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)

Wednesday, April 30, 2003
A tour de force on recess appointments and the Constitution, or why Larry Solum is the Hardest Working Person in the Legal Theory Business I consider myself someone who is pretty efficient at getting out work product. But Larry Solum amazes me with the depth and breadth of his posting on Legal Theory. Larry has been a wonderful colleague of mine at Loyola Los Angeles for many years, and I am saddened to see him leave to become co-director of the Law and Philosophy program at the University of San Diego.

Larry has just posted here the second of two parts on recess appointments and the Constitution. You must read it if you care about this issue. He is intellectually honest and comprehensive in his analysis, and you must grapple with his ideas even if you do not agree with them.

posted by Rick 1:37 PM
. . .
Let me get this on the record now, before the lower court opinion in McCain-Feingold issues Whatever the three-judge court decides in the BCRA case on the legal issues is relatively unimportant. The Supreme Court will not defer to the lower court's decision. (So if you see Mitch McConnell (or, less likely but still possible, Fred Wertheimer) crowing at some press conference in the near future about a "victory," realize how premature this is.) In the most recent Supreme Court campaign finance cases, Shrink Missouri and Colorado Republican II, the Supreme Court reversed the lower court on the legal issues.

What will be significant in what comes out from the district court (likely in the next day or so, I believe) are the court's factual findings. There is supposed to be some deference by the Supreme Court to the lower court's factual findings, and yesterday's order regarding the Buying Time study indicates that there may be some important factual findings in the opinion, particularly on the extent to which the new test for separating election speech from issue advocacy captures "genuine issue advocacy" (as opposed to thinly veiled campaign ads---or sham issue advocacy). But even there, the Supreme Court might not be too deferential. Consider Hunt v. Cromartie, the Supreme Court's most recent racial gerrymandering case, where the Court said it was reviewing facts under a clearly erroneous standard but in fact did much more.

So we should not blow out of proportion whatever it is that comes out tomorrow. The greatest significance of what comes out is that it brings the issue closer to resolution by the Supreme Court. We can only guess if the Court would schedule a special expedited briefing schedule to decide these issues this term.

posted by Rick 12:48 PM
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Copy of McCain-Feingold order on filing of supplemental report I provided excerpts of this order here yesterday. The court still has not made the document available, but you can find the entire document here, courtesy of the Campaign Legal Center.

posted by Rick 12:35 PM
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Another vote against downward spirals See these thoughtful words by J.J. Gass posted at How Appealing.

posted by Rick 12:12 PM
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Have the Democrats acted irrationally in the Estrada confirmation battle? Would Bush be rational to use recess appointments? In this article by Byron York in The Hill (thanks to How Appealing for the pointer---isn't there a button I can just push to thank Howard for his comprehensive canvass of the world of appellate law and beyond?), York states (probably correctly) that the Republicans were surprised by the Democrats' resolve to filibuster Estrada. He then makes the following comment about why they miscalculated:

    The GOP’s mistake was to assume that Democrats would act rationally. There seems little doubt that Democratic obstruction of Bush judicial nominees hurt the party in some Senate races last November. Republicans assumed that Democrats would want to avoid having the same thing happen in 2004. But, polls aside, Democrats clearly believe they can continue the Estrada filibuster (and start others) without significant political damage.

Have the Democrats acted irrationally by filibustering Estrada? Hardly. Both Democrats and Republicans thus far have acted rationally given their preferences. York alludes to GOP internal polling indicating that the Estrada filibuster is hurting Democrats. I have heard this from someone in government as well. I find it very difficult to believe. As I argued here, the Estrada issue may have resonance among some elite groups (such as newspaper editorial writers) but it is not resonating anywhere else.

Democrats thus face a choice. President Bush is nominating judicial candidates whose ideology is far from the ideal preference of most Democratic Senators. The only tool that Democrats have to block the nominees (besides resort to publicizing the issue---something that won't work because the issue is low salience) is the filibuster. If Democrats used the filibuster all the time, the issue might become high salience and hurt the Democrats. So they use it sparingly, to target those candidates most opposed by those in the Democratic base. As Senate minority leader Tom Daschle was quoted here as saying: "'We probably could have sustained a filibuster on Mr. Sutton,' he told reporters. 'But we want to be selective. I don't want to abuse the practice of filibusters.'"

Republicans are also acting rationally given Democratic options and their own weapons. They use the blocking of the few nominees (Estrada, Owen, possibly Kuhl and Pickering) to energize their base. Meanwhile they get to confirm a whole bunch of conservative judges (Bybee, Tymovitch, etc) in the interim, which is what they really want. Evidence? Democrats the Times article above offered to vote on the nomination of Judge Prado, but Republicans apparentlty don't want the vote so that they can claim Democrats won't vote for an Hispanic nominee.

That said, would it be rational for President Bush to use the recess power to appoint high profile conservatives to the courts, as Professor Randy Barnett suggests here? Hardly. As Philippe de Croy argues here, "anything radical the appointee tried to do would look like a terrible end-run around the separation of powers. Democrats would get endless mileage out of it in 2004. Yeah, I'll bet the Dems are just terrified by this proposal." As I argued earlier here, the issue through recess appointments could become high salience, a risky strategy for Bush. Democrats could challenge recess appointments as unconstitutional as a way of increasing the salience of the issue. Larry Solum makes the point with a bit of hyperbole here, suggesting that litigation over the constitutionality of recess appointments could end up in the Supreme Court that "would make Bush v. Gore look like a carnival sideshow."

A more difficult question is whether it would be rational for Democrats to filibuster a conservative nominee to the Supreme Court, and whether President Bush might use his recess power there, something I blogged about here back in March. The Supreme Court nominee issue will be quite salient, and the strategy choices quite difficult for both sides. If Bush does this, he would paint the Democrats as obstructionists and point to the precedent of the Earl Warren recess appointment to the Supreme Court (see my post here on that topic). Democrats would paint the nominee as extreme, and point out that President Eisenhower used the recess appointment for Warren only because the Senate was not in session; it was not a weapon used to avoid the Senate's power to advice and consent.

Although I have been disagreeing with my colleague Larry Solum on whether the confirmation business is on a downward spiral or not (Larry has collected many of our exchanges here), I agree that the expected fight over a Supreme Court nominee could lead a worse situation, even as both Democrats and Republicans follow what is individually rational for them to do.

So what is the solution? As I have suggested here,"the Senate [should] commit to new less-politicized rules for treating judicial nominees in the future, to take effect after President Bush leaves office (whether that is in 2004 or 2008).... I would hope that 2008 is far enough along that Democrats and Republicans would make a decision along these lines behind something of a veil of ignorance."

posted by Rick 10:21 AM
. . .
Have the Democrats acted irrationally in the Estrada confirmation battle? Would Bush be rational to use recess appointments? In this article by Byron York in The Hill (thanks to How Appealing for the pointer---isn't there a button I can just push to thank Howard for his comprehensive canvass of the world of appellate law and beyond?), York states (probably correctly) that the Republicans were surprised by the Democrats' resolve to filibuster Estrada. He then makes the following comment about why they miscalculated:
    The GOP’s mistake was to assume that Democrats would act rationally. There seems little doubt that Democratic obstruction of Bush judicial nominees hurt the party in some Senate races last November. Republicans assumed that Democrats would want to avoid having the same thing happen in 2004. But, polls aside, Democrats clearly believe they can continue the Estrada filibuster (and start others) without significant political damage.

Have the Democrats acted irrationally by filibustering Estrada? Hardly. Both Democrats and Republicans thus far have acted rationally given their preferences. York alludes to GOP internal polling indicating that the Estrada filibuster is hurting Democrats. I have heard this from someone in government as well. I find it very difficult to believe. As I argued long ago here, the Estrada issue may have resonance among some elite groups (such as newspaper editorial writers) but it is not resonating anywhere else.

Democrats thus face a choice. President Bush is nominating judicial candidates whose ideology is far from the ideal preference of most Senators. The only tool that Democrats have to block the nominees (besides resort to publicizing the issue---something that won't work because the issue is low salience) is the filibuster. If Democrats used the filibuster all the time, the issue might become high salience and hurt the Democrats. So they use it collectively, to target those candidates most opposed by those in the Democratic base. This helps the Democrats without hurting the Republicans. As Senate minority leader Tom Daschle was quoted here as saying: "'We probably could have sustained a filibuster on Mr. Sutton,' he told reporters. 'But we want to be selective. I don't want to abuse the practice of filibusters.'"

Republicans are also acting rationally given Democratic options and their own weapons. They use the blocking of the few nominees (Estrada, Owen, possibly Kuhl and Pickering) to energize their base. Meanwhile they get to confirm a whole bunch of conservative judges (Bybee, Tymovitch, etc) in the interim, which is what they really want. Evidence? Democrats the Times article above offered to vote on the nomination of Judge Prado, but Republicans apparentlty don't want the vote so that they can claim Democrats won't vote for an Hispanic nominee.

