Election Law
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The law of politics and the politics of law: election law, the California recall, campaign finance, legislation, voting rights, initiatives, redistricting

Rick Hasen's web log (blog)

Friday, February 28, 2003
The vacuous content of political speech accompanying slate mail In this earlier post, I described the practice of California slate mailers combining their political endorsements with political messages from a non-profit group. The advantage of such bundling is the ability to use a lower postal rate available to non-profits (but not for pure political mail). I received my first piece of slate mail along these lines today. It is the "Voter Information Guide" like I have received many times before, listed endorsed candidates for office. (California law requires that those paying for space be marked by an asterisk,and this particular guide features all but one candidate so designated.) The back of the mailing features the "Policy Institute Newsletter" published by "Policy Issues Institute, Separate Segregated Fund." And what is the important news that the Institute brings to me? Three things: A new state law allows voters to obtain permanent absentee status; poll workers are needed to work at the polls; and look out for hanging chad. The last piece of news is particularly interesting in that the Institute urges me to contact my member of Congress to support the "Help America Vote Act of 2001." Someone might have noticed that the 2002 version of the Act passed many months ago, and is now being implemented.

posted by Rick 9:09 PM
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Mandatory Voting Here's a Findlaw article by John Dean calling for mandatory voting. I have explored the issue in detail in Richard L. Hasen, Voting Without Law?, 44 U. PA. L. REV. 2135 (1996).

posted by Rick 2:18 PM
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Wrong as promised I predicted here that the district court would issue the BCRA decision today. Wrong again. So now we are over a month late on the opinion. The judges must be having a much harder time than they initially anticipated. I wonder if they have been in contact with the Supreme Court, and have received some other deadline to get the case handed down in time for a Supreme Court decision in June.

posted by Rick 2:08 PM
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L.A. Times Follow-Up on Native Americans and Campaign Finance story See the link here following up on yesterday's post.

posted by Rick 8:49 AM
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Thursday, February 27, 2003
They Report, They Decide Here's the following from a FOX News story on the Estrada filibuster:
    The decision to call for a "cloture" vote on an appellate court nominee overturned more than two centuries of Senate precedent and rewrote the constitutional definition of "advise and consent." Never before has a nominee been caught this deep in the web of Senate politics.

This is supposed to be a "news" story. As my earlier post taking on George Will today noted, the Democrats' actions hardly are a constitutional amendment. The practice of a minority in the Senate blocking appellate (and even district court) nominees goes back quite far. Consider how Jesse Helms blocked every Clinton nominee to the Fourth Circuit. The Republicans may have made the issue salient by requiring a real filibuster (good, so everyone knows what is at stake), but no one should imagine that the Democratic tactics now are any different from Senate business as usual.

posted by Rick 9:27 PM
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Native Americans and compliance with campaign finance laws A federal court has rejected the sovereign immunity claim of a Native American tribe and required it to comply with otherwise applicable campaign finance laws. See the AP report here.

posted by Rick 3:24 PM
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BCRA opinion timing Here is a hunch with no basis in fact: I predict that we see the BCRA opinion tomorrow. What is so special about tomorrow? It is the end of February, and perhaps the judges (or the Supreme Court on the sly) are working with an end of February deadline rather than an end of January deadline as originally expected. I have often been proven wrong; this time the proof will come more quickly.

posted by Rick 12:57 PM
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Problems at Votehere too See this article from USA Today.

posted by Rick 11:26 AM
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Foreign nationals buy control of Election.com See the Newsday story here. (Thanks to a poster on the Votingtech list for the pointer.) The company is one of the groups administering internet absentee military voting for President in 2004.

posted by Rick 9:49 AM
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George Will's misunderstanding of the Constitution and the filibuster In an op-ed here (thanks to How Appealing for the pointer), George Will makes the following argument:

    The president, preoccupied with regime change elsewhere, will occupy a substantially diminished presidency unless he defeats the current attempt to alter the constitutional regime here. If at least 41 Senate Democrats succeed in blocking a vote on the confirmation of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit, the Constitution effectively will be amended.

    If Senate rules, exploited by an anticonstitutional minority, are allowed to trump the Constitution’s text and two centuries of practice, the Senate’s power to consent to judicial nominations will have become a Senate right to require a 60-vote supermajority for confirmations. By thus nullifying the president’s power to shape the judiciary, the Democratic Party will wield a presidential power without having won a presidential election.

