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)

Saturday, May 31, 2003
Article suggesting uncertainty about McCain-Feingold Law is Having an Effect on the Election Cycle See this Washington Post article by Helen Dewar, "Senate Races Face Obstacles to Recruiting; Parties Vexed by Lack of Strong Candidates in Some States, Surplus in Others."

posted by Rick 8:08 PM
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New Justices? Maybe. New Clerks? Yes. As this A.P. report confirms, rumors are rampant about the possible retirement of Chief Justice Rehnquist and Justice O'Connor from the Supreme Court. I and many others have written about how a retirement, particularly by the Chief, could change the balance of power on the campaign finance issues. Perhaps the Justices might even decide to stay a bit longer so that they can decide the campaign finance case.
Even if all the Justices stay, it is interesting to consider, as an attorney friend suggested recently, how the changing of the Justices' clerks might affect the decision. The BCRA is pretty complex material for those who do not already have detailed familiarity with the constitutional terrain surrounding Buckley. So it might at least delay things.

posted by Rick 6:19 PM
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Friday, May 30, 2003
"Mass. Senate to Drop Clean Election Law" See this A.P. report.

posted by Rick 4:09 PM
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New third party case In Green Party v. New York State of Elections, a U.S. District Court judge in the Eastern District of New York has issued a preliminary injunction requiring New York state to let voters register (or "enroll") in the Green Party, even though the Green Party isn't a qualified party. The opinion is available here. From the opinion:
    I conclude that New York’s voter enrollment scheme: (1) imposes a severe burden on the plaintiffs’ First Amendment rights; and (2) unreasonably discriminates against minor parties and their voters. The State Board has failed to present a compelling and narrowly tailored state interest in denying minor parties and their voters access to the state’s voter enrollment scheme. The purported interest in preventing voter confusion is unpersuasive. The absence of any administrative or financial burden if relief is granted further counsels in favor of injunctive relief. The plaintiffs have therefore easily demonstrated a likelihood of success on the merits of their case.

The opinion also contains a multi-colored Appendix "B" listing the qualification practices in all 50 states.
I was amused by New York's failed attempt to keep Richard Winger from testifying as an expert on ballot access laws. Richard is one of the leading authorities in the area, and publishes the widely respected Ballot Access News. From the opinion's footnote 9:
    [T]he principal attack on Winger’s testimony is that he is not qualified to provide expert testimony on voter enrollment and ballot access laws in the United States and on the use of voter enrollment information by political parties. See State Board’s Supp. Br. dated Jan. 23, 2003 (“State Board’s Supp. Br.”) at 2-4. The arguments include the following: “While claiming to be an expert in all fifty states, [Winger] has only testified in court or provided affidavits in court proceedings in thirty states.” Id. at 3.

posted by Rick 2:38 PM
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New Law Review Note on BCRA's Constitutionality A new law review student comment considers the constitutionality of BCRA's electioneering communications provisions. It is Andrew Pratt, Comment, The End of Sham Issue Advocacy: The Case to Uphold Electioneering Communications in the Bipartisan Campaign Reform Act of 2002, 87 Minnesota Law Review 1663 (May 2003). From the title, it should not surprise you that the author's conclusion is the following:

    The current definition of express advocacy is unworkable. Buckley' s magic words test is a paper tiger, as nefarious political groups, corporations, and other organizations have avoided reasonable disclosure requirements simply by not using the magic words in their advertisements. The First Amendment provides ample protection for these groups to speak, but it does not grant absolute immunity from regulation. The BCRA upholds the First Amendment through its disclosure requirements for electioneering communications: The regulations are clear, they are limited to election-related speech, and they adequately relate to governmental interests to provide informative, corruption-free campaigns. In short, a court evaluating this portion of the BCRA should hold that it withstands "exacting scrutiny" because it is narrowly tailored to meet compelling governmental interests.

posted by Rick 2:14 PM
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Everything you want to know about Majors v. Abell but were afraid to ask You can view here Ed Feigenbaum's post on the Indiana Supreme Court's consideration of a certified question from the 7th Circuit related to campaign finance disclosure.

posted by Rick 2:06 PM
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Complaint against John Edwards filed with the FEC See this A.P. report.

posted by Rick 12:18 PM
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"Nonagenarians Against Cynicism" See this column by Eric Alterman discussing money in politics and the BCRA decision.

posted by Rick 12:14 PM
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Some brief comments on the recent papers filed in the BCRA case (Note: These documents do not yet appear to be posted on the Campaign Legal Center website.) Some of the plaintiffs have filed a motion for partial summary affirmance on the issue of the constitutionality of the ban on campaign contributions by minors. The McConnell plaintiffs have filed a reply to the claim of the defendant intervenors, arguing against the intervenors' position that some of the issues decided adversely to the plaintiffs should be disposed of summarily. The Adams plaintiffs (those plaintiffs challenging the higher individual contribution limits as a denial of equal protection) have filed a jurisdictional statement and a response to the request for expedited briefing and argument. They take no position on the request for expedited briefing. The Chamber of Commerce filed a similar document not taking a strong position on timing of argument. Thus far, no one has outright opposed holding oral argument on September 5 or 8.

We await June 5, when the Supreme Court meets in conference and may rule on the requests for expedited review.

posted by Rick 10:20 AM
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More documents filed in Supreme Court in the BCRA case There have been more jurisdictional statements, replies to jurisdictional statements and a motion to summarily affirm filed. The documents are, or soon will be, on the website of the Campaign Legal Center (see link on sidebar). More when I have reviewed some of these documents,.

posted by Rick 7:49 AM
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"Tribal Donation to GOP Draws Attention" See this A.P. report.

posted by Rick 7:29 AM
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Another review of Posner book Judger Richard A. Posner's book, Law, Pragmatism and Democracy, is reviewed by Paul Horwitz here at Findlaw.

posted by Rick 7:27 AM
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Thursday, May 29, 2003
Davis recall effort and McCain-Feingold See this A.P. report, entitled "Davis ally to file legal complaint against Issa for recall campaign efforts." The article states in part:
    The complaint [to the FEC] accuses Issa, R-Vista, of violating the federal McCain-Feingold campaign finance law by soliciting nearly $500,000 in corporate and "soft money" donations to the Rescue California committee that he set up to support a Davis recall.

    The law prohibits federal officeholders from seeking donations of corporate or "soft" money.

It has been a while since I've looked at the solicitation rules and FEC implementing regulations. I don't see how solicitation of funds by a federal officeholder for a wholly state law purpose such as the recall election is covered by BCRA, but maybe I'm missing something.
UPDATE: Ed Still has blogged on related issues arising out of Rep. Flake's request for an advisory opinion. See here. The Los Angeles Times has this more detailed story (registration required).

posted by Rick 6:14 AM
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Wednesday, May 28, 2003
A Commitment to Pick Virtuous Judges as a Way to End the Confirmation Stalemate? Larry Solum blogs here in his usual thoughtful way on the confirmation wars. He cites to Stuart Taylor's article and others on ways out of the mess. Taylor suggests compromise on the ideological composition of judges to be nominated, a position with which I agree. Larry thinks that this won't work, because there is a lack of trust, a first mover problem, and a difficulty in figuring out exactly where to place judicial nominees on an ideological spectrum. These are all good points, and Larry may well be right.

Here's where we part company. Larry suggests as a "truly radical" first move

    would be for either the Republicans or the Democrats to suggest that judges should be selected on the basis of their possession of the judicial virtues, rather than their political ideology. Such a move would not be pleasant for either party. Judges who are committed to the rule of law are likely to offend both Democrats and Republicans. For example, a judge who takes precedent seriously would be committed to both Hans v. Louisiana and Roe v. Wade, disappointing both the right and the left. But the point of nominating and confirming neoformalist judges is not ideological balance. The point of a radical move to restore the rule of law is that it offers both parties a principled basis for agreement. So long as we think of judges as politicians with life tenure, a truce in the confirmation wars will be difficult to negotiate.

The problem is that the same lack of trust issues will arise again. Who would trust such a declaration? Moreover, Democrats accepting this plan now would be ceding a great deal of power to President Bush---who could appoint judges or justices with sufficiently murky records to be declared "virtuous" (by whom?) yet still vote a strong right ideological agenda. In the real world we live in today, I am afraid that Larry's proposed solution would just obfuscate the true ideological nature of appointments to today's judiciary.

posted by Rick 3:52 PM
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Op-ed on campaign finance reform Rob Witwer offers this commentary in the Denver Post. (Don't miss the great headline blooper: "Campaign-Fiance Reform-Evermore.")

posted by Rick 6:00 AM
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Tuesday, May 27, 2003
"Dems, GOP Seek Convention 'Soft Money'" The A.P. offers this report.

posted by Rick 4:26 PM
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Republican National Committee files Jurisdictional Statement and Motion for Expedited Review in the Supreme Court The Jurisdictional Statement raises issues concerning soft money, coordination rules, and the Millionaire's provision (the last claimed to be a violation of Equal Protection). As for expedited briefing, the RNC request mirrors that of the McConnell plaintiffs (see three posts below this one). The RNC Jurisdictional Statement is here; the motion for expedited review is here.

posted by Rick 3:15 PM
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Bankrolling campaign to change New York City charter See this fascinating article in the New York Times dealing with a proposed law to prevent New York's major from using his personal funds to bankroll a campaign to change the New York City charter to move to non-partisan city elections. (Thanks to a reader for passing this along.)

