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Category: Election Law

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FAN 25 (First Amendment News) — High Court again asked to intervene in state judicial elections

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Lanell Williams-Yulee

If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges. Justice Sandra Day O’Connor (2002)

The case is Williams-Yulee v. The Florida Bar. The issue in the case is whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment. In a per curium opinion, a divided Florida Supreme Court denied the First Amendment challenge. (See here re video and transcript of oral arguments in Florida Supreme Court.)

A petition for certiorari has been filed by Andrew Pincus, Charles Rothfeld, and Michael Kimberly with assistance from Ernest Myers and Lee Marcus along with Eugene Fidell of the Yale Law School Clinic.

→ Flashback: FAN 15, “Free Speech & Judicial Elections: The Return of Kaus’ Crocodile,” May 14, 2014

Facts – Here is how Judge Chris Helinger, a referee for the Florida State Bar described the key facts in the case: “The Florida Bar alleges that on or about September 2009, the Respondent became a candidate for County Court Judge, Group 10, Hillsborough County, Florida. On September 4, 2009, the Respondent signed a campaign fundraising letter wherein the Respondent personally solicited campaign contributions. The Respondent admits that she reviewed and approved the September 4, 2009 letter. The Respondent further testified that prior to approving the letter she reviewed Canon 7C(1) of the Code of Judicial Conduct regarding solicitation of funds. However, the Respondent testified that she interpreted the Canon to only apply if there was another candidate in the race. At the time the solicitation letter was sent no other candidate had been announced. Canon 7C(1) states that the prohibition of personal solicitation of campaign funds apply to any candidate for ‘judicial office that is filled by public election between competing candidates.’” In that regard, the Florida Supreme Court noted: “[T]he referee found that the Respondent misrepresented the fact that there was no incumbent in the judicial race for which she was running. Further, the referee found that the Respondent’s misrepresentation [which she claims was the result of a good faith mistake based on a misunderstanding of the Canon] was published in a newspaper article on November 3, 2009.”  (Source: here)

Offending Mass-Mail Solicitation Letter 

LANELL WILLIAMS-YULEE

_____________________________________________

Bringing Diversity to the Judicial Bench

Elect Lanell Williams-Yulee For County Court Judge Group 10 and Campaign Fundraiser

Dear Friend:

I have served as a public servant for this community as Public Defender as well as a Prosecutor for the past 18 years. Having been involved in various civic activities such as “The Great American Teach In,” Inns Of Court, Pro Bono Attorney, Metropolitan Ministries outreach program, as well as a mentor for various young men and women residing within Hillsborough County, I have long worked for positive change in Tampa. With the support of my family, I now feel that the time has come for me to seek elected office. I want to bring fresh ideas and positive solutions to the Judicial bench. I am certain that I can uphold the Laws, Statutes, Ordinances as prescribed by the Constitution of the State of Florida as well as the Constitution of the United States Of America.

I am confident that I can serve as a positive attribute to the Thirteenth Judicial Circuit by running for County Court Judge, Group 10. To succeed in this effort, I need to mount an aggressive campaign. I’m inviting the people that know me best to join my campaign and help make a real difference. An early contribution of $25, $50, $100, $250, or $500, made payable to “Lanell Williams-Yulee Campaign for County Judge”, will help raise the initial funds needed to launch the campaign and get our message out to the public. I ask for your support In meeting the primary election fund raiser goals. Thank you in advance for your support.

Sincerely,
/s/
Lanell Williams-Yulee, Esq.

(Source: here)

See YouTube video of TV political ad here.

State Judicial Elections 

As Professor Richard Briffault has observed: “The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states.” Consistent with the American Bar Association’s Model Code of Judicial Conduct, states such as Florida have enacted laws or rules barring judicial candidates from personally soliciting campaign contributions.

Conflicts in Lower Courts  Read More

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FAN 20.5 (First Amendment News) — Move to Amend First Amendment Continues

imagesAccording to a June 26, 2014 Bloomberg BNA news story by Nancy Ognanovich & Kenneth P. Doyle:

“Senate Majority Leader Harry Reid’s (D-Nev.) priority list for Senate action in July includes plans to schedule votes on a constitutional amendment to protect the authority of Congress to regulate campaign finance, as well as a separate campaign finance disclosure measure—known as the DISCLOSE Act—that failed in previous years, aides said. . . .”