That said, would it be rational for President Bush to use the recess power to appoint high profile conservatives to the courts, as Professor Randy Barnett suggests posted by Rick 10:01 AM
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Two interesting articles on The Hill See FEC may audit common cause head for breaches and Frost staffer implicated in 'theft' of map, on the Texas redistricting controversy.

posted by Rick 9:30 AM
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More reports on oral arguments in Georgia v. Ashcroft A very informative and detailed report on oral argument appears here on law.com. The article makes clear the context in which Justice Scalia made his remark about the future of section 5 (see my earlier post). See also this report in the Atlanta Journal-Constitution.

posted by Rick 9:25 AM
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The BCRA (McCain-Feingold) campaign finance opinion from the three judge court is coming soon As I indicated here, the special three-judge court hearing the McCain-Feingold case was expected to set up a special procedure to get a copy of the opinion on the merits, which is expected to be voluminous. It has done so. There are special instructions posted for subscribing to a "listserv" to get the opinion. (Perhaps Howard Bashman can explain why this listserv is being run out of the Eastern District of New York). In any case, I am reprinting the instructions below:


    In advance of the three-judge panel's ruling in the consolidated cases, McConnell vs. FEC, et al, interested persons are invited to subscribe to the Court's e-mail notification service ("listserv").

    Subscribers will be e-mailed a PDF version of the panel's ruling at the time it is issued by the Court. Interested persons are encouraged to subscribe to the service in advance. To subscribe to the e-mail notification, follow the instructions below. An Adobe Acrobat or comparable reader will be required to view the documents. If your web browser indicates "Document: Done" (at the lower left hand corner of the web browser) but the page is blank, click on refresh to view the document. Please note: the opinion will be distributed in electronic format only and will not be distributed in paper format or by fax under any circumstances.

    For further information about the U.S. District Court for the District of Columbia, please refer to the Court's Internet site: www.dcd.uscourts.gov or call the Court’s press line, (202) 354-3036.


    To subscribe to this service, send an e-mail message to:


    Please type the following test in the body of the message: (Note the spaces between the words "subscribe" "02cv582" "FirstName" "LastName")

    subscribe 02cv582 FirstName LastName

    where you substitute your first name for "FirstName" and your last name for "LastName".

    Note: You will receive an e-mail confirmation that your subscription request has been accepted. E-mail messages sent to you will appear in your e-mail inbox as being "From:" "Clerk's Office". Please do not send any e-mail to this address - it is an unmonitored e-mail account.

    To unsubscribe to this service, send an e-mail message to:


    The body of the message should only have the following information:

    SIGNOFF 02cv582

Signing up seemed relatively easy. In contrast, I cannot now get to the usual "recent opinions" page of the D.C. Circuit.

posted by Rick 7:23 AM
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Tuesday, April 29, 2003
New article on felon disenfranchisement Alec C. Ewald has published, "Civil Death": The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 Wisconsin Law Review 1045. The article nicely looks at justificatons and attacks on felon disenfranchisement from a variety of theoretical perspectives.

posted by Rick 10:04 PM
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An Order on a Procedural Matter (but no opinion yet) in the BCRA litigation Late this afternoon, the special three-judge court hearing the challenge to the McCain-Feingold campaign finance law issued its first word since oral argument on Dec. 4 and 5. It is a short opinion and order allowing defendant's expert Jonathan Krasno to file a supplemental report. Krasno was one of the researchers who worked on the 1998 "Buying Time" study at the Brennan Center for Justice. Plaintiffs argued the report was too late; defendants argued it was proper rebuttal to a supplemental report by their expert, Dr. James L. Gibson. The court in this order allowed the late-filed report. It is apparently not posted yet on the web. It was faxed to me by one of the attorneys in the case.

Among other things, the opinion states:

    As the Court notes, both sides in this litigation devoted a considerable amount of effort into criticizing and bolstering the Buying time studies produced by the Brennan Center and relied on by Members of Congress when they considered the Bipartisan Campaign Reform Act (BCRA). The Buying time reports examined television campaign advertising in the 1998 and 2000 campaigns and contained highly contested statistics regarding the impact of BCRA on "genuine issue advocacy." The efforts by the parties to support or oppose the studies were made less useful to the Court because of the inability of Dr. Gibson to determine, due to the number of data sets and the nature of the litigation process, which data set was relied upon by the Buying Time authors. Dr. Gibson's Supplemental Report responds to additional data provided after his initial and rebuttal reports had been filed, which included data sets closer to the original 1998 data set, affecting some of his calculations related to the findings of the Buying Time 1998 study.

    Plaintiff's claim that Dr. Krasno's Supplemental report does not respond to Dr. Gibson's supplemental report....The Court finds that Dr. Krasno's Supplemental report responds to Dr. Gibson's arguments made in Dr. Gibson's Supplemental Report...

    Given the confusion between the experts concerning the appropriate data sets, the sophistication of the arguments made in favor of, and in opposition to the validity of the studies, the importance of the Buying Time report to the passage of legislation under review, and the significance of the studies' findings, it is essential that the Court have as complete a record as possible for consideration of these disputed documents....

It is hard to determine the larger significance of this ruling. Does it mean the full opinion is not far behind? I have no clue.

posted by Rick 4:46 PM
. . .
Kentucky voting woes This article in the Lexington Herald-Leader begins: "With three weeks until the May 20 election, U.S. Rep. Ernie Fletcher asked the state's highest court yesterday to consider a legal challenge by a rival to keep him off the ballot in the Republican primary for governor." Thanks to Ed Feigenbaum for the pointer.

posted by Rick 4:29 PM
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Election law symposium now online I organized a symposium that ran in 1999 in the Loyola of Los Angeles Law Review on "Election Law as its Own Field of Study." The review has now posted all the articles on line at this link. Scroll down below the bankruptcy symposium.

posted by Rick 4:26 PM
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Should Justice Scalia be presenting his view on the wisdom of renewal of the Voting Rights Act? This A.P. Report describes the oral argument today at the Supreme Court in Georgia v. Ashcroft. Certain provisions of the Voting Rights Act, including section 5 at issue in the case, are up for renewal before Congress in 2007. According to the A.P. Report, Justice Scalia made the following comment: "Maybe if we make it bad enough, they'll think about repealing it.'' It is not clear from the context of the article what the first "it" refers to, perhaps the complexity of the law of retrogression under section 5. Still it is somewhat surprising that a Justice would express such a view from the bench on the wisdom of Congress's choice.

UPDATE: I have heard from a few observers at oral argument today that Justice Scalia's comment was likely made in jest.
FURTHER UPDATE: The later A.P. report here makes it clear that Scalia made the comment in jest.

posted by Rick 2:03 PM
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What do you think of the new look? Let me know.

posted by Rick 9:48 AM
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Previews of Georgia v. Ashcroft The Christian Science Monitor offers this report. The A.P. offers this report.

posted by Rick 7:14 AM
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Monday, April 28, 2003
Finding the BCRA opinion, should we live long enough to see it issued Howard Bashman writes here asking where the BCRA opinion will be posted when issued. Although I check the District Court website frequently, a reporter told me that the plan is to set up a special website to get the opinion, given the large demand for the opinion and the expected heft of it (reported to be at least hundreds of pages long).

posted by Rick 3:35 PM
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FEC rejects complaint on soft money The A.P. offers this report.
UPDATE: The Washington Post offers this report. The New York Times offers this report. Relevant documents are here on the Campaign Legal Center website. These documents take a long time to load. It is astounding to me that these documents need to be scanned and posted by a private organization. When is the FEC going to join the 21st century and post important documents like these on the web?

posted by Rick 3:04 PM
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My response to the N.Y. Times BCRA editorial As noted here, the Times had a very understated editorial asked for the lower court hearing the BCRA challenge to issue its ruling. I wrote a letter to the editor with a response. The Times did not publish it. Here it is:

    Dear Editor:

    Your editorial, "Time is Not On Our Side" (Apr. 20), politely asks for the courts to expedite consideration of the constitutional challenges to the McCain-Feingold campaign finance law. The request is very reasonable, but the editorial both obscures the source of the delay and fails to consider its potential disastrous effects on campaign finance law in this country.

    The court challenge is currently before a special three-judge court in Washington D.C., with an appeal to go directly to the Supreme Court. The lower court set an extremely expedited trial schedule and heard final arguments in early December, with a promise---now broken---of a ruling by late January. Press reports have indicated that the unexpected delay is the result of infighting among the judges deciding the case. In the meantime, the 2004 election season is already underway---candidates, particularly presidential candidates, are raising money now and planning campaigns under a set of rules that may well be changed in midstream by a late court decision.

    More importantly, the delay has made it unlikely that the Supreme Court will be able to hear the case this term. The Supreme Court is closely divided on campaign finance questions, and Chief Justice Rehnquist has been a reliable vote in favor of most campaign finance regulations---particularly those aimed at corporations. If the case goes over to next term and Rehnquist retires to be replaced by a Bush nominee in the mold of a Justice Scalia or Thomas, we may well have a Court that strikes down not only significant parts of the new law, but calls into question most campaign finance laws in this country.

