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

. . .

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

. . .

"Mass. Senate to Drop Clean Election Law" See this A.P. report.

posted by Rick 4:09 PM

. . .

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

. . .

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

. . .

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

. . .

Complaint against John Edwards filed with the FEC See this A.P. report.

posted by Rick 12:18 PM

. . .

"Nonagenarians Against Cynicism" See this column by Eric Alterman discussing money in politics and the BCRA decision.

posted by Rick 12:14 PM

. . .

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

. . .

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

. . .

"Tribal Donation to GOP Draws Attention" See this A.P. report.

posted by Rick 7:29 AM

. . .

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

. . .

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

. . .

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

. . .

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

. . .

"Dems, GOP Seek Convention 'Soft Money'" The A.P. offers this report.

posted by Rick 4:26 PM

. . .

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

. . .

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

. . .

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

. . .

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 here.

posted by Rick 2:17 PM

. . .

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

. . .

"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

. . .

"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

. . .

"Greens Consider Standing Behind Democrats in '04" The Washington Post has this report.

posted by Rick 7:39 PM

. . .

"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

. . .

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

. . .

Keyssar review of Garbus, Raskin, and Posner books See this link in the Los Angeles Times Book Review.

posted by Rick 12:37 PM

. . .

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

. . .

Weighing in on the "Buying Time" Controversy

Introduction

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

. . .

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

. . .

More Tom Mann on the "Buying Time" controversy See this interview on the Tompaine.com website.

posted by Rick 7:03 AM

. . .

"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

. . .

"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

. . .

"Federal judges rule on Ohio Districting" See this A.P. report.

posted by Rick 5:06 PM

. . .

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

. . .

Worth a correction posted by Rick 4:32 PM . . .

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

. . .

Updated A.P. report on BCRA stay denial It is available at this link.

posted by Rick 4:17 PM

. . .

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

. . .

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

. . .

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

. . .

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

. . .

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 here.

posted by Rick 9:46 AM

. . .

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

. . .

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
www.jamesmadisoncenter.org


PRESS RELEASE

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

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

. . .

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

. . .

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

. . .

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 here.

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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"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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"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 . . .

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 . . .

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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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:

As I see it, there are three positions one can take on the question of requiring disclosure of the source of electioneering communications and prohibiting direct payment for such communications with corporate and union money:

(1) The first position is that most electioneering simply cannot be regulated constitutionally. This position either fails to acknowledge that there is a distinction between electioneering and genuine issue advocacy (the position of Judge Henderson and the 4th Circuit in the Christian Action Network case) (a position I believe is intellectually dishonest) or acknowledges the distinction but believes that any constitutional limit will be ineffective because it is easy to circumvent a magic words test and the alternatives raise insurmountable vagueness or overbreadth problems (an intellectually honest position, but one with which I disagree). The upshot of this approach is that there would be no disclosure of funding for most electioneering communications and no effective limits on corporate and union involvement in the political process.

(2) The second position is an intent-based approach. In this family are Furgatch and the backup definition of BCRA. It is a test based upon what a reasonable viewer would plausibly conclude about whether an ad is an electioneering communication. The obvious problem here is one of vagueness. First, do we know it when we see it? Second, who gets to make the determination of what a reasonable viewer would plausibly conclude?

(3) The third approach is a bright line approach that trades vagueness for overbreadth. Putting aside Judge Henderson, who I believe indefensibly concluded that the BCRA's primary definition is vague (it is not, at Judge Kollar-Kotelly amply demonstrated), the bright line test eliminates vagueness. But the test, based on timing, presence of the name or image of a candidate for federal office, and targeting to the relevant electorate, will still capture some genuine issue advocacy. The question is how much will it capture, and if so, is it too much under the Supreme Court's substantial overbreadth doctrine? I've written about this, most fully, in Measuring Overbreadth: Using Empirical Evidence to Determine the Constitutionality of Campaign Finance Laws Targeting Sham Issue Advocacy, 85 MINN L. REV. 1773 (2001).

I don't know if the DSCC complaint applies the full backup definition to explain how the Club for Growth ad cannot be understood as anything other than electioneering against Daschle. (Is the complaint publicly released?) The conclusion seems plausible based on the press reports, but I would want to know more about the context in which it was run. I personally have a greater affinity for the bright line test---I think it raises fewer constitutional questions (it doesn't vest as much discretion in the hands of elected officials), and captures electioneering at the time we care about it the most: the short period before the election when the country is focused on electioneering.

Indeed, perhaps the best test is one that combines 2 and 3, a bright line test, with a safe harbor that lets an advertiser off the hook when the advertiser can show a reasonable viewer could not conclude the ad is electioneering. Dan Lowenstein and I suggest such an approach in our casebook at 921 ("Would it be a good idea to combine Briffault's bright line test with the reasonable viewer test, so that both would have to be satisfied in order for an ad without express advocacy to be treated as election speech? Would the combined test be more likely than the bright line test to be found constitutional? Less likely?") I must credit Dan with raising this issue during the course of our drafting the second edition.

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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"Interest Group Files Lawsuit to Prevent Filibusters of Judicial Nominations" Roll Call offers this online report (registration required). The article begins: "A conservative watchdog group best known for dogging former President Bill Clinton with information requests and lawsuits has now filed suit against the Senate.Judicial Watch is asking the U.S. District Court for the District of Columbia to prevent the Senate from filibustering judicial nominations and to declare such tactics unconstitutional." According to the article, the group alleges: "A minority of U.S. Senators have employed Senate Rules XXII and V to prevent the Senate from confirming nominees to federal judgeships. The unconstitutional application of the Senate rules, requiring a supermajority of 60 votes to end debate on a topic (known as ‘cloture’), is being exploited in a legally detrimental, exercise of political gamesmanship that causes harm to litigants in federal courts through significant, prejudicial delays."

The article states that Republicans believe the suit is a "long shot." I think that is being charitable. I think the suit borders on frivolous.

posted by Rick 12:42 PM

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Using Judge Leon's ruling on express advocacy as a club against the "Club for Growth" The "Club for Growth" is one of the plaintiffs in the BCRA litigation that is asking the lower court to enjoin the BCRA in its entirety pending a ruling by the Supreme Court. (For reasons I have already stated, getting an injunction at this late stage is a long shot.) But the Club for Growth has become a target for complaints that it violated the rules prohibiting corporations, unions, and organizations taking significant corporate or union funding from running ads that "promote," "support," "attack," or "oppose" a candidate for federal office. The Democratic Senatorial Campaign Committee has filed a complaint at the FEC against the Club's ads, one of which states: "President Bush knows tax cuts create jobs, and that helps balance the budget... But Sen. Tom Daschle opposes the president. Tell Tom Daschle to support the Kennedy-Reagan-Bush tax policy that will bring jobs back to South Dakota."

The DSCC contends this is an ad attacking Daschle, for which only hard money may be raised and for which there should be disclosure of the source of the funds. This article in the Rapid City Journal quotes DSCC attorney Bob Bauer as follows:

The DSCC's Bauer said that not only does the new law specifically aim to end the use of soft money, given by unnamed donors, to buy "issue" advertising, but judges held up Club for Growth "as exhibit No. 1" as an offender in this area.

"The Club for Growth was the subject of an enormous amount of commentary in recent court decisions. The judge identified it as exactly what it is," Bauer said. "The Club for Growth went off in the wake of and in the face of that decision and did exactly what the court says is prohibited."

Bauer said that because Club for Growth's stated aim is the election or defeat of candidates, it is bound by the same rules as candidates themselves.

"No one would quarrel with the club if it paid for these ads with hard money raised and disclosed like any other political committee," he wrote to the FEC.

The club should register as a political committee with the FEC, Bauer said. The fiscally conservative group is currently registered as a "527" political organization with the Internal Revenue Service.

Likely the Club for Growth is running these ads to test the limits of the law. No one expects Judge Leon's ruling to stand, and under the primary and backup definitions of electioneering communications in the BCRA (without Judge Leon's butchered construction) there is no way that the Club for Growth ad, run now, should quality as an electioneering communication. Perhaps the DSCC sees some political advantage in highlighting Judge Leon's decision; it is no secret that many Democratic political leaders detest the BCRA, even though it was mostly Democratic congressional votes that allowed the BCRA to become law.

posted by Rick 11:36 AM

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"Colorado Sues Self Over Redistricting" The headline of this Washington Times article illustrates that election law is a growth industry.

posted by Rick 9:33 AM

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Changing the filibuster rules? Rational Republicans will say "no" Byron York's NRO piece here discusses the number of Republican senators will support the so-called "nuclear" option to end the Democratic filibuster of a handful of Republican nominees: "the plan...calls for Republicans to use a parliamentary maneuver to end the filibusters of Miguel Estrada and Priscilla Owen by a simple majority vote, instead of the 60 required by the Senate's rules." The article suggests that Republicans are now divided on the strategy, but that the option will become more viable if Democrats filibuster additional nominees, especially a possible Supreme Court nominee. York writes: "At that point, the nuclear option would be a very real possibility. Only it will no longer be known as the nuclear option. If Democrats filibuster more and more nominees, Republicans will argue that it is the filibuster strategy that is the true nuclear option. Therefore, a bold Republican attempt to break through the filibusters will be more rightly known as a nuclear response, which is a much different thing."

I don't think that York is correct at all--I find it very difficult to believe that there is going to be anywhere close to a majority of Senators to support this action. This is true for three reasons:

(1) Some commentators, like Larry Solum here, have already noted that Democrats still would have a number of ways to slow down Senate business in retaliation:

Suppose that the up to now unthinkable happened. The Senate Majority does indeed change Rule 22 and rides roughshod over a Democratic Minority with enough votes to block cloture. What would happen next? This is very important. The Democrats would still have many weapons in their arsenal. By way of analogy, a Senator whose filibuster attempt was foiled could then turn to a variety of other techniques--the most famous of these was filibuster by amendment. The rules allow an unlimited number of amendments to be offered. Each has to be voted down. So if you are determined enough, you can prepare literally thousands of amendments--achieving the same effect as a proper filibuster. More to the point, the day to day functioning of the Senate requires unanimous consent on a plethora of matters large and small. If the minority called for a vote on each and every such matter, the day-to-day operation of the Senate would be ground to a halt.

(2) Related to point (1) is the idea that the Senate is (unlike the House) a small collegial body with a long memory. Senators pursuing a rational policy in which Democratic cooperation is at least sometimes needed would not engage in an "all defect" policy in an iterated prisoners' dilemma of uncertain duration. Norman Ornstein made a similar argument here in a New York Times oped yesterday.

(3) Perhaps most importantly (and this is a point I made back in March but has been lost in the debate), eliminating the filibuster rule, even if only for judicial nominations, "is dangerous if Republican senators believe that in the near to mid-term they might be in the minority in the Senate. Given the razor-thin Republican majority, it is hard to imagine much confidence in the future (maybe that changes with Iraq). Will the Republicans really want to take the chance that in the near future they lose the ability to filibuster a Democratically controlled Senate?"

For these reasons, this particular "nuclear" option seems very unlikely to me. In fact, I believe threats to use it are an attempt to force the Democrats to use their filibuster power less frequently. The threat to use the strategy is very rational, even if using the strategy is itself irrational.

I do believe York is right that Republicans believe that the Democratic filibusters will help Republicans in the 2004 elections. I have argued earlier that I doubt this is the case, given the lack of salience of the issue for most Americans. (I have heard from a few sources that the Estrada filibuster is resonating among Hispanic voters, but I have seen no evidence that this is the case.) Things may change, however, if Democrats filibuster a Supreme Court nominee, a much more high salience affair.

posted by Rick 9:13 AM

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More on Texas disclosure case Following up on Doe v. State of Texas mentioned in this post yesterday, see news reports here and here.

posted by Rick 7:29 AM

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"To Register Doubts, Press Here" The New York Times offers this article on criticisms of electronic voting. (Thanks to Steven Sholk for the pointer.)

posted by Rick 7:25 AM

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Penn symposium and webcast begins at 10:30 am EDT Don't forget about the fabulous Penn Law School symposium beginning at 10:30 am and webcast here. Apparently the archived version of the symposium will be available at the same link. Web watchers may send questions to panelists via e-mail here. For more details on the panels and panelists, see my earlier post here.

posted by Rick 9:31 PM

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Article on Brennan Center research in BCRA case Roll Call offers Issue-Ad Report at Heart of Reform Debate (registration required) on the controversy over the Brennan Center's study of "sham issue advocacy". The report (actually 2 reports, with somewhat different methodologies) played a major role in the BCRA litigation thus far on the question whether the 30/60 day electioneering limit would be substantially overbroad (the report concluded that it wouldn't). The three lower court judges spilled a great deal of ink (more than on any other topic) debating the merits, methodology, and conclusions of the survey.

posted by Rick 9:19 PM

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Cumulative voting in Illinois Dan Johnson-Weinberger of the Center for Voting and Democracy passes along the following:

The Illinois General Assembly has passed legislation to permit county boards to give cumulative voting rights in county elections.

Many counties in Illinois use multi-seat districts without cumulative voting rights; the political minority is then dramatically under-represented. DuPage County is the prime example (the home of U.S. Congressman Henry Hyde, just west of Chicago's Cook County): with 6 districts electing three county board members each, not a single Democrat serves on the county board. Democrats typically earn at least a third of the vote in each of the districts (and some Democratic statewide candidates have earned a majority of the vote in the county), but Republicans win all 18 seats.

If voters enjoyed cumulative voting rights, it is extremely likely that the Democratic minority in DuPage County would elect one of the three county board members in each of the districts, more accurately reflecting the electorate.

Most of the counties that are majority Democratic use single-member districts, so Republicans generally have some representation (though still generally under-represented).

Governor Blagojevich has until approximately August 9th to sign the legislation. The bill number is HB 138. The full text and legislative history of the bill are here.

The legislation also authorizes citizen-initiated advisory referenda on the structure of the county board.

posted by Rick 9:10 PM

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More on Indian tribes and immunity from campaign finance laws Lloyd Levine passes on the following (from a state legislature consultant) about California's Fair Political Practices Commission attempts to require Indian tribes to comply with California law: "A new and sudden twist in the FPPC's attempts to get Indian tribes to file campaign reports. As previously mentioned, in the FPPC lawsuit with the Agua Caliente Band of Cahuilla Indians (Sacramento Superior Court, Case Number C043716), a Sacramento Superior Court judge ruled that the doctrine of tribal/sovereign immunity does not apply to the tribe and it must file. The tribe's attempt to get a writ from the 3rd DCA to throw out the FPPC's suit was rejected without comment or prejudice last week. However, on Friday, in an FPPC suit with another tribe before another Sacramento Superior Court judge, that judge ruled that the tribe could invoke tribal/sovererign immunity and did not have to file (FPPC v. Santa Rosa Community of the Santa Rosa Rancheria (Sacramento Superior Court, Case Number 02AS04544)). The 3rd DCA will no doubt be asked to sort this out and whatever it says will be appealed."

posted by Rick 9:05 PM

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New paper on minorities and ballot measures Zoltan Hanjal, Liz Gerber, and Hugh Louch have posted a Journal of Politics paper on SSRN entitled: "Minorities and Direct Legislation: Evidence from California Ballot Proposition Elections." Here is the abstract:

Critics argue that direct legislation (initiatives and referendums) allows an electoral majority to undermine the interests and rights of racial and ethnic minorities. We assess this claim by examining outcomes of direct democracy in California since 1978. Our analysis indicates that critics have overstated the detrimental effects of direct democracy. Confirming earlier critiques, we find that racial and ethnic minorities - and in particular Latinos - lose regularly on a small number of racially targeted propositions. However, these racially targeted propositions represent less than 5% of all ballot propositions. When we consider outcomes across all propositions, we find that the majority of Latino, Asian American, and African American voters were on the winning side of the vote. This remains true if we confine our analysis to propositions on which racial and ethnic minorities vote cohesively or to propositions on issues that racial and ethnic minorities say they care most about.

You can download the paper here.

posted by Rick 9:02 PM

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Campaign finance ruling limiting labor union contributions See this report in the Seattle Post Intelligencer. (Thanks to Ed Feigenbaum for the pointer.)

posted by Rick 8:57 PM

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New articles in The Forum Berkeley Electronic Press has just published its latest issue of The Forum, an electronic political science journal. This issue is dedicated to issues surrounding the 2004 elections. Some form of registration is required to get to the papers.

posted by Rick 8:53 PM

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Texas campaign finance disclosure case One of the arguments that opponents of campaign finance regulation have been running in the lower courts is that McIntyre v. Ohio Elections Com'n, 514 U.S. 334, 347 (1995) prohibits most campaign finance disclosure regulations. In that case, the court held that an individual could not be compelled to disclose her identity on a flyer opposing a local ballot measure that she handed out in the course of face to face communications. I have argued, most explicitly in an article in the UCLA Law Review, that McIntyre does not prevent the state from requiring disclosure in mass political speech; in after-filed campaign finance reports; and in candidate campaigns. Indeed, Buckley v. Valeo upheld disclosure under precisely those circumstances and the McIntyre court distinguished Buckley. Nonetheless, some lower courts still hold McIntyre bars ordinary campaign finance regulations. The latest example is today's opinion in Doe v. State of Texas, striking down a Texas requirement requiring disclosure of the identity of a person sending a mass mailer opposing a candidate for city council. (The concurring opinion is here and a dissent is here--link via How Appealing.) Eventually, I hope the Supreme Court will take up another one of theses cases to make clear the scope of McIntyre.

posted by Rick 8:49 PM

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Oral argument in September? The Center for Responsive Politics just posted this report about the current status of the BCRA litigation. It makes many points that will be familiar to the readers of this blog. There was one important piece of new information here, which I had not seen elsewhere: "The parties to the case are reportedly discussing a proposal that the court hold a special session in September. However, summer sessions of the court are extremely rare."

posted by Rick 1:21 PM

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Reply documents now available You can find the reply documents that have been filed in the district court regarding the stay here at the Campaign Legal Center. One reader pointed out to me that the government brief in reply notes the following: "[T]o the extent that the Supreme Court holds that BCRA is constitutional, the FEC would at least be free to consider enforcement actions for conduct occurring during the pendency of the appeals that violated the statute. See Suster v. Marshall, 149 F.3d 523, 527 (6th Cir. 1998) (citing Edgar v. MITE Corp., 457 U.S. 624, 647-54 (1982) (Stevens, J., concurring in part and concurring in the judgment)), cert. denied, 525 U.S. 1114 (1999).The agency could choose to forego such enforcement actions as a matter of sound discretion. Nonetheless, until the Supreme Court provides a definitive ruling as to the validity of the statute, plaintiffs will incur some risk of liability if they violate the statute, with or without a stay. Thus, the injury that plaintiffs allege arises principally from the existence of the statute, not the grant or denial of a stay."

posted by Rick 1:01 PM

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NRA reply brief filed in district court SCOTUSblog here links to The NRA reply brief. the brief picks up on my point here that not a single party has defended Judge Leon's interpretation of the issue advocacy provisions.

posted by Rick 9:08 AM

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Final responsive papers due today in district court Today is the day for final replies to the motions for stays and injunctions in the BCRA case to be filed in the lower court. A ruling could come at any time, with or without an opinion (or set of opinions).

posted by Rick 8:14 AM

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Court gets week to delay ad ruling The Boston Globe offers this report.

posted by Rick 7:56 AM

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This morning's BCRA news and commentary The Hill offers this report on fundraising under BCRA. The Charlotte Observer reports here on a group running anti-John Edwards advertisements. Part of the article reads: "As part of their Tuesday news conference, Americans for Job Security complained that a recent federal court ruling on the so-called McCain-Feingold campaign finance law appears to make the airing of their TV ad a felony -- for now. The judges upheld the law's ban on any late-in-the-campaign broadcast of attack ads from groups bankrolled by corporate or union money. But the judges took out the time element and said the airing of such ads was illegal at all times.The ruling, though, is being appealed to the U.S. Supreme Court, which will consider the constitutionality of the ban." Pete Camp submits this story in Up and Coming magazine on BCRA and third parties.