Vote in Subcommittee: “The proposed campaign finance amendment to the Constitution was approved by the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights June 18th on a 5-4, party-line vote. The measure was set to be considered June 26th by the full Judiciary Committee, but was held over.”

Substituted language: “The subcommittee adopted a substitute to Sen. Tom Udall’s (D-N.M.) proposed amendment (S. J. Res. 19) offered by panel Chairman Richard Durbin (D-Ill.). The measure would allow Congress and the states to set ‘reasonable limits on the raising and spending of money by candidates and others,’ and would further permit Congress and the states to prohibit campaign spending by ‘corporations or other artificial entities.’”

See also this op-ed by Josh Blackman: “Democrats are Trying to Rewrite the First Amendment,” American Spectator, June 25, 2014

→ For earlier coverage of this proposed constitutional amendment, see:

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FAN 16.2 (First Amendment News) Democracy 21 Responds to RNC Lawsuit

Press Release, May 23, 2014

RNC Challenge to Political Party Soft Money Ban Filed Today in Federal District Court Has Already Been Rejected Twice by Supreme Court

Statement by Democracy 21 President Fred Wertheimer

The RNC filed a lawsuit today in Federal District Court in Washington, D.C. challenging for the third time the ban on national parties raising and spending unlimited contributions, or soft money. They have lost this same argument twice before in the Supreme Court.

The RNC lost this argument in the Supreme Court in the McConnell case in 2003 and lost again in the RNC case in 2010, decided after the Citizens United decision.

In the 2010 RNC case, Chief Justice Roberts and Justice Alito joined in the 6 to 3 Supreme Court decision that summarily upheld the lower court decision reaffirming the constitutionality of the soft money ban.

The RNC cannot get around the soft money ban and the Supreme Court decisions upholding the ban by the use of blue smoke and mirrors.

The RNC has no basis for bringing this lawsuit and apparently wants to obtain three strikes before they will accept the fact that they cannot raise and spend soft money.

The RNC is attempting to sell an illusion that the RNC can raise and spend soft money without raising and spending the soft money that the law, upheld by the Supreme Court, prohibits the RNC from raising and spending.

The RNC is also attempting to make believe that the two previous losses they had in the Supreme Court in challenging the soft money ban somehow aren’t relevant to this case and the RNC’s desire to raise and spend soft money.

Representative Chris Van Hollen intervened in the 2010 RNC case to defend the ban on political party soft money and he has indicated he will move to intervene in the RNC case filed today.

Democracy 21 lawyers will join with others in representing Representative Van Hollen in this case, as we did in the 2010 RNC case.

Federal law prohibits the national parties from raising contributions above the federal contribution limits, or soft money, and from spending any such funds.

Federal law also prohibits federal officeholders and national party officials from soliciting any such soft money contributions.

Contact Kathryn Beard, Democracy 21 @ kbeard@democracy21.org

 

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FAN 16.1 (First Amendment News) — RNC Lawsuit Challenges Soft Money Restrictions in McCain-Feingold

Press Release (complaint available here)

