Demos: “Walmart is under scrutiny after claims that their political action committee is using illegal methods to persuade employees to donate to its PAC. The complaint, filed with the FEC, alleges that Walmart is breaking federal election law by matching employee donations to Walmart’s PAC with a donation to a charity owned by Walmart.”
WaPo:
The least-productive Congress in modern history drew to an abrupt close late Tuesday as the U.S. Senate extended dozens of expired tax breaks but failed to renew a federally backed terrorism insurance program supported by big businesses and major sports leagues.
Democrats controlling the Senate also secured agreements from Republicans to confirm at least six dozen of President Obama’s nominees to serve as federal judges, agency bosses and on myriad government boards, a last-minute coup for the White House since most of the picks faced tougher odds next year once Republicans take full control of Capitol Hill.
Expect this fascinating NYT story to get some play:
The Obama administration overturned a ban preventing a wealthy, politically connected Ecuadorean woman from entering the United States after her family gave tens of thousands of dollars to Democratic campaigns, according to finance records and government officials.
The woman, Estefanía Isaías, had been barred from coming to the United States after being caught fraudulently obtaining visas for her maids. But the ban was lifted at the request of the State Department under former Secretary of State Hillary Rodham Clinton so that Ms. Isaías could work for an Obama fund-raiser with close ties to the administration.
It was one of several favorable decisions the Obama administration made in recent years involving the Isaías family, which the government of Ecuador accuses of buying protection from Washington and living comfortably in Miami off the profits of a looted bank in Ecuador.
After years of the United States Election Assistance Commission having NO commissioners, tonight in a flurry of activity the Senate confirmed the following three members of the EAC: Thomas Hicks, Matthew Masterson, and Christy McCormick.
These are two Republican-chosen commissioners and one Democrat. It takes three votes for any significant action on the commission. People in the know have high hopes for these three commissioners (a fourth nominee, Matthew Butler, has not yet had a chance for a hearing, after Myrna Perez withdrew). We will see.
I detail the dysfunction of the EAC in The Voting Wars, and as I recently remarked: “there was a time when a few courageous EAC commissioners could have made the Commission something to get above the partisan sniping. But they were shut down and that moment regrettably has passed.” The Republican House has voted to defund the agency, and there is great mistrust of the agency from some Republicans. Perhaps things will be better this time around. The agency has some important functions to fulfill, especially related to approval of voting technology and collection of election related data.
We can always hope.
Courthouse News Service reports on a lively oral argument in a case involving a purported right of initiative proponents to be anonymous. Emily Hogin offered this extensive analysis of the case in an ELB guest post.
I’ve been engaging (and sometimes tangling) with my worthy opponent Jim Bopp for many years. But I’ve never heard him referred to as “The Big Bopper” before.
The state Supreme Court on Tuesday accepted three cases stemming from a long-running John Doe investigation of fundraising and spending by Gov. Scott Walker’s campaign and conservative groups backing him.
The court was unanimous in agreeing to take the cases, but Chief Justice Shirley Abrahamson and Justice David Prosser wrote separately to say they did not want to combine the cases.
I have never seen an appellate briefing order as complex as this one. Perhaps for this reason Justice Prosser and Chief Justice Abrahamson, usually at odds, were aligned in expressing doubts about consolidating five John Doe related cases for purposes of briefing and oral argument.
BLT: “Lawyers for the state of Texas have accused a federal district judge of wrongfully awarding ‘a consolation prize’ of more than $1 million in attorney fees to groups that challenged the state’s redistricting plans.”
Moving these off the Sidebar as well.
Fixing Washington, 126 Harvard Law Review 550 (2012)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (2012)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, 27 Journal of Law and Politics 557 (2012)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review 191 (2012)
Teaching Bush v. Gore as History, 56 St. Louis University Law Review 665 (2012) (symposium on teaching election law)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, 10 Election Law Journal 325 (2011)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Articles 2004-2007
Articles from 2008-2010
The latest from Wisconsin.