FEC commissioner and election law professor Brad Smith offers this oped, which originally appeared in the Wall Street Journal. [UPDATE: Marty Lederman responds to the Smith oped here.] Bryan York offers this oped at The Hill, regarding the BCRA-mandated study of public financing in Maine and Arizona. Joseph Perkins offers this commentary.

posted by Rick 7:21 AM

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Brennan Center response to George Will editorial On Thursday, I linked to this George Will oped criticizing the Brennan Center's "Buying Time" study, submitted in the BCRA litigation. The Brennan Center has now posted a response here.

posted by Rick 5:06 PM

. . .

What sort of expedited schedule might one propose to the Supreme Court? In response to my suggestion of a motion to expedite consideration of the BCRA case in the Supreme Court, Roy Schotland asks here whether we might be better off "not expediting, and so having argument when Term opens in order to assure that SupCt has plenty of time to ruminate and vent before argument." Dan Lowenstein agrees, writing: "The Supreme Court now could make one side or the other side or neither side happy by staying all, part, or none of the District Court's ruling, and we could all live with that through the 2004 election. In addition to the advantages Roy mentions of enhanced judicial deliberation, the problem of changing the rules while the game is being played would be minimized."

I disagree that the advantages of waiting outweigh the disadvantages.

(1) Congress directed that the courts expedite this case. The only reason we are in this mess now is because the lower court failed to follow Congress's instructions. As complicated as this case is, the case did not require 1,600 pages of opinions, with three judge issuing four opinions. For months before the decision I publicly urged the parties to seek mandamus in the Supreme Court directing the lower court to issue its opinion and move on. The lower court took too long. But that does not relieve the Supreme Court of its independent duty to expedite matters.

(2) The 2004 election season is getting underway now (with Democratic presidential nominees beginning fundraising activity). But things will really heat up in the fall. A ruling in summer or early fall will allow the country to function under rules that Congress crafted to take effect in the 2004 election season (or under some alternative of the rules as the Supreme Court's constitutional analysis will allow).

(3) To the extent that there are serious constitutional problems with the BCRA as interpreted by the three judge court (as I believe there are with Judge Leon's rulings on issue advocacy), waiting for a ruling without a stay in place will impose significant constitutional costs on the parties. Other stay options impose similar risks of constitutional problems.

(4) To the extent there is delay for delay's sake, it allows the opponents of BCRA to run out the clock in the hopes of a retirement by a Supreme Court justice favoring reform in favor of a Bush appointee likely to be more hostile to BCRA.

My alternative I am sure that the parties are already working on their briefs on the merits in the Supreme Court. The parties do not need more time to develop arguments or evidence. Given the number of parties and the various positions, the Court should set a special simultaneous briefing schedule, with opening (enlarged) briefs (and amicus briefs) filed at the beginning of June and reply briefs filed two weeks later. The Court could then set argument before the end of the term. At that point, the Court can best determine how much it can expedite the drafting of the opinion given the summer recess.
UPDATE: Bob Bauer weighs in with his thoughts on this issue here.

posted by Rick 4:55 PM

. . .

That Boston Globe article I mentioned earlier is now available and worth reading here.

posted by Rick 2:45 PM

. . .

Following up on the last two posts A.P. offers this report.

posted by Rick 2:41 PM

. . .

BCRA on the Supreme Court's agenda Thursday, sort of I understand from conversations with a reporter that the Supreme Court has two BCRA items on its agenda when it meets on May 15. These are motions from the McConnell plaintiffs and from the government defendants to dispense with the printing of the lower court opinion as an appendix. Given the bulk of the opinion and its easy accessibility, this seems like a reasonable request. Apparently not on the agenda is McConnell's request to have his typewritten jurisdictional statement accepted in lieu of the usual printed document. (Why didn't McConnell just print up his jurisdictional statement? As I noted here McConnell filed his papers within hours of the 1600 page decision likely to gain the advantage (such as it is) of being the first named plaintiff (now appellant) in the Supreme Court.)


Also apparently not on the agenda is any consideration of expediting consideration of the appeal. Why not? As I indicated here, the Court appears to be waiting for a party (or all the parties) to file a motion to expedite consideration of the case. I hope to see the government defendants, the BCRA sponsors, and/or the Adams' plaintiffs move to expedite consideration.

posted by Rick 12:54 PM

. . .

Government's jurisdictional statement filed in the Supreme Court SCOTUSblog offers a link and some commentary on the document here. I have commented earlier on the question whether the government defendants and BCRA sponsors will endorse Judge Leon's indefensible reading of the backup issue advocacy provision. In the government's jurisdictional statement, it so far it appears that it does not endorse Judge Leon's approach. It first endorses the "bright line" 30/60 day primary definition of electioneering communication, and then adds the following footnote:

Although it invalidated BCRA's primary definition of "electioneering communication," the district court held that the backup definition is constitutional, while severing the final clause of that definition on vagueness grounds. See pp. 18-19, supra. That final clause requires the message to be "suggestive of no plausible meaning other than an exhortation to vote." BCRA s 201(a) (adding FECA § 304(f)(3)(A)(ii)). Contrary to Judge Leon's determination, that clause is not "so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." United States v. Lanier, 520 U.S. 259, 266 (1997). In any event, the final clause of the backup definition is plainly intended to protect corporate and union speakers, and to narrow the reach of BCRA's restrictions on corporate and union expenditures, by reducing BCRA s 203’s potential applicability to communications that are not in fact intended to affect federal elections.

posted by Rick 10:11 AM

. . .

BREAKING NEWS: Rehnquist denies stay request A few sources have told me that Chief Justice Rehnquist has just denied the NRA's request for a stay without prejudice, telling the NRA it can return with the motion if the district court has not ruled by May 20. More when I have it.
UPDATE: A.P. now offers this report confirming what sources told me.

posted by Rick 9:01 AM

. . .

Tracking the NRA's emergency stay request in the Supreme Court It is too bad that the Supreme Court's website is so poor. Perhaps information on the BCRA case and the NRA's stay request are there, but I cannot seem to find any information online at the site through the docket "search" feature.
UPDATE: Marty Lederman offers the following explanation: "I am informed that the two cases (McConnell and NRA) aren't docketed yet, because the Court first has to rule on the motions to file the JS's in typescript form. Thus, they don't have docket numbers, and can't be searched. When they are docketed, all that will come up in a search will be the docket sheet, which unfortunately will be a day or more behind."

posted by Rick 7:17 AM

. . .

This morning's BCRA news and commentary David Keene offers this op-ed at The Hill. Roll Call's website offers a "breaking news" report entitled: BCRA Opponents Urge Cautious Approach by the Supreme Court (registration required). (The article reports on a forum at the CATO institute on the lower court decision.) The Boston Globe apparently offers an article or op-ed called Attack Ad Ban Makes Strange Bedfellows. Unfortunately, the newspaper's website appears to be down.

posted by Rick 6:41 AM

. . .

More on the NRA application for an emergency stay in the Supreme Court SCOTUSblog here offers a very nuanced analysis of the issues in the NRA's stay petition, including the question whether the NRA would be exempted from the electioneering communications provisions as an MCFL organization. (The post concludes there is a serious danger it would not under current caselaw, a conclusion with which I agree.) The post also notes that the only organization so far to oppose the NRA are the NRLC and Club for Growth (James Madison Center) plaintiffs: they don't want the primary definition to come into effect, but are no fans whatsoever of Judge Leon's alternative.

The fact that there is not a single entity urging the lower court or the Supreme Court to enforce Judge Leon's ruling should be a pretty strong signal to Judge Leon that something went wrong with his interpretation. Does that mean that the stay will be granted as to the electioneering provision? Perhaps not. To stay that provision alone would put NO issue advocacy provision in effect during the pendence of the appeal, something Judge Kollar-Kotelly may oppose. To stay the entire ruling would restore the PRIMARY issue advocacy definition, something Judge Henderson may oppose. One wonders if the reports of the personal disagreements among the judges (disagreements evident in the opinions' footnotes) is making it difficult for them to decide the stay issue as well.

UPDATE: The Washington Post offers this report on the NRA stay request.

posted by Rick 7:40 PM

. . .

Mark Shields on the Democrats and soft money See here.

posted by Rick 3:33 PM

. . .

BREAKING NEWS: National Right to Life Committee and Club for Growth file Opposition to NRA Emergency Stay Request in Supreme Court I have just received a copy of the petition, which proposes four alternative courses of relief in the Supreme Court:

This Court could respond to the NRA’s present application in several ways. First, the Court could deny the application. That would protect the JMC Parties from being harmed by the primary definition of “electioneering communication.” Second, the Court could withhold a decision on the application until the district court rules on all stay and injunction pending appeal motions, which may obviate the need for this Court to rule, although the JMC Parties are sympathetic to the NRA’s need for a prompt resolution of its harm. Third, the Court could grant the NRA’s motion for the limited time until the district court responds to the pending stay and injunction pending appeal motions, which would give the NRA protection now and not ultimately harm the JMC Plaintiffs interests. Fourth, the Court could issue the requested stay pending appeal, but limit its effect to the NRA for now, which would
provide the NRA its relief and not impose the impending harm of the primary definition of “electioneering communication” on
others. The JMC Parties urge the Court to choose one of these options over granting the NRA’s stay application.

UPDATE: You can access the entire document here.

posted by Rick 2:27 PM

. . .

Maybe the lower court should deny all requests for a stay an an injunction I already indicated here my belief that on the merits, the lower court hearing the BCRA case should grant a stay of at least part of its judgment. But maybe that is not the best thing to move the litigation forward. The stay issue seems inevitably headed to the Supreme Court. Here's my reasoning: No matter what the court does, someone is likely to complain to the Supreme Court. We know that if the NRA's request to stay the issue advocacy provisions is denied, the NRA will go to the Supreme Court (they have already gone to the Supreme Court to complain that the lower court did not grant a temporary stay while it considered its stay request). If the court grants the NRA's request, it seems highly likely that the National Right to Life Committee and Club for Growth will complain, because they don't want the original provision of the BCRA's issue advocacy rules (the 30/60 day issue) put back in place. If the court stays the soft money provisions, the California parties likely will complain, as will the Echols' plaintiffs (representing minors who wish to make campaign contributions to federal candidates). If the court fails to stay any provisions, then, along with the NRA, the Federal Election Commission seems likely to complain. Perhaps the BCRA sponsors would complain too.

Assuming that the Supreme Court would not defer to the stay decision made by the lower court in any case, maybe we should just get on with it. The worst case scenario is for the lower court to drag its feet in deciding the stay motions. Imagine the three judges three weeks from now issuing three separate opinions on the stay requests. Better a denial with no comment and on to the main event.

posted by Rick 2:14 PM

. . .

More information on stay responses filed today From a Campaign Legal Center advisory that I just received:

May 12, 2003, 2:30 p.m. -- In two developments today, the National Rifle Association filed an emergency application for a stay of McConnell v. FEC at the U.S. Supreme Court, bypassing the three-judge panel of the U.S. District Court and asking the High Court to immediately stay the portion of the district court decision dealing with “electioneering communications,” or issue ads, until the justices can rule on the case. The application goes directly to Chief Justice William Rehnquist, the circuit justice for the District of Columbia, who may either decide the matter, or refer it to the full Court. In a matter of this importance, it is believed likely that the Chief Justice would refer the application to the Court.

At the same time, as today’s noon deadline passed, a number of parties filed motions at the district court opposing the many stay applications brought by parties on both sides. The California Democratic and Republican Parties, the Republican National Committee, the AFL-CIO, various Madison Center plaintiffs and Sen. Mitch McConnell all filed motions opposing a stay of the entire decision, which the governmental defendants and the congressional sponsors of the Reform Act are seeking. (They support, explicitly or implicitly, the imposition of a stay on the decision as it applies to “electioneering communications,” or issue ads.)

The National Association of Broadcasters filed a motion to oppose the imposition of a stay on the district court’s unanimous decision to strike down Section 504 of the Reform Act, which generally requires broadcasters to maintain and disclose records of all requests to purchase broadcast time for communications that relate “to any political matter of national importance,” including communications relating to any “election to Federal office” or any “national legislative issue of public importance.”

These documents (with the exception of the AFL-CIO papers, which will be posted as soon as they are available) can be found on the Campaign Legal Center’s website here.

UPDATE: A.P. now offers this report.

posted by Rick 12:49 PM

. . .

Texas redistricting controversies Ed Still at the Votelaw blog offers these thoughts and links on Texas here.

posted by Rick 12:22 PM

. . .

"Pelosi says no to soft money" Roll Call offers this report (registration required), which begins: "While other party committees have remained mum about their plans, Minority Leader Nancy Pelosi (D-Calif.) declared that House Democrats will not solicit soft money in the wake of a court ruling that may have left open that opportunity."

posted by Rick 12:16 PM

. . .

Split the baby: California parties file opposition to stay request I have just received a copy of the opposition to the stay request of the California Democratic Party and California Republican party that has been filed (or will be filed) some time today before the three-judge court. The brief opposes only the request of the government and others to stay the soft money rulings in the case. The parties (wisely in my view, as a litigation strategy) take no position on the NRA and others' requests to stay the court's rulings on the issue advocacy provisions of the law. It remains to be seen if the National Republican Party will weigh in at all on these matters (the Democratic national parties are not parties to the litigation). It may be that there is no opposition filed to the NRA's request. This may give a reason for the Supreme Court to wait a few days before ruling; the lower court may well grant the stay, at least as to the issue advocacy provisions.
UPDATE: I have just heard that the RNC has filed or will file opposition papers also arguing against the stay of the Title I ruling.
UPDATE II: The BCRA sponsors have filed a response to the NRA stay request. The sponsors argue that the entire judgment should be stayed, and not just the portion related to the issue advocacy provisions. I also understand that the NRLC and Club for Growth have filed an opposition to the NRA's stay request. Apparently they are arguing that the court should stay the BCRA's provisions on issue advocacy, and not the court's judgment on these provisions.

posted by Rick 10:01 AM

. . .

BREAKING NEWS: NRA decides to file request for an emergency stay in the United States Supreme Court of the BCRA court's issue advocacy rulings This will be the first opportunity for the Supreme Court to act in this case (see the post two below this one on timing unrelated to requests for immediate stays). I believe this request will be sent to the Chief Justice, who likely will refer it to the Court. One interesting question will be whether the other parties, such as the FEC, will file their own stay requests. Like the NRA, the FEC thought an immediate stay so important that it requested an emergency stay of the lower court ruling to take effect while it considers its ruling on the stay motion itself. Stay tuned.

posted by Rick 9:49 AM

. . .

Overton op-ed on BCRA Spencer Overton (of George Washington Law) has published an op-ed in Legal Times today entitled:" LOST IN LAW: A vague Supreme Court doctrine set off the paper avalanche of the McCain-Feingold decision." You can access the text of it here, via the Election law listserv.

posted by Rick 9:46 AM

. . .

More on Supreme Court timing I wrote some about Supreme Court timing of the BCRA appeal on Friday (access the post here). I thought some more about this over the weekend. If my calculations are correct, today is the last day for parties in the BCRA lawsuit to file their jurisdictional statements (such statements are due 10 days after judgment in before the three-judge court). Then parties have another 20 days to file responses, such as motions to affirm, dismiss, etc. At that point, the Court would normally note probable jurisdiction and set the case for briefing and argument. [UPDATE/CORRECTION: The BCRA gives 30 days, not 10 days, for the filing of a jurisdictional statement.]

The Court is next meeting in a publicly scheduled conference, this Friday [UPDATE/CORRECTION: Thursday] May 15. Will they perhaps set a schedule at that conference, before the 20 day responses come in? Given that the case is inevitably going to be heard before the Court, it seems like a waste to wait the additional 20 days for these motions.

By the way, at that same May 15 conference, the Court is scheduled to decide on the cert petition filed by Ken Starr (who is also representing Mitch McConnell in the BCRA litigation) in 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). This case involves the right to one person, one vote rules for non-residents of school districts whose children attend the district's schools. For my earlier posts on this case, see here and here.

posted by Rick 7:39 AM

. . .

Democrats mount legal challenge to Colorado redistricting See press articles here, here, here, here, and here. Thanks to Dan Smith for passing these along.

posted by Rick 7:30 AM

. . .

This morning's BCRA news and commentary U.S. News offers this profile of Senator Mitch McConnell. Stuart Taylor offers this column on BCRA in the National Journal. This Washington Times article on the end of the Supreme Court's term mentions the complications wrought by a potential BCRA decision this term. Here is a letter to the editor in the Financial Times. And Bob Bauer discusses soft money and congressional campaign committees on the election law listserv here.

posted by Rick 7:16 AM

. . .

Can't get no satisfaction Law.com offers Campaign Finance Ruling Gives No One Satisfaction.

posted by Rick 8:08 PM

. . .

BCRA stay opposition papers due tomorrow So who will oppose the various requests for a stay, and what will the opposition papers say? One clear loser under the lower court opinion were groups like the NRA, who immediately worried about enforcement of the rewritten BCRA issue advocacy rules against them. This is why the NRA requested a stay. One clear winner among the plaintiffs was the California Democratic party, now freer to raise and spend soft money. So we are expecting the California Democratic Party to argue that a stay of the soft money provisions will deprive it of its constitutional rights. Republicans have a difficult political calculation to make regarding whether a stay is better than living under the BCRA as it was written. It will be interesting to see if they file any papers at all here. (I expect a number of parties to oppose the requests of the NRLC and Club for Growth for an injunction preventing enforcement of the BCRA itself.)

