bill requiring investment placement agents to register as lobbyists if they sell investments to state public pension systems."

Speechnow.org Cert Petition

SCOTUSblog named it petition of the day yesterday.

SCOTUS Denies Cert in Long Beach Independent Expenditure Case

The U.S. Supreme Court has denied the City of Long Beach's cert petition in Long Beach v. Long Beach Area Chamber of Commerce. See this story. The Ninth Circuit struck down the City's limitation on contributions to independent expenditure committees.

"Sunlight's Glare: How Overbroad Open Government Laws Chill Free Speech and Hamper Effective Democracy"

The new issue of the Legislation & Statutory Interpretation eJournal includes this article by Steven Mulroy. Here's the abstract:

In this Article, Prof. Mulroy argues that the broadest of state "open meetings laws" violate the free speech rights of covered government officials. The Article focuses on those laws which ban substantive discussion of government business by any two or three legislators outside of a publicly noticed official meeting (far less than a quorum), and those laws which admit no exceptions for matters involving individual privacy, personnel matters, consultation with counsel, ongoing financial negotiations, or other sensitive topics where confidentiality is warranted. They are likely overbroad under the strict scrutiny standard applicable to content-based speech restrictions, or even under the intermediate standard applicable to content-neutral laws. The Article also discusses equal protection issues arising when state legislatures exempt themselves from such strict requirements imposed on local legislators. As a policy matter, such overstrict laws chill needed deliberation and collegiality, prevent compromise, transfer power to unelected staff and lobbyists, encourage the violation of individual privacy, and, ultimately, force conscientious local legislators to become casual lawbreakers. The Article concludes by calling for reform of these laws, and provides a model open meetings act as a guide for such reform legislation

"The Rise of 501(c)(4)s in campaign activity: Are they as clever as they think?"

Perhaps in the short run but maybe not in the long run, says Donald Tobin in his EL@M weekly comment

"Lawsuits from Maine to Hawaii Seek to Block Public's Right to Know"

CLC Blog has this post.