Today, the Republican National Committee (RNC) and the Republican Party of Louisiana (LAGOP) filed suit in federal court challenging federal soft-money restrictions in the McCain-Feingold campaign finance law that prevent political parties from having their own independent-expenditure accounts and that prevent state and local political parties from using soft money — i.e., state-regulated money — for voter registration and get-out-the-vote activities.
        The Federal Election Commission (FEC) has recognized that political committees may have independent-expenditure accounts, which may receive unlimited contributions for making independent expenditures about federal candidates, and may also have a separate account to make contributions to candidates. Contribution accounts are subject to a “base contribution limit,” usually $5,000 annually, restricting how much an individual may contribute to them.
        However, the FEC prohibits political parties from having independent-expenditure accounts, which means that the RNC’s independent expenditures must be funded by contributions limited to $32,400 a year.
        In the lawsuit, Republican National Committee v. FEC, the RNC and Chairman Reince Priebus want to establish an RNC independent-expenditure account and to solicit unlimited contributions to it. However, political parties are currently prohibited from having independent-expenditure accounts and national political party officers are limited in how much they may solicit for an independent-expenditure account — only up to the base contribution limits — even though base limits on contributions to independent-expenditure accounts are unconstitutional.
        The Republican Party of Louisiana, and its Chairman Roger Villere, also are suing in order to establish and to solicit unlimited contributions to the LAGOP’s own independent-expenditure account.
        In addition, the LAGOP has joined with two Louisiana local political parties, Jefferson Parish Republican Parish Executive Committee and Orleans Parish Republican Executive Committee, to seek to do independent “federal election activities” with Louisiana state-regulated money (often called “soft money”),  instead of so-called “federal funds” (often called “hard money”). Federal election activity includes voter-identification, voter-registration near federal elections, and get-out-the-vote activities, as well as any public communications that merely mention a federal candidate. State and local parties must currently use federal funds even for independent federal election activity. Federal funds are subject to burdensome regulations that prevent many state and local political parties from engaging in federal election activity.
        The controlling legal principle undergirding all the suit’s claims is that the Supreme Court has held in Citizens United v. FEC and McCutcheon v. FEC, that “independent expenditures . . . do not give rise to corruption or the appearance of corruption.” As a result, it is unconstitutional to impose contribution limits on independent expenditure activities – which has given rise to independent-expenditure accounts. The same reasoning applies to political parties’ independent campaign activities.
        In the alternative, the Plaintiffs ask the court to declare all soft money provisions of McCain-Feingold to be unconstitutional on their face, reversing McConnell v. FEC, since there is no evidence of quid-pro-quo corruption where a political party sought to corrupt their own candidates. McCutcheon v. FEC recently decided that only quid-pro-quo corruption can justify contribution limits and McConnell upheld the soft money bans despite no evidence of quid-pro-quo corruption, so McConnell was wrongly decided.
        James Bopp, Jr., lead attorney for Plaintiffs comments:
After Citizens United, there is no justification for restricting funds that political parties receive for independent campaign activity. In an era when independent-expenditure accounts can solicit unlimited contributions and spend enormous amounts to influence political races, political parties are constitutionally entitled to compete equally with them with their own independent campaign activity. Political parties are an important part of our political system and success in this case will help empower them again.

May 23, 2014
Contact: James Bopp  (see link above) 

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FAN.9.1 (First Amendment News) — McCutcheon Wins: Supreme Court strikes down aggregate limits law

Only minutes ago the U.S. Supreme Court handed down its ruling in McCutcheon v. FEC, the aggregate limits campaign finance case.

Link to opinion is here.

Vote to Reverse:  5-4 (sustaining First Amendment claim)

Plurality Opinion:  Chief Justice John Roberts (joined by Justices Scalia, Kennedy & Alito)

Concurring Opinion: Justice Clarence Thomas (would overrule Buckley)

Dissenting Opinions: Justice Stephen Breyer joined by Justices Kagan, Ginsburg, & Sotomayor.

The issues before the Court were: (1) Whether the biennial limit on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), is unconstitutional for lacking a constitutionally cognizable interest as applied to contributions to national party committees; (2) whether the biennial limits on contributions to non-candidate committees, 2 U.S.C. § 441a(a)(3)(B), are unconstitutional facially for lacking a constitutionally cognizable interest; (3) whether the biennial limits on contributions to non-candidate committees are unconstitutionally too low, as applied and facially; and (4) whether the biennial limit on contributions to candidate committees, 2 U.S.C. § 441a(a)(3)(A), is unconstitutional for lacking a constitutionally cognizable interest.

Commentary: SCOTUSblog (Amy Howe): “The Court rules in the Chief’s opinion that the aggregate limits do not further the permissible government interest in preventing quid pro quo corruption or the appearance of such corruption.”

 Lawyers: Supreme Court

For Appellant Shaun McCutcheon: Erin Murphy (lead counsel) & Paul Clement

For Appellant RNC: James Bopp, Jr. (NB: Though the NRC brief was prepared by Mr. Bopp, Ms. Murphy argued the case for both McCutcheon and the RNC)

For Senator Mitch McConnell (amicus): Bobby Burchfield 

For Appellee: Solicitor General Donald Verrilli, Jr.