I am moving them off the sidebar as I spruce things up around here. [links fixed]
Voter Suppression’s New Pretext, New York Times, Nov. 15, 2013
Making a Federal Case Out of It: How Democrats May Win the Virginia Attorney General’s Race, Slate, Nov. 11, 2013
Why Judge Posner Changed His Mind on Voter ID Laws, Daily Beast, October 23, 2013
The Next Citizens United?, Slate, Sept. 30, 2013
Why Was Tom DeLay’s Conviction Tossed?, Slate, Sept. 19, 2013
Supreme Error: North Carolina’s New Voter Suppression Law Shows Why the Voting Rights Act is Still Necessary, Slate, Aug. 19, 2013
Holder’s Texas-Sized Gambit: Will It Save the Voting Rights Act?, National Law Journal, Aug. 5, 2013
Will the GOP’s North Carolina End Run Backfire?, The Daily Beast, July 24, 2013
Court Due to Make a Second Trip Down the Aisle, Reuters Opinion, July 16, 2013
“Are the Liberal Justices Savvy or Suckers? They are playing to beat John Roberts at his long game, Slate, July 1, 2013
The Chief Justice’s Long Game, New York Times, June 25, 2013
What’s Taking the Supreme Court So Long?, Daily Beast, June 21, 2013
The Supreme Court Gives States New Weapons in the Voting Wars, Daily Beast, June 17, 2013
It’s About the Disclosure, Stupid: The larger failing behind the terrible IRS treatment of Tea Party groups, Slate, May 14, 2013
Same-Sex Marriage: Court on the Couch, Reuters Opinion, Mar. 26, 2013
The Voting Wars Within: Is the Justice Department Too Biased to Enforce the Voting Rights Act?, Slate, Mar. 18, 2013
Who Controls Voting Rights?, Reuters Opinion, Feb. 26, 2013
After Scalia: Don’t Give Up on Campaign Finance Reform, However Hopeless It Seems Now, Slate, Feb. 21, 2013
If the Court Strikes Down Section 5 of the Voting Rights Act, Reuters Opinion, Jan. 30, 2013
Democrats, Don’t Freak Out! Why Fear that Republicans Will Gerrymander the Electoral College are Overblown, Slate, Jan. 25, 2013
Big Money Lost, But Don’t Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, “Room for Debate” blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court’s Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven’t Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK’d Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds: Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times “Room for Debate” blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Read more opeds from 2006-2009, and these from 2010-2011.
Congrats (I think!) to Election Law prof Jim Gardner, named interim dean of Buffalo.
NYT:
How Representative Kevin Yoder’s “push out” provision survived is not, as many have suggested, a tale of dark favors done in back rooms at the last minute. Instead, it is how powerful lobbies work their will, slowly, persistently, bit by bit — in other words, how Washington works.
Even though lawmakers who will not be returning to Congress in January might feel downtrodden, they can find solace in the fact that they retain some congressional perks.
Those perks, ranging from floor access to permanent identification cards, were outlined in the Congressional Research Service’s Dec. 5 report titled “Selected Privileges and Courtesies Extended to Former Members of Congress.” CRS American National Government specialist R. Eric Peterson wrote in the report, “Some [privileges] are derived from law and chamber rules, but others are courtesies that have been extended as a matter of custom.”
Nate Cohn analyzes for NYT’s The Upshot.
Unanimous opinion (with some recusals):
The primary issue in this appeal is whether a law firm’s post-election forgiveness of a political campaign committee’s unpaid legal fees, which were incurred due to the
firm’s representation of a candidate in a ballot challenge, is subject to the contribution limitations established in the Philadelphia Campaign Finance Law, Philadelphia Code Chapter 20-1000, et seq. (“Code”), as applicable in 2007. The Commonwealth Court held that the post-election forgiveness of debt would constitute a “contribution” to the candidate’s political campaign under Section 1001(6) of the Code, and, thus, was subject to the $10,000 per year contribution limitation set forth in Section 1001(2). For the reasons set forth herein, we hold that the law firm’s forgiveness of debt would not constitute a contribution to the candidate’s political campaign as the debt at issue was [J-40-2014] – 2 not incurred “for use in . . . influencing the election of the candidate.” Id. § 1001(6). Accordingly, we reverse the order of the Commonwealth Court.
Paul Jossey oped in the Daily Caller.
Here.
Must-read AJC deep dive into a local Georgia voting controversy.
Zack Roth writes for MSNBC.
Bertrall Ross has posted this draft on SSRN (University of Chicago Legal Forum). Here is the abstract:
What determines the level of deference the Supreme Court gives to agency interpretations of statutes? One explanation is that deference choices accord with what I term the “deference dichotomy.” When agency interpretations are in a legislative rule adopted through notice-and-comment procedures and have the “force of law,” the Court applies a heightened deference framework. But when agency interpretations are in interpretive or other non-legislative rules adopted through less formalized procedures, the Court gives minimal or no deference. Although scholars have advocated that approach for decades and the Court has now adopted it as formal doctrine, the Court’s actual choice of deference framework follows a less predictable pattern. Some scholars have suggested ideology as an alternative explanation, but empirical studies across administrative law domains have come to conflicting conclusions about its effect on deference choices. Other scholars have argued that the complexity of the statute and judicial views about the agency influence deference choices, but these studies have not been generalized across agencies and statutes.