A few months back I noted how it was amazing that bombs were falling on Baghdad before the lower court issued its decision. Now the war is over before a decision. Can we expect full peace in the Middle East before the opinion issues?

posted by Rick 11:50 AM
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Sunday, April 27, 2003
Op-ed on public financing See this Los Angeles Times piece.

posted by Rick 8:42 PM
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Republicans push for changes in ballot qualification dates Earlier I blogged about how the Republican party convention will be late this election season. The result is that a number of states will not let George Bush on the ballot, except as a write in, unless the law is changed. See this Washington Post article. The expectation is that the laws will be changed to accommodate Bush, even in states with Democratic majorities in their legislatures (California has a tradition of letting each party set its own rules). Of course, a third party could never expect such courteous treatment in most states if it wanted a late convention.

posted by Rick 8:38 PM
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What is at stake in Georgia v. Ashcroft I have been following the internal Georgia state litigation over whether Georgia's Republican governor gets to pull the state's U.S. Supreme Court appeal in Georgia v. Ashcroft brought by the Democratic state attorney general. The internal case goes to the Georgia Supreme Court on May 6. The underlying case will be argued at the U.S. Supreme Court on Tuesday. SCOTUSblog offers a brief description and links to the cases here and even more resources are available from the Georgia Republican party here. Sam Heldman offers his commentary here.This article from law.com explains what is at stake for the Democrats in this litigation.

This promises to be a very important decision, if it is not mooted by the Georgia Supreme Court's decision to hand the power to withdraw the case to the governor.The primary question in the case comes under section 5 of the Voting Rights Act. As the Supreme Court has interpreted section 5, a state covered by section 5's preclearance provisions (mostly, but not only, Southern states) must obtain "preclearance" from the Justice Department or a special three judge court in Washington D.C. before making any change in voting procedures and practices. The state must prove the change in voting practice has neither a discriminatory purpose or effect, which the Supreme Court has interpreted to mean that the law cannot be "retrogressive," i.e., make the position of protected minorities in the jurisdiction worse off than they were before the change.

The question presented here relates to how to define retrogression in an era when the extent of racially polarized voting (i.e., whites voting only for white preferred candidate, and minorities voting only for minority-preferred candidates) is declining. If it used to take a 70% African-American majority in a jurisdiction to elect an African-American preferred candidate, and it now takes only 60% (because more white voters will vote for the African-American candidate, particularly if he or she is an incumbent), is it retrogression to move to a 60% district. Democrats want to argue that the move to 60% should be permitted, so that African-American voters can be spread across more districts. Republicans have taken the opposite position in this litigation. The issues are extremely complex, both on the level of doctrine and political science. Anyone who wants to understand this area must read Rick Pildes's piece, Richard H. Pildes, Is Voting-Rights Law Now at War with Itself?, 80 N.C. L. Rev. 1517 (2002).

UPDATE: The Atlanta Journal-Constitution offers this report via How Appealing.

posted by Rick 8:08 PM
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Saturday, April 26, 2003
Leadership funds and McCain-Feingold See this article in the St. Petersburg Times.

posted by Rick 8:36 PM
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Friday, April 25, 2003
Interview with Jamin Raskin about his new book TomPaine.com offers this interview with Professor Jamie Raskin, author of "Overruling Democracy: The Supreme Court and the American People." The interview notes that Raskin has recently debated Judge Richard Posner, author of (among many other works) a new book partially on election law, "Law Pragmatism, and Democracy." That debate would be very interesting to see.

posted by Rick 3:06 PM
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A milestone of sorts, for this blog Today this blog received its 10,000th page view (meaning over 6,800 individual visits---only about 1,000 must be mine checking to see if everything looks ok). I think that's pretty good for my arcane area of the law, given that the blog is just two months old. If only I had the blog during the days of Bush v. Gore!

posted by Rick 2:51 PM
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Can a legislative body overrule term limits imposed by voter initiative? See this article in the New York Times. The case deals with New York. In California, the answer is clearly "no."

posted by Rick 11:03 AM
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ASLJ Symposium on Campaign Finance Reform Volume 34, Number 4 (Winter 2002) of the Arizona State Law Journal contains a symposium on campaign finance reform. Contributors are (in order of the articles): Sen. John McCain, Anthony Corrado, James Weinstein, Eugene Volokh, Paul Bender, Lillian BeVier, Trevor Potter, Deborah Goldberg, Darryl Wold, and Richard Briffault. Eugene's article is also posted here.

posted by Rick 10:37 AM
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Chamber of Commerce fined for issue ads involving Ohio judicial elections The A.P. offers this report (thanks to How Appealing for the pointer). The article states that the Chamber will appeal, based upon the the Fifth Circuit's opinion in Chamber of Commerce v. Moore, 288 F.3d 187 (5th Cir. 2002). For an exhaustive criticism of Moore, and more, see Ned Foley's article, Edward B. Foley, "Smith For Congress" and Its Equivalents: An Endorsement Test Under Buckley and MCFL, 2 Election Law Journal 3 (2003).

posted by Rick 10:30 AM
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Should it be illegal to pay people to turn out the vote? A Maryland court has struck down a ban on "walking around" money in Maryland. Such money is paid to people on election day to get out the vote (and there is also a belief that such money sometimes gets into the hands of voters). See this report in the Baltimore Sun (thanks to Richard Winger for the pointer) and this report in the Washington Post (thanks to Ed Feigenbaum for the pointer).

Just about everyone agrees that paying people to vote for or against a particular candidate or ballot measure should be illegal (though all of the reasons offered are open to some criticism). The question of paying for turnout is more difficult. I explore the issue in Vote Buying, 88 California Law Review 1323, 1355-59 (2000) and Pam Karlan looks at the question in Pamela S. Karlan, Not By Money But by Virtue Won? Vote Trafficking and the Voting Rights system, 80 Virginia Law Review 1455 (1994). My article recounts the prevalence of payments to increase turnout in California, particular the Democratic Party's targeting of payments in minority neighborhoods where turnout tends to be strongly Democratic. (Such payments are illegal when there is a federal candidate on the ballot under federal law, but legal under state law otherwise.)

posted by Rick 10:14 AM
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Thursday, April 24, 2003
FEC action on soft money solicitations See this A.P. report.

posted by Rick 8:39 PM
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More on mootness In response to my post two below this one, J.J. Gass writes:
    Under the situation you hypothesize, I think the Court would be obliged to dismiss the case. There wouldn't be an article III case or controversy, and I can't think of an exception (e.g., capable-of-repetition-yet-evading-review) to the rule that even if a case was once within article III, if it ever ceases to be, the Court has no jurisdiction to act (beyond vacating orders and judgments of the lower courts). There isn't a "gee, we were about the issue the decision" exception.

    Imagine if the parties settled the day before the decision was going to be announced. I can't imagine the Court would go forward. If the Governor wanted to dismiss, presumably federal government (respondent) would consent, so what you have is essentially a settlement. Even if not, a party that prevailed below can't take an appeal (e.g., because it doesn't like the holding on one of its claims even though it got complete relief via another claim), and I think the same reasoning would prevent the respondent from insisting that the case go ahead if the petitioner wanted to give up.

There were some intervenors in the case. I wonder if there were any other parties who would still have standing to keep the case from becoming moot.

posted by Rick 9:59 AM
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Are recess appointments to the federal bench unconstitutional? Back in March, I first starting blogging here about the possibility of President Bush using a recess appointment to the Supreme Court should a vacancy occur. I noted some of the history of the recess appointment over time here (noting there have been over 300 recess appointments to the federal bench going back to George Washington), and even discussing here the recess appointment and subsequent controversy over the Senate confirmation of Chief Justice Earl Warren.

Yesterday, in response to this essay in the Weekly Standard by Hugh Hewitt calling on President Bush to make recess appointments to the bench to counter the Democrats' blocking of certain Bush nominees, Howard Bashman noted in this post his belief that recess appointments to the federal bench may well be unconstitutional. He makes the full argument in his March 2001 appellate column. His main point is that judges appointed to the federal bench using the President's recess power do not have the life tenure and may have their salaries diminished while in office; they therefore cannot sit as Article III judges. Howard notes that the long history of recess appointments supports their constitutionality, and there are two appellate cases upholding the practice (one apparently with a strong dissent).

Nonetheless, the constitutional argument (that Howard made against President Clinton's recess appointment of Roger Gregory) will surely be a weapon used by Democrats should Bush make (or threaten to make) a recess appointment to the Supreme Court. Look for operatives of Democrats and Republicans to dig up old statements made by Senators Leahy or Hatch about the constitutionality of recess appointments during the Gregory matter.