It seems as though the lower court will first have to make a fundamental decision: should it consider a stay of its entire ruling or should it consider a stay piecemeal (e.g., stay the issue advocacy ruling but not the soft money ruling)? If this were a single judge making the decision, I would say any stay is unlikely here. But the internal politics and overlapping and contradictory views of the three judges on the panel make any outcome on the stay request possible.

Reply papers are due on Wednesday.

posted by Rick 8:22 AM

. . .

More on Colorado redistricting See this A.P. report.

posted by Rick 8:00 AM

. . .

BCRA commentary Thomas Roeser offers this op-ed in the Chicago Sun-Times.

posted by Rick 7:58 AM

. . .

A BCRA-free weekend? Although the lawyers working on the BCRA litigation get no rest this weekend, the rest of us probably can rest a bit (this blogging is hard work!). The Washington Post runs A.P.'s report on the stay status, and the New York Times gives it a paragraph under "National Briefing." I'll bring you any published news or commentary that appears tomorrow, but don't expect much from here before Monday. It looks like another beautiful day here in sunny Los Angeles. Being outside is even more fun than....reading a 1,638 page set of opinions yet again looking for more nuances.
UPDATE: I missed this Washington Post editorial, mostly criticizing the Democrats' attempts to raise soft money post-BCRA.

posted by Rick 9:03 AM

. . .

BCRA-mandated report on public financing issued by GAO One aspect of the BCRA not challenged in the current litigation directs the General Accounting Office to study the public financing system in Arizona and Maine (the so-called "Clean Elections" initiatives initially started by Ellen Miller and PubliCampaign). Today the GAO issued Campaign Finance Reform: Early Experiences of Two States That Provide Full Public Funding for Political Candidates. GAO-03-453, May 9. The summary includes the following statement: "In sum, with only two elections from which to observe legislative races and only one election from which to observe most statewide races, it is too early to draw causal linkages to changes, if any, that resulted from the public financing programs in the two states." See also this A.P. Report.

posted by Rick 8:22 PM

. . .

Post-Bush v. Gore voting reform One other kind of fallout from Bush v. Gore that I neglected to mention in my post two below this one is voting reform, especially since Congress funded reform in the states through the "Help America Vote Act," or "HAVA." The Caltech-MIT Voting Project has been following this issue closely, and interested users can sign up at their site for the "votingtech" listserv (its archives are here). Many states are having transition issues. For the experience in Indiana, see this post at the "Indiana Law Blog."

posted by Rick 8:16 PM

. . .

Timing of BCRA appeal in the Supreme Court The first major strategic decision the parties in the BCRA litigation have had to make since the lower court opinion came out (almost exactly one week ago) was whether or not to seek some kind of interim relief, like a stay or an injunction. Once NRA decided to go forward, the lower court pushed everyone's hand by setting a quick deadline. The next major decision, as the parties see how the stay issues play out, is the question of timing in the Supreme Court.

As I indicated here, the Supreme Court has appeared to send signals that it would consider motions to expedite if the parties make them. And Senator McConnell's jurisdiction statement in the Supreme Court (filed, amazingly, within an hour or two of the issuance of the lower court decision) promises a proposal of a briefing and argument schedule.

What will the parties want? Some parties may want to drag things out in the hopes of retirement. Others may want to speed things up for the same reason. It is hard to imagine that no one will move to expedite things (especially if there is no stay in place by the lower court). Once the request gets made, it will depend upon the preferences of the Supreme Court justices on timing, and this seems very hard to handicap.

posted by Rick 12:44 PM

. . .

Bush v. Gore and the Democratic filibuster of Bush nominees We have seen Bush v. Gore pop up in all kinds of places, most recently in controversies over ballots for Senate in New Jersey (when Torrecelli left the ballot) and Minnesota (when Wellstone died). In both cases, the issue was whether the courts' interpretation of state election law rules usurped the power the Constitution granted to state legislatures to craft rules for choosing Senators.
Now we see the issue arising in the two ways in the filibuster wars. (For the most comprehensive coverage anywhere, see How Appealing.) First, some Like Yale law professor Jack Balkin have argued that the Democratic filibuster is justified by the Supreme Court's decision in the case. (If you start with this post from Balkin, you can work your way backwards to a debate he is having on this topic with the pseudonymous "Juan Non-Volokh" and the non-anonymous Larry Solum.) Second, with (in my view misguided) attempts to bring to the courts issues related to Senate rules and to recess appointments, some have argued that such a cases would be as politicized as Bush v. Gore. Larry Solum remarked here with some hyperbole 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." Now, with the possibility that Republicans will try to overcome their filibuster rule with a simply majority vote, Charles Lane's analysis in the Washington Post today ends like this: "Then the Democrats would have the option of going to court, including, ultimately, the Supreme Court, where the justices would face the question of whether to intervene on a legal issue every bit as arcane, and politically freighted, as the one they wrestled with in Bush v. Gore...Such a case would ask them to determine how easy it should be for Bush to name their subordinates in the judiciary and, in time, their own successors."
By the way, on the question of whether it would be effective for Republicans to try to amend Senate rules in this manner, see Larry Solum's excellent post here.

posted by Rick 12:16 PM

. . .

We interrupt this BCRA blog-athon for some other election news The Houston Chronicle reports here: "Two losing Democratic state House candidates Thursday filed suit against a political committee founded by U.S. House Majority Leader Tom DeLay, claiming it violated Texas campaign finance laws." (Thanks to Jim Dedman for the link.) The A.P. reports here: "Over the vehement protests of Democrats, Republicans are trying to use newly won clout in the Colorado and Texas legislatures to redraw congressional districts that are less than two years old, part of a highly unusual tactic to strengthen their control over the House of Representatives." (Thanks to the reader who brought the Colorado aspect of this story to my attention). Tom Round sends along this report from New Orleans noting: "Absentee ballots cast by people who die before election day are legal and should be counted, the Senate decided Monday." I understand that in some cities, even votes cast after death have been counted on occasion.

posted by Rick 11:47 AM

. . .

Government joins in BCRA sponsor stay request; AFL-CIO, like NRLC wants injunction preventing enforcement of BCRA See this A.P. report.
UPDATE: I have just seen the government's papers. They ask not only for a stay of the entire ruling in the lower court, but also join with the NRA in seeking a temporary stay from the court immediately pending its decision to grant a stay. In arguing for a stay, the government has focused on upsetting the expectations of the parties and irreparable harm, rather than the merits. As I suggested here, the very lack of consensus on the court is a reason for granting the stay. Here is what the govenment brief says on this point: "The likelihood of success on the merits supports the government’s request for a stay. But in any event, the inability of this Court itself to reach a consensus on the constitutionality of BCRA’s major provisions strongly favors leaving BCRA in place during the interim period in which the Supreme Court has had an opportunity to consider and decide the appeals in this case on an expedited basis."
FURTHER UPDATE: The ACLU has joined in the NRA's request to stay the court's ruling with regard to electioneering provisions.
UPDATE III: You can find these documents as they become available at this location on the Campaign Media Center website. As of now, the NLRC's injunction request is posted only at SCOTUSblog.
UPDATE IV: SCOTUSblog has some commentary here on the NRLC motions.

posted by Rick 9:35 AM

. . .

Give credit to McCain and Feingold Yesterday, I noted here that "I was heartened to see in today's NY Times story that Senator Feingold 'says he has doubts' about the mangling of the BCRA's regulation of issue advocacy by Judge Leon." Now Senator McCain has made a similar statement. According to today's BNA Money and Politics Report (available online with subscription only), McCain said: "'We thought there was a constitutional problem with a permanent ban' on issue ads funded with soft money that target federal candidates."

posted by Rick 9:09 AM

. . .

National Journal article on the prospects for the BCRA in the Supreme Court Eliza Newlin Carney today has an article for today's National Journal, "LEGAL AFFAIRS: What Next? As the Supreme Court prepares to take up its most important campaign finance case in almost 30 years, both camps in the bitter political money wars are forecasting victory." (The article is available online only with a subscription.) This is the most comprehensive journalistic effort to date to spell out the various positions of the Justices on the Supreme Court on campaign finance issues relevant in the BCRA litigation. The issue also features a short article by Richard E. Cohen, "LEGAL AFFAIRS: 1,638 Pages, Plenty of Head-Scratching," setting forth the basics of the lower court decision.

posted by Rick 8:52 AM

. . .

Stay applications due to three-judge court by noon (EDT) today--What will the FEC's position be? So far, we know that the NRA is seeking to have the issue advocacy ruling of the three judge court stayed, and the BCRA sponsors are seeking to have the entire three-judge court judgment stayed. The National Right to Life Committee is apparently filing an injunction (I haven't seen it) asking the BCRA to be put on hold. The California Democratic Party is apparently going to oppose the stay requests (oppositions are not due until Monday). Will any other parties join in either the NRA or sponsor stay requests? What position will the FEC take? The government's position could be particularly important here.

UPDATE: The NRA has asked for a stay pending the ruling on the stay. This so-called "administrative stay" request (this is the first time I have heard this term) is posted on the SCOTUSblog site, here

posted by Rick 7:34 AM

. . .

Newspaper story on Getman case--still more spin I have posted here on the Ninth Circuit's Getman case. The San Francisco Chronicle offers this report. Note that losing attorney Jim Bopp calls this decision a "victory." Bopp lost on his main point---that a state may not require disclosure of funding for express advocacy in ballot measure campaigns. Bopp gets to go back to the district court and argue that California has no compelling interest in disclosure, but the Ninth Circuit's opinion indicates it almost certainly does.

posted by Rick 7:23 AM

. . .

Counter spin Although many have criticized the reform community for overclaiming victory, here is an example of an analysis that overstates victory for opponents of the law. I also find the legal analysis here particularly unpersuasive (especially the analysis of the question whether a stay will be granted by the Supreme Court, if asked).

posted by Rick 7:09 AM

. . .

The partisan aspects of the stay request I noted in the post three below this one that I saw a partisan reason why Republicans never pushed to stay the BCRA---they gain under a rule allowing the raising of hard money only under the higher contribution limits. This Washington Times editorial makes a similar point about the Democratic Party (and the Ca. Democratic Party's expected opposition to a stay): "If Democrats get their wish, the recent ruling of the three-judge panel will not be stayed, and the soft-money door, which they publicly took such great pride in closing, will, to their great relief, be reopened — at least temporarily."

posted by Rick 6:37 AM

. . .

NY Times article on the stay requests is available here The article indicates that the California Democratic Party intends to oppose the stay request.

posted by Rick 10:27 PM

. . .

BCRA sponsor stay application is available here.

posted by Rick 4:00 PM

. . .

Stay the three-judge court BCRA ruling, or stay the BCRA itself, or no stay from the three judge court? Muddling through the confusing positions and assessing the chances of a stay in the lower court Yesterday, the NRA moved for a stay in the district court of the part of its decision imposing the backup regulation of issue advocacy. Today, the BCRA sponsors announced they will seek a stay of the entire district court decision, which would have the effect of reinstating the BCRA as it existed before the court's opinion. I have now received a Press Release from the James Madison Center (it does not yet appear to be posted on the web) in which it says that the Center will ask for an injunction preventing the BCRA's issue advocacy rules (primary or backup) from going into effect.

The Center is representing the National Right to Life Committee. Like the NRA, NRLC does not want the district court's rewriting of the issue advocacy provision to go into effect. But it opposes the NRA's attempt to get the 30/60 day limit put back into effect pending appeal. It wants to return to the pre-BCRA law in this area (i.e., no limits on and no disclosure for sham issue advocacy, even if intended to elect or oppose a candidate for federal office).

So what is the court to do? Despite the conventional wisdom that says that the lower court is unlikely to stay its own ruling, there are some reasons for thinking it might well do so.

On the merits, the stay should be granted. Without the stay, the BCRA is in effect under the rules everyone more or less understands, backed up by FEC implementing regulations. The issue advocacy question is put off, because under the "primary" provision, the new rules would not kick in until 30 days before the first primary.

Now think about each individual judge on the panel. Judge Kollar-Kotelly may want a stay, because that implements most of the BCRA (her preference). Judge Leon may not oppose a stay, given how critical people have been of his ruling. Judge Henderson may oppose a stay, given that she believes the BCRA is unconstitutional. Nonetheless, at least on the issue advocacy provisions, the majority's interpretation of the BCRA may be even more unconstitutional.

The injunction claim of NRLC is more difficult. This would upset the rules of engagement yet again. Nothing stopped NRLC from asking for the injunction early on in the case (I was always suprised that some plaintiffs (though not the Republican party, which has benefitted in fundraising under the new higher hard money limits and no soft money) did not seek an injunction preventing enforcement of the BCRA pending the outcome of litigation). This seems like a long shot now.

posted by Rick 2:42 PM

. . .

BCRA sponsors seek stay Here is the A.P. report.

posted by Rick 12:39 PM

. . .

Ninth Circuit issues opinion discussing Furgatch The Ninth Circuit has just decided a campaign finance case with potentially important ramifications for the BCRA litigation. (Thanks to How Appealing for the pointer.) In the case, California Pro-Life v. Gettman, the Ninth Circuit upheld California's authority to regulate express advocacy in ballot measure campaigns, particularly to require disclosure of the funding of such advocacy. This issue is important in its own right, because some opponents of campaign finance regulation have been trying to use a Supreme Court case called McIntyre to knock out as much disclosure law as possible. The court held:

Express ballot-measure advocacy is not constitutionally sacrosanct speech. California may regulate it, provided that California has a constitutionally sufficient interest in doing so. California may well have a compelling interest in informing its voters of the source and amount of funds expended on express ballot-measure advocacy. Even if compelling, California’s informational interest in required disclosure is not without limitation: unnecessary administrative and organizational requirements will not pass constitutional muster. The district court shall determine on remand whether California in fact has a compelling informational interest justifying its disclosure laws. If so, the court must then determine whether the means chosen by California comport with the First Amendment.

Disclosure issues arise in the BCRA litigation, but not on the question of ballot measure express advocacy. The case's significance for the BCRA litigation comes from the fact that the Ninth Circuit discusses its case of FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987). Furgatch was the basis for the backup definition of electioneering communications in BCRA. In today's case, the Ninth Circuit clarifies what Furgatch means:

But standing apart from other circuit precedent is our decision in FEC v. Furgatch, 807 F.2d 857 (9th Cir. 1987). Furgatch eschewed a “magic words” approach to determining express advocacy. “A test requiring the magic words ‘elect,’ ‘support,’ etc., or their nearly perfect synonyms for a finding of express advocacy would preserve the First Amendment right of unfettered expression only at the expense of eviscerating the Federal Election Campaign Act.” Id. at 863. We therefore held in Furgatch that express advocacy may be determined by looking at the communication “as a whole” and by giving some consideration to context. Id. at 863-64.
California and amici argue that, under Furgatch, we must uphold the PRA’s regulation of those communications that when “taken as a whole and in context unambiguously urge[ ] a particular result in an election.” Indeed, Furgatch instructs that the communication may be considered “as a whole” when determining express advocacy. But a close reading of Furgatch indicates that we presumed express advocacy must contain some explicit words of advocacy. See id. at 864 (noting that “context cannot supply a meaning that is incompatible with, or simply unrelated to, the clear import of the words”). “Context,” we emphasized, “remains a consideration, but an ancillary one, peripheral to the words themselves.” Id. at 863.

(footnote omitted) There is more discussion of Furgatch in the case bound to interest anyone who cares about BCRA's backup definition.

posted by Rick 11:28 AM

. . .

MORE BREAKING NEWS The House and Senate sponsors of the BCRA litigation are holding (or are about to hold) a press conference to announce they will be seeking a stay of the entire district court judgment.

posted by Rick 10:35 AM

. . .

BREAKING NEWS The district court hearing the BCRA case has issued an order requiring that all requests for a stay be filed in the court by tomorrow. (At least that's the report I have received; I have not yet seen the order).
UPDATE: You can find the district court's order here. It provides for an expedited schedule, with stay requests due by Friday noon, responses by Monday, and replies by Wednesday. It also asks for brevity, requesting that the parties incorporate arguments by reference. Ironic, no?

posted by Rick 9:48 AM

. . .

Norm Ornstein, Judge Leon the Federalist, and the real victory for supporters of BCRA In his statement that I referenced here yesterday, Norm Ornstein (a supporter of BCRA) wrote the following: "Think about it. This is a conservative judge, a George W. Bush appointee, a Federalist Society member, who gives due deference to Congress' seriousness of intent to write a law to deal with a real problem that fits within the framework of Buckley and its progeny." Ornstein sees it as a victory that Judge Leon came over to support important aspects of BCRA, even if the way in which he upheld portions of the law was problematic. (In this regard, I was heartened to see in today's NY Times story that Senator Feingold "says he has doubts" about the mangling of the BCRA's regulation of issue advocacy by Judge Leon).

Especially given the press reports about the questioning by Judge Leon at oral argument in December which suggested his hostility to much of the BCRA, swaying Judge Leon is a real victory for supporters of the law. Many in the reform community were fully expecting to do "damage control" with a 2-1 ruling striking down major portions of the law. Instead, we have no clear winner and loser. To the extent that public opinion matters here (I'm not sure it does), Judge Leon has done the defenders of the law a service.

posted by Rick 9:43 AM

. . .

Marci Hamilton is so 1980s, 1980s, 1980s In her Findlaw column that I referenced a few posts ago, Marci Hamilton writes: "The answer to the McCain/Feingold conundrum, therefore, is disclosure, disclosure, disclosure." This is the kind of answer that opponents of campaign finance regulation gave in the 1980s, and it still has some resonance today. But the argument today is rejected by many deregulationists. Here's why: for disclosure to be effective, it has to capture speech that is aimed at influencing elections. If millions of dollars could be spent on electioneering ads that avoid disclosure by failing to include "express words" of advocacy (such as "vote for" or "oppose"), then disclosure would be ineffective.

That situation was precisely the situation that emerged in the 1990s. We saw huge sums being spent by corporations, unions, and others on such sham issue ads. Parties raised soft money donations to pay for such ads. One of the things McCain-Feingold requires is disclosure of such sham issue advocacy. To make disclosure effective, we need a new definition of electioneering activity. The "bright line" test in the BCRA should be constitutional to require disclosure of contributions and expenditures funding sham issue advocacy. But some deregulationists have now rejected this approach as well. See Lillian R. BeVier, Mandatory Disclosure, "Sham Issue Advocacy," and Buckley v. Valeo: A Response to Professor Hasen, 48 UCLA Law Review 285 (2000) (responding to my article, The Suprisingly Complex Case for Disclosure of Contributions and Expenditures Funding Sham Issue Advocacy, 48 UCLA Law Review 265 (2000)).