The article notes the potential First Amendment problems with such a law, but quotes some people, including a current city council member who taught at Brooklyn Law School as believing such a law would be constitutional. From the article:
    But Mr. Perkins and Mr. Yassky argue that they believe there are already precedents for limiting the political activities of elected officials. In New York City, they note, elected city officials are not allowed to hold political party posts — a limit, in effect, on a type of political expression open to private citizens that was written into city law to limit the power of elected officials after the municipal corruption scandals of the 1980's.

    And city ethics rules put other restrictions on elected officials, they note, requiring them to disclose some financial information, prohibiting them from making certain investments, and barring them from soliciting campaign contributions from subordinates.

    "Those are restrictions on speech and political activity in the name of preventing an overaccumulation of power in a few hands," said Mr. Yassky, who taught at Brooklyn Law School before his election. "So I think this is well within that tradition."

I wonder whether those restrictions on elected officials holding political party posts would be upheld by the current Supreme Court. (Republican Party of Minnesota v. White allows even judges to engage in some partisan activities.) Moreover, Supreme Court's cases (such as Bellotti) have barred expenditure limitations in ballot measure campaigns where the possibility of quid pro quo corruption is absent.

The proposed law might be justified on equality grounds (the article quotes a lawyer with NYPIRG as stating: "It is a dangerous concentration of power for any one elected official or institution to be able to handpick a charter commission, predetermine proposals sent to the voters, and then bankroll those proposals with their personal wealth"), but those grounds for campaign finance regulation were rejected by the Supreme Court in Buckley.

posted by Rick 2:54 PM
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A bit of spin from the McConnell plaintiffs There has been much talk about the spin put on the lower court decision by the reform community. I note the following in the McConnell response (explained more fully in the post below this one): "[W]ishful press statements not withstanding, even a cursory reading of the district court's judgment demonstrates that the plaintiffs, not the defendants, prevailed far more substantially below."

posted by Rick 2:25 PM
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McConnell Plaintiffs File Response to Government Motion to Expedite Consideration of the BCRA Appeal in the Supreme Court The McConnell plaintiffs agree with the government and the BCRA sponsor-intervenors that the Court should note probable jurisdiction over the cases on June 5 and that it should set a special oral argument in early September. These plaintiffs disagree with the number and format of briefing, suggesting mostly following the usual rules of briefing, with the first briefs due July 8. The plaintiffs also disagree with the intervenors' suggestion that the Court should not note probable jurisdiction over some of the issues raised by the plaintiffs. They characterize the intervenors' position as "inexplicably belligerent."
UPDATE: You can find the entire document

posted by Rick 2:17 PM
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RSS feed You can now get Election Law's "RSS feed" by clicking on the "blogmatrix rss" button in the right column. If you have no idea what RSS is, don't worry about it.

posted by Rick 2:06 PM
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"Libertarians: Keep Bush off ballots; GOP trying to bend state election law on deadlines" The Lincoln Courier offers this report. (Thanks to the reader for passing this along.)

posted by Rick 6:02 AM
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"EDITORIAL OBSERVER: For Partisan Gain, Republicans Decide Rules Were Meant to Be Broken" Adam Cohen offers this New York Times column, discussing the Texas redistricting controversy and other matters.

posted by Rick 6:00 AM
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Monday, May 26, 2003
"Greens Consider Standing Behind Democrats in '04" The Washington Post has this report.

posted by Rick 7:39 PM
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Sunday, May 25, 2003
"Democrats Seek a Stronger Focus, and Money" Here is the second of two parts on the political parties by Adam Clymer in the New York Times. From the article: "They have been inattentive to fund-raising from small donors, especially by direct mail, a situation that has grown desperate now that the unlimited donations known as soft money have been outlawed under the McCain-Feingold law, though the measure is being challenged in court. As Donna Brazile, Al Gore's campaign manager in 2000, said, 'Without soft money, the party is in poverty.'"

posted by Rick 9:29 PM
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More on rationality of Republican change of filibuster rules by majority vote, and the campaign finance case See Larry Solum's thoughtful post here, making the intriguing argument that if Republicans are to try to change Rule 22, they had better try to do it soon, before the issue becomes high salience. If Larry is right, I think the Republicans have a dilemma. It will take all of them to vote for a rule change; they can't spare a single vote. And it is far from clear that all Republicans would see it in their long term interest to escalate in this matter. If they wait, as Larry says they shouldn't, then the delay may benefit Democrats, who can point to Roe being on the line.

All of this presupposes one or two vacancies opening up on the Supreme Court this summer. Maybe this will happen---the conventional wisdom is that Chief Justice Rehnquist, Justice O'Connor, or both, will retire. (Howard Bashman seems to post a link to an article along these lines just about every day now). Might the pending campaign finance case cause these Justices to at least delay their departures until after that case is decided? The conventional thinking in the campaign finance world is that Rehnquist's vote is the key to upholding many features of the BCRA. The Solicitor General has now suggested a special September 5 or September 8 oral argument. So things might get stretched out a bit.

If the retirement comes when the election season is in fuller swing, the dynamics in the Senate may change yet again.

posted by Rick 3:07 PM
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Keyssar review of Garbus, Raskin, and Posner books See this link in the Los Angeles Times Book Review.

posted by Rick 12:37 PM
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Liberal interest groups, President Bush, and McCain-Feingold This Washington Post article discusses strategies liberal groups plan to use to raise soft money against President Bush now that the Democratic Party cannot raise it under McCain-Feingold. In related news, Adam Clymer in the New York Times offers "Buoyed by Resurgence, G.O.P. Strives for an Era of Dominance." The article states: "With the Congress thinly divided along partisan lines, another presidential election taking shape and the rules of campaign finance in legal limbo, the two national political parties are at crucial turning points....Republicans are the most encouraged. Party officials around the country, convinced that this may be their moment, are raising the prospect of an era of Republican dominance." Finally, the A.P. reports here that "President Bush has asked more than a million potential donors to give money now for his 2004 re-election bid in a fund-raising letter that cited the fight against terrorism." UPDATE: On the same topic, see this Los Angeles Times article.

posted by Rick 6:06 AM
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Saturday, May 24, 2003
Weighing in on the "Buying Time" Controversy


Controversy has recently swirled around two studies on "sham issue advocacy" done by the Brennan Center for Justice (Buying Time 1998 and Buying Time 2000), relied upon by some of the Congressional sponsors of the BCRA (McCain-Feingold) and discussed in detail in the opinions of the three judge court.

The principal published attacks on the study have been
this op-ed by George Will (originally appearing in the Washington Post and this article in the Weekly Standard by David Tell. Tom Mann published this response in Roll Call, leading to further criticisms of the report on the election law listserv by Bob Bauer (see also a further response here) and by Joe Sandler (with replies by Trevor Potter on Bauer and Potter on Sandler).

There has been some press coverage of the controversy as well (see this Milwaukee Journal-Sentinel article and this Roll Call article).

The criticisms fall into three categories: (1) that the data were somehow falsified or miscoded to achieve a particular political result; (2) that the studies constituted poor social science; and (3) that the studies do not prove the constitutionality of the major provisions of the BCRA.

1. I saw no evidence that data were falsified or miscoded to achieve a particular result.

I begin with a disclosure---one that I think makes my comments on this aspect of the controversy particularly relevant. Back in 2000, I received a small ($3,000) grant from the Brennan Center to use the CMAG database in my own work (the database is what formed the basis for the Buying Time studies). The only condition on the grant was that I use the data for research I intended to publish. I ultimately did so, publishing my Minnesota Law Review article on overbreadth, an article whose conclusions I think were a mixed bag for the Brennan Center's reform agenda. Never did I feel any pressure to reach a particular result.

Indeed, it was quite the opposite. The goal was to produce the best social science research possible, regardless of result. I worked closely with Craig Holman and Luke McLoughlin of the Brennan Center on understanding their data, and coding. We exchanged dozens and dozens of e-mails (most of which I think were turned over as part of the discovery in the BCRA litigation). Some of those e-mails went to my trying to understand the methodology of the 1998 study---a study led at the Brennan Center by Jon Krasno, not Craig and Luke. I believe it was my questions to Craig that led to some of the exchanges of e-mails between Craig and Josh Rosenkranz (then head of the Center) that have been used by George Will and David Tell to make it seem as though there was deliberate falsification going on.