By the way, Hewitt apparently has his history wrong, as Brett Marston notes here.

posted by Rick 9:50 AM
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Mootness and Georgia v. Ashcroft In the post two below this one, I link to an article in the Atlanta Journal-Constitution which suggests that once oral argument takes place April 29 in the United States Supreme Court, the state court case could be moot. Both Howard Bashman and Ed Still take issue with this suggestion. Howard writes: "By the way, I don't agree with the article's speculation that the appeal may be moot after the U.S. Supreme Court's oral argument in the Georgia redistricting case. I think the question of which official decides whether Georgia should pursue that case won't become moot until, at the earliest, the U.S. Supreme Court issues its ruling." Ed writes: "I think that a decision for the Governor before the U.S. Supreme Court rules would probably allow the Governor to withdraw the appeal. Supreme Court Rule 47.2 says, 'A petitioner or appellant may file a motion to dismiss the case, with proof of service as required by Rule 29, tendering to the Clerk any fees due and costs payable.' No mention of a restriction as to time."

I agree with Howard and Ed that the holding of oral argument should not moot the case. But let me raise a more interesting question. Suppose the Georgia Supreme Court some time in May rules---contrary to the lower state court---that the Georgia governor has the authority to direct the case in the U.S. Supreme Court. The governor then moves to dismiss, under 47.2, even agreeing to pay the fees due and costs payable. (Note that when the state of California dismissed its appeal in the Hason ADA case, Erwin Chemerinsky for the plaintiff moved for fees and lost.) Is the Supreme Court obliged to dismiss the case? I raise the question because the issues presented in Georgia v. Ashcroft are extremely important ones. This could be the biggest case under Section 5 of the Voting Rights Act since the 1976 opinion in Beer v. United States.

posted by Rick 9:20 AM
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More on conduit donations to Edwards campaign See this Washington Post report.

posted by Rick 9:07 AM
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Wednesday, April 23, 2003
Georgia Supreme Court to hear challenge May 6 In the latest round, Georgia's governor and attorney general will square off before the Georgia Supreme Court on May 6, to determine who gets to speak for the state in the Georgia v. Ashcroft Voting Rights Act appeal currently before the United States Supreme Court. See this article, suggesting the issue may be moot.

posted by Rick 1:10 PM
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Academic commentary on Ackerman and Ayres, Voting with Dollars Last year, Bruce Ackerman and Ian Ayres published a book calling for campaign finance vouchers and mandatory anonymity of some compaign contributions, Voting with Dollars: A New Paradigm for Campaign Finance Reform (Yale University Press 2002). Volume 37, Number 4 (May 2003) of the University of Richmond Law Review features commentaries on the book from Kathy Abrams, Bruce Cain, Dan Farber, Beth Garrett, Rick Hasen, Ken Mayer, and Fred Wertheimer and Alextranda Edsall. (My commenary is posted here.) Ackerman and Ayres provide a response in the same issue.

The book has generated a great deal of attention. It is apparently the subject of another symposium in the California Law Review. A draft of Pam Karlan's article from that symposium is available for download here at SSRN. I do not know who else is in that symposium.

In addition, Lillian BeVier reviews the book at 112 Yale L.J. 1135 (2002), Guy Charles reviews the book at 2 Election L.J. 271 (2003), and Dan Lowenstein has a review forthcoming in the Harvard Law Review.

posted by Rick 9:26 AM
. . .
Tuesday, April 22, 2003
"Texas pols spar over 'stolen' map" The Hill offers this report, which begins as follows:
    A furious row has erupted between Republicans and Democrats over GOP charges that a senior aide to Rep. Martin Frost (D-Texas) stole a proposed congressional redistricting map for the state.

    Republican aides say Gerry Hebert, a Democratic consultant to Frost and other Texas Democrats, and two other Democratic aides were spotted carrying materials away from a hearing room.

posted by Rick 8:56 PM
. . .
"FEC spells out new money rules for lawmakers" The Hill offers this report.

posted by Rick 8:52 PM
. . .
More on equal protection rationale in Minnesota absentee ballot case David Schultz, writing here argues:
    My reading of ERLANDSON V. KIFFMEYER (the MN absentee ballot case) is that the dissent was closer to getting it right than was the majority.
    Justice Page was correct in noting that the brief and oral arguments of the state DFL Party were aimed at advantaging likely DFL voters but still ignored that counting the absentee votes already mailed to be counted in the same manner as if no vacancy occurred. He notes that BUSH V. GORE might control here because some votes would be counted but others not.

    In essence, because we would be treating some absentee voters different from other absentee (and regular voters), we had a Equal Protection problem. I made this argument last October locally and also argued that the remedy that the Court ordered and which that which the DFL wanted also suffered from a viewpoint discrimination problem.

David's statements indicate the difficulty with putting into operation the equal protection standard from Bush v. Gore. I think it is important to explore these issues when we are not in the context of an election dispute, when the stakes are so high and the partisan results of arguments so obvious.

I see plausible equal protection arguments on both sides of the question raised by David:

If the Minnesota court threw out all the old absentee ballots as the Democrats suggested, that would have disenfranchised those voters who wanted to vote for Coleman (or the third party candidates on the ballot) but who did not have the time or ability to vote again (consider for example, a person who voted by absentee who went on vacation after voting).

If the Minnesota court (as it did) said ballots cast for anyone but Wellstone would be counted, that could be said to have disenfranchised those voters who voted for Wellstone but who did not have the time or ability to vote again.

The majority provided very little argument to support its view over the contrary view. Justice Page said in the concurrence/dissent that the counting of votes of everyone except the Wellstone voters raises "fundamental problems" at the "core of democracy." The Justice said this alternative equal protection argument should not have been resolved "without any citation to authority or law."

What else could the majority have said? One thing it might have said is that ex ante, each voter faces a chance that he or she will vote for a candidate who might die before election. State statutes provided rules for how to deal with such a death, and among those rules are absentee ballot rules that tend to favor voters who vote for candidates that remain living. These rules do not favor particular parties or candidates. Under these circumstances, the voting system does not "value one person's vote over that of another" under the equal protection standard of Bush v. Gore.

posted by Rick 3:28 PM
. . .
Initiative news The Los Angeles Times featured a front-page article today about the initiative process in Washington State. The new issue of PS: Political Science and News features Daniel A. Smith, Overturning Term Limits: The Legislature's Own Private Idaho, 36 P.S. 215-220 (April 2003).

posted by Rick 3:05 PM
. . .
Rehnquist, retirement and campaign finance reform Those worried about the effect of a possible retirement by the Chief Justice on the prospects for the eventual challenge to the BCRA may be heartened by this report in USA Today. Thanks (as always) to How Appealing for the pointer.

posted by Rick 12:55 PM
. . .
Rehnquist, retirement and campaign finance reform Those worried about the effect of a possible retirement by the Chief Justice on the prospects for the eventual challenge to the BCRA may be heartened by this report in USA Today. Thanks (as always) to posted by Rick 12:52 PM
. . .
Monday, April 21, 2003
Unprecedented $200 million to be spent on Bush re-election bid during the primary, N.Y. Times reports A front-page story on the New York Times website reports on President Bush's reelection plans. The article reports on various aspects of the plan, including the following: "Mr. Bush's advisers say they are prepared to spend as much as $200 million — twice the amount of his first campaign — to finance television advertising and other campaign expenses through the primary season that leads up to the Republican convention in September 2004." This presumably would be money raised privately, in up to $2,000 chunks from individuals (up from $1,000 in the last election, thanks to McCain-Feingold (and this is a part of the law everyone expects to survive court challenge)) and in up to $5,000 chunks from PACs. Bush raised $94 million this way last time under the old limits. This time, he'll presumably be running without opposition, meaning he can use his primary funding to build himself up and attack the Democrats (rather than actually run in a competitive primary).
The article reports that one effect of delaying the Republican convention to August 30 is to delay the time that the general election period starts. In the general election period, Bush would not be able to spend this $200 million. He is expected to take public financing in the general election portion of the campaign.

posted by Rick 8:33 PM
. . .
Interesting endorsement case out of Indiana Today a federal district court issued a preliminary injunction enjoining enforcement of an Indiana statute that prohibits printing, publishing or distributing a "slate" of candidates in a primary election without each candidate's written consent. The state asserted three interests for the infringement on the plaintiff's claimed First Amendment rights: the prevention of campaign fraud, the integrity of the election process through preservation of party stability, and the protecting candidate's interest in not associating with other candidates or groups.

As for the first interest, the court held that the statute was not narrowly tailored to prevent fraud. Among other things, the court said the statute would bar sending an e-mail urging a friend to "vote for Smith and Jones." Even read less broadly, the court said that "one-way expressions of support are a common fact of life in politics, and, contrary to the Defendants, do not involve factual misrepresentations.

As for the second interest, promoting the stability of the two-party system, the court said that the statute did not interfere with party autonomy (distinguishing CDP v. Jones).

As for the third interest, the court held: "If the candidate wishes to publicly disassociate himself from the slate, he is free to do so, but the state exceeds its powers when it stifles that speech on his behalf."