In the first place, if the 60-vote "effectively" amended the Constitution, the amendment happened long ago. The only difference between Democratic tactics now and Republican and Democratic practices in the past is that the issue is more salient. In the past, a Senator simply had to threaten a filibuster to defeat a judicial nomination. Why was Will not complaining when Republicans used this tactic to defeat Clinton nominees?

More importantly, the filibuster rule does not "effectively" amend the Constitution. The Constitution provides that the Senate (itself a non-majoritarian institution) can craft its own rules. Senators can change that rule tomorrow if they like. But Senators have found the filibuster useful for many decades.

Finally, Will argues that the Senate is somehow using an un unconstitutional standard for evaluating judges (citing Alexander Hamilton who said that there must be "special and strong reasons" for turning down a presidential nominee). This reminds me of the impeachment debate. The standards that the Senate uses under its advise and consent powers are much like the standards the House must use to judge "high crimes and misdemeanors" under impeachment: it is an inherently unreviewable political decision.

The solution to the Estrada problem is a political one. If the political costs of the filibuster are too high, the Democrats will have to abandon it. If not, the Republicans will have to relent.

posted by Rick 7:57 AM
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Wednesday, February 26, 2003
Those who know best worryThe New York Times reports here that computer scientists in Silicon Valley are worried about electronic voting machines that do not include a paper record.

posted by Rick 9:30 AM
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Ideology and judicial nominations, Part 3 Larry Solum responded here to my earlier post on whether Senators should consider ideology in approving judicial nominees. Larry's bottom line is that I am "unduly pessimistic about the possibility of realizing or restoring the rule of law. Even in constitutional cases, there is the text, the original meaning, and the doctrine of stare decisis. Law can be politics, but it does not have to be politics." He then wonders about the implications of my argument for judicial review.

Fair enough, and scholars like Mark Tushnet have made the argument against judicial review along precisely these lines. As for whether "text, original meaning and the doctrine of stare decisis" are significant constraints, consider the following two questions to be determined by the new Supreme Court Justice applying neutral principles:

1. You are back in 1966 before Harper v. Virginia Board of Elections: Should a poll tax be declared in violation of the Equal Protection Clause, which provides that no state shall deprive any person of equal protection of the laws? Original meaning and stare decisis suggest the poll tax is constitutional. (The best reading of history is that the equal protection clause was not meant to apply to political rights, and the earlier Breedlove case upheld poll taxes.) All but four states have overturned poll taxes.

2. It is 1992 before Casey. You believe Roe v. Wade was wrongly decided, but you believe strongly in the principles of stare decisis. How should you rule?

On the tough questions, I just don't see text, original meaning, and the doctrine of stare decisis as either dispositive or necessarily the only correct bases upon which to decide such cases. Such decisions are inherently political.

I believe there are ways for the Supreme Court to constrain itself, as developed in my book. The arguments depend upon both liberal and conservative activists pulling back from the brink of mutually assured destruction through writing more minimalist decisions.

posted by Rick 8:01 AM
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Tuesday, February 25, 2003
RNC Response to McCain Yesterday I posted here a comment on John McCain's letter to the chair of the GOP claiming that the GOP is engaging in scare tactics regarding how onerous it is to comply with the BCRA. I have just received this letter from the RNC responding to McCain:

    Dear Senator McCain:

    This letter is in response to your misunderstanding concerning the Republican National Committee's ("RNC's") attempt to inform and discuss with its own Members the implications of the Bipartisan Campaign Reform Act ("BCRA"). Specifically, many of our Members have questioned their continuing involvement with the raising and the spending of non-federal money for state and local party committees because that involvement impacts generically on elections held every two years when there are always federal candidates on the ballot.

    Many provisions of the BCRA are difficult to understand, even by Members who supported the legislation. In fact, your colleague Representative Matsui of California - who voted for the BCRA - recently was quoted in the New York Times commenting on the law's fine print, "I didn't realize what all was in it...we have cautioned members: `You have to really understand this law. And if you have any ambiguity, err on the side of caution.' " The RNC shares this cautionary approach, and I can assure you that RNC attorneys have done, and will continue to do, everything they can to present factually and legally accurate information to RNC members and those who want to participate in the American political process. I'm certain you can appreciate the difficult position that all Americans are placed in when attempting to understand the hundreds of pages of your new restrictions.