In this Article, I employ a distinct approach, examining Supreme Court deference choices across multiple agencies administering multiple statutes in a single substantive field. I find that in the civil rights field, the Supreme Court’s deference choices appear to have been motivated by a factor that has gone unnoticed in the literature thus far — judicial resistance to “administrative constitutionalism.” To the extent that civil rights agencies resolve statutory questions central to ongoing constitutional controversies in the Supreme Court, such as the meaning of “discrimination,” they are practicing administrative constitutionalism — resolving interpretive questions that rest on constitutional values. When civil rights agencies have engaged with constitutional meaning in this way, the Court has refused to apply heightened deference to the agency’s interpretation of the statute even when precedent or the deference dichotomy suggests that it should.
I argue that this judicial resistance to administrative constitutionalism implicates important questions about authority over constitutional meaning. When the Court denies heightened deference to administrative constructions of statutes implicating ongoing constitutional controversies, it is preserving its exclusive power to determine constitutional meaning. Such resistance places the Court in the role of defining the substance of civil rights statutes insofar as they implicate the Constitution, and thus supplements the Court’s often-remarked practice of curbing legislative constitutionalism.
The book is out today, and you can’t be in the election law field without reading it. Here are the blurbs, including my own:
“Everyone talks about the dysfunction of American politics, but very few people have practical or thought-through ideas on what to do about it. Bruce Cain has studied this topic extensively as a scholar and has first-hand experience in the cauldron of California’s ongoing experiments in structural reform. In this book he explains the conceptual weakness in today’s most popular reform proposals and offers a convincing alternative. I hope this book informs media, academic and public discussions of a way out of our political morass.”
James Fallows, National Correspondent, The Atlantic
“Bruce Cain has written a remarkable, deeply insightful book about the American experience with political reform. His survey is wide-ranging, distinguishing throughout a populist vision of tight citizen control of government from a pluralist call to protect the role of interest groups, parties and other intermediaries in building coalitions and encouraging workable compromise. Campaign finance, redistricting, election administration, transparency and conflict-of interest regulation are among the topics that receive careful attention, and Cain offers both keen criticism of policy failure and a fresh path forward. Scholars and policy-makers will be turning to this book for years to come.”
Bob Bauer, New York University School of Law and Co-Chair of the Presidential Commission on Election Administration“Democracy More or Less is a crowning achievement from one of the leading thinkers on election law and politics. Bruce Cain’s must-read account of the failures of political reform efforts in the US should be carefully studied by everyone who believes in easy solutions to the problem of money in politics, redistricting, polarization and representation. Cain’s proposed solutions merit our attention and serious consideration.”
Rick Hasen, School of Law, University of California, Irvine“In this wide-ranging study Cain argues that reforms often fail because they reflect a misguided attempt to increase popular democracy. In his view the latter is like homeopathic medicine, taken in small amounts it may be helpful, but in larger amounts it is harmful.”
Morris Fiorina, Senior Fellow at the Hoover Institution“This is a book all sides of the political reform debate should read. Its fresh thinking and insightful analysis will probably fully please no side, but it will help all sides better understand the scope of the issues and what others are thinking.”
Benjamin L. Ginsberg, Attorney, Jones Day“Finally, a book on American democracy that challenges romantic, populist ‘reform’ naiveté and insists that serious and productive reform must instead take into account the way political power is actually constructed, mobilized and channeled – particularly through organizations, including political parties, that inevitably and desirably exist between the isolated citizen and effective political participation. Deceptively short and accessible, this book raises profound and necessary challenges to more conventional ways of thinking about the nature and fate of democracy in America.”
Rick Pildes, New York University School of Law
Lee Drutman for the Monkey Cage:
Over at the New York Times, Binyamin Appelbaum is the latest columnist to downplay the role of money in politics. His new column, “Who Wants to Buy a Politician?” has the same basic conclusion as David Brooks’s October column “Money Matters Less”: Money in politics isn’t buying much of anything. But this conclusion isn’t warranted. We do still need to worry about money in politics. Here’s what Appelbaum gets wrong, and why it matters.
Annie Linskey for Bloomberg View.
The problem with the headline is that it assumes he was ever a reformer, as opposed to simply one who has given lip service to the issue all the way through.
Eric Lipton for the NYT:
For Wall Street it must seem like money well spent.
An analysis of the House vote on Thursday on the $1.1 trillion federal budget bill — which included a contested provision that will roll back a key rule of the Dodd-Frank law — shows that Democrats who voted in favor of the measure on average received nearly four times as much money from large financial institutions as others who voted “no.”