The case is Ogden v. Marendt, 1:03-cv-415-JDT-TAB, (S.D. Indiana, April 21, 2002). Thanks to Ed Feigenbaum for passing it along. It is not yet posted on the web.

posted by Rick 4:53 PM
. . .
(Late) opinion in Wellstone absentee ballot case/Concurrence applies equal protection holding of Bush v. Gore Last week, the Minnesota Supreme Court issued its opinion in Erlandson v. Kiffmeyer. (Thanks to David Schultz for alerting me to this ruling.) This case is the opinion that arises from the order of the Minnesota Supreme Court in the days after Senator Wellstone's death requiring that Minnesota election officials mail new absentee ballots (with Mondale's name replacing Wellstone's as the Democratic party nominee) to anyone who requested a new ballot.

The court held that new ballots should be mailed to any voter that requested one despite language in a Minnesota statute stating that such supplemental ballots "shall not be mailed to absent voters to whom ballots were [already] mailed." The court held that this statute violated the Fourteenth Amendment's guarantee of equal protection, whether viewed under a strict scrutiny standard (following Kramer) or rational basis (following McDonald). The Minnesota court wrote:
    The purpose of the absentee ballot is to enfranchise those voters who cannot vote in person. To prohibit mailing of replacement absentee ballots to absentee ballots who continue to be unable to vote or pick up a ballot in person disenfranchises the very people the absentee voter laws are intended to benefit. In the total absence of any rational explanation, allowing some absentee voters to revote with replacement ballots but denying that opportunity to the very group for which absentee voting is designed by prohibiting the mailing of replacement absentee ballots is a denial of equal protection that requires remedial action.

Perhaps the most interesting aspect of the opinion related to the Minnesota statute providing that absentee ballots already cast should be counted "as if no vacancy had occurred." The upshot of this provision is that ballots already cast would count for Coleman if the voter chose Coleman, but would not count for Wellstone if a voter chose Wellstone (and had not submitted a replacement ballot). At oral argument, the Democrats argued for the first time that the statute violated equal protection by favoring Coleman voters over voters who would support the replacement for Wellstone. Intervenors responded that the Democrats' alternative to throw out all absentee votes cast for Senate would be to disenfranchise anyone who voted for anyone other than Wellstone.
After noting that it need not reach the issue raised for the first time at oral argument, the court said that the statute was constitutional.
    We ... acknowledge that absentee voters who voted for Senator Wellstone on a regular absentee ballot before his death may not have sufficient time to recast their ballot. ... The fact that some Wellstone voters may be disenfranchised because of the Senator's untimely death does not, without strong legal authority, support disenfranchising voters who have properly cast ballots for other candidates who remain on the ballot.

One Justice dissented in part on this point. This justice would not have reached the issue either, because it was presented for the first time at oral argument. But the Justice continued that on the merits the Minnesota scheme seemed to violate the equal protection holding of Bush v Gore (probably the first time the case's equal protection hold has been relied upon in an appellate opinion). Citing the language in Bush about "not valu[ing] one person's vote over that of another," the Justice wrote: "In fact there are fundamental problems with allowing the votes for United States Senator on some regular absentee ballots to be counted without counting others. See Bush, 531 U.S. at 104-5...the issue raises a fundamental constitutional question that reaches to the very core of democracy: the right of citizens to have their vote counted."
A second concurring Justice, also noting that the issue was not properly before the Court, wrote that the Democratic suggestion to discount all absentee ballot votes cast for Senator, "would only compound the problem."

posted by Rick 4:23 PM
. . .
Marston on Mazzone See these insightful thoughts on Jason Mazzone's article (discussed in the immediate prior post) here.

posted by Rick 9:42 AM
. . .
Sunday, April 20, 2003
Solutions to deadlock over judicial nominees? Writing this column in Jurist, Jason Mazzone offers the following suggestions to end partisan struggles in the Senate over judicial nominees:
    The Senate should commit to bringing all future candidates to a final vote within a fixed period of time, perhaps sixty days from nomination. Senators who believe they lack sufficient information to evaluate a candidate within this period can and probably should vote against confirmation.... Senators worry about judges timing their retirement to give a President of their own party the opportunity to nominate their replacement. To address this problem, the Senate could require candidates for judicial office to commit to retire from the bench at a certain age...The Senate may need particularly strong rules to deal with the political maneuvering that results from fears about today’s nominee, if confirmed, being soon elevated to a higher court. One solution would be for the Senate simply to prohibit judicial promotion: refusing to confirm anybody who has ever previously served as a federal judge. Such a rule would mean losing the advantages of appellate judges obtaining experience in the lower courts.In order to discourage the President from nominating politically divisive candidates, the Senate should also explicitly adopt super-majority confirmation voting. Nothing in the Constitution requires the Senate to confirm judges by a simple majority of its members; if sixty-five or seventy votes were needed, efforts would shift from the present political maneuvering to cooperation....When it decides on judges, the Senate is not meant to be a political body.

Nice thoughts, but ultimately unconvincing. A decision to move to a 60 day solution now, while Bush is in his first (and perhaps only) term, gives a benefit to the party in power. Nothing like this will be adopted unless it is in the long term interest of both parties. Perhaps such a rule could be adopted to take effect eight years from now. But that raises other problems with Mazzone's suggestions. Who is going to enforce a Senate rule not to confirm a lower court nominee (and why remove from consideration those judges for whom we may have the best information about their judicial abilities and views?)? As for the super-majority requirement, we already have it. If the system works, Bush should start nominating more moderate candidates if the Democrats do not cave in to political pressure.

posted by Rick 8:05 PM
. . .
Saturday, April 19, 2003
New York Times Finally Weighs in on BCRA Delay Although other news organizations have covered the delay in the BCRA case, the Times has been silent, until now. See this brief editorial.

posted by Rick 8:33 PM
. . .
Litmus tests for judges Give Democratic presidential candidate John Kerry credit for being honest. He says he'll apply an abortion litmus test to judicial nominees if he is confirmed. See this article. As Prof. Gerhardt observes in the article, Kerry is being criticized for saying forthrightly what many others do anyway.

posted by Rick 8:21 PM
. . .
Friday, April 18, 2003
Important article challenging the constitutionality of BCRA's soft money provisions Bruce LaPierre has just published an article, The Bipartisan Campaign Reform Act, Political Parties, and the First Amendment: Lessons from Missouri, 80 Washington University Law Review 1101 (2002). The article agrees with the claim that I and others have made that the Supreme Court's standards (set in Shrink Missouri and Colorado Republican II) for evaluating the constitutionality of the amount of a contribution limit is pretty toothless . The article's main thrust is to urge the Supreme Court' to impose more stringent standards in evaluating the constitutionality of the amount of contribution limits.

Rather than make the point in the abstract, as many others have, Bruce brings to bear his considerable experience litigating Shrink Missouri and other cases for the Missouri Republican Party. He looks empirically at whether the Supreme Court's new standards are interfering with the electoral activity of political parties in Missouri and whether Missouri's very low contribution limits are justified by a concern about party corruption.

The article is sure to attract the attention of Justices Thomas and Scalia when the Supreme Court hears the BCRA challenge (in whatever decade that might be). One wonders if it will sway any of the other Justices on the Court.

UPDATE: Mike Wittenwyler writes that the article may be downloaded from the law review's website

posted by Rick 3:33 PM
. . .
Reader comment on Edwards' campaign contribution issue In response to the post two below this one, a reader writes:
    Regarding the contribution "irregularities" of the Edwards campaign:

    This is what happens when our complex system of regulations drives contributions underground. We have even less ability to follow the money trail. I would much prefer a system in which the attorneys at the Arkansas law firm were able to donate as much as they pleased, with the campaign fully disclosing those contributions. That way, at least the public would know to whom the candidate was beholden-- in this case, ATLA. The current system hides that information.

    Campaign money is a little bit like the dinosaurs in the movie Jurassic Park. They were engineered to be all female such that they could not reproduce and overtake the park. One scientist in the movie gave a foreshadowing warning, however: no matter what scientific tricks used, he insisted that "life will find a way." Indeed life found a way in Jurassic Park, and it will here too. Money will break through the regulations, but in a way we cannot easily track. Furthermore, the "intense pressure to raise large sums of money early" as noted in the WPost article is caused entirely by contribution limits. Were candidates not bound to spend hour
    upon hour securing thousands of meager contributions, they would instead be doing what all the good-government folks want them to be doing-- actually getting out into their communities. The basic Buckley construct is useless and counterproductive.