Hardly. The issues involved coding questions (for example, what about ads that ran in numerous markets: should they be counted as "unique" advertisements if run in different markets?) and conceptual questions (how should overbreadth be measured?) I took one view (explained on pages 1789-91 of my article) and I think Craig shared that view, while others at the Brennan Center took another view. The debate was open and honest. As I can recall, most of the recoding of student responses moved responses into the category of genuine issue advocacy, leading to worse numbers from the point of view of reform. (See my extended discussion of the "Citizens for Better Medicare" advertisements run in 2000 (pages 1797-99 of my article)). In sum, I saw absolutely no bias or falsification whatsoever with Buying Time 2000. I had nothing to do with Buying Time 1998 but have no reason to believe there were such problems there either.

2. The studies do not constitute poor social science.

As the co-editor of a peer reviewed journal and as a law professor and political scientist, I have seen my share of poor social science (though, happily, I usually get to see very good social science). The Buying Time studies are good social science.

Imagine that you are back in 1998 or 2000 and you are trying to measure the following phenomenon: More and more political advertisements are being run during elections that lack express words of advocacy but appear to be intended to influence campaigns. These advertisements are currently unregulated. One political suggestion has been a "bright line" test to regulate such advertisements, by counting all advertisements as electioneering that run within a certain time period before an election, feature a clearly identified candidate for office, but lack words of express advocacy. Such a test, if adopted, might be attacked as "substantially overbroad," because it might capture advertising not intended to influence campaigns. To answer the question about how overbroad such a law might be, one would need to know what percentage of advertisements not intended to influence campaigns would be captured by the bright line test. (I call these "false positives" in my article.) Having students view the advertisements and code them as electioneering or genuine issue advocacy is a sensible way to get at this problem.

Of course, the study can be attacked. Why students? What exactly was the wording of the questions posed to the students? Judge Henderson latched on to these and other criticisms and concluded that the study lacked credibility. But the majority of judges on the BCRA court (Leon and Kollar-Kotelly) disagreed. Leon agreed the study was entitled to "some evidentiary weight" on the overbreadth question. Kollar-Kotelly offered an extended defense of the study's methodology. One can disagree on the edges, but to argue that the Buying Time 2000 study failed to follow usual principles of social science is wrongheaded.

3. Do the studies prove the constitutionality of the BCRA provisions covering "electioneering communications?"

The BCRA imposes the bright line test for two purposes, disclosure and a ban on corporate and union funded advertising (except through a separate segregated fund) for a 60 day period before the election (or 30 days before a primary).

Do the studies show that the bright line test is constitutional for both purposes, i.e., that the test is not substantially overbroad? This is the big question, and one about which I believe reasonable minds can disagree. Judge Kollar-Kotelly said it did so, and Judge Leon said it did not. Judge Henderson rejected the bright-line test without relying on the Brennan Center data.

The dispute over this question may take place on many levels.

(1) As I detail in my article, there are a number of ways of conceiving of the question of "overbreadth." Is it an empirical test? Should there be balancing? I conclude in my article (though others disagree) that Supreme Court case law establishes that "substantial overbreadth" is primarily an empirical test but that some balancing is inevitable. Thus, it would not surprise me if the Supreme Court upheld the bright line test for some purposes (such as disclosure) but not others (such as the corporate-union ban).

(2) Even accepting that substantial overbreadth is primarily an empirical test, there are different ways of conceiving the empirical measurement. (This is the "denominator" issue referred to in Tom Mann's article.) There are other questions as well, such as whether we should use the total number of unique ads, total number of airings, or total dollar amount spent on the ads to engage in the empirical inquiry.

The bottom line is that to the extent the Court views the overbreadth question as an empirical test, the Brennan Center data (and my own take on the data in the Minnesota article) are the most extensive empirical examinations of the question. There is nothing else out there. Even if the study is not perfect, it is better than the Court going on sheer intuition.

Consider the following few paragraphs from my article, discussing the Court's analysis in a case called Massachusetts v. Oakes (footnotes omitted from my article), where the Court did go with intuition alone:

    Oakes involved a criminal defendant accused of violating a Massachusetts law that prohibited adults from posing or exhibiting nude minors for purposes of visual representation in any book, magazine, pamphlet, motion picture, photograph, or picture. The defendant was convicted under the law for taking ten color photographs of his partially nude fourteen-year-old stepdaughter. The Massachusetts Supreme Judicial Court had reversed the conviction. The majority of that court "concluded that [the statute] 'criminalize[d] conduct that virtually every person would regard as lawful,' and would make a 'criminal of a parent who takes a frontal view picture of his or her naked one-year-old running on a beach or romping in a wading pool.'"

    A four-justice plurality of the United States Supreme Court refused to apply the overbreadth doctrine in the case because the Massachusetts legislature had in the interim repealed the relevant portion of the statute. Five justices disagreed that the statute's amendment mooted the overbreadth challenge, but those five justices then split two-three on the question whether the statute was substantially overbroad.

    Justice Scalia, writing for himself and Justice Blackmun, believed the statute was not substantially overbroad. Referring to a photograph of naked one-year-old running on the beach as hypothesized in the lower court, Justice Scalia wrote: "Assuming that it is unconstitutional (as opposed to merely foolish) to prohibit such photography, I do not think it so common as to make the statute substantially overbroad. We can deal with such a situation in the unlikely event some prosecutor brings an indictment."

    Justice Brennan, in contrast, writing for himself and Justices Marshall and Stevens, had a different view of the empirical evidence:

      The abundance of baby and child photographs taken every day without full frontal covering, not to mention the work of artists and filmmakers and nudist family snapshots, allows one to say, as the Court said in Houston v. Hill, that "[t]he ordinance's plain language is admittedly violated scores of times daily, yet only some individuals—those chosen by the police in their unguided discretion—are arrested."

    Justice Scalia stated that it is the burden of the litigant challenging a statute on grounds of substantial overbreadth to present the empirical evidence, but it is difficult to see how in a case like Oakes a litigant could gather such evidence. Short of commissioning a social scientist to do a survey (which would require asking potentially embarrassing questions of respondents, among other problems), a judicial guess may be all that is available.

    Professor Fallon has criticized the Court's empirical approach in this area as requiring "uncabined judicial speculation in areas that are, at best, on the outer fringes of the courts' practical competence." He and others have called on the Court to abandon, or at least modify, this approach in favor of a balancing approach that looks at the importance of the competing interests at stake. In Part III, I add my voice to this criticism, showing that even with empirical evidence, balancing of interests and harms is inevitable and should be done in the open. I begin, however, with the empirical evidence, in particular with data generated from the newly available dataset from the Brennan Center and Professor Goldstein. The dataset allows replacing the judicial guess with empirical evidence in the case of bright-line tests regulating sham issue advocacy. Such evidence does not reveal the constitutionally relevant proportion of false positives, but it does allow a court to make determinations of constitutionality in this area with a good handle on the likely results of its holding.

The Court would do a lot worse without the Buying Time studies than it will do with it, and that is a good bottom line.

posted by Rick 4:43 PM
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Member of Congress funding effort to recall California governor See this report in the Los Angeles Times on Rep. Darrell Issa's company's nearly $450,000 contribution to fund the signature gathering to put a recall of the California governor on the ballot.

posted by Rick 7:07 AM
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More Tom Mann on the "Buying Time" controversy See this interview on the Tompaine.com website.

posted by Rick 7:03 AM
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"Bush's Heaviest Hitters to be Called Rangers" See this New York Times report, on a development noted here yesterday. The article also has a brief discussion of Chief Justice Rehnquist's decision not to vacate the BCRA stay request.

posted by Rick 7:02 AM
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"I think we did the best we could" See this quote from Justice Sandra Day O'Connor on the Bush v. Gore decision, from an interview on FOXNews (link via How Appealing).

posted by Rick 6:59 AM
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Friday, May 23, 2003
"Federal judges rule on Ohio Districting" See this A.P. report.

posted by Rick 5:06 PM
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Worth a correction Howard Bashman kindly pointed out some imprecision in some of my posts this afternoon. Strictly speaking, Chief Justice Rehnquist did not deny a request for a stay. He denied a request to vacate a stay imposed by the lower three judge court. Now we can enjoy the long weekend!

posted by Rick 4:35 PM
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Worth a correction posted by Rick 4:32 PM
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BCRA sponsors file response to McConnell jurisdictional statement See this post at SCOTUSblog for details and a link to the document.

posted by Rick 4:21 PM
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Updated A.P. report on BCRA stay denial It is available at this link.

posted by Rick 4:17 PM
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BCRA oral argument in September? In A.P.'s report on the denial of the stay in the BCRA case, the article states: "The high court could hear the case in September, before the start of its regular term, according to a schedule being worked out by various groups and individuals fighting and defending the law. That would probably mean a ruling just in time for the first presidential primary in January 2004, lawyers said."
UPDATE: The government has proposed a special expedited briefing schedule, as reprinted here at SCOTUSblog. The proposal sets forth a few briefing and timing options for the Court. It states that the BCRA sponsors join in the motion, and that the government is "unable to determine whether appellants/cross-appellees Senator Mitch McConnell, et al. (appellants in No. 02-1674) and appellants/cross-appellees National Rifle Association, et al. (appellants in No. 02-1675) consent to or oppose this motion. " That suggests some potential disagreement about strategy on the plaintiffs' side of the case.

posted by Rick 2:48 PM
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What does the Supreme Court stay denial mean? The denial is obviously good news for supporters of the campaign finance law. The Chief Justice's statement that the BCRA "should remain in effect until the disposition of this case by the Supreme Court" is a strong signal that the Court will not be entertaining any other stay motions in this case. Technically, Bopp could go back to another Justice on the Court (the letter states that the Chief "consult[ed]" with other members of the Court, not that he referred the application to the full Court), but that does not seem it would be to any avail.