AP: “An attorney for former Secretary of State Charlie White faced tough questioning Tuesday from Indiana’s three-judge appeals court during White’s latest bid to overturn the voter fraud convictions that forced him from office.”
Nick Confessore for the NYT:
The secret negotiations that led to one of the most significant expansions of campaign contributions in recent years began with what Republican leaders regarded as an urgent problem: How would they pay for their presidential nominating convention in Cleveland in two years?
The talks ended with a bipartisan agreement between Senate Democrats, led by the majority leader, Harry Reid of Nevada, and House Republicans, led by Speaker John A. Boehner of Ohio, that would allow wealthy donors to begin giving more than $1 million every election cycle to each party’s national committees.
See this story and this response from the GAB.
Here.
Today is the 14th anniversary of the decision marking the end of the 2000 election controversy. On the decision’s 10th anniversary, I posted a series of reflections on the case. You can find that and more at my Bush v. Gore reflections tab.
Today is the tenth anniversary of the Supreme Court’s decision in Bush v. Gore, ending the Florida recount and handing the 2000 presidential to George W. Bush. Here is a link to the reflections in this series:
Lyle Denniston, That Night at the Courthouse
Ned Foley, Bush v. Gore in Historical Perspective (Moritz)
Heather Gerken, Rethinking the 2000 Fiasco
Rick Hasen, Election Hangover: The Real Legacy of Bush v. Gore (Slate)
Nate Persily, Bush v. Gore in the American Mind
Rick Pildes, That Night Ten Years Ago
After reading Nate’s contribution, I wonder if the 20th anniversary will go even more unnoticed. In my Remedies class, I always teach about the most controversial stay order in history, the Supreme Court’s Dec. 10, 2000 order stopping the statewide recount of undervotes ordered by the Florida Supreme Court. I used to say to my students, with a great laugh: “There was a disputed election in Florida, you may have heard about it.” Now, ten years later, when I teach the same stay order, I say with a completely straight face: “There was a disputed election in Florida, you may have heard about it.” Many of those students were in middle school when Bush v. Gore was decided. In 2020, I’m guessing most students would have been in diapers when the case was decided. Time marches on.
(my bimonthly listing)
Here:
RECENT TOP PAPERS for all papers first announced in the last 60 days 
13 Oct 2014 through 12 Dec 2014
| Rank | Downloads | Paper Title |
|---|---|---|
| 1 | 326 | Governing and Deciding Who Governs Josh Chafetz Cornell Law School Date posted to database: 12 Nov 2014 Last Revised: 12 Nov 2014 |
| 2 | 136 | Understanding Electoral Politics in Solomon Islands Terence Wood Australian National University (ANU) – Crawford School of Public Policy Date posted to database: 5 Oct 2014 Last Revised: 11 Nov 2014 |
| 3 | 133 | Things Aren’t Going That Well Over There Either: Party Polarization and Election Law in Comparative Perspective David Schleicher George Mason University School of Law Date posted to database: 19 Nov 2014 Last Revised: 19 Nov 2014 |
| 4 | 131 | Campaign Finance and American Democracy Yasmin Dawood University of Toronto – Faculty of Law Date posted to database: 22 Nov 2014 Last Revised: 22 Nov 2014 |
| 5 | 52 | Ballot Bedlam Samuel Issacharoff New York University School of Law Date posted to database: 16 Nov 2014 Last Revised: 16 Nov 2014 |
| 6 | 47 | The Intratextual Independent ‘Legislature’ and the Elections Clause Michael T Morley Barry University School of Law Date posted to database: 28 Oct 2014 Last Revised: 28 Oct 2014 |
| 7 | 43 | Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule Gabriel J. Chin University of California, Davis – School of Law Date posted to database: 8 Oct 2014 Last Revised: 8 Oct 2014 |
| 8 | 42 | Ballot (and Voter) ‘Exhaustion’ Under Instant Runoff Voting: An Examination of Four Ranked-Choice Elections Craig M. Burnett and Vladimir Kogan University of North Carolina (UNC) at Wilmington and Ohio State University (OSU) – Department of Political Science Date posted to database: 7 Nov 2014 Last Revised: 7 Nov 2014 |
| 9 | 37 | The Meme of Voter Fraud Atiba R. Ellis West Virginia University – College of Law Date posted to database: 22 Oct 2014 Last Revised: 2 Dec 2014 |
| 10 | 31 | Devising a Standard for Section 3: Post-Shelby County Voting Rights Litigation Roseann R. Romano University of Iowa – College of Law Date posted to database: 24 Oct 2014 Last Revised: 24 Oct 2014 |