Oral Arguments 

Resources & Related Materials 

  • Lower Court opinion (per Judge Janice Rogers-Brown) (argued by James Bopp, Jr., for Appellant)

Selected Supreme Court Briefs

  • Cert. Petition of Shaun McCutcheon & RNC (James Bopp, Jr., counsel of record)
  • Merits Brief of Appellant RNC (James Bopp, Jr., counsel of record)
  • Merits Brief of Appellant Shaun McCutcheon (Michael T. Morley, counsel of record)
  • Reply Brief of Appellant Republican National Committee  (James Bopp, Jr., counsel of record)
  • Amicus Brief of Sen. Mitch McConnell (Bobby Burchfield, counsel of record)
  • Amicus Brief of the Cato Institute in support of the Appellant (Ilya Shapiro, counsel of record)
  • Amicus Brief of Thomas Jefferson Center for the Protection of Free Expression and the Media Institute in support of the Appellant (J. Joshua Wheeler, counsel of record)
  • Brief of Appellee FEC (S.G. Donald Verrilli, Jr., counsel of record)
  • Amicus Brief of Brennan Center for Justice in support of Appellee (Daniel Kolb, counsel of record)
  • Amicus Brief of Americans for Campaign Reform in support of Appellee (Charles Fried)
  • Amicus Brief of Democratic Members of the U.S. House of Representatives in support of Appellee (Paul M. Smith, counsel of record)
  • Amicus Brief of Representatives Chris Van Hollen & David Price in support of Appellee (Seth Waxman, counsel of record)
  • Amicus Brief of Professor Lawrence Lessig in support of Appellee (Douglas T. Kendall, counsel of record)
  • For Additional Briefs, go here (ABA site)

Books, Symposia & Articles

  • SCOTUSblog Symposium on McCutcheon (forthcoming, 2014) (contributors: Jan Witold Baran, Richard Hasen, Burt Neuborne, Ilya Shapiro, & Fred Wertheimer)
  • SCOTUSblog Symposium on McCutcheon (Aug., 2013) (contributors: Erwin Chemerinsky, Ronald Collins, Robert Corn-Revere, Joel Gora, Justin Levitt, Tamara Piety, David Skover, & Adam Winkler)
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Bright Ideas: Prof. Rick Hasen on the Recent and Future Voting War Engagements

There has been a tremendous amount of activity around election law since 2000. Decisions by the Supreme Court, district courts, and legislatures are affecting the future of how our country votes. The fights are in some ways old as voting is always political, but are new as the battlegrounds have changed. I am excited to welcome Professor Richard L. Hasen on Bright Ideas to get into some history, perspective on recent cases, and thoughts on where we need more research. As Professor Hasen says “The more we can address these points with facts and logic rather than hyperbole and assumption, the better.” Read on to find out the details.

Professor Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. I have been fortunate to know his work in person from when he spoke at Thomas Jefferson School of Law about his book The Voting Wars: From Florida 2000 to the Next Election Meltdown. Professor Hasen is a nationally recognized expert in election law and campaign finance regulation, and is co-author of a leading casebook on election law. He is the author of more than 80 articles on election law issues, published in numerous journals including the Harvard Law Review, Stanford Law Review and Supreme Court Review. He was elected to the American Law Institute in 2009, and he was named one of the 100 most influential lawyers in America by The National Law Journal in 2013. We are are fortunate to have Professor Hasen with us today. With that let’s get to the questions.

Q: Rick, voting rights have taken on new importance. States are trying to pass laws that require proof of citizenship. The Supreme Court has rejected some attempts to require proof of citizenship in federal elections. But a federal judge in Kansas has just ruled that the federal government must aid states that wish to require proof of citizenship. Before we get into the details about whether that ruling makes sense, can you help folks understand what is going on? Why is there a renewed interest in voter registration?

A: The interest in voter registration is part of a broader interest in, and fights over, rules for how we run our elections, from registration, to voter i.d., to how to handle the ballots of people who vote in the wrong voting precinct. As I explain in my 2012 book, The Voting Wars, since 2000 we have witnessed a great struggle between the parties, and between the federal and state governments, over who controls the voting rules. The disputed 2000 election ending with Bush v. Gore showed everyone that in very close elections, the rules of the game can make a difference. Parties have been jockeying for position, with Republicans generally favoring laws making it harder to register and vote and Democrats making it easier. Both parties’ positions conveniently line up with their own electoral chances: an expanded electorate (full of poor, minority, and non-regular voters who are less likely to be registered) is believed to skew toward Democrats.