    As you are aware, the new law severely restricts the RNC and its agents from participating in state and local political activity. Therefore, many of our Members are legitimately concerned as to when, as elected members of the RNC by Republican voters in their respective states for the specific purpose of representing them on the National Committee, they can divest themselves of that role and act as "ordinary citizens" and not as the agents of the RNC.

    Based on their concerns, we have discussed with them the "wearing of two hats" that is referred to in the prepared "fact sheet" which you have attached to your letter. Unfortunately, our Members cannot take solace in the "two hat theory" because they find it difficult to separate their roles and because of the severe penalties included in the new law. Adding to the confusion is the fact that primary sponsors of BCRA are currently challenging the Federal Election Commission's regulatory definition of "agency," which they characterize in court papers as too permissive.

    Discussion at the RNC Winter Meeting attempted to address these and related issues with our Membership. Contrary to your assertions, RNC attorneys did not state that "the new law requires every local and county committee to register with the FEC." It was, though, made clear to our Members that anything classified as "federal election activity" would be subject to federal regulation. The BCRA expansively considers certain get-out-the-vote and generic campaign activity conducted by political parties, including state and county parties, to now be "federal election activity." The letter of the law indicates that if a county party wanted to increase turnout in the mayor's and dogcatcher's races on Nov. 2, 2004, and ran a radio advertisement encouraging voters to "Vote Republican! Vote for Smith for Mayor and Jones for Dogcatcher on Nov. 2," that advertisement would now be considered to be "federal" election activity, and therefore regulated by federal rules. The "fact sheet" you attached to your letter concedes this same point.

    With all due respect to your personal understanding of how you intended to regulate state and local party activities, until we hear with some finality from the courts the RNC is obligated, in providing guidance to our Members, to rely on the plain language of BCRA and Federal Election Commission Regulations. I am confident that, based on the law and FEC rules, our attorneys have provided that guidance in an accurate and professional manner. Although the RNC has serious constitutional, practical, and equitable concerns with the BCRA, we are nonetheless fully committed to complying with the current law. We appreciate your stated desire to provide accurate and reliable legal information, and to that end I strongly encourage you to contact the RNC's Chief Counsel, who is always available to discuss with you this complex and sometimes confusing set of legal requirements placed upon political parties.


    Marc Racicot

posted by Rick 3:01 PM
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Ideology and judicial nominations, continued My Loyola Law School colleague Larry Solum has this post on his important blog, Legal Theory, in which he takes on this New York Times op-ed by Adam Cohen. Cohen challenges one of President Bush's judicial nominees, Deborah Cook. Much of Larry's post takes issue with Cohen's discussion of a case that Cook decided---a case raising res judicata and evidence issues about which Larry knows a great deal.

I don't object to Larry's claim that Adam Cohen got the facts wrong. My problem is with Larry's statement about the meaning of the Cohen op-ed on the larger question of judicial nominations: Larry says: "More than ever, opponents of judicial nominations oppose candidates on the basis of political ideology--a trend that threatens to do fundamental damage to the rule of law." He continues: "If the current trend towards the politicization of the federal judiciary continues, then every judicial nomination (not just Supreme Court nominations) can become an ideological battleground. The nomination and selection process will become a strategic game, with each side seeking to create a third political branch. But if the judiciary is just another political branch, then there is no reason to consider its resolution of disputes to be authoritative--to be binding on citizens and the other branches of government. If we produce a judiciary that lacks the judicial virtues and personifies the vice of result-orientation, getting the result the judge wants rather than the result the law requires, we are inviting trouble--because the rule of law is a fragile thing."