So let me be clear: without something like the BCRA's bright line redefinition of the line between express advocacy and issue advocacy, disclosure cannot work as an effective campaign finance regulation. So whether you like other provisions of McCain-Feingold or not, you must support its attempt to redraw the line for disclosure purposes if there is to be any meaningful regulation.

posted by Rick 9:29 AM

. . .

BCRA humor: 3 sided gavels and X2 So there hasn't been too much humor out there on the BCRA litigation. Until now. See the interesting 3 sided gavel in this R.J. Matson cartoon (scroll down on main page: no registration required to see this page). ABC's The Note dicusses the complications of the BCRA litigation (scroll down the page), and asks whether Trevor Potter and Jim Bopp--two lawyers on opposite sides of the case---have time to see X2. (The column also graciously refers to this blog as "excellent.")

posted by Rick 9:09 AM

. . .

This morning's BCRA news and commentary The New York Times reports on the NRA stay request here; the Boston Globe on the stay here. Marci Hamilton gives her opinion in her Findlaw column. George Will weighs in here The Salt Lake Tribune offers this editorial.
UPDATE: Mickey Kaus offers some thoughts in his Slate column.

posted by Rick 7:18 AM

. . .

"Vacancy Could Doom BCRA" Roll Call offers this report (registration required), which begins: "The possibility that one or more Supreme Court justices could retire prior to the high court's consideration of the new campaign finance law is sparking concern among legal experts that such a development could leave the high-profile case one judge short."

posted by Rick 9:38 PM

. . .

Treatment of non-profits under the BCRA lower court decision A few readers have asked about the Wellstone Amendment. Precisely what the amendment meant has been subject to debate in the election law community for quite some time---it is a provision (section 204) that negates another provision (the "Snowe-Jeffords amendment") that would have exempted non-profits from the rules governing corporate and union electioneering communications. The upshot of the Wellstone amendment is that nonprofits who take corporate or union money are subject to the same rules as the rules governing corporations and unions themselves. (A bit of history in order. The Wellstone amendment was opposed by the sponsors of the law in the Senate, and only passed with the votes of the bill's opponents, such as Mitch McConnell, in an attempt to raise even more consitutional problems with the bill.)

Judge Henderson voted that the Wellstone Amendment was unconstitutional, Judge Kollar-Kotelly voted that the amendment was constitutional, and this left Judge Leon, once again, in the middle. Judge Leon held that the amendment was unconstitutional only to the extent that it regulated "MCFL" corporations---that is, ideological corporations (such as the Massachusetts Citizens for Life, who obtained an exemption from other campaign finance laws in a Supreme Court case) who were not controlled by for-profit corporations or unions and did not take their money (or much of their money).

Bottom line on this issue: nonprofit corporations that take substantial sums from for-profit corporations and labor unions are subject to the same disclosure requirements and same prohibitions on electioneering communications as applied to for-profit corporations and labor unions.

posted by Rick 9:19 PM

. . .

In other election news "Less than two weeks before the gubernatorial primary, the Kentucky Supreme Court ruled Wednesday that Republican Rep. Ernie Fletcher will remain on the ballot even though his first running mate was disqualified." See this A.P. report (thanks to Ed Feigenbaum for the pointer).

posted by Rick 9:10 PM

. . .

Jurisdictional statements and notices of appeal in BCRA case The Campaign Legal Center has posted here the jurisdictional statements and notices of appeal filed by the parties thus far in the litigation.

posted by Rick 2:49 PM

. . .

Norm Ornstein on the BCRA decision See here.

posted by Rick 2:41 PM

. . .

Rumor has it... that the NRA has filed a request for a stay of the BCRA decision. That's all I know so far.
UPDATE: Here is the A.P. report.
FURTHER UPDATE: Here is a link to the stay request.
SON OF UPDATE: The NRA asks only for a stay of Title II (the issue advocacy provisions) of the law.

posted by Rick 2:10 PM

. . .

The big picture: understanding the lower court’s opinion in the McCain-Feingold (BCRA) litigation Blogging is a wonderful way to provide off-the-cuff, stream of consciousness reactions to unfolding events as bloggers have them. Since last Friday afternoon, when the lower court opinion emerged, I have tried to do just that---post my ideas as I have them, tentative as they may be. But they come out in no organized or coherent fashion. This post is intended to pull together (and link) through a series of questions and answers my tentative thoughts about the significance of the opinion, its short term effects, and the likely outcome in the Supreme Court. It is still tentative, but a bit more organized.

1. What did the three-judge court do in determining the constitutionality of the BCRA? This question has been very difficult to answer, because the lower court made up of three judges, issued four opinions. Each judge wrote separately, and two judges joined in a per curiam (unsigned) opinion purporting to set forth common findings of fact and legal conclusions. Having parsed the opinions more closely, it looks like here is where we stand:

Soft money Two of the judges (though not always the same two judges) voted to uphold parts of the BCRA ban on the raising and spending of soft money. Roughly speaking, parties and federal candidates cannot raise and spend soft money to spend on “federal” activities, which (though Judge Leon) means activities to “promote,” “support,” “oppose” or “attack” candidates for federal office. Parties can raise and spend soft money for any other “nonfederal” purpose (such as voter registration) and for “mixed” purposes. Federal officeholders cannot raise soft money even for these purposes, and there is a debate now (see here, here, and here) on the question whether national political parties controlled by federal officers (like the Democratic Senate Campaign Committee) may raise and spend soft money. It looks like there are significant loopholes for the raising of soft money under the ruling.

Issue advocacy Two judges voted to uphold some version of the limit on sham issue advocacy. Judge Kollar-Kotelly vote to uphold the BCRA's bright line test: targeting corporate and labor advertisements within 60 days of a general election (or 30 days of a primary) featuring a clearly identified candidate for federal office and broadcast on radio or television audience targeted to the relevant electorate. (I'll call this the primary provision or the "bright line" rule.) Judge Henderson struck down this provision as unconstitutional. Judge Leon agreed with Judge Henderson that the primary provision regulating issue advocacy was unconstitutional. Leon said that the provision was substantially overbroad, in that it captured too many genuine issue advertisements before the election.

Judge Leon then went on to uphold a version of BCRA's backup provision, placed in the law in case the first provision failed. Under this backup provision, corporations and unions may not run any ad that supported or attacked a candidate for federal office, provided that the ad could be understood plausibly as anything other than electioneering for or against a candidate. Judge Leon said the second rule's "plausibility" test created vagueness problems. So he lopped off that part of the backup test and kept the rest standing, meaning that that corporations or unions cannot run ads, at any time, "supporting." "promoting," "attacking," or "opposing" a candidate for federal office.

Leon gave no guidance on how this test is supposed to work. Could General Motors or the AFL-CIO tomorrow (well before the election) be held to violate federal campaign laws by running an ad featuring a picture of President Bush and praising our troops? This rule creates more vagueness and overbreadth problems than the bright line test he rejected. Judge Leon's answer to the vagueness concern: if you are unsure what to do, ask the FEC for an advisory opinion.

Judge Kollar-Kotelly gave no defense of Judge Leon's position, other than to join in it as an alternative. Why did she do so? Had she not done so, there would have been two votes to strike down the primary definition and two votes to strike down the alternative definition. Thus, although two judges would have supported some regulation of issue advocacy, they would not have supported the same version and the headline would have been: "Issue Advocacy Provisions Nixed." [UPDATE: On the application of these rules to nonprofit corporations under the "Wellstone Amendment," see here.]

Other provisions of the law The court struck down some other provisions of the law (such as a provision requiring parties to choose between coordinated expenditures with candidates at higher contribution limits or independent expenditures and a provision banning minors from making campaign contributions to candidates). For various prudential reasons (e.g., standing, ripeness) it failed to reach some issues, such as the constitutionality of the "Millionaire's Provision" and of raising the individual contribution limit to federal candidates from $1,000 to $2,000 (linked to inflation).

2. So is this a victory for campaign finance reformers or their opponents? Yes. Each side can claim victory in part. This is a split decision, but the court was unclear in some important ways, making it difficult even now to pick a winner and loser. I have been critical of attempts by reformers to claim victory in Judge Leon's ruling on issue advocacy, which raises troubling constitutional issues even for those committed to reform.

3. What will be the effect of the case in the short term? What about a stay? If there is no stay of the three-judge opinion, the law as cobbled together above (to the extent I have correctly analyzed it---there are sure to be other interpretations and disputes at the edges) is the law that governs until the Supreme Court rules on the merits. As I have argued here, the ruling raises many troubling constitutional questions, and creates immediate problems for candidates, parties, individuals, and organizations that wish to participate in the political process. The Federal Election Commission may have to craft special rules in the interim. It is a huge mess.

One way to avoid the mess is a stay of the lower court order, preventing it from going into effect and reviving the whole of McCain-Feingold pending Supreme Court decision. It is not clear (see here) if any of the parties will in fact seek a stay. The parties could try first in the lower court, then move on to Chief Justice Rehnquist, who would refer the matter to the whole Court to decide.

Would the Court grant a stay? The question here boils down to two factors: likelihood of success on the merits (a sneak peek at who will win) and hardship to each party if the court guesses wrong. The factors get considered together. I think hardship points in favor of a stay. Better that we continue with the same rules we have had in place thus far in the election season until the Supreme Court ultimately decides otherwise. Then we have at most one transition to other rules after the Supreme Court opinion on the merits. The public interest favors a stay in terms of certainty of the rules. Likelihood of success is clearly a close call. I would not be surprised to see the Court issue a stay, but I would not read too much into the merits if it does so.

4. If the courts don't grant a stay, but the Supreme Court later upholds the parts of the soft money ban stuck down by the lower court, can there be prosecutions for violating the law? The law is unclear, but there is a clear risk here absent a further order from a court on the question. See here and here.

5. What is the effect of the case in the long term? How much impact will the lower court holding have? As I have long argued (see my pre-opinion statement here):

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….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…are the court's factual findings. There is supposed to be some deference by the Supreme Court to the lower court's factual findings… 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.

The issue of factual findings is more complicated than I anticipated, however. A majority of judges did not sign on to any factual findings. Supreme Court precedent regarding what to do in such a case (see here) is muddled, but suggests the Court will look to see if there are any factual findings on which at least two judges agree. If so, the Court should review these findings for clear error. Alternatively, in the case like this one involving documentary findings and no live testimony, the Supreme Court may make its own factual findings.

Judge Leon joined in factual findings of another judge on the panel where he agreed with the other judge's reasoning and judgment (see here), and both he and Judge Kollar-Kotelly made factual findings related to access and issue advocacy that can help the defenders of the law (see here). Judge Henderson has urged the Supreme Court to reject these factual findings as clearly erroneous.

6. When will the Supreme Court hear this case? The Court's term ends in June. It begins again in October. Will the Court set a special session? I believe the Court is sending a signal through its spokesperson (see here and here) that if the parties want an expedited review (and particularly if the parties can agree on a schedule), the Court will entertain it. Otherwise, expect argument the first Tuesday in October. (Tom Goldstein says that the first Monday this year is Yom Kippur, and the Court will not meet.)

7. How will the Supreme Court decide the case? As I have long said (see, for instance, my article entitled Shrink Missouri, Campaign Finance, and "The Thing That Wouldn't Leave," 17 Constitutional Commentary 483 (2000)), the current Court is divided into three camps. Three Justices (Thomas, Scalia, and to a lesser extent Kennedy) want to move toward deregulation. Three Justices (Breyer, Ginsburg, and Stevens) seem amenable to upholding greater regulation. That leaves in the middle Justices O'Connor and Souter, and Chief Justice Rehnquist, who have adhered to the Buckley status quo (although C.J. Rehnquist has been more willing to uphold regulation of corporate activity in the electoral process). So these are the likely swing Justices, and the outcome in this depends in large part on issues that go beyond Buckley or require interpreting what that case meant. So handicapping the Court is difficult.

One further complication: someone may retire from the Court before the Court decides the case, thereby affecting the balance of power on this issue. President Bush has said he plans to appoint Justices in the mold of Justices Scalia and Thomas, which cannot be good news for those who support campaign finance regulation. Then again, a Bush nominee may be facing Democratic opposition in the Senate (on issues such as abortion and affirmative action, not campaign finance). The Court may have 8 members, and the nightmare scenario is that they split 4-4, thereby upholding the lower court decision.

posted by Rick 11:13 AM

. . .

One more point on factual findings In my last post on factual findings, I noted that where two of the judges agreed on factual findings, or made substantially similar factual findings, those should be the findings which the Supreme Court should reveiw for clear error. In two areas, this point will work in favor of the defenders of the law. (1) Access - both Judge Kollar-Kotelly and Judge Leon make similar findings about the role that soft money plays in securing access and a chance to make a case to public officials. (2) The relevance and persuasiveness of the Brennan Center's Buying Time studies on the question of separating genuine from sham issue advocacy--Judge Kollar-Kotelly, and to a lesser but still significant extent, Judge Leon, reject most of the criticisms of most aspects of the Buying Time studies and believe that the studies are probative on questions related to regulating issue advocacy.

Of course, Judge Henderson makes lots of contrary findings on both of these points, and explicitly invites the Supreme Court to find that the findings of Judges Kollar-Kotelly and Leon in these areas are clearly erroneous. But I think this may put the momentum on factual findings into the hands of the law's defenders.

posted by Rick 10:09 AM

. . .

More BCRA commentary and news Here are some newspaper editorials on the lower court decision: Arizona Republic; Dayton Daily News; Las Vegas Review Journal; Palm Beach Post; San Francisco Chronicle; and Seattle Post Intelligencer.
Phil Kent has this Washington Times op-ed. See also this analysis in the Milwaukee Journal-Sentinel.

posted by Rick 9:14 AM

. . .

Stay and spin Roll Call offers "Reform Ruling Sparks Spin War" (registration required). Although the article is focused on the spin question chronicled in detail below about the meaning of section 323(e), it offers the following connection between that question and seeking a stay:

"There is a question of who is going to file an application for a stay, if anybody," remarked one legal expert.

Initially, defenders of BCRA had indicated they would move quickly to ask for a stay of the opinion, a move that would potentially leave the law intact until the Supreme Court decides the issue.

But they appeared to pull back from pushing for a stay this week as they assessed the 1,600-plus-page decision from the three-judge panel, and sources indicated there may be a strategic advantage in not immediately making such a move.

Beyond the reality that stays are extraordinarily unusual and difficult to get, to say nothing of the fact that it would heap extra work on the court, some observers noted that asking the court to stay could detract from assertions by McCain-Feingold supporters that the mammoth court ruling was a victory of sorts for them.

posted by Rick 7:12 AM

. . .

A reform "victory?" Don Simon of Common Cause responds to my post here on whether reformers have claimed and should claim "victory" on the issue advocacy ruling of Judge Leon:

Rick - "Victory" is your word here, not mine. Nowhere does the Common Cause analysis claim the Title II ruling was a "victory." It simply describes what the court did - it "upheld" a regulation of sham issue ads that is "more comprehensive" than the time-frame test that was "struck down."



Whether one characterizes sustaining the modified fall-back test as a "victory" or "defeat" is quite another question. I'm sure, however, you will agree that, from the reform perspective, the district court's unequivocal rejection of the magic words test as a constitutional imperative is in fact a "victory," however one feels about the particular test the district court ended up endorsing.

I did not mean to single out Common Cause---many in the reform community have focused on the "victory" of the rejection of the magic words test, but not what that victory really means. I suppose it would be nice to hear some genuine concern raised about the constitutional problems with the district court's ruling. But perhaps that is too much to expect for parties that must maintain a certain position in litigation.

posted by Rick 6:37 AM

. . .

More on three judge court infighting See this report in the Washington Post.

posted by Rick 6:31 AM

. . .

Even if 323(e) bars the official controlled campaign committees from raising funds, will it matter? This Washington Post article suggests the answer is "no."

posted by Rick 8:23 PM

. . .

In other news See this report on the internal Georgia dispute over who controls the redistricting litigation in the U.S. Supreme Court.

posted by Rick 8:04 PM

. . .

Following up on Leon's description of issue advocacy The dispute over Judge Leon's interpretation of the issue advocacy provisions (see my post two below this one) is already coming to a head. See this A.P. report.

posted by Rick 7:44 PM

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The reemergence of PACs in the wake of BCRA? The Washington Post offers this report.

posted by Rick 7:34 PM

. . .

Judge Leon, issue advocacy, and "victories" for reform Bob Bauer has been arguing that there's been a lot of spinning going on by those supporting McCain-Feingold as to the extent to which the lower court upheld the law. Much of the discussion has been around soft money, and particularly what the court did with 323(e). I want to move attention to another area, issue advocacy, where so far I am disappointed with the reform community.

Judge Kollar-Kotelly vote to uphold the BCRA's bright line test: targeting corporate and labor advertisements within 60 days of a general election (or 30 days of a primary) featuring a clearly identified candidate for federal office and broadcast on radio or television audience targeted to the relevant electorate. (I'll call this the primary provision or the "bright line" rule.) Judge Henderson struck down this provision as unconstitutional. Judge Leon agreed with Judge Henderson that the primary provision regulating issue advocacy was unconstitutional. Leon said that the provision was substantially overbroad, in that it captured too many genuine issue advertisements before the election.

Judge Leon then went on to uphold a version of BCRA's backup provision, placed in the law in case the first provision failed. Under this backup provision, corporations and unions may not run any ad that supported or attacked a candidate for federal office, provided that the ad could be understood plausibly as anything other than electioneering for or against a candidate. Judge Leon said the second rule's "plausibility" test created vagueness problems. So he lopped off that part of the backup test and kept the rest standing, meaning that that corporations or unions cannot run ads, at any time, "supporting" or "opposing" a candidate for federal office.

As I have noted earlier, Leon gave no guidance on how this test is supposed to work. Could General Motors or the AFL-CIO tomorrow (well before the election) be held to violate federal campaign laws by running an ad featuring a picture of President Bush and praising our troops? This rule creates more vagueness and overbreadth problems than the bright line test he rejected. Judge Leon's answer to the vagueness concern: if you are unsure what to do, ask the FEC for an advisory opinion. Are we to expect Brad Smith and Ellen Weintraub to work around the clock at election time vetting ads and using their own judgment as to what it means to "support" or "attack" a candidate?