So the BCRA as written is the law of the land until we get a ruling on the merits. As I have indicated, I would not read too much into this stay denial in terms of the ultimate merits of the case.

The next major decision to come from the Supreme Court is the timing of briefing and oral argument, which will in turn determine when the Court decides the challenge on the merits. We have yet to see any party suggest any special briefing or timing rules to the Court.

posted by Rick 1:56 PM
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BREAKING NEWS: Bopp Stay Denied Serves me right to go to lunch. Here's the Rehnquist order:

    "Applicants have filed an application to vacate the stay entered by the District Court. After consulting with other members of the Court, I shall deny the application to vacate the stay entered by the District Court. An act of Congress is presumed to be constitutional, see Bowen v. Kenrick, 483 U.S. 1304 (1987), and the Bipartisan Campaign Reform Act should remain in effect until the disposition of this case by the Supreme Court. The application to vacate the stay is denied, and the application for an injunction pending appeal, which was contingent on my vacating the District Court's stay, is thereby rendered moot."

More soon.

posted by Rick 1:37 PM
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Will anyone file oppositions to the Bopp motions in the Supreme Court? The Supreme Court rules appear to allow responses to motions within 10 days of receipt (see rule 21(4)). The rules don't seem to expressly deal with responses to applications for stays (see rules 22 and 23). In any case, the rules do not provide for the Court to wait for a response before issuing a ruling. Will the government or the BCRA sponsors file oppositions to the Bopp motions? What about the NRA, which asked for the stay of the court's order relating to the backup electioneering provisions?

posted by Rick 10:23 AM
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Election Law Journal on Westlaw I am very happy to announce that the Election Law Journal is now available on Westlaw. Coverage begins with Volume 1, Issue 1. The library is "electlj"' and when someone searches in the "jlr" database for law reviews and periodicals, ELJ will now be included. You can also pull up articles using the "find" feature. For example, to pull up Sam Hirsch's article on Page v. Bartels, one would find "1 electlj 3." We expect ELJ be available on Lexis as well in the near future.

Election Law Journal is a quarterly peer reviewed publication that I co-edit with Dan Lowenstein. It is published by Mary Ann Liebert, Inc. More information about the journal is available

posted by Rick 9:46 AM
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Move over ($100,000 raising) "Pioneers;" Here Come the ($200,000 raising) "Rangers" See this A.P. report on the newest Bush fundraising bundlers.

posted by Rick 9:37 AM
. . .
Public Campaign response to GAO report Public Campaign, an organization that supports public financing of elections, has posted this response to the GAO report on the public financing programs in Arizona and Maine. (I earlier linked to the GAO report here.)

posted by Rick 9:31 AM
. . .
BCRA scorecard SCOTUSblog offers this consise summary of the status of the various documents in the BCRA case filed before the Supreme Court.

posted by Rick 7:57 AM
. . .
Party loyalty oath case Howard Bashman posts here on the Eleventh Circuit case of Kelly v. Harris. The case involved a challenge to a loyalty oath imposed by the Florida Democratic Party. From the case: "The district court concluded Appellant lacked standing because he was a registered Republican who could not vote in the Florida Democratic Party’s primary elections.We affirm."

posted by Rick 7:24 AM
. . .
Review of Raskin book Cameron Stracher reviews Jamin Raskin's Overruling Democracy: The Supreme Court versus the People here at law.com.

posted by Rick 7:20 AM
. . .
More news from Kentucky governor's race See this report in the Louisville Courier-Journal. Thanks to Ed Feigenbaum for the pointer.

posted by Rick 7:05 AM
. . .
Bopp applications now posted You can find them on this page at the Campaign Legal Center website.

posted by Rick 7:02 AM
. . .
"Advocates Appeal Campaign Finance Stay" The A.P. offers this report.

posted by Rick 6:35 AM
. . .
Thursday, May 22, 2003
Bopp can point to an immediate effect of the "bright line" 30/60 day electioneering communications test One of the reasons the NRA in the lower court hearing the BCRA case asked for a stay of the backup provision was the argument that the primary bright line definition would not come into play for a number of months---not until 30 days before the first primary. According to one of the applications filed by James Bopp (see the three posts immediately below), this is not quite right. The brief states the following:
    While resurrecting the unconstitutional 30/60-day blackout definition seems to buy some time for some issue advocacy groups, it has a bite now since there is a federal runoff election tentatively set for June 7, 2003, in Texas, which means that the 60-day gag period is already in effect there. See The Green Papers: Texas 2003 Off Year Election, (visited May 8, 2003). And with rolling caucuses and primaries beginning in January 2004, the 30-day gag period will kick in during
    December 2003, weeks and likely months before this Court issues its decision in this case. The primary “electioneering communication” definition thus does not solve the First Amendment violations posed by the truncated backup definition, it merely reframes them. It will affect the American people, causing them irreparable harm – and it is unconstitutional,
    if district court decisions have any meaning.

Thus, Bopp has a good argument that the Supreme Court should consider this issue now. I do not recall whether Bopp brought this fact to the lower court's attention during the stay proceedings there.

posted by Rick 8:28 PM
. . .
"Groups Seek to Overturn BCRA Stay" Roll Call offers this breaking news report (registration required).

posted by Rick 4:43 PM
. . .
How significant is it that Bopp has filed in the Supreme Court? I think it is fairly significant. As I indicated two posts below this one (where I questioned why there was a delay in Bopp filing these documents that he had promised to file), these filings for the first time bring the merits of the case to the Supreme Court. Chief Justice Rehnquist cannot simply fail to decide these motions as he did with the previously-filed NRA motion. The NRA motion asked for a Supreme Court stay before the district court first ruled on the stay request. The Chief Justice told the NRA to come back if it did not get the relief it wanted from the district court. It did get the relief, and therefore it did not need to come back to the Chief Justice.

Bopp's case is different. One of his two applications (according to the press release below--I haven't yet seen the documents) asks the Chief Justice to reverse certain aspects of the stay decision of the lower court. The second application apparently asks for a stay of a portion of the BCRA itself---that portion dealing with electioneering communications. It is possible that the Court could get away with not dealing with the second application on the merits; it could well be barred by the doctrine of "laches" if the Court concludes Bopp waited too long to ask for this relief. (No party asked for a stay of the BCRA in the lower court pending a final decision in the case.) But the first application likely would be considered on the merits. The lower court has ruled.

In determining whether or not to grant the relief, as I have explained
here, the Chief (who likely would refer the applications to the entire Court) needs to consider both irreparable harm and the likelihood of success on the merits. Although I have cautioned not to read too much into the Court's decision to grant or deny this relief, it may be some indication of how the Court is likely to rule on some of the constitutional provisions. It is likely to be the only such indication until oral argument, whenever that occurs.

posted by Rick 4:26 PM
. . .
Madison Center Files Two Motions for Temporary Relief with Chief Justice Rhenquist Here is their press release:

    James Madison Center for Free Speech
    1747 Pennsylvania Avenue, NW., Suite 1000
    Washington, DC 20006


    Thursday, May 22, 2003
    Contact: James Bopp, Jr., General Counsel
    Phone 812/232-2434; Fax 812/235-3685

    Madison Center Asks Chief Justice to Protect Rights
    While Supreme Court Considers BCRA

    On Thursday, May 22, Madison Center attorneys filed two special applications in the United States Supreme Court, asking Chief Justice Rehnquist to protect the rights of its clients while the Court is considering appeals from the constitutional challenge to the Bipartisan Campaign Finance Reform Act of 2002 (BCRA). The Chief Justice may decide such applications or refer them to the full Court.