With all due respect to Larry, we already live in an era of both liberal and conservative judicial activism. We have a judiciary that is just another political branch. How else to explain the wild swings in judicial activism between the Warren court on the one hand and the Burger and Rehnquist courts on the other than to realize that in the most important cases, particularly cases of a constitutional dimension heard by the Supreme Court and, to a lesser extent by the lower appellate courts, there are no "neutral" principles of law to apply? (My forthcoming book defends this claim in detail in the context of the Supreme Court's political equality cases from Baker v. Carr to Bush v. Gore.) That is why it is appropriate for both Democrats and Republicans to take political ideology into account in choosing whether to support or oppose nominees for federal appellate judgeships.

posted by Rick 12:05 PM
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No regulation of negative political advertising by PACS Not surprisingly, the Ninth Circuit has struck down an Arizona law, passed to curb "negative" political advertising, providing that "within ten days before an election, a political action committee advocating the election or defeat of any candidate must mail a copy of the communication to the candidate at least twenty-four hours in advance." (Quoting the opinion, not the statute.) The case, Arizona Right to Life v. Bayless is available at this link. Among other problems, the law was underinclusive, targeting only political committees.

posted by Rick 11:35 AM
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Ginsburg on Bush v. Gore I reported earlier here some recent remarks Justice Scalia made about the Bush v. Gore decision. According to an article in the Fulton County Daily Report, Justice Ginsburg made some remarks about the case at a recent Georgia State dinner in her honor:

"Ginsburg said Bush v. Gore was not on the level of the Dred Scott decision, the infamous 1856 holding that blacks had no rights under the Constitution. But, like Dred Scott, she said Bush v. Gore was only 'a moment in history.'

"'I don't think any lawyer would be wise to cite it as precedent,' she added, looking serious while the students tittered. 'It just happened.'"

posted by Rick 8:49 AM
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Monday, February 24, 2003
McCain and the Meaning of the BCRA Senator John McCain, one of the major sponsors of the BCRA, sent this letter to the chair of the GOP claiming that the GOP is engaging in scare tactics regarding how onerous it is to comply with the BCRA. The letter goes on to provide "clarification" on the meaning of the law. The AP in this report quotes a GOP spokesperson as saying: "Senator McCain may know what he intended the law to say, but the rest of the world can only act based on what the law says." Even if the GOP may be exaggerating the scope of the problems, there is no question that the BCRA is a very complex statute that is difficult to understand on first read. That is why these "McCain Feingold schools" have developed. See here and here.

posted by Rick 3:04 PM
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Court declines Casino case The Supreme Court today denied cert in Casino Association of La. v. Louisiana, Docket 02-466. The case upheld the right of the state to bar casino operators from making campaign contributions on grounds that such contributions tend to foster corruption. Other lower courts have upheld the right to impose special campaign finance restrictions on other groups, such as liquor licensees and lobbyists. The Supreme Court has never addressed the issue, except in the context of corporations and labor unions.

posted by Rick 9:42 AM
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Campaign mail and non-profits The Los Angeles Times reports at this link that campaign consultants sending slate mail (campaign advertisements popular in California elections) have found a way to obtain a 15%-20% discount on mailings. The slate mailers send out their mail through a non-profit group that adds its own messages to part of the mailing. By doing so, the slate mailers can take advantage of lower postal rates.

posted by Rick 9:22 AM
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Saturday, February 22, 2003
Judicial conduct backfire? This analysis in today's New York Times of the Spargo judicial conduct case contains a suggestion, put forward most directly by the Brennan Center's Deborah Goldberg, that the Supreme Court in the earlier White case was trying to make judicial elections more like regular elections in the hopes that eventually jurisdictions will abandon judicial elections. She points out correctly that the opinion might not eliminate such elections but will simply make them more political. The NY Times analysis fails to consider the further potential negative effect that the First Amendment holding in Spargo allowing judges to participate in partisan political activities would have on federal judges as well. How might the politicization of the judiciary further politicize the already overheated confirmation process?

posted by Rick 9:30 AM
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Friday, February 21, 2003
McCain-Feingold School II Here is a report from Roll Call on difficulties members with Congress have had understanding how the BCRA works. This follows up on my earlier post on this topic. The article also suggests that Rep. Christopher Shays, the leading Republican supporter of the BCRA in the House, has been getting the cold shoulder from Republican colleagues.

posted by Rick 2:14 PM
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More on the political activities of judges Last term, the Supreme Court decided Minnesota Republican Party v. White, striking down a portion of Minnesota's Code of Judicial Conduct preventing judges from announcing their positions on disputed issues. Many like Roy Schotland have predicted that the opinion will have far reaching effects on the nature of the judiciary. Some confirmation comes from today's article in the New York Times reporting on a case holding that judges have a First Amendment right to participate in partisan political activities. This ruling will apply not just to elected judges (as in White), but presumably to federal judges as well.