Judge Kollar-Kotelly gave no defense of Judge Leon's position, other than to join in it as an alternative. Why did she do so? Had she not done so, there would have been two votes to strike down the primary definition and two votes to strike down the alternative definition. Thus, although two judges would have supported some regulation of issue advocacy, they would not have supported the same version and the headline would have been: "Issue Advocacy Provisions Nixed."

The reform community for the most part claims victory on this front. Common's Cause's analysis, for example, says the following:

The Court upheld the regulation (including disclosure) of sham issue ads by outside groups, and rejected the plaintiff’s claim that only ads that contain “magic words” of “express advocacy” can be regulated. In fact, the court ended up with a broader regulation of sham issue ads than Congress primarily enacted. The court struck down the “time frame” test that prohibited the spending of corporate or union funds on any broadcast ads that refer to a federal candidate within the period 30 days before a primary or 60 days before a general election. But it upheld an alternative test in the law that prohibits the spending of corporate or union funds on any broadcast ads that “promote, support, attack or oppose” a federal candidate, no matter when the ads are run. This test upheld by the court is a more comprehensive regulation of sham issue advocacy than the “time frame” test that was struck down.

Is this really a victory? I don't know anyone who thinks that Judge Leon's interpretation will stand in the Supreme Court. I would be interested, however, in hearing from anyone who thinks it should stand.

Let me be clear. I believe the defenders have a very strong argument that the primary definition of issue advocacy is constitutional. Judge Kollar-Kotelly did an exemplary job making the argument for the primary definition. This presents the best shot for getting the Supreme Court to rethink the question of the express/issue advocacy line. I would hate to see the point muddled by a defense of Leon's position.

posted by Rick 4:49 PM

. . .

Confirmation battles For those of you following a pre-BCRA issue on this list---the politics of the Senate filibuster of judicial nominees---don't miss Larry Solum's letter to Sen. John Cornyn.

posted by Rick 4:25 PM

. . .

323(e) debate continues Bob Bauer, Marty Lederman, and Trevor Potter continue their intense debate over whether it is fair to read the opinions of the three judge panel as precluding the party committees controlled by members of Congress (as opposed to the RNC and the DNC) from raising and spending soft money. You can follow the thread here.

In addition, a reader sends along the following criticism of Bauer:

Note Mr. Bauer's change of view in comments from his two emails and his testimony before and
comments to the FEC in June of 2002 regarding and his 2002 book, Soft Money Hard Law:

a) the intent of the law;
b) applicability of Section 323(e);
c) whether or not Section 323(a) is the governing provision;
d) degree of control federal officeholders have with the national congressional campaign
committees



From today's emails:

"1. The law aimed to expunge soft money entirely from the financing of the national party
committees."

"1. I hold the view appearing anonymously on Rick's blog: there are provisions that apply
specifically to parties, and those provisions control here and thus also govern the activities of
congressional campaign committees unquestionably included within the definition of parties."

"2. Section 323(e) was intended to apply to candidate-controlled "entities" that are not
parties: specifically, leadership PACs. Hence, Senator Feingold introduced into the Senate record
on March 18, 2002, this explanation of section 323(e):

By including entities established, maintained, controlled, or acting on behalf of federal and
state officeholders and candidates, they also prohibited so-called "leadership PACs" or "candidate
PACs" from raising or spending soft money in connection with Federal elections and are designed to
prevent evasion of the law by federal or state candidates or officeholders using section 501(c)(4)
or 527 organizations "

"I would have to insist--as one who represents parties, you would expect no less--that while
candidates and officeholders may be deeply involved--indeed in many practical respects
superintend-- the operation of parties, it is a mistake of some theoretical, practical, and legal
magnitude to believe that parties are merely their alter egos."



FEC's Public Hearing: Prohibited and Excessive Contributions Non-Federal Funds or Soft Money June 5, 2002

COMM. THOMAS: With regard to another question I wanted to get something cleared up. Some press
has been made of the issue of maybe the national party committees having the opportunity to raise
some nonfederal monies like the leadership PACs apparently are going to be allowed to raise. I
gather what you're talking about is a suggestion that the national party committees ought to be
able to raise up to $20,000 per year from any individual for non-federal election purposes in
addition to the 20,000 per year they can take from an individual for federal purposes and then in
addition every PAC in America could give $15,000 for a non-federal account of the national party
committees, each one of them, the DNC, DCCC, and the DSCC. So that's what you're suggesting that
we adopt? I want to be clear on what you're urging.

MR. BAUER: Yes. The limit, of course, goes up to 25 after November 5 for individuals but that is
correct on the same, it seems to me, perfectly legitimate and supportable theory that motivates
Senator McCain's statement on the floor of the Senate, that the leadership PAC that he directs and
others that are directed by members of Congress or associated with members of Congress ought to
continue to be able to raise a pool of money limited in amount, restricted as to source, for the
support of state and local candidates. That cannot be soft money.

Number one, it's not soft money because Senator McCain and others in contemporaneous legislative
history defined it as not soft money and. Secondly, because it is indeed subject to federal law
limits and source restrictions and, thirdly, because in fact it will not be used, by definition,
for federal election-related activities. By definition it is for the support of state and local
candidates.

And the parties certainly no less than the leadership PACs and members want to continue to be
involved in state and local election activities for a whole host of reasons that people will
understand both historically and from the literature. The key here is that there isn't any
rational distinction to be drawn as a matter of legislative history, statutory construction, or
policy between a member's leadership PAC and a member's political party organization.

COMM. THOMAS: Now, as I understand, the good senator's argument based on the comment he submitted
he's saying that the language in the statute in BCRA that deals with restricting what the national
parties can accept is governing and that that would override any other allowance that might be
available with respect to some sort of nonparty committee. You don't buy that?

MR. BAUER: No, I must say I don't because with all due respect I'm not picking a quarrel with any
U.S. senator even of the other party --

COMM. THOMAS: That would be wrong, of course.

MR. BAUER: But I don't believe it has any merit at all. It is not rooted in the statutory
language. It's not rooted in the policy of the act. If you look at the legislative history, and we
cite in our comments a statement by Congressman Shays, one of the principle sponsors, who says the
regulation we are directing toward national parties is being directed toward them because their
activities are intertwined, the word he uses is "intertwined," with the activities of federal
officeholders and federal candidates, and it is soft money fund-raising by federal office holders
and federal candidates that the national party prohibition is meant to address.

They want to break the link between unregulated soft money and federal officials and candidates
whose actions may reflect quid pro quo influences, if you will, and they want to break that
connection between that soft money and the use of that money to influence federal elections.
Senator McCain is exactly correct that when the money is raised under federal law limits and
source restrictions for state and local candidate support only none of these concerns with soft
money which underlie Mr. Shays' statement are implicated. There's no reason to prohibit them from
doing it. None of the policy goals of the statute will be frustrated by allowing them to do so.

And it is impossible to understand how it is okay for federal candidates and officeholders to
raise this limited state and local candidate support money to a leadership PAC and not into a
party committee. Why would that be? Why would Senator McCain be able to do it and a senator who
directs the Republican Senatorial Campaign Committee, Senator Frist, could not do it?

COMM. THOMAS: Well, it may be that if we can't buy your argument that the best option is to work
with all of these other groups that will be out there and will be technically not the party
committees but they might be (c)(3)s or (c)(4)s that could perform roles much similar to the
leadership PACs.

MR. BAUER: Well, if I may say so, and I'll yield to my other colleagues, I don't know that we're
going to be satisfied by being invited potentially at great legal risk to accomplishing indirectly
what the statute does not prohibit us from doing directly.

COMM. THOMAS: Well, I know it may be awkward but, I mean, we may have a bit of a stretch going
with the interpretation you're suggesting. That's all I'm suggesting. So we may have to invite you
to work with whatever else is left.

MR. BAUER: Thank you.



Comments of DNC, DSCC and DCCC on Notice of Proposed Rulemaking: Prohibited and Excessive Contributions Nonfederal Funds or Soft Money

Moreover, there is no discernible or logical difference in the rule fashioned for leadership
PACs and for national party committees. In both cases, the rule is concerned with the activities
of federal officeholders and candidates, and with the need to limit their raising of "soft money."
As the Commission notes, the soft money restrictions on national parties stem precisely from the
role played in their activities by federal candidates and officeholders

According to Congressman Shays, the corrupting dangers of funds raised outside the
Act's prohibitions, limitations, and reporting requirements is present in the funding of national
parties given that they operate at the national level and "are inextricably intertwined with
Federal officeholders and candidates, who raise money for them...67 Fed. Reg. at 35660, citing
Statement of Rep. Chris Shays (R-CT), 148 Cong. Rec. H408-409 (daily ed. Feb. 13, 2002)



Soft Money Hard Law - A guide to the New Campaign Finance Law, Robert F. Bauer, 2002

"Each of the major parties operates three national organizations recognized at federal law:
the national committee of each party, 12 and the 'congressional campaign committees' representing
the parties' interests in House and Senate, as well as other elections. 13 The Act imposes
different rules on the different kinds of political party committees take the lash more than the
others.

12 In the case of the major parties, these are the Democratic and Republican National
Committees.

13 The National Republican Senatorial Committee and the Democratic Senatorial Campaign
Committee, active on the Senate level, and the National Republican Congressional Committee and the
Democratic Congressional Campaign Committee, active in House campaigns. These committees answer
to and are directed in their operations by the incumbent Members of the Senate and House of each
party."

Pages 10 - 11

Update: Bob Bauer responds here.

posted by Rick 2:12 PM

. . .

The Supreme Court Should Stay Enforcement of Leon-McCain-Feingold Here is an oped that I have written rejected by some of the finest newspapers in the country. It is nice that I can instead engage in this vanity publishing:

After many months of waiting, the special three-judge court hearing the challenge to the McCain-Feingold campaign finance law has finally issued its decision. Its judgment should never take effect. The court, or the Supreme Court, should issue a stay allowing the law as written to continue in place pending a final decision by the Supreme Court.

There is no question that each of the three judges on the lower court panel worked extremely hard, producing a set of opinions that may be the longest in United States judicial history. But collectively, the three judge panel failed.

Because the three judges agreed on so little, they issued three separate opinions. One judge wanted to uphold almost all of the law, one judge wanted to strike down almost all of the law. That left the third judge, Judge Leon, in the driver's seat. Unfortunately, his opinion will wreak havoc on the upcoming election season if it is allowed to stand. The split decision creates a mish-mash that likely pleases no one. We are better off returning to the status quo ante.

Two particular issues from Judge Leon's opinion stand out as especially troubling. First, Judge Leon created a rule for regulating broadcast issue advertising by corporations and labor unions that is unworkable and raises serious First Amendment problems. Congress had created a clean, bright line test for regulating such advertisements: any ads featuring a named federal candidate within 60 days of the election (or 30 days of a primary) could not be paid for with corporate or union funds. As a backup, Congress said that corporations and unions may not run any ad that supported or attacked a candidate for federal office, provided that the ad could be understood plausibly as electioneering for or against a candidate.

Leon said the first rule was overbroad, capturing too much election speech. And he said the second rule's "plausibility" test created vagueness problems. So he lopped off that part of the backup test and kept the rest standing, meaning that that corporations or unions cannot run ads, at any time, "supporting" or "opposing" a candidate for federal office. Leon gave no guidance on how this test is supposed to work.

Could General Motors or the AFL-CIO tomorrow (well before the election) be held to violate federal campaign laws by running an ad featuring a picture of President Bush and praising our troops? Even ardent campaign finance reform supporters likely won't like that rule. It creates more vagueness and overbreadth problems than the bright line test he rejected.

The second problem with Judge Leon's ruling relates to soft money. He upheld part of the ban but held that any time a party has both a federal and non-federal purpose for the soft money, Congress may not regulate it. Judge Leon's opinion likely creates a loophole the parties can drive a truck through.

In the meantime, presidential and other federal candidates will not know what to do. Beyond the lack of clarity coming from the court's three opinions, we don't have operative FEC regulations. This is a disaster for the real world of campaigns.

The law as rewritten by Judge Leon is a far cry from what Congress passed. We have instead the law of unintended consequences. The Leon-McCain-Feingold law should not be in effect, even for one day. It is time for the three-judge court or the Supreme Court to issue a stay.

posted by Rick 12:52 PM

. . .

Debate on BCRA See this report.

posted by Rick 12:41 PM

. . .

Still more on factfinding by the three-judge court The issue, as posted in more detail here, is that the three judge court made very few substantive findings of fact in the per curiam opinion joined by two of the three judges. Each judge issued his or her own findings of fact separately. George Waters notes that what this may mean is that the Supreme Court may have to "put all 3 judges' individual findings onto a spreadsheet and then see where they overlap."

Perhaps so. But footnote 143 of Judge Leon's opinion may make things easier. It reads in pertinent part:

In those sections where I have concurred in the judgment and reasoning of one of my colleagues, she may be basing her opinion on her individual Findings of Fact that relate to that section. Unless otherwise necessary, I have, to the extent possible, refrainedfrom repeating those findings in my Findings of Fact. Hence, to that extent, my set of Findings does not include all of the facts that I have relied upon in reaching my various judgments.

I think this can be fairly read to say when Judge Leon has concurred in the reasoning and judgment of one of the other judges and has not adopted contrary findings, he joins in the other judge's findings.

posted by Rick 12:00 PM

. . .

Procedures for hearing BCRA appeal in the Supreme Court The Washington Post offers this very interesting report. Among other things, it suggests a possible rift among plaintiffs on strategy. The Hill offers this report.

posted by Rick 9:22 AM

. . .

Market for access v. lack of a smoking gun I have now read Judge Kollar-Kotelly's opinion more carefully. To anyone who has read this opinion and Judge Henderson's opinion but who is generally not familiar with the academic debates over campaign finance regulation (I think that perhaps no one fits into that category), the contrast between the two world views may seem very sharp. But for those of us steeped in this literature, the positions are just about entirely as expected. I noted yesterday here that Judge Henderson's view is the typical BeVier-Smith-Justice Thomas deregulationist position. "Show me the corruption," this camp says. We want to see evidence that parties are selling access, and that access leads to empirically measurable changes in the aspects of political behavior in Congress.

Justice Kollar-Kotelly's opinion reads much more pro-regulationist (I put myself in that category, along with people like Richard Briffault, Dan Ortiz, and Justice Breyer). Kollar-Kotelly sees ample evidence of the sale of access going on, making numerous factual findings about exchanges of access to large soft money contributors, and is quite willing to assume (along the lines of deposition testimony such as Tom Mann's), that what access buys is usually not measurable. How do you know why the bill did not make it out of committee, or the slight word change that leads to a large tax advantage for a huge donor?---not necessarily because of a quid pro quo, but because access gives the donor a chance to have the ear of the officeholder and make a reasoned case.

Kollar-Kotelly spends the bulk of her opinion making two points: (1) She demonstrates the realities (as she sees them) of the current political process---particularly the sale of access and the role of corporations and labor unions in the political process; (2) she spends literally hundreds of pages defending the results of the Buying Time studies of the Brennan Center seeking to figure out how much "genuine issue advocacy" would be covered by the "bright line test" in BCRA. This issue is crucial for upholding the constitutionality of the provision, as I have argued in Measuring Overbreadth: Using Empirical Evidence to Determine the Constitutionality of Campaign Finance Laws Targeting Sham Issue Advocacy, 85 MINN L. REV. 1773 (2001). [Disclosure: I worked with the Brennan Center in constructing my own data from their dataset for this article, and had a small grant from Pew to do so.] I'll be blogging more on the overbreadth issue in the next day or so.

I was struck by how little there was in Kollar-Kotelly's opinion on matters besides these first two matters. Nothing on disclosure. Little on particular soft money provisions. No defense whatsoever of her decision (indefensible to me---more on that later too) to join in Judge Leon's alternative approach to regulating sham issue advocacy. My guess is that time just ran out on some of these issues.

posted by Rick 9:13 AM

. . .

Congratulations to Howard Bashman Today is the one year anniversary of How Appealing. Congratulations to Howard Bashman! In January, I was talking to a Loyola colleague about the filibuster controversies. He told me about Howard's blog. "What's a blog?," I asked. Instantly I was hooked, and soon I started blogging myself, with some help and encouragement from Howard. He provides a wonderful service for all of us. What I have tried to emulate here I first saw on his blog. Although he has definite political views, he is fair and extremely open to providing access and seriously considering issues from other points of view. Well done! I understand that Howard will be celebrating with a BCRA-delayed haircut.

posted by Rick 8:49 AM

. . .

Follow-up on Bauer's "The McConnell Spin Factory" Marty Lederman and Bob Bauer are debating the merits of Bob's post to the election law listserv reprinted in the post immediately below. To follow the argument, click here for May's archives and look at the posts near the end of the list with that title.

posted by Rick 8:36 AM

. . .

"The McConnell Spin Factory" Election law attorney Bob Bauer weighs in with a post of this title on the Election law listserv. In its entirety, it reads:

I cannot resist a comment on the churning dispute, at least as it being waged in DC, over the meaning of the three-judge district court decision in McConnell.
Commentators whom I know, like and admire, nontheless have propounded the view that this case was more than not a victory for the defendants, leaving intact and healthy the foundations of the McCain-Feingold structure. But how in the world can such a claim be made?
And what would be the cost of dispensing with the spinning and making the obvious point that, whatever the damage to the defendants' position, the court's opinion is fractured, characterized by a partisan split of its own, open to fair objections to the quality of its analysis and very likely to be superceded eventually and in its entirety by the Supreme Court? Why not say that the Court was wrong, and has issued an opinion that in the long run, in their view, won't matter?
Instead, a most peculiar claim of substantial success has been made--a claim somewhat of the nature of "There are no Americans at the airport--I can assure you". Consider:

1. The law aimed to expunge sft money entirely from the financing of the national party committees. The "Court" held that national parties could raise and spend soft money, except (per Judge Leon) for activities directly affecting a federal election. Within those activities, he included "candidate-centered" issue advertising; outside of them, lies a range of other activities, from get-out-the-vote and voter registration, to generic "Vote Republican" advertising, that he treats as "indirectly" affecting federal elections and hence payable in part with soft money.

In the last day, advocates for the defendants' have taken the fallback position that things are not what they seem--that the defendants won a large part of what they were seeking from the Court on the question of the national parties. Their claim is that because the court upheld the prohibition on soft money fundraising, direction or disbursement by federal officeholders and candidates, the congressional campaign committees cannot escape their association with these officeholders and candidates and thus are unable to raise and spend soft money. This argument rests on the implausible ( I am being polite) premise that when the court held that all national party committees could raise and spend soft money for certain purposes, it a) meant that only three of them could; or b) did not know what it was doing, and will somehow be frustrated in its intent by a legal analysis it overlooked, based on the involvement with the parties of officeholders and candidates.