Q: Before we get into the recent cases, your mention of close elections makes me wonder, has something changed in the past twenty years? If I remember correctly, there have been a few other major elections at the state level where the vote came down to a handful of votes. It just seems odd that at a large scale, we are seeing major power shifts determined by a few hundred votes. I suppose the same could be said about Kennedy’s election. But still, does the closeness reflect something about political divisions, corruption, or something else?

A: I think something has changed. The amount of legislation on the state level has increased–at least if we think of controversial legislation. Further, the amount of election litigation has more than doubled in the period after the disputed 2000 election compared to the period before. Election law has become part of a political strategy. It is not just about litigating after a close election; it is about litigating before an election to get advantage under the rules.

Q: So it seems the fight for power has two shifts then. First, there are close elections. Second, there is the renewed and modern fights to control who votes. With that, what happened in Arizona v. Inter Tribal Council of Arizona, Inc.? What was the question and how did the Court come out on the issues before it?

A: Since Congress passed the 1993 National Voter Registration Act (NVRA, or “motor voter law,” because it mandates that motor vehicle departments offer voter registration), states have been required to accept a “federal form” for registering voters in federal elections. The Federal Election Commission used to be in charge of this form, but in 2002, when Congress passed the Help America Vote Act (HAVA) creating the United States Election Assistance Commission (EAC), the EAC has been in charge of the form.

Arizona asked the EAC to modify the form to require it to include a requirement that new residents in Arizona provide documentary proof of citizenship before registering to vote. The EAC deadlocked on the request. Arizona did not challenge the EAC determination in court. Instead, Arizona decided not to accept registrations on the federal form. Plaintiffs representing groups of voters sued to require Arizona to accept registrations submitted on the federal form. In the Arizona v. Inter Tribal case, the Supreme Court said that Congress had the power under the Elections Clause to set the “manner” of voting in federal elections, and on this basis Arizona could not refuse to accept the federal form.

In a twist, however, the Court (in an opinion by Justice Scalia) suggested that Arizona should sue the EAC for not requiring the citizenship information on the form. The Court noted that although the Elections Clause gives Congress the power to set the maner of federal elections, it gives states the power to set voter qualifications, even in federal elections. The Court further suggested that the EAC might not be able to promulgate a federal form which frustrates a state’s attempt to verify voter qualifications.

Arizona, joined by Kansas, filed just such a suit, and a federal district court just decided that suit. I offer my analysis here, and here is an important NY Times analysis of what may come next.

Q: Fantastic explanation. Thank you. I urge folks to look at Rick’s post and the Times piece. Although you are quite honest that you “do not know how this case will fare as it works its way up on appeal,” I’d like to close with a couple questions. First, the Times piece notes that Alabama is moving forward with its new voter requirements. It seems that the federal form would be quite complicated if it had to reflect 50 different voter qualifications. Furthermore if each, or even several, are challenged, whether a form is ever stable enough to use could be a problem. That may be a goal for some, but it makes me wonder at the odd outcomes. It has been some time since I took administrative law, but could the practical complications be a way to challenge the Scalia logic? It just seems strange that states can dictate to the federal government. Second, as broader question and to wrap up, do you have any suggestions about discrete topics professors or students should pursue on this topic (i.e., are there open issues on either side that merit study)?

A: On the specifics of the form, the EAC has made modifications before, and it is not clear that states wanting citizenship verification are going to demand different things–or that the different things can’t be easily pointed to on the form. I think the broader issue is whether states could stymie other federal laws, such as laws protecting military and overseas voters which require states to accept a “fail safe” federal ballot for voting. There’s lots of potential mischief in a muscular reading of states’ rights to enforce voter qualifications over Congressional election law power. Derek Muller flags some of these confusing points.