posted by Rick 7:57 AM
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Thursday, February 20, 2003
Democratic fundraising and the BCRA The AP reports here that Democrats hope to use high tech methods of fundraising to catch up with Republicans. Democrats have had a difficult time raising as much hard money compared to the Republicans under the new BCRA. So what explains why Democrats supported the BCRA more strongly than the Republicans? Were both parties voting in favor of ideology and against their self-interest? One possibility is that many Democrats voted for the BCRA to please their base with the hope and expectation that the courts will strike down portions of the law. Yet the soft money ban and the increase in individual contribution limits to $2000--which are hurting the Democrats most--may be among the provisions least likely to be struck down, at least by the current Supreme Court.

posted by Rick 4:20 PM
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More on timing of BCRA appeal to the Supreme Court You can follow a discussion about the timing of a likely Supreme Court appeal in the BCRA litigation by viewing the most recent posts by Sam Bagnestos, Steven Mulroy, and me on the Election law listserv archives, available at this link.

posted by Rick 11:33 AM
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More attempts to regulate internet vote-swapping Earlier this month, the Ninth Circuit sent back Porter v. Jones to the district court to consider whether the California Secretary of State violated the first amendment rights of someone who set up a vote swapping site in the 2000 election by trying to shut down the site. Now comes word that the Finland Ministry of Justice wants to shut down a similar site set up in Finland. See this link.

posted by Rick 8:51 AM
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A BCRA decision soon? BNA's Money and Politics report quotes an unnamed official at the three-judge court as saying that the judges on the three judge panel "have been working hard and still expect to meet their stated goal of issuing a ruling that the Supreme Court can review expeditiously." I question whether an appeal can be heard this term even if the opinion issues today.

posted by Rick 7:17 AM
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Wednesday, February 19, 2003
Still learning html Pardon me for the message below I can't fix, in which I tried to thank Howard Bashman (of How Appealing) and Ed Still of the Votelaw Blog for noticing my existence.

posted by Rick 4:01 PM
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Estrada nomination and Bush v. Gore A reader at How Appealing correctly noted (though I can't find the link) that one must understand Democratic reluctance to confirm Estrada as stemming from lingering bitterness over Bush v. Gore. Readers may recall that Bruce Ackerman went so far as to call for no Supreme Court nominees to be confirmed until (and if) Bush is reelected---on grounds that judges cannot choose the president who chooses their colleagues. In a similar vein, Ackerman argues in this L.A. Times op-ed in favor of supermajority rules for choosing judges and also for 12-year-fixed judicial terms.

posted by Rick 3:58 PM
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Thanks to Howard Bashmant of How Appealing and Ed Still of posted by Rick 3:40 PM
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McCain-Feingold School Today's New York Times reports here on seminars for elected officials and campaign consultants on how to comply with the BCRA. Those looking for more detail might turn to Bob Bauer's important article on the subject in a recent issue of the Election Law Journal. (There's a nice picture of Bob in the New York Times article.) Conspicuously absent from the article was any extended discussion of how the delay in the lower court deciding the case could doom its prospects for its constitutionality. For my Roll Call oped on this issue, see this link.

posted by Rick 11:23 AM
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Tuesday, February 18, 2003
Latest issue of Election Law Journal You can access the table of contents for the latest issue here. The issue includes a number of articles on the consitutionality of the Bipartisan Campaign Reform Act.

posted by Rick 3:01 PM
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Putting the Estrada Controversy in Some Perspective Professor David Mayhew of Yale examines the topic Supermajority Rule in the U.S. Senate, an article online in the January 2003 issue of P.S. Writing before the Estrada controversy, Mayhew remarks: "Automatic failure for bills not reaching the 60 mark. That is the current Senate practice, and in my view it has aroused surprisingly little interest or concern among the public or even in political science. It is treated as matter-of-fact."

posted by Rick 11:53 AM
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McCain-Feingold's Future Don't expect a decision from the United States District Court for the District of Columbia today in the BCRA litigation. The building is closed because of snow.

posted by Rick 11:37 AM
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