The Court, however,had before it an extensive record on the activities of all the national party committees, and understood and indeed commented on the role of candidates and officeholders in their operations. In fact, Judge Kollar-Kotelly found that all the party committees operated on behalf of and at the direction of candidates and officeholders, including in the case of the national committees, Presidential candidates (or Presidents). We are somehow to believe that in holding that parties could raise certain types of soft money, but officeholders and candidates cannot, the Court held in fact that because officeholders and candidates could not, neither could half of the national party organizations. Rather different holdings, are they not? And where is the latter to be found in the text of any of the opinions? And does the irony not occur to those making the argument that under their interpretation, the national committees--not too many years ago, after the l996 election, condemned by them as breeding
grounds of the most putrid corruption generated by the irresistible lure of the most powerful office in the land--would be the ones left to hawk their wares? (Please note today's press reports of the "White House's" selection of a new RNC Chair. The RNC controlled by a federal officeholder? No waaaaay.)

2. Then there are the state and local parties. As the judges point out, and as the record reflects, the defendants justified the restrictions on state and local party soft money activities as absolutely essential--ones so critical to the coherence of the scheme, that without them, the entire edifice of good works would crumble under the pounding of relentless circumvention. Once again, with the exception of the "candidate-centered" issue advertising, these restrictions fell: limitations on "federal election activity", the Levin amendment fundraising provisions and restrictions (no longer needed), the new allocation formulas for Levin activity, and so forth.

3. There is a fair but in my view superficial case to be made that the defendants did better with the Court's ruling on outside group issue advertising--better than expected, at least. And it it is true that under the Leon opinion, groups engaged in this kind of advertising would be subject to FECA jurisidiction throughout the cycle, if running the type of "electioneering communication" captured by the back-up definition. Yet the effect of the holding is to lose the certainties of an absolute, bright-line test, in favor of a content-based standard that will open the way for endless contention and litigation over which ads are "genuine" and which are not. The Supreme Court will not likely fail to see this; nor fail to note the Leon suggestion that those considering such ads always have recourse to an Advisory Opinion request seeking preclearance of an ad text from the federal government. And if the Supreme Court found a way to sanction this framework, there is every reason to believe, because history is chock full
of examples of it, that over time, the government will simply be unable to manage enforcement of this type of standard. If the backup provision as upheld gets past the Supreme Court this time, I have no doubt that it will wind up before it again, on an "applied basis", and before long, it will not mean much.

4. Coordinated/Independent Expenditure Choice--Some have expressed surprise at this holding, but I do not share it. (The choice was devised solely and exclusively as an attack on Colorado Republican I, to make it harder for parties to do what that case holds that they are constitutionally entitled to do. There is no compensating "benefit" to the parties offered by the law in return for foregoing independence. Rather, if they insist on independent activity in the post-primary period, they are deprived of any meaningful involvement with their candidates. In other words, they cannot both act as a party and also, as useful and appropriate, independently. This is competely, clearly and undoubtedly at odds with Colorado Republican I, regardless of what one may have thought of the rationale of the Colorado court in the first instance. And the Court recognized it.

5. Anti-Coordination Rules--the Court upheld the provisions in principle, but the battle over this provision will take the form of disputes, including litigation, over the enforcement of the new FEC rule.

6. Federal officeholder and candidate fundraising--clearly a win for the defendants: the only clear win of its kind.

7. Hard money provisions: and specifically the millionaire's amendment (I have little doubt that the increased limits will be upheld at some point): decision deferred.

I don't see this as amounting to a substantial a victory--however little it may matter one way or other other over the long term. And I see no point whatever in making the claim. It is obviously false, and the Supreme Court is unlikely to rule off press releases.

I think Bob is right on most of this. I find Bob's first point particularly right, and I'll have more to say about Judge Leon's opinion soon, perhaps tomorrow.

posted by Rick 9:56 PM

. . .

More BCRA news and commentary E.J. Dionne weighs in here. The New York Times editorializes here. The Times also notes here that the parties are filing their appeals with the Supreme Court. And Adam Clymer weighs in here with a comparison between now and 1976, when Buckley arose.

posted by Rick 9:45 PM

. . .

More on Cromartie and factfinding George Waters responds here to my earlier post here on the question of the Court's review of factfinding in the absence of a majority. He notes:

But consider an important difference between MCCONNELL and CROMARTIE. In CROMARTIE, the supreme court found that certain findings were clearly erroneous. CROMARTIE demonstrates that the supreme court could find any or all of the facts in the MCCONNELL per curiam opinion clearly erroneous. But the MCCONNELL per curiam opinion contains only 52 findings, and of them, 40 have to do with the identity of the parties. Of the remaining 12, the majority begin with statements like "Study A found this . . ." or "Joe testified that [blah blah blah]."

The effect of this on MCCONNELL is that for the vast majority of the legal issues presented, there are no findings of fact. What happens in this circumstance? Does the supreme court now become the finder of fact on all issues? Returning the case to the district court for further findings does not appear to be an option. Is there any precedent for what happens in this situation? In their original jurisdiction cases, don't they appoint a special master? Could they do that here?

or are the underlying facts of this case of such magnitude (e.g. issue ads [do] [do not] promote the appearance of corruption) that lower court factfinding should be done away with entirely?

Judge Henderson's footnote 55 may answer some of these questions, in her citation to Justice Goldberg's dissent in Wright v. Rockefeller. Justice Goldberg first noted that "The District Court was a three-judge court and the three judges did not agree upon and, a a court, made no express findings of fact. Instead there were three separate and differing opinions." Then, after noting that the judges that concurred in the lower court had different reasons and applied different constitutional standards, Justice Goldberg wrote:

In light of these conflicting opinions and analyses, this case cannot be fairly decided on the ground stated in the opinion of the Court, viz., that '(w)e accept the District Court's finding.' Ante, at 606. Which finding and under what constitutional standard--Judge Moore's, Judge Feinberg's or Judge Murphy's? Judges Moore and Feinberg, who comprised the majority below, differed both with regard to the constitutional standard and, as I read the opinions, with regard to the proof. It should not be forgotten that the conclusions of the District Court--both as to law and fact--have not been reviewed by an intermediate appellate tribunal. Instead the case has come directly to this Court from a three-judge District Court and presents a record containing variant and inconsistent legal and factual conclusions. Even where a three-judge District Court has made a unanimous finding of fact, this Court has given that finding less deference where, as here, it depends on evidence that is largely documentary and particularly where, as here, 'the crucial issues involve mixed questions of law and fact.' United States v. United States Gypsum Co., 333 U.S. 364, 396, 68 S.Ct. 525, 542, 92 L.Ed. 746. In my view, we cannot, in light of the record in this case, rest our decision on the 'finding' of the District Court without abdicating our responsibility for principled constitutional adjudication.
My Brother DOUGLAS in his dissent has set forth the virtually undisputed facts. I shall not repeat them here. He has also set forth the correct constitutional standard which I believe we should unhesitatingly reaffirm and apply. On the basis of the evidence, ] I agree with Judge Murphy's conclusion 'that the only available inference from the * * * uncontradicted figure picture establishes per se a prima facie case of a legislative intent to draw congressional district lines in the 17th and 18th Districts on the basis of race and national origin.' Id., at 472--473. ...

Under Justice Goldberg's approach, it appears that the Court in the BCRA litigation would give little deference to the findings of fact---given that this is a documentary record here with no credibility determinations---and then just rely upon facts that are "virtually undisputed" (or perhaps agreed to by two judges). That would not necessarily be limited to just the findings expressed in the per curiam opinion.

But note that the majority in Wright v. Rockefeller accepted the district court's "findings" when there may not have been any. This too is a possible approach---ignore the problem.

posted by Rick 4:40 PM

. . .

Bopp statement on BCRA litigation Jim Bopp is an election lawyer who has succeeded in getting more campaign finance laws thrown out as unconstitutional than anyone else I can think of. He has issued a press release about the ruling available here at the James Madison Center website.

posted by Rick 3:29 PM

. . .

Libertarian party press release on BCRA decision See here.

posted by Rick 3:10 PM

. . .

"Little or no discussion" about a stay Bloomberg reports here: "Jan Baran, a lawyer on McConnell's team, said there has 'been little or no discussion'' among his colleagues about whether they would try to have the lower court ruling put on hold while the Supreme Court hears an appeal."

posted by Rick 3:06 PM

. . .

In other election law news The oral arguments before the Georgia Supreme Court in Perdue v. Baker (the state law case deciding whether the Georgia Governor or the Georgia attorney general gets to direct the litigation before the U.S. Supreme Court in the voting rights case of Georgi v. Ashcroft) will be webcast at this link (via SCOTUSblog.

In addition, Ed Feigenbaum reports:

Indiana will have a primary election Tuesday in which a legislatively mandated "Voter's Bill of Rights" will be employed for the first time. Our new Secretary of State, Todd Rokita, describes it as "a plain language document about accessibility and accountability; accessibility for those who have the right to vote and accountability for those who intend to commit fraud."

You can read the new document here. The Secretary of State's Office published a poster of the Voter's Bill of Rights to be displayed in all polling places (the poster was also produced in Spanish). The link to the poster can be found here.

The Indiana General Assembly engaged in a lot of collective back-patting for pushing this last year.

posted by Rick 3:02 PM

. . .

Could political parties be prosecuted for raising soft money under provisions struck down by the district court? Before the BCRA court issued its opinion, I posted here a comment from Professor Bruce LaPierre. He raised the possibility that political parties raising soft money after a decision striking down the ban as unconstitutional could perhaps be prosecuted if the Supreme Court ultimately reverses.

Now that this is a reality (and parties are facing this question, see here and here), I thought it would be worth asking Doug Laycock of the University of Texas Law School for his opinion. Laycock does not write about election law, but he is one of the top Remedies people in the country and one of the smartest all around people I know. (I use his wonderful casebook when I teach Remedies.)

Laycock's short answer is that the law is muddled, but prosecution is quite plausible. See Douglas Laycock, Modern American Remedies: Cases and Materials 543-46 (3d ed. 2002), which raises the analogous problem in the case of reliance on a preliminary injunction.

For those who want more detail, I reproduce those pages (without proper formatting, but with his permission).
NOTES ON PRELIMINARY INJUNCTIONS AGAINST PROSECUTION

1. If Salem Inn might go bankrupt without a preliminary injunction, doesn't M & L face the same risk? Indeed, isn't M & L even more likely to go bankrupt if its competitors continue to offer topless entertainment while it is deterred by repeated prosecutions? If you're representing a client who believes a statute is unconstitutional, how should you advise him after Doran? How do you proceed if you're the prosecutor?
2. What happens if the ordinance is eventually upheld? The preliminary injunction would then be vacated, and there would be no permanent injunction. Could Salem Inn and its dancers then be prosecuted for violations committed under the protection of the preliminary injunction? If a preliminary injunction doesn't confer permanent immunity, doesn't it leave plaintiffs in the Young dilemma?
3. Justices Stevens, Marshall, and Brennan debated these issues in Edgar v. MITE Corp., 457 U.S. 624 (1982). The majority did not reach the issue, holding that it should be considered only if the state actually filed a prosecution for violations committed while the preliminary injunction was in effect.
Justice Stevens, concurring, thought it clear that "federal judges have no power to grant . . . blanket dispensation from the requirements of valid legislative enactments." A federal plaintiff violating the law in reliance on a preliminary injunction ran the risk of later prosecution if the injunction were vacated, just as she ran the risk of liability on the preliminary injunction bond.
Justice Marshall, dissenting, thought that Stevens's position made the preliminary injunction useless. In his view, "it should be presumed that an injunction secures permanent protection from penalties for violations that occurred during the period it was in effect." He cited cases invalidating convictions of defendants who had been assured that their conduct was lawful. Justice Brennan joined Marshall's opinion.
4. A preliminary injunction that doesn't preclude prosecutions after trial may still have some uses. If the court says the statute is probably unconstitutional, or almost certainly unconstitutional, plaintiffs may feel safer relying on the court's opinion than on their own, even though they know the court might change its mind or get reversed.
Second, without the preliminary injunction, plaintiffs might be in jail pending trial. As Professor Amsterdam said of the desegregation and voter registration campaigns of the 1960s, "The battle is for the streets, and on the streets conviction now is worth a hundred times reversal later." Anthony Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U. Pa. L. Rev. 793, 801 (1965). Sometimes the opposite is also true; freedom to speak now may be well worth the price of conviction later.
These considerations mean that a preliminary injunction that doesn't confer immunity is better than nothing. Even so, doesn't it fail to achieve the central purpose of prospective relief against unconstitutional statutes?
5. What irreparable harms does the court balance at the preliminary injunction stage? Shouldn't the court balance the harm to the public and to any victims if violations continue until trial, against the harm to plaintiff if she has to comply until trial? If that balance of hardships tips toward plaintiff when considered in light of the probability of success, isn't that a judgment that it's better for the statute to be violated until trial, even if the statute turns out to be valid? The form of the preliminary injunction is that there can be no prosecutions until after trial. But what is the substance of the court's decision? Isn't it that irreparable injury to both sides will be minimized by permitting violations until trial? Doesn't it defeat that decision to permit later prosecutions? The risk of subsequent prosecutions will deter violations in cases where the court has found that irreparable injury to all sides will be minimized by permitting violations. Won't that inevitably increase irreparable injury? This argument was first developed by my student, James Newsom, in an unpublished paper.
6. Even so, isn't Justice Stevens right that the federal courts have no power to enjoin enforcement of a constitutional statute? He could have cited the Court's structural injunction cases for the proposition that "judicial powers may be exercised only on the basis of a constitutional violation." Swann v. Charlotte﷓Mecklenburg Board of Education, 402 U.S. 1, 16 (1971). Where's the constitutional violation if the statute isn't unconstitutional? Justice Marshall hinted that a prosecution for violations committed under the protection of a preliminary injunction would violate the Due Process Clause. Does it matter that the trial court said only that the statute was probably unconstitutional?
7. If there's no constitutional violation, where did the federal court get authority to issue the preliminary injunction? Is a probable constitutional violation enough? Justice Stevens argued that the preliminary injunction is based on an alleged violation plus the federal court's authority to preserve its jurisdiction. That authority does not entirely disappear when the statute is upheld on the merits. There is no doubt that the court could punish the prosecutor for criminal contempt for initiating a prosecution while the preliminary injunction was in effect, even if in the meantime the preliminary injunction had been vacated and the statute upheld. See Walker v. City of Birmingham, reprinted infra at xxx. Doesn't that mean that some power comes from the incidents of the judicial process, and not merely from constitutional violations?
8. None of the justices found Oklahoma Operating Co. v. Love, 252 U.S. 331 (1920). In a unanimous opinion by Justice Brandeis, the Court said that if a preliminary injunction against enforcement were held erroneous on final hearing, "a permanent injunction should, nevertheless, issue to restrain enforcement of penalties accrued pendente lite [pending litigation], provided that it also be found that the plaintiff had reasonable ground to contest" the challenged law. Id. at 338.
Is that a reasonable compromise? What does it rest on? The power to do complete equity in the case? Is there anything left of that power after the structural injunction cases? If Love wasn't implicitly overruled in those cases, was it wiped out by the Court's fresh start in Younger and Steffel?
9. Suppose that the Court eventually upheld the law in Doran, that Salem Inn was prosecuted in state court, and that it pled its reliance on the preliminary injunction as an affirmative defense. Is that a state or a federal defense? Could the Supreme Court reverse a conviction? If a dancer were imprisoned, could she raise the preliminary injunction defense on federal habeas corpus? If Stevens is right that there is no constitutional power to enjoin prosecutions, there probably is no constitutional power to overturn convictions either.
10. Does a criminal defendant who relied on a preliminary injunction have any state-law defenses? The Model Penal Code creates a defense of "belief that conduct does not legally constitute an offense . . . when . . . [defendant] acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in . . . a judicial decision, opinion or judgment . . . ." Model Penal Code 2.04(3), 10 Unif. L. Ann. 468 (1974). Is it "reasonable" to rely on a statement of law in an opinion granting a preliminary injunction? Is it reasonable after Edgar?
Edgar arose in Illinois, where the Model Penal Code provision had been limited to reliance on appellate decisions "later overruled or reversed." 720 Ill. Comp. Stat. Ann. 5/4-8(b)(3) (1993). The Illinois courts have accordingly held that reliance on a trial-court judgment dismissing a criminal prosecution on the merits is not a defense to a subsequent prosecution for an identical offense. People v. Knop, 557 N.E.2d 970, 974-975 (Ill. App. Ct. 1990). What does that say about the Court's basic assumption in Younger -- that defense of a criminal prosecution will authoritatively resolve the constitutional issue?
There are older cases going both ways on whether reliance on a preliminary injunction is a defense when the statute is silent. Such a defense was allowed in United States v. Mancuso, 139 F.2d 90 (3d Cir. 1943), and in several cases collected in City of Marysville v. Cities Service Oil Co., 3 P.2d 1060 (Kan. 1931). It was disallowed in State v. Wadhams Oil Co., 134 N.W. 1121 (Wis. 1912), and State v. Keller, 70 P. 1051 (Idaho 1902).

posted by Rick 1:56 PM

. . .

Judge Henderson on disclosure Judge Henderson's opinion reads very much like the majority opinion I had imagined from the three-judge court. From reports at oral argument, I expected that Judge Leon would be siding with Judge Henderson on these issues. This is the brief that Justice Thomas would have written if he were a lower court judge bound by Supreme Court precedent but itching to strike down as much of the BCRA as possible. Judge Henderson cites those parts of the Supreme Court campaign finance jurisprudence that are the most hostile to regulation, and underemphasizes (in my view) those parts of the jurisprudence contrary to her position. The legal scholarship she cites as backup is primary the strongly deregulatory scholarship of Lillian BeVier, Brad Smith, and Scot Powe.

In one regard, Judge Henderson may go beyond Justice Thomas (we'll know soon enough). She voted to strike down various disclosure provisions of the law applicable to corporate and union spending on "electioneering communications." Many deregulationists point to disclosure as a more narrowly tailored alternative. But in the last few years they have challenged even disclosure. I debated BeVier on this point a few years ago. See Richard L. Hasen, The Suprisingly Complex Case for Disclosure of Contributions and Expenditures Funding Sham Issue Advocacy, 48 UCLA Law Review 265 (2000); Lillian R. BeVier, Mandatory Disclosure, "Sham Issue Advocacy," and Buckley v. Valeo: A Response to Professor Hasen, 48 UCLA Law Review 285 (2000).

posted by Rick 1:27 PM

. . .