    One application asked the Chief Justice vacate the trial court's blanket "stay" of its judgment, meaning that whatever the trial court decided would not go into effect while the Supreme Court considered the case, even though many BCRA provisions were held unconstitutional. The stay would allow provisions already held unconstitutional to remain in effect until the Supreme Court completes its review of the case, which could possibly be in the spring of 2004. In particular, the Madison Center asked the Chief Justice to vacate the trial court's stay as to three particularly problematic provisions for Madison Center Plaintiffs.

    First, the Madison Center asked the Chief Justice to vacate the stay against the trial court's holding that the primary "electioneering communication" definition, which prohibits citizen groups from broadcasting communications that even name a federal candidate for 60 days before an election (30 for primaries), is unconstitutional. The trial court's stay put this unconstitutional definition back into effect. With a June runoff federal election in Texas, the provision is already operational there. And rolling caucuses and primaries will trigger 30-day blackout periods across the country beginning in December and continuing throughout the spring. During those weeks and months while the Supreme Court prepares its opinion, citizen groups will be barred from broadcasting ads asking citizens to call Senator X or Representative Y (most will be "candidates") and ask him or her to support the President's tax cut plan (or whatever legislation is currently hot)

    Second, the Madison Center asked the Chief Justice to vacate the stay against the trial court's holding that BCRA's ban on minors making contributions to candidates or political parties is unconstitutional. Even though the three trial judges unanimously decided such a ban is unconstitutional, they allowed it to go into effect again with the stay of their decision. One Madison Center Plaintiff is a minor who said he wanted to contribute to his Sunday School teacher who had become a congressional candidate. Another is an officer in the Libertarian Party, but if he can't pay his annual $25 dues to the party, he can't be an officer.

    Third, the Madison Center asked that the stay be vacated as to the holding that BCRA's ban on political parties receiving so-called "soft money" is unconstitutional unless the money is for attacking or opposing a candidate. The Libertarian National Committee, a Madison Center client, is prohibited by the district court's stay from receiving money that the trial court said it could lawfully receive.

    The other application to the Chief Justice, asked him to also enjoin enforcement of BCRA's ban on corporate "electioneering communications" using the backup ban that Congress passed in the likely event the primary 30/60-day blackout definition was declared unconstitutional (as it was). The backup definition, as construed by the court, bans any communication that could be viewed as "promoting or supporting . . . or attacking or opposing" a candidate, even if the candidate is not named, and even if the ad is broadcast outside the candidate's state. The prohibition applies year round to comments about any federal candidate, and incumbents are candidates for long periods of time during key legislative activity. By contrast, the United States Supreme Court held that the government may only regulate such communications if they contain explicit words that expressly advocate the election or defeat of a clearly identified candidate for federal office.

    This backup "electioneering communication" definition was in effect from May 1until the trial court stayed its judgment on May 19. During that time Madison Center Plaintiff Club for Growth was running ads in support of the President's tax cut plan. The Democratic Senatorial Campaign Committee (DSCC) filed a complaint with the Federal Election Commission, alleging that CFG had violated BCRA by "attacking" Sen. Tom Daschle (D-SD). The ad asked South Dakota citizens to tell candidate Daschle to support President Bush's tax cut plan. The DSCC complaint alleged that the advertisement "attack[s Daschle] for opposing the President's 'tax cut plan'" in violation of the BCRA. The ad was part of a broader campaign of constitutionally-protected speech by CFG that has been run in states where Senators are not supporting the President's tax cut plan. The Chief Justice was asked to issue an injunction pending appeal against any enforcement of BCRA using the "support or attack" definition of "electioneering communication."

    These requests were first made to the district court, which refused to grant them, making the present applications to the Chief Justice the last line of defense for the constitutional rights of these parties before having to wait months to have their rights vindicated by the Supreme Court.

    Madison Center General Counsel James Bopp, Jr., comments: "We've simply asked the Chief Justice to protect the rights of our clients to participate in the marketplace in the free and open way the Framers of our Constitution intended when they decreed that 'Congress shall make no law . . . abridging the freedom of speech.' If Americans can't ask other Americans to ask incumbent politicians to support the President's tax cut, the First Amendment is in clear and present danger."

Once someone has copies of the documents I will link to them.

posted by Rick 3:44 PM
. . .
What explains the delay in the James Madison Center seeking an injunction of the BCRA? After the lower court issued a stay, James Bopp, James Madison Center attorney for the National Right to Life Committee and the Club for Growth was quoted in numerous news articles (see posts from 5/20 on) as stating he was going to appeal the stay of the district court decision striking down portions of the BCRA. Bopp further stated that he was likely to appeal to the D.C. Circuit. I and others have explained why an appeal to the D.C. Circuit would almost certainly be unavailing; the appeal most go directly to the Supreme Court. Why hasn't Bopp filed there yet?

It might just be that he is still crafting his papers (though he did manage to file a very quick response to the NRA stay request filed with Chief Justice Rehnquist before the lower court ruled). But perhaps there is a more strategic explanation: Filing now would get the Supreme Court to focus immediately on the case, including taking a look at the merits. (In determining whether or not to grant a stay pending appeal, one factor is likelihood of success on the merits.) Perhaps Bopp does not want to get the Court focused on the merits just yet, in the hopes that things can be delayed long enough in the Supreme Court so that there can be a retirement of a Justice (such as the Chief). A retirement, as has been widely discussed, can only help the chances of the plaintiffs succeeding in the Court.

posted by Rick 9:22 AM
. . .
More note Republican advantage in fundraising under BCRA This NY Times report on a Bush fundraiser pulling in $22 million quotes Senator Lott on the Republican advantage in fundraising: "'This is what John McCain always said would happen, that we'd be better off under the new campaign finance laws because we have a better ability to raise hard money,' Mr. Lott said."

posted by Rick 8:19 AM
. . .
"A Compelling Case for McCain-Feingold" Al Hunt offers this commentary in the Wall Street Journal. (Thanks to Jay Cooper and Steven Sholk for the pointer.)

posted by Rick 8:16 AM
. . .
Wednesday, May 21, 2003
Tom Mann rebuttal to attacks on "Buying Time" study See this commentary in Roll Call (registration required). Mann states: "I am a supporter of the new law and believe its major provisions are constitutional. But I am willing to place on the line my professional reputation, built on more than three decades of work at the American Political Science Association and the Brookings Institution, in asserting that the demonization of this research is bogus and in no way undermines its central conclusions."
UPDATE: The Mann commentary is now posted here.
UPDATE II: Bob Bauer replies to Mann here.
UPDATE III: Bauer and Potter go at it again on the election law listserv. Follow this link and look at the posts near the bottom.

posted by Rick 9:54 PM
. . .
"'Reform' Doesn't Begin to Describe McCain-Feingold" Ginny Wolfe offers this commentary in Roll Call (registration required).

posted by Rick 9:50 PM
. . .
Penn webcast now available Click here. Thanks for the reader for letting me know.

posted by Rick 9:00 PM
. . .
"Parties Offer Donors Special Access" The. A.P. offers this report, based on BCRA-related documents.

posted by Rick 8:44 PM
. . .
More Ornstein on the Filibuster If you care about the judicial confirmation controversies, you should not miss this commentary (registration required) by Norm Ornstein following up on his earlier, less technical New York Times oped. Ornstein devotes much attention to refuting the argument that the filibuster as a supermajority requirement is unconstitutional. Here is a bit from the article:
    The backbone of the Republicans’ case that would undergird their nuclear option, as promoted avidly by the ubiquitous law professor Stephen Calabresi, a co-founder of the Anti-Federalist Society (his bio says Federalist Society, but that must be a typo), is that strict constructionists can infer from the fact that the Constitution specifies areas where supermajorities are required, that all other areas perforce must require only majorities.
    Of course, as a stricter constructionist, I believe in the words themselves, not inferences from them. Therefore, all of this president’s nominations for the courts have been unconstitutional because he has not sought the advice of the Senate, only its consent (not to mention virtually all nominations of all previous presidents).
    But if we want to traffic in inferences, I can play that game as well. The Framers knew all about filibusters and about the traditions of unlimited debate in parliaments and previous legislatures. They wrote a provision in Article II giving each house of Congress the sole power to set its own rules. They did not specify that those rules barred provisions to allow unlimited debate, or to have a higher number than a majority to shut off debate, either on a bill, a confirmation, or a rule itself. Therefore, it is clear that the Framers were willing to allow them in either house.
    • Remember that Rule XXII, the cloture rule that provides for an end to debate and a specified time for votes, does not raise the bar on passage of a bill or nomination from 50 to 60, or on a rules change from 50 to 67 or two-thirds of those present and voting. It lowers the bar from 100. There is no rule in the Senate — and there has not been one for nearly 200 years — that forces the previous question and an end to debate. Before Rule XXII was instituted in 1917, there was no way, if a single determined Senator took the floor and kept it, to force action on a bill or a nomination. The Senate operated under unlimited debate. It did so through the lifetimes of all the Framers. Not one objected to the way the Senate operated during this time as a violation of their constitutional intent.
    Indeed, as George Will noted in an eloquent piece on the filibuster 10 years ago, “There was something very like a filibuster in the First Congress.” If a presiding office declared Rule XXII unconstitutional because it did not allow a majority of the Senate to come to a vote on nominations (or anything else), there would still be no provision in Senate rules to force an end to debate and a vote. Here is the relevant provision in Rule XIX on Senate debate: “No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.”