The reader here "postshadows" (if that's a word) the "hydraulist critique" of campaign finance reform (money will find a way---see Issacharoff and Karlan in the Texas Law Review symposium I organized a few years ago) and the argument of Vince Blasi that spending limits are justified to prevent candidates from spending too much time raising money (not quite the point of the reader, but related).
I suppose my main reaction to the post is that I don't know that I agree that lifting contribution limits would get candidates out in their communities, and even if it did, whether that would be enough to prevent corruption and ensure some rough equality in both access and the choice of candidates.

posted by Rick 12:52 PM
. . .
Usually the Supreme Court drives us batty See this A.P. Report.

posted by Rick 11:24 AM
. . .
Conduit contributions to Edwards campaign returned Under federal campaign finance law, it is illegal to reimburse someone for a contribution that person has made to a federal candidate. This article in the Washington Post explores a recent controversy over a law firm's promise to reimburse its employees for contributions to John Edwards' presidential campaign. The Edwards campaign has returned the money.

posted by Rick 7:51 AM
. . .
Thursday, April 17, 2003
Ken Starr speaks on McCain-Feingold See this report in the Yale Daily News.

posted by Rick 10:20 AM
. . .
Additional fallout from Republican Party of Minnesota v. White decision See this article from the Charlotte Observer on changes to North Carolina's rules for conducting judicial elections in light of the Supreme Court's most recent pronouncements in the White case last term.

posted by Rick 9:31 AM
. . .
Wednesday, April 16, 2003
More reader mail on judicial nominations Another thoughtful reader writes:
    I think it is important to point out that the politicization of the nomination process is at least correlated -in my opinion, caused- by politicization of the bench in general. Members of Congress increasingly see judges in an ideological role as opposed to a purely legal/interpretive one, and of course this is what causes the bloody nomination processes. Look at what happened following the 9th Circuit Pledge of Allegiance decision-- publicity-hungry members of Congress immediately geared up for hearings on splitting the 9th Circuit. They attempted to create a political solution to what they deemed a political, not a legal, problem. This is case in point of the evolving reputation of the judiciary-- a view helped along no doubt by Bush v. Gore.

    I think judicial activism and ideological approaches to jurisprudence to be, of course, a bad thing for our democracy, but if this is the reality of the world, I demand we have a very political process for nominations. When judges are no longer interpreting but essentially creating law, there better damn well be a political check on their appointments. Hence the difficult nomination processes. Just a thought.

Keep those comments coming!

posted by Rick 2:50 PM
. . .
One vote for political solutions over death spirals A reader sends along the following thoughtful message:
    I'm not an academic, so, of course, my opinions do not matter. But you have begun to win me over to your views re your argument with Larry Solum. Don't you see a political "solution" taking shape? Bush is succeeding with what are at least perceived to be less ideological nominees. Sen. Corzine, in his Newark Star Ledger op-ed opposing Estrada, wrote that working with Pres. Bush, he and Sen. Lautenberg agreed on nominee Michael Chertoff to the Third Circuit, a solid moderate-conservative. Prado is a conservative Hispanic and he was confirmed 19-0 in the judiciary committee. Bybee got through with the help of Sen. Reid. And the Senate just confirmed Tymkovitch(!) and it doesn't get much more conservative than that. It's not necessarily true that Bush's nominees are going to be any less conservative - he just nominated what's-his-name in Alabama - but I don't think Byron York's claims that the Democrats are blocking all nominess are entirely correct. I don't like what's going on, especially with Estrada and John Rogers, but it seems to me that a political solution is taking shape - the President gets some of his nominees in if there is the perception that the minority has played some role in the nominating process. (An economist would have said that Bush would respond to the Senate by nominating jurists with less of a perceived ideological bent, but W. is no economist.) While some circuits are at a stalemate, this is not a death spiral. I believe that each side thinks that the other side has upped the ante and that they themselves are only responding in kind. (I mean, if you're a Democrat, you'd respond that the GOP never needed to filibuster when they refused to hold votes on nominees.) Sorry about any indications in the past that I held the opposite.

    So why block Owen and Estrada? They have to block some considering that Bush is about to assume Emperor status. They've already said no to Owen and Pickering, so they have to continue those filibusters. And Estrada is (i) on the D.C. Circuit and (ii) mentioned as a future S.Ct nominee.

Very interesting thoughts. I would add that the Democrats might block Owen as well to play to their base. Many of the other nominees may be conservative, but likely do not have an abortion opinion specifically that opponents may point to.
Update Larry Solum has some additional thoughts

posted by Rick 9:45 AM
. . .
Voting rights of non-residents; more on Ken Starr and proportional representation In this earlier post, I commented on a cert petition filed by Ken Starr in a case involving the right of non-resident parents to proportional representation on school boards where their children go to high school. The Third Circuit had upheld a New Jersey law that gave the parents no more than one seat on the school board, even in a case where their students made up 50& of the school board's students.

Steven Sholk of Gibbons, Del Deo, Dolan, Griffinger & Vecchione was kind enough to send me an amicus brief supporting the cert petition that his firm and Professor Richard Briffault have written supporting the cert petition (amici are 17 N.J. "sending" school districts). Among other arguments made in the amicus brief is an argument about the Supreme Court's Holt case. In Holt, the Supreme Court upheld the denial of the vote to non-residents who were subject to the police jurisdiction of a nearby municipality.

The amicus brief makes the following argument: "The [Supreme] Court's citation [in Holt] to [an earlier 8th Circuit case] suggests that even after Holt, when one local government unit wields substantial and direct authority over nonresidents, those nonresidents are entitled to vote and to representation under the one person, one vote doctrine in the elected body that runs the government that exercises extraterritorial power."

I need to give this point more thought, but at first blush I find this argument difficult to accept. Besides the range of administrative problems presented by such a rule (when is there "substantial and direct authority over non-residents?"), a strict one person, one vote rule applied to affected non-residents may further inhibit the willingness of local governments to engage in regional cooperation. This is a point Richard Briffault, Bruce Cain, and others have made about the application of one person, one vote on the local level applied to residents.

posted by Rick 9:32 AM
. . .
Tuesday, April 15, 2003
More on pro-Estrada television campaign and the appropriateness of political fights over judicial nominees I asked (in the post two below this one) if there is precedent for this kind of advertising campaign supporting a judicial nominee or opposing a filibuster. One reader pointed out that because there is not much experience even with filibustering lower court nominees (Republicans have been able to block lower court Democratic nominees without a filibuster), there won't be much history of advertising campaigns. Good point.

As I expected, Larry Solum uses this new evidence of the advertising campaign
in his latest post on judicial nominations and downward spirals. In response to my argument that the filibuster and the advertising campaign opposing it are politically proper, Larry argues that neoformalists like him see law as separate from politics. The relevant question here is not whether there is law separate from politics (Larry and I have debated this a bit in the past), but whether it is desirable to have an apolitical appointments process in the Senate. I believe it is not given the current politicization of the judiciary. Removing politics from the process now will benefit the incumbent president who nominates candidates with definite ideological views.
Perhaps a way out of the sprial Larry sees is for the Senate to commit to new less-politicized rules for treating judicial nominees in the future, to take effect after President Bush leaves office (whether that is in 2004 or 2008). Would Democrats or Republicans take that offer? It probably depends upon their long term view of the prospects of holding onto/gaining the presidency in 2008. I would hope that 2008 is far enough along that Democrats and Republicans would make a decision along these lines behind something of a veil of ignorance. What rules would they adopt?

posted by Rick 11:22 AM
. . .
Fitzgerald drops out of reelection campaign; is McCain-Feingold to blame? See this story in the Chicago Tribune about the surprise decision of Sen. Fitzgerald of Illinois not to run for reelection. The last two paragraphs read:
    All told, Fitzgerald ended up primarily self-financing his first campaign for the Senate and spent more than $13 million of his own money.

    Concerns about spending more of his personal wealth were among the reasons he opted not to seek re-election, sources close to the senator said. Although new federal campaign spending laws allow candidates to raise money in greater amounts than he was able to do in his first campaign, Fitzgerald still expected that he would be the primary source for dollars.

posted by Rick 6:48 AM
. . .
More on Georgia case The law.com article is available here.

posted by Rick 6:39 AM
. . .
Monday, April 14, 2003
A political solution to a political problem, or a downward spiral? This Washington Post article talks about former President Bush doing fundraising to run t.v. ads targeting vulnerable Democratic Senators who are supporting the filibuster of Estrada. This is as it should be. The filibuster is a political weapon, and if enough Democrats cannot stand the political heat, then they will cave on the filibuster. My guess is that the Estrada issue will fail to resonate---the filibuster will only resonate with the American public when either it stops the Senate from conducting important business (and then, the Republicans, not the Democrats may face blame as the party that is controlling the agenda) or when the Democrats filibuster a nominee to the Supreme Court.