Thomas Mann on BCRA decision Brookings' Thomas Mann has posted this analysis of the three judge court. Mann was an expert for the defenders of the law and his testimony cited extensively in the various court opinions.

posted by Rick 1:13 PM

. . .

Definition of "corruption" Page 220, note 148 of Judge Henderson's opinion notes varied definitions of "corruption" that might be applied to test the constitutionality of the ban on corporate and union electioneering communications. Curiously absent from the list is the definition of corruption of the Supreme Court in Austin v. Michigan Chamber of Commerce, a definition used by the Supreme Court in the corporate context. (Judge Henderson cited this other definition earlier in her opinion).

posted by Rick 12:22 PM

. . .

More controversy swirls around whether section 323(e) of the BCRA allows congressional party committees to collect soft money D.C. campaign consultant Jay Cooper writes:

Trevor Potter stated on the radio today that the house and senate national congressional campaign committees could not raise any money due to their being controlled by Federal officeholders (Section 323(e)). He was very nonchalant about relaying this point (it was more of an "obviously they cannot raise any soft dollars") and was not a separate statement, but rather dropped in his discussion.

Watch for this issue to either be the reformists new focus (conceding the activities of the DNC and RNC for now) and/or a cause of serious infighting amongst the 3 national party committees of each Party (in which case you may hear the arguments that the national congressional campaign committees are not covered by Section 323(e) or, more interestingly, that the DNC and RNC are also covered by Section 323(e) as the principal campaign committees of the Presidential nominees).

This will be very interesting up here in D.C.

Thanks for writing.
UPDATE: Potter makes the same point in this press release.

posted by Rick 11:27 AM

. . .

More on review of factual findings Today I am going through the opinions more carefully (or at least beginning to do so), and I'm just going to raise some issues here as I see them. I have been writing about the particular difficulties with factfinding on three-judge panels (see here and here; see also Eugene Volokh's post). Before the opinion was announced, I wrote the following about factual findings at this post:

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.

It turns out that Cromartie was very much on the minds of the judges on the three judge panel. In footnote 36 of the per curiam opinion, Judges Kollar-Kotelly and Leon defend the time they took to decide the case in part out of fear of Cromartie: "Moreover, given the vast record developed through the six months of discovery in this case, it is not surprising that this Court required a few more months than the Buckley court to arrive at a decision after arguments--for only careful consideration of the record before us could reduce the risk of committing clear error in our findings. Cromartie." Judge Henderson, in contrast, expressly disagrees with the factual findings made by the other two judges, and invites the Supreme Court to undertake a plenary review of the facts as in Cromartie (this is footnote 55): "I note that several factors common to [Cromartie] and the consolidated actions before us suggest that the Court may be more willing here than in normal cases to undertake an 'extensive review' of the record and to set aside findings with which it disagrees: [citing excerpt from Cromartie]. I note as well that an additional factor...may justify an extensive review of the record here---the factfinders are not of one mind. Cf. Wright v. Rockefeller.

posted by Rick 11:21 AM

. . .

Judge Henderson and Chief Justice Burger Compare:

Judge Henderson in McConnell: "[T]he opinions are similarly flawed in their dissection of the statute's dense and interlocking provisions, upholding a portion here and strike downn a fragment there until they have drafted legislation the Congress would never have enacted -- all in the name of deference to that body."

Chief Justice Burder in Buckley: "More broadly, the Court's result does violence to the intent of Congress and in this comprehensive scheme of campaign finance. By dissecting the Act bit by bit, and casting off vital parts, the Cour fails to recognize that the whole of this Act is greater than the sum of its parts. Congress intended to regulate all aspects of federal campaign finances, but what remains after today's holding leaves no more than a shadow ow what Congress contemplated. I question whether the residue leaves a workable program."

I disagree with much of what both of these judges say on the merits, but on this point they are surely right.

posted by Rick 10:46 AM

. . .

May 15 Symposium on lower court BCRA decision Kudos to my friend Nate Persily of the Penn Law School for putting together in short order a symposium on the lower court decision---this is an all-star panel and something you don't want to miss. The details are below. (Note that the symposium will be webcast if you can't make it to Penn Law School). Here is Nate's message:

The University of Pennsylvania Law School and the National Constitution Center will be hosting a symposium on May 15 on "McConnell v. FEC: Understanding the Decision and Its Implications." The symposium will feature national experts on campaign finance as well as attorneys and experts involved in the constitutional challenges to the McCain-Feingold campaign finance law: "The Bipartisan Campaign Reform Act". The purpose of the symposium is to bring to the attention of the media and all those interested in the campaign finance debate expert analysis of the district court's recently released 1600 page opinion. As detailed in the schedule below, the symposium will feature three panels of lawyers, law professors and political scientists who will discuss the court's
decision and its implications. The symposium is free and open to the public and anyone interested in attending or participating should
contact Nathaniel Persily (npersily@law.upenn.edu; 215-898-0167). The symposium will take place in Room 245A of Silverman Hall at the University of Pennsylvania Law School, 3400 Chestnut Street, Philadelphia.

"McConnell v. FEC: Understanding the Decision and its Implications"

10:00-10:30 -- Reception and Opening Remarks

10:30 -12:00 -- Panel I: Understanding the Decision
Richard Briffault, Columbia Law School
Trevor Potter, Chair, The Campaign and Media Legal Center; Former
Chairman, FEC
Bob Bauer, Chair, Political Law Group, Perkins Coie

12:00 - 12:30 -- Lunch

12:30 - 2:00 -- Panel II: Critiquing the Decision
Burt Neuborne, NYU Law School; Legal Director, Brennan Center for
Justice
Daniel Ortiz, University of Virginia Law School
Nathaniel Persily, University of Pennsylvania Law School

2:30-4:00 -- Panel III: The Political Implications of the Decision
Michael Malbin, Executive Director, Campaign Finance Institute
Robyn Kolodny, Temple University
Jonathan Krasno, Yale University, Expert Witness for the FEC
Ray LaRaja, U. Mass. Amherst, Expert Witness for Plaintiffs

The symposium will be available on the web at:
http://media.law.upenn.edu/media1

posted by Rick 10:29 AM

. . .

McConnell plaintiffs take first step in appeal to Supreme Court SCOTUSblog has posted this pdf file of the jurisdictional statement of Mitch McConnell in the Supreme Court. Why the rush, given the 10 days to file? My suspicion is that McConnell, who was so insistent that his name be the lead name of the case in the court below (he got the NRA to move out of the way for him) wanted to insure that he got the same treatment in the Supreme Court.

posted by Rick 7:57 AM

. . .

Wall Street Journal article on BCRA ruling entitled "High Court May Weigh Stay of Campaign Finance Ruling," is available online to subscribers. [UPDATE: Howard Bashman has posted a link to the article here and to an editorial on the case here.] The article reports that "By late Sunday, they hadn't reached a conclusion on how to advise clients -- or whether to request a stay. If the decision isn't stayed, the two political parties theoretically could resume collecting softmoney under narrower rules -- as some members of Congress have suggested -- at least until the Supreme Court rules on the case sometime in the next six months." It also says:

"This decision is not remotely close to what we or anyone else anticipated," said Jan Baran, a partner at law firm Wiley, Rein & Fielding, who is co-counsel to Sen. Mitch McConnell (R., Ky.), the chief plaintiff in the case and a longtime opponent of sweeping curbs on campaign donations and advertising. "The result here is somewhat confusing," said Mr. Baran, who also serves as counsel to several state Republican parties, the U.S. Chamber of Commerce and other business groups.

"My advice to everyone is 'go slow,' " he said. That advice isn't just directed at politicians and the parties. For example, he is immediately checking to see whether the new ruling limits the ability of the chamber or other business groups to air issue ads, should they wish to do so, on behalf of the president's tax plan or other policies.

Thanks to the reader for passing this along.

posted by Rick 6:43 AM

. . .

The increase in contribution limits One of the challenges to the McCain-Feingold law that the three-judge panel did not reach was to the increase in individual contribution limits from $1,000 to $2,000, with that number indexed to inflation. I never gave the constitutional argument against the new limits much of a chance, because it is hard to see how even a $2,000 donation to a candidate runs a risk of corruption or the appearance of corruption. It may raise equality concerns, but since Buckley equality arguments have been hard to make, at least up front.

One consequence of the raising of the $2,000 limit 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.

Now comes this report in the NY Times, which confirms the great advantage the $2,000 donation limit gives him.

posted by Rick 8:41 PM

. . .

Section 213 of BCRA This provision gives national party committees the choice between independent expenditures and their special, statutory privilege to engage in coordinated expenditures over and above the contribution caps that apply to other, nonparty committees. All three judges voted to strike this provision down. Is section 213 unconstitutional? There is some interesting discussion on the Election Law Listserv. You can access this month's archives at this link. To follow the arguments, begin the thread with "Invalidation of section 213" by Marty Lederman.

posted by Rick 8:17 PM

. . .

USA Today editorial on BCRA decision available here.

posted by Rick 8:06 PM

. . .

Did the lower court throw out most of the soft money ban or not? See this intriguing post by Marty Lederman over at SCOTUSblog. If nothing else speaks to the failure of this three judge court, it is that now, 48 hours after the opinion issued, no one for sure knows what it means on the key provisions of BCRA. I suspect that the argument raised by Marty is one that even the judges did not consider fully.

UPDATE: I have never delved into the details of the soft money provisions the way a practicing election lawyer would. But someone with more experience with the details sent me the following response to Lederman's analysis:

This provision is not correctly read in this fashion. It applies to "entities", and its intention was to limit the use by officeholder of an organization--like a leadership PAC with a nonfederal account--to raise soft money for political purposes other than those served by his or her principal campaign committee. "Political committee" is a defined term and applies to party committees; and the congressional campaign and national committees are party committes within this definition. The more specific reference prevails
over a general one in detailing the legal rights and restrictions of those committees specifically defined and addressed.

I agree that the opinion on its face and in effect is confusing.

The source adds that there may be other problems with the Lederman analysis.

posted by Rick 1:13 PM

. . .

Did the BCRA judges lack judicial integrity? Larry Solum posted some interesting observations here in response to my post here defending the use of the three judge court. My main point was that three judge courts, at least in theory, remove the problem of the ideological outlier problem that comes when a single judge gets to decide the facts that bind the outcome of the case. In this case, however, the judges couldn't find many facts that they agreed upon, leaving the Supreme Court in a difficult situation. On this point, Larry writes:

Why the failure? I don't know, but I do have a guess. Once judging is politicized, fact finding easily becomes just as political as everything else. Before assuming judicial office, most judges are lawyers--accustomed to dealing with facts as an advocate. Those skills should not carry over to the role of judge, but they can carry over. It is a good bet that the judges on the McConnell panel were unwilling to support findings of fact that would undermine the outcomes they were seeking. As Rick argues, this problem would have been less severe if the case had been decided by a single judge, but in a sense, that would only have masked the problem. A single set of facts found for political purposes would, in a way, have been worse than three contradictory sets of factual conclusions. As it is, we at least know that the judges were not actually trying to find facts that accurately reflect reality. They were trying to find facts that would support the outcomes they wanted. Rick makes this point eloquently:


Now, imagine if the BCRA would have been heard by a single judge. What would those factual findings have looked like? They might have looked like the factual findings of Judge Kollar-Kotelly, those of Judge Leon, or those of Judge Henderson. That's a big risk. If you like campaign finance regulation, you are doomed if you are before a judge like Henderson. If you take a strong first amendment free market position, you are doomed if you are before Judge Kollar-Kotelly. And if you are before Judge Leon, you might be doomed no matter which side you support.


If Rick is right, and I would bet money that he is, then these judges simply failed to do their job with integrity.

I am sorry that Larry interpreted my point to be that the judges would find facts to support the outcome they wanted. I don't believe this to be true. What I believe happened is that reasons of personality and style prevented this particular set of three judges from working together. (See the news reports by Nina Totenberg of NPR and Neely Tucker of the Washington Post last month on the difference in style between appellate Judge Henderson on the one hand and the district court judges on the other. The opinions strongly suggest these news reports were entirely correct.) Had the judges been able to work together, I fully believe they would have agreed on many more facts than appear in the per curiam opinion. Indeed, if you take the 1200+ pages of the three separate opinions, you could probably cobble together a bunch of facts upon which all the judges agree. So some of the failure here has absolutely nothing to do with being result oriented.

But part of it does have to do with ideology. It is not that the judges are politicized, result-oriented judges. It is that a person's (or judge's) world view affects how they see the world. Cass Sunstein makes this point so well in his essay on Bush v. Gore in the book he edited with Richard Epstein on the case (The Vote: Bush, Gore, and the Supreme Court (U. Chicago Press 2002). Why is it that for the most part, commentators who were conservative supported the decision and liberal commentators did not? Sunstein uses concepts in psychology to show why this is so; it is not driven (or mostly driven) by result orientation.

Thus, a judge with the world view of a Henderson (McCain-Feingold is an affront to the First Amendment) is going to be more likely to see as salient the burdens that are placed on parties seeking to engage in political speech that are hampered by the law. A judge with the world view of a Kollar-Kotelly (McCain-Feingold is a legitimate attempt by Congress to regulate campaigns to prevent corruption and its appearance in this country) is more likely to see as salient the dangers of the old soft money system. This does not make the judges unprincipled. But it does still raise the danger of having facts in such a high stakes case decided by a single judge.

Even on the level of legal decisionmaking, rather than factfinding, the same divide applies, and it has nothing to do with lack of principled judging. One of the points I make in my book (forthcoming from NYU Press in September), is the following:

Certainly some First Amendment hawks like Justice Thomas or L.A. Powe would reject Justice Breyer's statement in Shrink Missouri that "constitutionally protected interests lie on both sides of the legal equation." But they would be hard-pressed to deny the existence of a significant and thoughtful group of well meaning judges and scholars who have taken that position. Nor could Justice Breyer deny the existence of a similar group of First Amendment hawks who find such arguments, in the words of Chief Justice Rehnquist, "absurd." The issue is one of enduring controversy that has only intensified in the generation since the Court decided Buckley.
In the face of such a longstanding conflict concerning the health of our democratic system—both in terms of elections and free speech—the Court should be more deferential to the value judgments made by political actors as to the appropriate balance between liberty and equality in the campaign finance context. Leaving such value judgments to the political process better serves the goals of the democratic system by assuring both experimentation and flexibility so as to strengthen democratic institutions.

I then go on to argue that the Supreme Court should not defer on the means legislators put forward to achieve such goals, because there is a self-interest problem. But this gets us well beyond my point here.

posted by Rick 7:14 AM

. . .

Is the Supreme Court sending a signal about BCRA timing? Obviously, with the size of the BCRA opinion and commentary, my brain is on information overload. This morning I started thinking about something I read yesterday in this Charles Lane analysis in the Washington Post. Yesterday, I was happy enough thinking about the fact that this article discussed my recent Election Law Journal article on the drafting history of Buckley v. Valeo. But today, with my head not quite as fat, I focused on these two paragraphs:

Under the law, the parties to the case -- of whom there are more than 80 -- have 10 days each to notify the district court that they intend to appeal, and another 20 days after that to file briefs with the Supreme Court, according to Kathy Arberg, a spokeswoman for the high court. Those opposing the various appeals would presumably have time to file replies before the justices would formally decide whether to take the case.

But these procedures could be shortened, Arberg noted, if the parties agree on a joint motion to the court that would essentially ask the justices to take up the matter without further ado, and if they propose an accelerated briefing and argument schedule.

So is this a signal by the Court that if the parties want resolution this term, they need to ask for it? If so, given the possibilities of retirement "shifting the balance of power" on the campaign finance issues, as Linda Greenhouse put it here yesterday, would the parties agree to expedite the case? Can they come together with a joint motion? My guess would be no. Perhaps the defendants will move for expedited review (and a stay?), the plaintiffs will say that this is an important case that can't be rushed, and the Court will then issue a decision on timing.

posted by Rick 6:28 AM

. . .

In other election law news... Yes, there is other election law news. First, there is fallout from the Spargo decision. According to Steven Sholk, the New York courts are saying they are not bound by the federal district court decision striking down provisions restricting the conduct of judicial candidates. See this law.com article. Ed Feigenbaum reports that the Kentucky Supreme Court heard oral argument over their Kentucky governor ballot issues. See the reports here and here.

posted by Rick 6:15 AM

. . .

Will parties collect soft money in the absence of a stay? The New York Times offers this report. UPDATE: The Washington Post offers this report.

posted by Rick 7:06 PM

. . .

Did the BCRA judges lack judicial virtue? See this post by Larry Solum. I disagree strongly with Larry, but exhaustion prevents my response now. I'll respond to this in the next few days.

posted by Rick 5:45 PM

. . .

"Jurisprudential masturbation" That's how this Slate column describes the N.Y. Times's take on the lower court BCRA decision.

posted by Rick 4:44 PM

. . .

More press A.P. offers two new articles here and here. The first article reports that the law's defenders will be seeking a stay of the court's judgment.

posted by Rick 4:36 PM

. . .

Was it a mistake for the BCRA challenge to be heard by a three-judge court? As my posts below indicate, I think this three-judge court has been a failure. At the very least, at least two of the judges should have been able to make substantive factual findings to help guide the Supreme Court. Now we have a mess on both the facts and the law. The three-judge-court was put in place by the drafters of the BCRA itself, with direct appeal to the Supreme Court. Without this provision, the case would have gone to a single district court judge, followed by an appeal to the intermediate appellate court, followed by discretionary review by the Supreme Court. There are of course other variations. Judge Henderson, in her opinion, endorsed the idea of a hearing before an en banc panel of appellate judges.

It is easy in hindsight to fault the three-judge court, but if the drafters had to do it all again, I would recommend something like the same procedure. Why? When the district court makes detailed factual findings, they can really bind the appellate courts. Now, imagine if the BCRA would have been heard by a single judge. What would those factual findings have looked like? They might have looked like the factual findings of Judge Kollar-Kotelly, those of Judge Leon, or those of Judge Henderson. That's a big risk. If you like campaign finance regulation, you are doomed if you are before a judge like Henderson. If you take a strong first amendment free market position, you are doomed if you are before Judge Kollar-Kotelly. And if you are before Judge Leon, you might be doomed no matter which side you support.

So three-judge courts help control the problem of the ideological disposition of a single federal judge controlling the outcome of litigation. Sure, it has created problems in this case, but the alternative could have been worse. Now, my analysis assumes that the three judges for the courts are chosen randomly. In fact, the procedure gives lots of discretion to the chief judge of the district court to set up the panel. Maybe we should use a lottery instead. (Michael Solimine explores these kinds of issues in the greatest detail in The Three-Judge District Court in Voting Rights Litigation, 30 U. Mich. J.L. Ref. 79 (1996).) I've posted earlier on this problem here.

posted by Rick 12:39 PM

. . .