On the open questions there are so many, beginning with how to understand the borderline between state and federal power in this area. There is also a great need for more (and better) empirical work on the effect of these laws on turnout, fraud prevention, and voter confidence. The more we can address these points with facts and logic rather than hyperbole and assumption, the better.

Thanks for taking the time to listen!

Thank you, Rick for sharing your ideas and giving us a sense of things to come.

NOTE: This interview was written using Google Docs. I posed questions to which Rick replied, and we edited content for flow and clarity.

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FAN.8 (First Amendment News) — Shaun McCutcheon to write e-book

Ever the entrepreneurial figure, Shaun McCutcheon, the man at the center of the latest campaign finance storm known at McCutcheon v. FEC, has decided to take his case to yet a higher plateau — he’s writing an e-book titled Outsider Inside The Supreme Court — A Decisive First Amendment Battle. “It’s mainly about the actual [experience of being] an activist plaintiff (a DC ‘outsider’),” he told me. The work will be an e-book consisting of nine chapters. According to Mr. McCutcheon, the e-book is being written with significant assistance from Richard E. Cohen, a seasoned correspondent for Congressional Quarterly and the National Journal. Cohen, who has written on politics (see, e.g., here) and campaign finance issues (see, e.g., here), reportedly began working on the writing project with Mr. McCutcheon in late November or early December of last year. (Mr. Cohen is no newcomer to the subject of campaign finance laws. See, e.g., his “Giving till It Hurts: 1982 Campaign Prompts New Look at Financing Races,” National Journal, Dec. 18, 1982.)

SM_Book_Cover_ConceptsHere is the opening paragraph from the first chapter of the forthcoming e-book: “I strongly believe in Freedom of Speech and your right to spend your money on as many candidates and political activities as you choose. Free political speech and assembly are especially important to the future, because we can’t change anything in Washington, DC if we can’t change whom we send to Washington. Supporting those we believe will bring about change – and doing so through transparent contributions — is a good thing.” (emphasis added) He goes on to note: “So I filed a lawsuit, which was argued before the United States Supreme Court on Oct. 8, 2013. As I write this I’m waiting on the High Court’s ruling. This e-book is about the case, and the legal and political forces that drive it.”

Not to be overlooked is his attorney, Erin Murphy, who argued his case in the Supreme Court. He quotes her early on in the work: “‘By prohibiting contributions that are within the modest base limits Congress has already imposed to combat the reality or appearance of corruption,’ Erin Murphy—a former clerk to Chief Justice Roberts, who has become a Supreme Court litigator with a Washington D.C. law firm—told the Justices, ‘these limits simply seek to prevent individuals from engaging in too much First Amendment activity.’”

Some of the other chapters (which are each 3,000 words or fewer) concern:mcc-shaun

  • How Shaun McCutcheon first got actively involved in politics
  • How his case evolved
  • The various attorneys (notably Dan Backer) with whom he has worked on his case
  • How the media has covered the case and controversy, and
  • How the Court will ultimately rule in his case.

McCutcheon’s aim is to provide “a rare inside perspective of the evolution of an important court case from the view of an Alabama businessman.” To that end, he hopes that his account “will help demystify an important part of how our government operates.”

The e-book is slated to come out sometime shortly after the Court rules in McCutcheon. Read More

A Little Something to Temper Confidence in Empirical Analysis of Election Spending

Today Politico unveiled a “38-page IRS filing amounts to the Rosetta Stone of the vast web of” groups participating in the 2012 election:

[A group] whose existence until now was unknown to almost everyone in politics, raised and spent $250 million in 2012 to shape political and policy debate nationwide. . . . The group has about 200 donors, each paying at least $100,000 in annual dues. It raised $256 million in the year after its creation in November 2011, the document shows. And it made grants of $236 million — meaning a totally unknown group was the largest [supporter of conservative groups in the election].

We’re used to seeing “black box” dynamics in tech policy. Now they’re also creeping far into the “public processes” by which we select the architects of those policies. Until there is full, far faster disclosure of 501c6/c4 donations from corporations, we’ll continue to be in the dark on fundamental dynamics of our electoral process during campaign season.