Ornstein adds a point I have been making all along: "No issue has had more hypocrisy attached to it in Congress than the filibuster. Go back through the decades and read Democrats and Republicans, liberals and conservatives blithely reverse positions as they move from majority to minority or vice versa, or from holding the White House to not. Call it 'situational constitutionalism.' As such, take any pronouncements from the mount declaring filibusters unconstitutional on their face with great skepticism."

posted by Rick 11:24 AM
. . .
Arizona Public Financing Law's Disclosure Provisions Challenged in Court See this article in the Arizona Republic. (Thanks to Ed Feigenbaum for the pointer.)

posted by Rick 10:58 AM
. . .
Canadian Election Reform The Law Commission of Canada has published Discussion Paper: Renewing Democracy: Debating Electoral Reform in Canada.

posted by Rick 10:09 AM
. . .
The other stay For those who can't get enough commentary on Bush v. Gore (you know who you are!), Laurens Walker has just published The Stay Seen Around the World: The Order that Stopped the Vote Recounting in Bush v. Gore, 28 Journal of Law and Politics 823 (Fall 2002).

posted by Rick 10:04 AM
. . .
More on the implications of the increase in individual contribution limits Adam Lioz offers this commentary.

posted by Rick 6:36 AM
. . .
Weekly Standard article criticizing the Brennan Center's "Buying Time" reports The article is available here. (Thanks to Dan Lowenstein for the pointer.)

posted by Rick 6:33 AM
. . .
Tuesday, May 20, 2003
Federal law prohibiting mid-decade state redistricting Roll Call reports in its Morning Briefing (registration required) that "In light of the recent redistricting standoff in the Texas state House, Rep. Maxine Waters (D-Calif.) is hoping more lawmakers will take a look at her bill, H.R. 2090, which seeks to limit states’ post-census redistricting." Would Congress have the power to limit post-census redistricting? I would be interested in hearing others' thoughts on this issue.
UPDATE: J.J. Gass suggests to me that Congress might have the power to prohibit the practice for congressional districts under the Elections Clause (the same clause that gives Congress the power to require states to use single-member districts). Less clear is the power to prohibit the practice for the state legislature or other bodies. The theory there perhaps would be Congress's enforcement powers under the 14th or 15th Amendments---a theory that would be quite shaky under current jurisprudence.

posted by Rick 10:04 PM
. . .
"Stay Splits Lawyers Challenging BCRA" Roll Call offers this report (registration required) about a split among the plaintiffs' lawyers on whether or not it was apprpriate to seek a stay of the BCRA ruling of the lower court. The article reports that James Bopp, one of the plaintiffs' lawyers, sent out an angry e-mail lashing out at the NRA's decision to seek a stay. Here is a bit from the article:
    In an interview Tuesday, Bopp complained that in pursuing a stay of Judge Leon’s rewritten definition of electioneering communication, the NRA and McConnell’s lawyers were in effect “making a deal with the devil” and one that may have grave implications.
    “They had a Hobson’s choice. Like someone in a concentration camp, someone has Hobson’s choices often, but what is the solution to that? To liberate them from the concentration camp — that’s the solution,” Bopp said. “Not screw me now or screw me later, which is exactly what we have now, but [a choice which] protect our rights at all time.”

posted by Rick 10:01 PM
. . .
"Uphold Campaign Finance Reform The Atlanta Journal-Constitution offers this editorial.

posted by Rick 9:58 PM
. . .
"The Real Winner in the Campaign Finance Case John Samples offers this commentary at Fox News.

posted by Rick 7:34 PM
. . .
The part of BCRA President Bush loves Back on May 4, I noted here the following: "One consequence of the raising of the [individual contribution limit from $1,000] to $2,000 . .. has been to benefit Republicans, particularly President Bush, with his record of raising lots of $1,000 donations. (He raised about $91 million in such donations when he ran in the Republican primary for the 2000 election---in $1,000 chunks or less.) Indeed, I somewhat suspected that one of the reasons President Bush, who had opposed many aspects of McCain-Feingold, signed the law was in the hope that most of it would be struck down except for the increased limits." Others are starting to pick up on this theme. See this opinion piece by Earl Ofari Huchinson.

posted by Rick 1:57 PM
. . .
New York City Council can repeal term limits referendum The opinion in Martin Golden v. New York City Council is here. See also this law.com article. The court stated: "The only issue to be determined on this appeal is whether a law created by a voter-initiated referendum can be amended by the New York City Council . . . without referendum. We do not consider whether such action by the City Council is moral, ethical or politically advisable." Thanks to J.J. Gass for the pointer.

posted by Rick 1:43 PM
. . .
Wall Street Journal article on stay It is available here.

posted by Rick 1:28 PM
. . .
Paying people to be a candidate for federal office See this A.P. report, which begins: "The AFL-CIO wants its members to take advantage of a government decision allowing political candidates to pay themselves salaries from their donations, hoping it will build a field of worker-friendly candidates. One Republican lawmaker from a large unionized state wants to bar the practice before anyone makes use of it." (Thanks to Jay Cooper for the pointer).

posted by Rick 1:27 PM
. . .
"Roe v. Wade & Bush v. Gore: Making judicial activism 'mainstream.'” Nelson Lund offers this essay at National Review Online. Lund's tries to connect these two cases and the judicial confirmation process as follows:
    There is a real connection between Roe v. Wade and Bush v. Gore. It's common knowledge that abortion politics has played a huge role in judicial-selection battles for many years. Justice Byron White (appointed by President Kennedy) could not be nominated by a Democrat today — he called Roe an improvident and extravagant exercise of raw judicial power. What is less well-known is that much of the academic legal establishment is making a determined effort to discredit Bush v. Gore, and to vilify the five justices who joined the majority opinion. The demand for blind obeisance to Roe and the assault on Bush are both are part of an Orwellian project: To recast judicial fidelity to the law as "right-wing politics," while also redefining extreme forms of judicial activism as "the mainstream."

A bit later in the article, Lund says that Bush v. Gore "applied well-settled precedents from the Warren Court in a perfectly straightforward fashion, and none of those dissenting could explain why those precedents were inapplicable."

Lund has made this argument before (in an article called "The Unbearable Rightness of Bush v. Gore"). He is the only academic I am aware of---liberal or conservative---to argue that Bush followed established precedents. Robert Pushaw---hardly a liberal!---has demolished this argument in his article in Constitutional Commentary. And other conservatives, such as Judge Richard Posner and Richard Epstein, have defended the decision on prudential grounds (the Supreme Court’s decision averted a constitutional crisis), not on the equal protection grounds.

I take on Lund’s argument in my forthcoming book, arguing that the two cases that Bush relied upon for its equal protection holding did not provide support for the equal protection ruling. Reynolds v. Sims required state legislative districts to be redrawn under the one person, one vote equally weighted voting rule. Harper v. Virginia Board of Elections struck down a poll tax applied in state elections. Neither case involved any kind of nuts-and-bolts election issue like the recount issue in Bush. Indeed, the closest case on point to Bush is United States v. Classic, held that the right to vote included the right to have that vote counted. Arguably, such a precedent militated in favor of supporting the Gore position in the litigation, which would have led to the counting of more votes that might have been missed the first time through.

I nonetheless conclude that the debate over Bush’s fidelity to precedent is overblown:
    Nonetheless, the history of the Court's political equality jurisprudence from 1962 to 2000—through the Warren, Burger, and Rehnquist courts—shows the Court consistently making new rules for election cases as it went along. There was no applicable precedent (or there was directly contrary precedent) when the Court decided Baker, Reynolds, Harper, and Shaw. In this sense,Bush continues the grand tradition of the Justices as mighty Platonic guardians of our electoral process. So it is not unprecedented for the Court to make new law in this area.
    This is not to say that Bush v. Gore was correctly decided. I conclude in Chapter 3 that the Court was wrong to intervene, and, if it was to intervene, it erred in failing to give the Florida courts a chance to fix any equal protection problem. But criticism that the case deviates from precedent is not the strongest argument one can make against the decision.