So this is more business as usual. But I can just hear my colleague Larry Solum saying this is another example of the "downward spiral." So I would like to know, if anyone knows, about political advertising before Estrada targeting judicial filibusters.

posted by Rick 9:27 PM
. . .
Lower court decision in Georgia case The lower court opinion determining that the Georgia attorney general gets to control the Georgia v. Ashcroft litigation in the U.S. Supreme Court is available at this link. Thanks to SCOTUSblog and How Appealing for posting the opinion and for the pointer.

posted by Rick 8:35 AM
. . .
Friday, April 11, 2003
Judge Rules Georgia v. Ashcroft can go forward, for now See this update from the Atlanta Jounal Constitution. The governor is expected to appeal to the Georgia Supreme Court. Oral argument on the underlying case is set for April 29.

posted by Rick 2:26 PM
. . .
Ken Starr for proportional representation A cert petition filed by Ken Starr of Kirkland and Ellis caught my eye. The case is Board of Education of Township of Branchburg NJ v. Board of Education of Borough of Summerville, NJ (No. 02-1302, cert. petition filed 3/4/03). The Third Circuit opinion is at 312 F.3d 614 (3rd Cir. 2002). Under complicated provisions of New Jersey law, a school district can enter into a "send-receive"relationship with another school district whereby the sending district sends students to the receiving district's high school. The sending district pays for expenses related to the students, and where the students from the sending district make up at least 10% of the school population, the sending district is entitled to one seat on the receiving district's school board. In this case, the sending district sent 50% of the students to the high school, but was allowed only one seat on the 10 member board. Parents of students from the sending school district claimed that this representation violated the one person, one vote rule, particularly where, as here, New Jersey thus far has not let the sending district to sever its relationship with the receiving district.
The Third Circuit, relying upon an earlier precedent from the same court, upheld the voting scheme. It said that the Supreme Court's rules for one person, one vote did not apply to voting by non-residents (citing Holt, 439 U.S. 60 (1978)). It was enough, the Third Circuit said, that the plan was rational. It cited its earlier ruling holding that "a school board's broad authority over the entire school district, authority that goes well beyond matters affecting the high school, warranted the limited representation of the sending district." The court thought it irrelevant that the sending school district in this case could not sever the relationship.
The cert petition filed by Starr states the issue for review as follows: "Are parents required by state law to send their children to schools in neighboring school districts entitled to proportional representation on neighboring school district's board of education under 'one person, one vote' principle of 14th Amendment?"

posted by Rick 10:05 AM
. . .
Nike case and campaign finance reform The Campaign and Media Legal Center has filed an amicus brief in the Nike case involving commercial speech. According to CAMLC's president, Trevor Potter, the brief "argues that the Court, as it considers the proper level of protection to give speech by corporations, should be careful not to undermine its campaign finance law jurisprudence. In those cases, the Court has firmly established that corporate participation in elections for political office, generally in the form of contributions and independent expenditures, may freely be regulated to prevent political corruption. The Legal Center urges the Court to continue to maintain the fundamental distinction in its cases between corporate speech on public issues in the non-campaign context public issues, and corporate contributions and expenditures." The brief is available here. (Disclosure: I am on CAMLC's advisory board, but had nothing to do with the brief.)

posted by Rick 9:40 AM
. . .
Winning an election after losing Ed Feigenbaum pointed me to this Indianapolis Star article involving what happens under Indiana law when an elected candidate for office is declared ineligible because of a prior felony conviction. The court ruled that the loser---in this case, the incumbent---gets to take office for the entire term. Apparently Indiana's law has no provision for a special election.

posted by Rick 7:42 AM
. . .
Thursday, April 10, 2003
Justice Kennedy sides with Solum in debate over judicial nominations and downward spirals No, Justice Kennedy was not reading the blog debate I've been having with my colleague Larry Solum, but he does express similar views to Larry's according to this report.

posted by Rick 9:21 PM
. . .
Hearing on felon voting rights claim See this report on the oral argument in the 11th Circuit on the Florida felon voting rights case.

posted by Rick 12:46 PM
. . .
Election Law Journal 2:2 You can find the table of contents for the new issue of ELJ at this link. If you care at all about redistricting and its partisan consequences in the House of Representatives, Sam Hirsch's article is not to be missed. The issue also includes my own article, The Untold Drafting History of Buckley v. Valeo, 2 Election L.J. 241 (2003). Looking at the court files of Justices Brennan, Marshall and Powell (I had to get special permission to see Brennan's papers, which are not open to the general public), I try to reconstruct the fault lines and deliberations surrounding the Supreme Court's 1976 decision in its most important campaign finance case. There were a number of interesting surprises, some of which bear upon the issues the Supreme Court will face (who knows when!) in the BCRA litigation.

posted by Rick 10:05 AM
. . .
FEC wants better online campaign finance data from Senate candidates See this Washington Post article.

posted by Rick 8:14 AM
. . .
Wednesday, April 09, 2003
Is Owen filibuster coming? See this Washington Post article.

posted by Rick 7:11 AM
. . .
Tuesday, April 08, 2003
More details on argument over Georgia redistricting appeal See this article from Jonathan Ringel on law.com. The trial judge has promised to move quickly, and the losing side is expected to appeal to the Georgia Supreme Court.

posted by Rick 9:13 PM
. . .
Congressional Quarterly article on BCRA delay The article available here notes that the BCRA case could conceivably be decided by a Supreme Court with only 8 members.

posted by Rick 4:03 PM
. . .
Georgia v. Georgia v. Ashcroft returns Here is a report from the A.P. on the arguments in state court today over whether the Ga. governor can force its attorney general to withdraw the appeal in the Georgia v. Ashcroft case being argued at the end of the month in the Supreme Court. The Supreme Court case involves a very important issue related to section 5 of the Voting Rights Act.

posted by Rick 2:50 PM
. . .
Ex-felons seek right to vote The Miami Herald reports in this article on the Brennan Center's suit in the 11th Circuit to overturn Florida's ban on voting by ex-felons. Thanks to Mike Alvarez of the Votingtech list for the pointer.

posted by Rick 9:42 AM
. . .
Presidential candidates switching to volunteer services This article in Roll Call talks about the increasing trend of Democratic presidential candidates using volunteer political advisors. In the era of McCain-Feingold, there is not as much soft money to pay these advisors. A tricky administrative issue is to make sure someone else is not bankrolling the political advisor covertly.

posted by Rick 9:07 AM
. . .
Massachusetts campaign financing See this article discussing the fate of Massachusetts' public financing program for state legislative races.

posted by Rick 8:54 AM
. . .
More concerns about electronic voting machines See these letters to the editor in today's Washington Post.

posted by Rick 7:13 AM
. . .
Monday, April 07, 2003
New article on campaign finance and political science The American Political Science Association has started a new journal, Perspectives on Politics, sent to all APSA members. Its first issue includes the article, "Linking Knowledge and Action: Political Science and Campaign Finance Reform," 1 Perspectives on Political Science 69-83 (March 2003) by Thomas Mann. Here is the abstract:
    The 2002 enactment of the first major reform of U.S. federal campaign-finance law in a quarter-century featured a more substantial engagement of political scientists---through research, public advocacy, and expert testimony---than had been the case in the past. this essay reviews the evolution of research on campaign finance from the early twentieth century to the present, the intellectual tensions between scholarly and reform communities, the conditions in the 1990s that promoted collaboration among these groups, and the continuing disagreements over how best to manage the problems associated with money and politics---in the United States and in democracies around the world.

The article is well worth reading.

posted by Rick 11:16 AM
. . .
Here we go again? This story addresses problems with absentee ballots caused by the late withdrawal of a candidate for Lt. Gov. in Kentucky. Readers may recall that similar problems arose in the NJ Senate race last year when Robert Torrecelli withdrew.

posted by Rick 10:07 AM
. . .
Public financing in Ohio judicial campaigns? See this editorial from the Dayton Daily News.

posted by Rick 9:49 AM
. . .
BCRA Defenders "Flatly" Reject Mandamus in BCRA Case I have been arguing that it is time to get the Supreme Court involved in the BCRA litigation through a motion for mandamus directed to the lower court to get the opinion out. In this article in Roll Call, Fred Wertheimer, a spokesperson for the defenders, "flatly" rejects my suggestion:
    “We’re not going to pursue the mandamus stuff,” [Wertheimer] said, adding that “the goal of the expedited process was to get an early decision by the Supreme Court” and “that goal remains in effect.”

I guess it depends on what "early" means....

posted by Rick 7:28 AM
. . .
Sunday, April 06, 2003
More on blue slips One reader writes:
    JJ Gass writes to you, "What is unprecedented, as laid out nicely by Sen. Leahy in his statement on the Kuhl hearing, is a committee chair changing his blue-slip policy."

    Actually, Sen. Leahy's statement contains a falsehood. Senator Hatch HAS allowed at least one nominee to proceed when one senator had withheld the blue slip (as Sen. Boxer has done with Carolyn Kuhl). That nominee was Ronnie White. The White nomination didn't turn out so well, but he received a committee hearing (not to mention a floor vote) despite the opposition of a home-state Senator (then-Senator John Ashcroft).