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Ex Officio: Select Conference Notes from the Burger Court Justices’ views on Campaign Finance Laws

McCutcheon v. Federal Election Commission is one of the most important cases to be decided this term. The case involves a constitutional challenge to aggregate limits on contributions to federal candidates and political committees.  This issue was left untouched in Citizens United v. Federal Elections Commission (2010). And as with so many of the cases in campaign finance area, the McCutcheon case brings the Court and bar back to the seminal ruling in this area — Buckley v. Valeo (1976).  The eight-member Burger Court (Justice John Paul Stevens did not participate) produced a per curiam opinion along with five separate opinions (totaling 294 pages) in which the Justices dissented and concurred in part.

Thanks to the fact that several of the Justices who participated in Buckley kept conference notes that have now become public, we have somewhat of an idea of their ex officio views about the matter. The case involved a First Amendment challenge to provisions of the Federal Election Campaign Act of 1971 and its 1974 amendments.

Select portions of the Justices’ conference notes from FEC v. National Conservative Political Action Committee (1985) are likewise available for public scrutiny.  That case also involved a First Amendment challenge, this time to the Presidential Election Campaign Fund Act.  Here again, the Court was badly divided.

In what follows I offer a selection of snippets from the Justices’ conference notes from the two cases. These quotes may well be of some interest to those who are following the McCutcheon case. The conference notes quoted below are from The Supreme Court in Conference (1940-1985): The Private Discussions Behind Nearly 300 Supreme Court Decisions (Oxford University Press, 2001), which was edited by Professor Del Dickson of the University of San Diego Department of Political Science and International Relations.

* * * * *

The following are selected excerpts from the Justices’ conference notes in Buckley v. Valeo, which was argued on November 10, 1975: 

Chief Justice Warren Burger: “I have serious doubts about whether these limits [$1,000 individual limits on spending “relative to a clearly identified candidate”] are constitutional. . . This is pure speech.”

“The disclosure provisions are the heart of the whole thing for me.  I think these provisions are constitutional and highly desirable.

Justice William Brennan: “I would sustain the contribution limits. . . . I won’t vote on expenditure limitations today.”

Justice Potter Stewart: “On contributions, I was predisposed to say that the statute is constitutional at first, but the more I get into this the more doubtful I became.”

“The expenditure limitations are wholly unconstitutional.”

“I see no First Amendment problems in political committees.”

Read More

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The Voting Bonus During Jim Crow

Justice John Paul Stevens (going strong at 93) gave an interesting speech a few weeks ago in which he talked about how the exclusion of African-American voters during Jim Crow gave white southerners a representation surplus in the House of Representatives and in the Electoral College.  What was the impact of that, he wondered?  It’s a good question.

Everybody knows that the original Constitution counted a slave as 3/5 of a person for purposes of representation.  What people sometimes forget is that the South wanted a slave as a whole person.  Not because they thought slaves were people, but because that ratio would give the South more representation.  As it was, those states still got a substantial advantage, as slaves could not vote and therefore could easily have not been counted at all.  Garry Wills wrote a book in which he pointed out that Jefferson’s election in 1800 was by the margin of this slave bonus, and other ante-bellum results can be traced to the same root.

When slavery was abolished, freed slaves were counted as people.  This posed a dilemma for John Bingham and his Republican colleagues, because the South was determined to keep African-Americans from voting.  In effect, the Confederacy would be rewarded with 2/5 more power in Washington than it had before Civil War.  Section Two of the Fourteenth Amendment was the first stab at solving this problem.  It said that if a state did not allow men over 21 to vote, then its representation would be reduced accordingly.  The Fifteenth Amendment was another prescription to ensure African-American voting. But following the defeat of the Populists (as I discussed in my last book), African-Americans were completely disenfranchised in the South.

This meant that between roughly 1900 and 1965, the ex-Confederacy had more members of Congress and more Electoral College votes than it was entitled to.  With respect to the House of Representatives, it’s hard to say how much this mattered.  There may be close votes that could have turned on the Jim Crow bonus, but that is not so clear.  (In the Senate, of course, representation does not change the number of senators per state.)  In the Electoral College, though, I think we can see some relevant examples.  For instance, Woodrow Wilson won the 1916 presidential election very narrowly–277 to 254–over Charles Evans Hughes.  Wilson carried every ex-Confederate State.  Did those states have 12 extra electoral votes as a result of the representation distortion?  Could be.