So what to make of Lund’s argument? It is far from "Orwellian" to criticize the Court’s holding in Bush v. Gore. The decision is a legitimate target, and to the extent that the case shows that Justices of the Supreme Court in that case imposed their political value judgments in making their decision, it highlights the appropriate role that the Senate must play in the judicial confirmation process.

posted by Rick 7:37 AM
. . .
"Congress Will Have Say on Sentencing" Roll Call offers this report (registration required), which begins: "Campaign finance crime is about to lead to serious prison time under stiff sentencing guidelines that should be toughened even more, a federal panel advised Congress last week."

posted by Rick 7:25 AM
. . .
More BCRA news coverage and commentary The Washington Times offers this report. Here is The Hill's coverage. This article originally appeared in the Los Angeles Times. The Las Vegas Review Journal offers this editorial, which concludes with these words: "The justices should take this abominable piece of legislation out and shoot it. Now."

posted by Rick 6:41 AM
. . .
Monday, May 19, 2003
BCRA news and commentary on the stay The Washington Post offers this report and this editorial. The New York Times offers this report. The Financial Times offers this report.

posted by Rick 10:10 PM
. . .
NPR Report on Stay decision You can listen to Peter Overby's report on the NPR website (I can't seem to post an exact link; look for it on the right side). It has commentary from BCRA lawyers Jan Baran, James Bopp, and Trevor Potter. Baran says that the business organizations he is representing likely won't appeal the stay order.
UPDATE: Here is the link.

posted by Rick 3:45 PM
. . .
More on authority to appeal stay issue to the Court of Appeals James Bopp (see the post below) has stated that he intends to appeal the stay order to the D.C. Circuit court of appeals. I do not think he can do so. Bopp perhaps is treating this as ordinary litigation under Federal Rule of Appellate Procedure 8, which provides the general rules for seeking a stay when an ordinary piece of litigation is filed in federal district court. In ordinary circumstances, the request for a stay goes to the intermediate federal appellate court before the Supreme Court.
The BCRA provides for a special procedure, however:
    "(a) Special rules for actions brought on constitutional grounds.--If any action is brought for declaratory or injunctive relief to challenge the constitutionality of any provision of this Act or any amendment made by this Act [enacting sections 438a, 439a, 441a-1, 444i, and 441k of this title and section 510 of Title 36, amending sections 431, 434, 437g, 441a, 441b, 441d, 441e, 441h, 453, and 455 of this title, section 607 of Title 18, and section 315 of Title 47, renumbering former section 510 of Title 36 as section 511 of that title, repealing former section 439a of this title, and enacting provisions set out as notes under this section and sections 434, 437g, 437h, 454, and 455 of this title and section 994 of Title 28], the following rules shall apply:
    "(1) The action shall be filed in the United States District Court for the District of Columbia and shall be heard by a 3-judge court convened pursuant to section 2284 of title 28, United States Code.
    "(2) A copy of the complaint shall be delivered promptly to the Clerk of the House of Representatives and the Secretary of the Senate.
    "(3) A final decision in the action shall be reviewable only by appeal directly to the Supreme Court of the United States. Such appeal shall be taken by the filing of a notice of appeal within 10 days, and the filing of a jurisdictional statement within 30 days, of the entry of the final decision.
    "(4) It shall be the duty of the United States District Court for the District of Columbia and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of the action and appeal."

28 USC 2284 provides in turn:
    (a) A district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.
    (b) In any action required to be heard and determined by a district court of three judges under subsection (a) of this section, the composition and procedure of the court shall be as follows:
    (1) Upon the filing of a request for three judges, the judge to whom the request is presented shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges, at least one of whom shall be a circuit judge. The judges so designated, and the judge to whom the request was presented, shall serve as members of the court to hear and determine the action or proceeding.
    (2) If the action is against a State, or officer or agency thereof, at least five days' notice of hearing of the action shall be given by registered or certified mail to the Governor and attorney general of the State.
    (3) A single judge may conduct all proceedings except the trial, and enter all orders permitted by the rules of civil procedure except as provided in this subsection. He may grant a temporary restraining order on a specific finding, based on evidence submitted, that specified irreparable damage will result if the order is not granted, which order, unless previously revoked by the district judge, shall remain in force only until the hearing and determination by the district court of three judges of an application for a preliminary injunction. A single judge shall not appoint a master, or order a reference, or hear and determine any application for a preliminary or permanent injunction or motion to vacate such an injunction, or enter judgment on the merits. Any action of a single judge may be reviewed by the full court at any time before final judgment."

In my look at the cases described under this section, I see no appeals to the Court of Appeals in circumstances similar to this case. (There are some appeals where, for example, the three-judge court is improperly constituted, etc.) I see no basis here for Bopp's decision.

posted by Rick 3:16 PM
. . .
Will James Madison Center go to the Supreme Court, seeking an injunction against enforcement of the BCRA? See this A.P. report, which says the following:
    "Attorney James Bopp Jr. said his clients, including National Right to Life and the Club for Growth, planned to appeal the stay order to the federal appeals court in Washington. His clients are challenging the political ad restrictions and the law's ban on campaign contributions by minors; the court had struck down some ad restrictions and the minor ban as unconstitutional but put them back into effect when it suspended its decisions.'The court agrees these provisions strip us of our rights, but they're going to allow them to be enforced anyway,'' Bopp said. 'That's just astonishing.'"

Presumably, the reporter meant that Bopp may go to the Supreme Court. The three-judge court appeal goes directly to the Supreme Court.
UPDATE: Bopp has apparently told more than one reporter that he intends to go next to the D.C. Circuit. I can't imagine why he would do so.

posted by Rick 12:39 PM
. . .
Two cheers for Judge Leon I've been very critical of Judge Leon in the past few weeks for his interpretation of the electioneering provisions of BCRA. Today, let me make two positive comments about his judging. (1) He seems right that the court should not have stayed those provisions on which these three ideologically judges unanimously agreed were unconstitutional. If these judges can reach that kind of consensus, then it seems at least a reasonable chance that the Supreme Court would too. (2) Judge Leon could have scuttled the entire stay but didn't. Under Federal Rule of Civil Procedure, Rule 62(c), when a three judge court suspends application of an injunction pending appeal, "no such order shall be made except (1) by such court sitting in open court or (2) by the assent of all the judges of such court evidenced by their signatures to the order." Judge Leon, who did not sign the memorandum opinion explaining the reasons for granting the stay, nonetheless signed the order putting it in place. Otherwise, there would have been no stay in place. (Thanks to the reader who brought Rule 62(c) to my attention.)

posted by Rick 11:51 AM
. . .
The stay order: what law is in effect now, what happens next, and what are the implications for the merits?

What law is in effect now? It is as though the court never issued its 1600 page opinion; we go back to the BCRA as it was passed by Congress. The entire law is in effect, including those provisions struck down by all three judges such as the ban on campaign contributions by minors. Judge Leon's backup definition has come and gone; thus, the primary definition of "electioneering communications" goes back into effect. Political parties cannot raise or spend soft money (except to the extent they can find ways around the BCRA to do so).

What happens next? Any party to the litigation unhappy with this ruling can apply to Chief Justice Rehnquist for some sort of order staying enforcement of all or part of the BCRA. Who might do that? Likely not the NRA (who went to the Chief Justice last week to get the backup definition stayed), which at least for a while can run its advertisements without running afoul of the primary definition's time constraints. But there are the Echols plaintiffs, who complained about the ban on contributions by minors. There are the James Madison Center plaintiffs, who want the entire BCRA stayed pending decision by the Supreme Court, and then there are the parties that gained from the lower court order most: the political parties. Will the California Democratic Party seek to get the BCRA soft money provisions stayed (at least those struck down by two judges below)? This is certainly possible. Will the Supreme Court grant some kind of stay? This is hard to predict. The Court might leave things alone pending its review on the merits. Or it might stay those portions of the BCRA that a majority of Justices believe likely will be upheld as unconstitutional. (The Chief is likely to refer any stay requests to the entire Court for decision.)

What are the implications on the merits? There is not much to read here on the ultimate merits of the disputes from the lower court decision to grant a stay. It does show that at least two of the judges realized the collective mess their split decisions made (though not the judge who made the most of the mess). The stay may take some pressure off the Supreme Court to decide the case on a more expedited schedule.

posted by Rick 10:19 AM
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BREAKING NEWS: BCRA STAY ISSUED Here is the operative language from the court's memorandum order:
    After due consideration of the motions, the oppositions, and replies, the relevant case law, and the pertinent Federal Rules of Civil Procedure, the Court is satisfied that a stay should be granted pending final disposition of these eleven actions in the Supreme Court of the United States. This Court’s desire to prevent the litigants from facing potentially threedifferent regulatory regimes in a very short time span, and the Court’s recognition of the divisions among the panel about the constitutionality of the challenged provisions of BCRA, counsel in favor of granting a stay of this case. Pursuant to Federal Rule of Civil Procedure 52(a) (“Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion. . . .”), the Court deems no further discussion necessary to resolve these motions.