    I'm with Professor Solum on this one: we appear to be locked in a downward spiral on judicial nominations, fueled in part by both sides' asymmetrical perceptions of the situation.

posted by Rick 9:20 AM
. . .
Is the BCRA Delay Inexcusable? Here is Tony Mauro's law.com article (also running in the Legal Times) on the BCRA delay. A number of people have disagreed with my assessment that the delay here is "inexcusable." I reason as follows. First, the court put the parties in the litigation on an extremely expedited schedule for briefing and trial. It was everyone's expectation that the lower court would decide the case in weeks and that a direct appeal would be heard by the Supreme Court this term. Planning for federal campaign financing has been done with the expectation that the definitive rules would be set by the Supreme Court by early summer.
If it turns out now after argument that the opinion is simply too difficult to get out in time, the three-judge court should at least issue a statement or order to that effect so that the parties have reasonable expectations of what is going on and how to plan for the 2004 campaigns.
More significantly, the legal analysis of the lower court is less important than the factual development here. The Supreme Court will likely defer to the factual findings of the lower court majority (though not necessarily---remember Easley v. Cromartie), but it will not defer to the legal analysis. It seems to me that 3 competent judges could have issued findings of facts and conclusions of law on this case within three months of the oral argument. Remember---this was a paper trial with no witness credibility issues.
To claim, as some have, that an "expedited" ruling can take up to a year is to misread congressional intent in requiring expedited review. And, of course, there is the issue of the Supreme Court outcome in the case being dictated by timing of retirements. I stand by my statement that the delay is inexcusable.

posted by Rick 9:13 AM
. . .
Friday, April 04, 2003
Bashman on the BCRA Delay See the posting here.

posted by Rick 10:02 AM
. . .
More reader mail on the filibuster One reader makes two points regarding the latest postings here on the filibuster:

    First, your Republican reader suggests that if the Republicans didn't filibuster Clinton's judges, that was their choice, and the Democrats are simply making a different (but legitimate) choice. The thing is that the Republicans didn't have to filibuster, because they had the Senate majority for the last six years of the Clinton presidency. Thus, they controlled the Judiciary Committee, and they could deep-six any nominee they wanted to simply by not holding a hearing. Which isn't to say that what they chose to do with the available weapons was good or bad, it's just that the filibuster wasn't a weapon they needed.

    Second, the premise of the reader's response is Byron York's assertion that the Democrats are blocking literally, or nearly literally, all of Bush's nominees. Even at the circuit court level, that is not true. The very day (yesterday) York made that contention in the National Review's online edition, a Fifth Circuit nominee was approved 19-0 by the Judiciary Committee. Controversial nominees have been confirmed by the full Senate, e.g., Bybee and Tymkovich this year and McConnell and Shedd when the Democrats had control in the previous Congress. Under Democratic control, the Senate confirmed 17 circuit court judges. Clearly, the Democrats have decided to fight several appellate nominations very hard, and they seem willing to use whatever parliamentary tools they have to do it. But it goes way too far to contend that they're trying to stop everyone.

Thanks for writing.

posted by Rick 9:48 AM
. . .
Solum Post on Judicial Nominations and Downward Spirals is available here.

posted by Rick 7:02 AM
. . .
Thursday, April 03, 2003
More Inside Information Leaking Out About Drafting of the BCRA Decision See this report in the Washington Post. Among other things, the article reports that the decision is still days or weeks away, and that the three judges still have not agreed on how to resolve legal issues and even how the three judges should decide the case. The article suggests that the difference between appellate judging and trial court judging account for some of the differences.
As I have argued before, a delay this long is inexcusable. Now is the time for the parties who really want an opinion issued by the Supreme Court this term to seek mandamus from the Supreme Court ordering the lower court to issue its opinion. The leaks from the court can only make matters worse among the judges who need to work together to finish this job.

posted by Rick 10:03 PM
. . .
Another FEC Hearing Scheduled on Funding Party Conventions See this A.P. Report.

posted by Rick 4:18 PM
. . .
Writing the History of BCRA Before It is Done I just received the following information from the Campaign Finance Institute:
    Announcing an Online Preview of
    The Campaign Finance Institute's New Book

    Life After Reform:
    When the Bipartisan Campaign Reform Act Meets Politics

    Michael J. Malbin, editor

    The Campaign Finance Institute announces the pre-publication
    draft of a forthcoming book that political reporters and
    activists, policy professionals, scholars and students will
    not want to miss. The co-authors include many of the country's
    leading academic experts on campaign finance. The editor is
    CFI's Executive Director and a Professor of Political Science
    at the State University of New York, Albany.

    Life After Reform is the first serious and dispassionate book
    about how politics will change under the Bipartisan Campaign
    Reform Act. The book will quickly be seen as an essential tool
    for understanding the 2004 election. But its sophisticated and
    original framework for understanding change will also make it
    important well beyond a specific election, and long after
    reform debates have shifted to new questions.

    The Bipartisan Campaign Reform Act of 2002 (or BCRA, formerly
    known as McCain-Feingold) is the most important federal
    campaign finance law in decades. Everyone is agreed about that,
    but not too much else. Will the new law substantially achieve
    its intended purposes? What will it mean for national and
    state parties and their allies? For business, labor and other
    advocacy organizations? For presidential and congressional
    candidates? For the survival and value of public funding in
    presidential elections?

    Because the law is under constitutional challenge, its last
    chapter will be written after the end of the Court's term.
    Look for the final version of Life After Reform, published by
    Rowman & Littlefield, in September 2003. Until then, draft
    chapters may be read on the Campaign Finance Institute's
    website, http://www.CFInst.org.

    The Campaign Finance Institute is a non-partisan, non-profit
    institute, affiliated with The George Washington University,
    that conducts objective research and education, empanels task
    forces and makes recommendations for policy change in the
    field of campaign finance.

    Book orders: Rowman & Littlefield.

    Life After Reform:
    When the Bipartisan Campaign Reform Act Meets Politics

    Michael J. Malbin, editor

    Table of Contents

    PART ONE: New Laws and Processes
    1. Thinking About Reform - Michael J. Malbin
    2. The Legislative Odyssey of BCRA - Anthony Corrado

    PART TWO: Givers and Spenders
    3. BCRA's Impact on Interest Groups and Advocacy
    Organizations - Robert Boatright, Michael Malbin, Mark
    Rozell, Clyde Wilcox
    4. With Limits Raised, Who Will Give More? The Impact of
    BCRA on Individual Donors - Clyde Wilcox, et al.

    PART THREE: Political Parties
    5. National Political Parties After BCRA - Diana Dwyre
    and Robin Kolodny
    6. State Political Parties After BCRA - Ray La Raja
    7. The Party as an Extended Network: Members Giving to
    Each Other and to their Parties - Anne Bedlington and
    Michael J. Malbin

    PART FOUR: Campaigns and Elections
    8. The Stagnation of Congressional Elections -
    James Campbell
    9. The "Millionaires' Amendment" - Jennifer Steen
    10. BCRA's Impact on Presidential Elections - John Green
    and Anthony Corrado
    11. Afterword: Court Decisions, Regulations and Next Steps
    (to be written in June) - Michael J. Malbin

posted by Rick 9:07 AM
. . .
History of the Blue Slip In this post, I asked about the history of the blue slip, to determine whether Republicans have changed the rules regarding the ability of a home state senator to block a judicial nominee. J.J. Gass provides the following analysis of the question:
    This turns out to be a complicated story. The short of it is that the blue slips of both home-state senators have not always been required, and thus what Sen. Hatch is doing is not unprecedented. Different chairs of the Judiciary Committee have had different policies over the years, though in recent history the blue slips of both senators have generally been required. And there are reasons to argue against the two-slip policy on substantive grounds, both theoretical--why should one Senator be able to hold hostage a nomination that the other 99 are happy with--and historical--e.g., the use of blue slips by racist Senators to fight the integration of the judiciary.

    What is unprecedented, as laid out nicely by Sen. Leahy in his statement on the Kuhl hearing, is a committee chair changing his blue-slip policy. Clinton's appointees were regularly held up by single Republican senators' failing to return blue slips. The most famous example was Sen. Helms's refusal to allow any N. Carolina appointees to the 4th Circuit to have a hearing for the entire Clinton presidency, but there are many other instances. Sen. Hatch didn't have a problem with that kind of "obstructionism" then, but he changed the policy (and even changed the text on the blue slips themselves) in 2001. Note that the change isn't a reaction to Democratic tactics during the first two years of the Bush Administration; Hatch changed the rules when the Republicans (briefly) formed a majority in early 2001, after steadfastly refusing to make any exceptions for the previous six years.

This analysis supports my view of the world (that we are not in a downward spiral and on more of a roller coaster) over Larry's Solum's position.

posted by Rick 8:59 AM
. . .
Reader Comment on the Filibuster One reader of this blog writes:
Wednesday, April 02, 2003
More on FEC rules and Party Conventions The Hill offers this report.

posted by Rick 9:30 AM
. . .
On the FEC Agenda See this A.P. story.

posted by Rick 8:07 AM
. . .
Are Republicans Escalating in Filibuster Fight? Larry Solum and I have been debating the question whether the federal judicial nominations process is in a downward spiral or on a roller coaster ride. My position has been that the politics of judicial nominations seems to go in cycles, going back in modern times at least to Earl Warren. (See my most recent post on this topic here). This article in today's Los Angeles Times lends some support to Larry's theory, noting that Republicans apparently have changed the rules related to the use of the "blue slip," a process whereby either state's Senator could block a hearing on a nominee. But even this may not be correct. This story from the Washington Times suggests Democrats might have engaged in the same tactics from 1979-81. I would appreciate hearing more details on this period from anyone who has it.

posted by Rick 6:32 AM
. . .

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