Judges Henderson and Kollar-Kotelly, who could hardly agree on anything on the merits, agreed that this stay should issue. They avoided further controversy, and delay, by not giving any reasons (see above).

Judge Leon concurred in part and dissented in part. He believed that the soft money rulings should not have been stayed. As for his controversial ruling on issue advocacy (remember---he went for the BCRA's backup definition, after lopping part of the definition off), he would issue a stay just so long as it would take for the Federal Election Commission to promulgate new regulations as to how the backup definition would work. He would have put the primary definition (the bright line 30/60 day test) back in place pending the promulgation of the regulations. You can access the rulings

posted by Rick 9:42 AM
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Court denies cert. in Ken Starr proportional representation case The A.P. reports here (ignore the title involving "Redneck shirts"!) that the Supreme Court has denied cert. in Board of Education of the Township of Branchburg v. Board of Education of the Borough of Somerville, 02-1302. This is the 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. I had commented about the case earlier here and here, expressing doubts about the idea that non-residents should have the right to "one person, one vote" representation in local elections.

posted by Rick 9:33 AM
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Stay day Monday? Today is the day many observers believe we will see an order from the three judge court hearing the BCRA challenges granting or denying (in whole or in part) various requests for stays and injunctions. Why today? Because Chief Justice Rehnquist's order allows the NRA to renew its motion for a stay with the Supreme Court tomorrow if the lower court has not acted by then. Of course, this order is no guarantee that the lower court will act today.

posted by Rick 7:30 AM
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Saturday, May 17, 2003
"Issue Ad or Electioneering? That's Key in Court Fight" The Milwaukee Sentinel-Journal offers this report on the controversy over the Brennan Center's "Buying Time" studies.

posted by Rick 9:01 PM
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Allegations of improper campaign finance practices in Mississippi See this article in the Washington Post.

posted by Rick 8:23 PM
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BCRA Sponsors' Jurisdictional Statement Filed in the Supreme Court I have just seen a copy of the jurisdictional statement of Senators McCain, Feingold, Snowe, and Jeffords, and Representatives Meehan and Shays filed yesterday in the Supreme Court. (UPDATE: You can now find it on SCOTUSBLOG here) On the question of Judge Leon's rewriting of the backup provision on electioneering communications, I was happy to see the following at page 26:"Finally, while a decision sustaining the primary definition would obviate the point, the district court correctly sustained the back-up definition of "electioneering communications," but erred in severing the final clause of that definition. That clause -- which requires that the advertisements at issue be "suggestive of no plausible meaning other than exhortation to vote for or against a candidate for public office"--does not make the definition impermissibly vague. To the contrary, it provides an assurance that any conceivable doubt regarding application of the back-up definition will be resolved against coverage."

posted by Rick 11:36 AM
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Mid-decade redistricting and politics The New York Times editorializes here on the Texas redistricting situation. The editors express the belief that politics should play no part in a decision to redistrict mid-decade. In fact, politics is an inherent part of the redistricting process. Whether or not redistricting can take place mid-decade is primarily a question of state law. And if states want to remove as much politics as possible from the process, they can hand the matter over to a nonpartisan or bipartisan commission. You can't expect to leave politics out of the equation when the duty to redistrict falls to state legislators.

posted by Rick 8:36 AM
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Friday, May 16, 2003
"Old Memos Detail Link Of Money To Influence" The Washington Post offers this report, detailing some of the evidence uncovered in the McCain-Feingold litigation.
UPDATE: The newspaper also runs this letter to the editor from the interim president of the Brennan Center responding to George Will's oped.

posted by Rick 9:08 PM
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"Old Memos Detail Link of Money to Influence The Washington Post offers posted by Rick 9:06 PM
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Links to archived webcasts of BCRA conferences The CATO forum is here; the Penn forum is apparently not yet available.

posted by Rick 3:45 PM
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High tech vote fraud You can't miss this BBC report on the Mafia's alleged use of 3G phones to verify vote buying activities in Italy.

posted by Rick 2:36 PM
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It is Friday afternoon, where is the district court order on the stay? Two weeks ago at this time, the three-judge court hearing the BCRA litigation issued its mammoth opinion. When can we expect the (hopefully shorter) order regarding the various stay and injunction requests? There is no set timetable, but recall that Chief Justice Rehnquist told the NRA that it could come back on Tuesday if it has not gotten any decision from the lower court. So that could seem to impose an unofficial deadline.

posted by Rick 1:17 PM
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More on Colorado redistricting fight the Denver Post offers: Remap headed to judges;
State high court will hear petition from AG to scuttle redistrict plan
. (Link via posted by Rick 1:13 PM
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Major new report on election fraud in the United States One of the most understudied questions is the extent of election fraud in the United States. Demos-USA has just released Securing the Vote: An Analysis of Election Fraud, co-authored by Lori Minnite and David Callahan. Once I have read the report, I hope to post some comments. (Thanks to Mike Alvarez for the pointer.)

posted by Rick 1:08 PM
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The Supreme Court weighs in for the first time on BCRA Here is the nonsubstantive order: "02M98 McCONNELL, MITCH, ET AL. V. FEC, ET AL., 02M99 FEC, ET AL. V. McCONNELL, MITCH, ET AL. The motions to dispense with printing the District Court’s opinions are denied. All appellants are directed to file forty copies of a single appendix prepared in compliance with Rule 33.1 containing the District Court's opinions, which will serve as an appendix to all jurisdictional statements." Hard to read much into that.

posted by Rick 6:53 AM
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Thursday, May 15, 2003
More on regulating electioneering, in the context of the DSCC complaint against the Club for Growth In response to some posts on the election law listserv (see also the post two below this one), I have written the following about how to regulate electioneering:

posted by Rick 8:11 PM
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More on whether it is rational for Republicans to change the filibuster rules In response to my post here, a Republican source in the Senate offers these comments:

    1. Rule 11 has never stopped Mr. Klayman in the past. On the other hand, every once in a while he hits pay dirt. Ask Bill Clinton. That said, this was met with eye-rolls throughout the Senate today.

    2. Based on my vantage point, you underestimate the institutional offense that Republicans feel in regards to these filibusters. The Democrats blew right through a longstanding institutional norm, and the institution is now unstable as a result. The norms have to readjust, but before the new stable ground is found, it may require creative (but constitutional) approaches.

    3. You understandably think that Republicans will want to be able to use the filibuster against President Hillary Clinton's nominees. (That's the bogeyman always used to talk about these points here.) And I'll just point you to the Congressional Record and the emphatic statements by the majority of the caucus that they will never support a filibuster, and that they believe it to be unconstitutional. Certainly some are indifferent to flip-flopping, but most are not. Most will have great difficulty stomaching a reversal on this front, and there's considerable consensus that it just won't happen. The attempt to amend the rules via S. Res. 138 is a serious one that is likely to get near-universal Republican support. Of course, Democrats will filibuster it -- despite the fact that 10 sitting Democrats voted for the essence of the bill on January 5, 1995. But more on that at a later date.

Thanks for writing!
Larry Solum also has some interesting comments on the confirmation wars here, discussing Russell Korobkin's "provocative post" (the description is Larry's, not mine).

posted by Rick 3:59 PM
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Follow up on "Club for Growth" complaint Bob Bauer weighs in with a defense of his position on the election law listserv, and others (including Trevor Potter) are chiming in as well. (You can access this month's archives here. Look at the entries at the bottom of the list.) In the meantime, the lawyers for the "Club for Growth" have brought the complaint to the district court's attention (see the press release here), claiming that it shows why the BCRA itself should be enjoined pending the outcome of this case.

UPDATE: Here is my response to Bob Bauer:

I think Bob's post is a nice illustration of what is wrong with Judge Leon's opinion: his amputated definition of electioneering communications provides neither safety valve contained in the BCRA itself: (1) a strict time limitation, as appeared in the bright-line, primary electioneering definition that Judge Kollar-Kotelly voted to uphold; or (2) an intent-based test to make sure that the ad could not plausibly be understood as anything other than electioneering, as appeared in the pre-amputated version of the backup definition. Both of these provisions serve the goal of requiring disclosure and regulating as much electioneering by corporations and labor unions as possible without capturing more genuine issue advocacy than necessary to meet the compelling interests that the state has in regulating campaign finances.

The problem I have with the DSCC moving now is that a stay could come at any time from the lower court, thereby restoring the primary definition. Was there a need to rush this? Is advertising 18 months before the election really going to be so devastating to Sen. Daschle that the committee could not wait a week? No one I know thinks Leon's version will stand. I see no compelling reason for the DSCC to move so quickly other than for public relations purposes.

posted by Rick 3:40 PM
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