More articles The Boston Globe offers three reports: here, here, and here. An editorial is here. Links via How Appealing.

posted by Rick 11:07 AM

. . .

"Mixed" soft money This L.A. Times article has a headline with a more pro-regulation message. The body of the article, however, points out what a mixed bag the opinion is on the soft money question. Speaking of mixed soft money, you can't miss this post on SCOTUSblog about the question of which federal-nonfederal "mixed" activities may be paid for with soft money. The key insight here is that for mixed activities Judge Leon has created a soft money rule worse than the rule in existence before McCain-Feingold:

Judge Leon's opinion holds (see generally pp. 26-50) that, because there is no "clear" and "direct" link between "mixed" activities (e.g., GOTV and party-building) and benefits to federal candidates, and no evidence that candidates are (or are perceived to be) indebted to persons and entities who fund such activities, party spending on such "mixed" functions are "simply not regulable" by Congress (Leon Op. at 36-37). If the rationale of this opinion were to become the law, it would appear to mean that such functions may be paid for with 100% soft money, and would no longer be subject to the pre-BCRA allocation requirements! Thus, although ads promoting or supporting (or attacking or opposing) a clearly identified candidate for federal office must be paid for entirely with "hard" money, all other party expenses could be paid for entirely with soft money, i.e., with contributions that are not subject to federal limitations. (One small, but potentially important, exception: Judge Leon indicates that if a contribution is intended by the donor to influence federal elections, then that contribution should, from the time it is received, thereafter be treated as "hard" money (p. 17 n.17). This holding would reinvigorate an "objective," donor-intent-based test for "hard," or federally regulated funds, which the FEC long ago abandoned in favor of an "objective" test based on the manner in which the party uses the funds.)

I think the post meant "subjective" the first time in the last sentence rather than "objective." In any case, all of this (and Judge Leon's bizarre ruling on issue advocacy) are just bumps in the road to eventual Supreme Court clarification (we hope!) with at least 5 Justices supporting a rule and rationale (we hope!).

posted by Rick 6:55 AM

. . .

Another editorial This one from the Washington Post.

posted by Rick 10:18 PM

. . .

Some thoughts on the big picture about the BCRA case: the failure of the three-judge court When the opinion first came out over 9 hours ago (seems like 9 days ago), my initial reaction was that the judges disagreed, but they each did their jobs conscientiously and should be praised for the seriousness with which they undertook this endeavor (putting aside timing issues, of course). But has the court really done us a service? The more I think about it, the less sure I am.

1. Lack of clarity on the rules of engagement We have this nice chart in the per curiam opinion trying to summarize what the court held and what it all means. But things are so unclear that even now I am not sure (and, from reading news reports and receiving numerous e-mails) many others are unsure of precisely what activity political parties may engage in related to raising and spending non-federal funds. In the meantime, Judge Leon's split the baby approach to the electioneering provisions may have gone too far even for most advocates of campaign finance reform. Do we really want General Motors or the Teamsters to worry today, well before the election, if they want to run an ad saying: "Support our troops" with a picture of President Bush, that someone might bring a complaint to the FEC saying that they are "promoting" or "supporting" a candidate for public office? The bright line test, accepted by Judge Kollar-Kotelly and rejected by Judges Leon and Henderson had the benefit of avoiding vagueness (despite what Judge Henderson says on this point). Leon thought that the test was overbroad---I disagree (he was nice enough to cite my article in which I disagree), but look what he has taken in exchange: a really vague test for the line between sham issue advocacy and genuine issue advocacy. And this line is not even tempered by the provision requiring that the meaning of the ad be plausibly only to support a candidate for office. Nor is it tempered by the 30/60 day time constraint. Leon's answer? Go to the FEC if you need a judgment as to whether your conduct violates the provision. [UPDATE: Now I know it is getting late. I'm agreeing with James Bopp, one of McConnell's attorneys (we are usually on opposite sides of things in the campaign finance cases): in this Roll Call article (registration required), Bopp says: “Who now knows what speech is prohibited and what isn’t? There is simply no way to know,” he said.]

That is simply unworkable in the context of an active campaign. And apparently parties can run these neutral issue ads as well, as a reader e-mails to point out. All of this is a huge mess. It is hard to see how a majority of judges on the Supreme Court go along with Leon on issue advocacy. I hope they go along with Kollar-Kotelly. Otherwise, all campaign finance laws (even those governing disclosure) will be called into question. In the meantime, is the FEC to craft emergency temporary regulations if the courts fail to issue a stay?

2. Lack of factual findings to which the Supreme Court may look There are virtually no factual findings of substance (as I note in some posts below) agreed to by a majority of the court. That was the primary function of the lower court and they have utterly failed in this regard. Perhaps this is unavoidable given the differences among the judges. Maybe this is more an indictment of the process than a fair criticism of the judges.

3. Timing issues So it now is likely too late for the Supreme Court to hear the case this term. As noted below, this may prejudice the case against the cause of campaign finance regulation, if C.J. Rehnquist retires. Ironically, it was Judge Henderson, who wants everything struck down, who pushed hardest for a quick decision. That at least says something very good about the judges' motives. But still, given that the opinion gives the Supreme Court very little to work with (despite the bulk), the long delay was especially unfortunate.

posted by Rick 9:46 PM

. . .

Do the parties ask for a stay? Does the Court grant a stay? I noted here that once the three-judge court opinion becomes final, the FEC will be enjoined from enforcing any provisions that the court has struck down as unconstitutional, unless someone seeks a stay of the judgment. Who might do so? Most likely the defendants would do so, rather than the plaintiffs, though this is by no means certain (arguably, the plaintiffs might complain about Judge Leon's views of permissible regulation through the "backup" provisions). The parties would try the lower court, then to Chief Justice Rehnquist, who would refer the matter to the whole Court to decide.

Would the Court grant a stay? The question here boils down to two factors: likelihood of success on the merits (a sneak peek at who will win) and hardship to each party if the court guesses wrong. The factors get considered together. If you remember back in Bush v. Gore 5 Justices stayed the counting of the votes in Florida under the Florida Supreme Court standard. How could this be justified, given how the hardship on Gore outweighed the hardship on Bush? Judge Posner, in his 2000 book, Breaking the Deadlock, explained that you multiply the likelihood of success by the hardship. Given that the majority had determined that Gore's likelihood of success was zero, it did not matter how large his hardship was. (Leave to one side the idea that this assumes the Court had prejudged the case before briefing on the merits or oral argument.)

So the question here is hardship and likelihood of success. I think hardship points in favor of a stay. Better that we continue with the same rules we have had in place thus far in the election season until the Supreme Court ultimately decides otherwise. Then we have at most one transition to other rules after the Supreme Court opinion on the merits. The public interest favors a stay in terms of certainty of the rules. Likelihood of success is clearly a close call. I would not be surprised to see the Court issue a stay, but I would not read too much into the merits if it does so.

posted by Rick 8:51 PM

. . .

More press Editorial from the New York Times.

posted by Rick 8:19 PM

. . .

On the factual findings, it is even worse than I thought As I noted here, "The factual findings---the part that the Supreme Court, at least in theory, is supposed to show the greatest deference to--are pretty skinny in the per curiam opinion." But it is worse than that, as George Waters notes here:

To me the sentence that best summarizes the shortcoming of what the district court has done comes on page 115 of Judge Leon's memorandum where he says "Despite our best efforts to produce a complete set of Findings of Fact, in which two or more members of this Court concur, we were unable to do so."

Absolutely stunning that, leaving aside findings having to do with the identities of the parties, two members of the court could agree on only 11 findings of fact, #s 41 to 52 in the per curiam opinion. And even those findings begin with phrases such as "The NRA presents evidence that . . ." (No. 41, p. 95 of per curiam opinion.)

I think that the district court has basically taken itself out of the ballgame. All their legal opinions will be reviewed de novo. The findings of fact, which will be granted more deference, are minimal. Their efforts, Herculean though they may be, will have virtually no effect on the outcome of this case.

posted by Rick 8:00 PM

. . .

Newspaper articles on opinion The New York Times offers this article on the holding of the three-judge court (such as it is), and this article by Linda Greenhouse offering some analysis of the fate of the opinion in the Supreme Court. The Washington Post offers this article.
UPDATE: This article by Charles Lane in the Washington Post considers the case's fate at the Supreme Court. The first Post piece I cited is updated here.

posted by Rick 7:52 PM

. . .

More opinions The first reader in the post immediately below is Marty Lederman of SCOTUSblog, who offers these further thoughts.

posted by Rick 7:02 PM

. . .

Reader thoughts One reader writes:

I think you're correct. In fact, I think the decision is quite a broad victory for campaign finance, because Leon (i) adopts the Specter definition in title II, without the Furgatch gloss (which I suppose makes it much broader, in addition to eliminating the time limitations); and, even as to title I, upholds the prohibition of the use of soft money for (in essence) those same issue ads -- i.e., for the principal way in which soft money was being used and abused -- even as to state parties.

The general press gloss that it's a big defeat is way off, I think.

Another reader raises serious practical problems. What are election lawyers to advise their clients now as to mixed federal-non-federal activites? Which allocation formulas for federal/non-federal money are to be in effect? This presents an immediate and big mess in the real world of running campaigns.

posted by Rick 5:23 PM

. . .

I think A.P. has it partially wrong Here's the beginning of this A.P. Report:

WASHINGTON (AP) -- A federal court Friday struck down most of a ban on the use of large corporate and union contributions by political parties, casting doubt on the future of the new campaign finance law that was supposed to govern next year's elections.

The court, which made its ruling effective immediately, also ruled unconstitutional sweeping new restrictions on election-time political ads by special-interest groups and others. However, it said more narrow limits the law's sponsors included in the legislation as a backup were constitutional. [my emphasis]

I don't think Judge Leon's ruling on the issue advocacy provision is "narrower." (See my posts a few below this one if this is the first post you are reading) In fact, I think it is broader. Under the first electioneering provision, corporations and labor unions could run ads featuring clearly identified candidates for federal office, and pay for them directly, so long as the ads lacked magic words of advocacy and were more than 60 days before the election (or 30 days before a primary). Under the backup definition, as modified by Judge Leon, a corporation or union cannot run an ad "promoting," "supporting," "opposing" or "attacking" a candidate for federal office at any time, even if the ads lacked magic words. That can't be narrower.

Now it might be argued that Congress intended the "backup" definition to apply only in the 60/30 day period. If so, the statute didn't say so clearly, and Judge Leon did not seem to indicate, at least on my initial read, that the 60/30 time limit applied.

posted by Rick 4:55 PM

. . .

Feingold says the decision mostly favorable See this A.P. Report. Feingold says that they expected the lower court decision to strike down more of the law. So did I.
MSNBC offers this report.

posted by Rick 4:34 PM

. . .

More bits and pieces on district court opinion, as I think of them (For more substance on the opinions, see the post below this one.) There is certainly no love lost between Judge Henderson on the one hand and Judges Leon and Kollar-Kotelly on the other. As usual, the nastiest exchanges occur in footnotes. Compare the per curiam's footnote 41 with Henderson's footnotes 1 and 2. They are battling over whether there was any "promise" to get an opinion out by the end of January, whether that was doable (Henderson's suggestion: it should have been 8 appellate judges hearing the case), whether the Supreme Court can hear this in time, etc. Pretty nasty.

Eugene Volokh weighs in here on the practical difficulties of the Supreme Court working on the case over the summer. That seems unlikely to me too (though Eugene, having worked at the Court is in a much better position to judge). I see either expedited briefing with an opinion out at the end of (a possibly extended) term, or oral argument the first Monday in October.

The factual findings---the part that the Supreme Court, at least in theory---is supposed to show the greatest deference to, are pretty skinny in the per curiam opinion. The individual judges make findings on their own (Kollar-Kotelly and Henderson battle over the usefulness of the Buying Time study of the Brennan Center, and Leon takes a middle position on the study). Without a majority on facts, to what does the Supreme Court defer?

posted by Rick 4:10 PM

. . .

Some initial thoughts about the opinions Everything I say here is tentative and subject to revision. The opinions run over 1600 pages and I have only had time to skim some of the opinions. Nonetheless, here goes, starting with some preliminaries:

1. This is a very fractured court decision. There are few places where the court speaks unanimously. Roughly speaking, Judge Kollar-Kotelly voted to uphold most of the significant parts of the law, Judge Henderson voted to strike down most of the significant parts of the law, and Judge Leon took a middle position. Accordingly, Judge Leon's position is the narrowest whenever he voted to uphold constitutionality and therefore his opinion seems to control. There were a few places where the judges were unanimous, such as the law striking down campaign contributions by minors.

2. Issues not reached There are some significant issues the court did not reach for prudential/standing/ripeness grounds. These include the constitutionality of the Millionaire's provision (raising contribution limits when faced with a millionaire opponent), the definition of coordinated expenditures, and the challenge to increased contribution limits.

3. The most significant pieces of the legislation involved soft money and issue advocacy.

a. Soft money The court upheld soft money provisions preventing national, state, and local parties from spending soft money on certain federal activities, but not on other activities. Here is how Judge Leon summarized his (prevailing) view: "I agree with Judge Henderson's conclusion, although for different reasons, that Congress, in essence, is constitutionally prohibited from regulating a national party's ability to solicit, receive, or use nonfederal funds (i.e., soft money) for nonfederal and mixed purposes. To the extent that Section 323(a) seeks to regulate donations to national parties that are used for purposes that at the most indirectly affect federal elections (i.e., nonfederal or mixed purposes), the defendants have failed to demonstrate that Section 323(a) serves an important government interest, or even if they had, that it is sufficiently tailored to serve that interest. However, I find that Congress can restrict a national party's use of nonfederal money to directly affect federal elections through communications that support or oppose specifically identified federal candidates. Therefore, like Judge Kollar-Kotelly, I find constitutional Congress's ban on the use of nonfederal funds by national parties for Section 301(20)(A)(iii) communications." The big question is how big a "loophole" this is. At first glance, it looks like a big one. A party can easily create a "mixed" federal/nonfederal purpose to get around the federal-only ruling of Judge Leon.

b. Issue advocacy This is the biggest surprise so far. Judge Leon agreed with Judge Henderson that the "bright line" test for issue advocacy (limiting corporations and unions from spending funds on broadcast ads featuring a clearly identified federal candidate) was unconstitutionally overbroad. Judge Kollar-Kotelly disagreed on this point. Judge Leon agreed with Kollar-Kotelly that the BCRA's backup definition of "electioneering activity" is constitutional, provided that the last part of the backup definition is lopped off. (Leon held that the last part of the definition would have created a vagueness problem). So the upshot is the following: According to Judge Leon's ruling, to be constitutional we must read "electioneering communication" to mean "any broadcast, cable, or satellite communication which promotes or supports a candidate for [Federal] office, or attacks or opposes a candidate for [Federal] office (regardless of whether the communication expressly advocates a vote for or against a candidate)." So the union or corporation can't pay of any broadcast advertisement which promotes or supports a candidate for federal office, or attacks or opposes a candidate for federal office. No need for magic words, and no 30 or 60 day limit.

This is a surprise. One way that the backup provision limited the reach of the "promote" or "attack" language was through the part of the backup provision that Judge Leon lopped off: that the ad was plausibly interpreted as nothing other than a campaign ad for or against a federal candidate.

4. What happens now? The end of the judgment permanently enjoins the FEC from enforcing the provisions of the BCRA. There is no stay in place. I leave it to others to tell me when such a ruling becomes final so that parties can start relying on the opinion. In any case, any party may seek a stay from the court or, if that fails, from the Supreme Court. When will the Supreme Court hear the case? Any complaining party (and they all will complain about something) can appeal to the Supreme Court within 30 days. The Court will take the case. The question is whether it will be heard this term or next term. I have heard varied opinions from veteran court watchers.

5. What if there are retirements on the Supreme Court? I have written about this frequently. The court is highly divided on these campaign finance issues. What if C.J. Rehnquist retires (a reliable vote for the existing Buckley framework), and no replacement is put in place because of the judicial confirmations stalemate in the Senate? Might we have the lower court opinion upheld in its entirety, because of a 4-4 split on the Supreme Court? It is not entirely fanciful to think so.

posted by Rick 3:49 PM

. . .

Size of opinions Per curiam 171 pages; Kollar-Kotelly 706 pages; Leon: 347 pages. I haven't been able to open Henderson yet.

posted by Rick 1:36 PM

. . .

Still downolading, but one early headline It looks like two of the three judges (Leon and Kollar-Kotelly) have upheld BCRA's backup definition to regulate sham issue advocacy, subject to striking part of the language of the backup definition. This holding, if affirmed by the Supreme Court (remember, no deference on the legal issues here) could be quite significant in allowing greater regulation of sham issue ads.

posted by Rick 1:27 PM

. . .

FINAL JUDGMENT
(May 1, 2003)
Pursuant to Rule 58 of the Federal Rules of Civil Procedure and the four opinions of the
three-judge District Court hearing these eleven consolidated actions, it is this 1st day of May, 2003,
hereby
ORDERED that Plaintiffs’ Motion for Judgment [#206] is GRANTED IN PART and
DENIED IN PART; it is further
ORDERED that Defendants’ and Intervenors’ Motion for Judgment [#204] is GRANTED
IN PART and DENIED IN PART; it is further
5
ORDERED that in regard to Section 101 of BCRA, judgment for Plaintiffs is entered in part
with regard to new FECA Sections 323(a) and 323(b) and judgment for Defendants is entered in part
with regard to new FECA Sections 323(a) and 323(b), in accordance with Judge Leon’s
Memorandum Opinion. Section 323(a) is constitutional only to the extent it bans national party
committees from using nonfederal funds for Section 301(20)(A)(iii) activities and Section 323(b)
is constitutional only as applied to Section 301(20)(A)(iii) activities; it is further
ORDERED that in regard to Section 101 of BCRA, judgment for Plaintiffs is entered with
regard to new FECA Section 323(d); it is further
ORDERED that in regard to Section 101 of BCRA, judgment for Defendants is entered with
regard to new FECA Sections 323(e) and 323(f); it is further
ORDERED that in regard to Section 201 (challenged disclosure provisions only), with the
exception of subsection (5), and in regard to Sections 202, 214(a), 214(d), and 311 of BCRA,
judgment for Defendants is entered in accordance with the per curiam opinion; it is further
ORDERED that in regard to subsection (5) of Section 201, judgment for Plaintiffs is entered
in accordance with the per curiam opinion; it is further
ORDERED that in regard to Sections 214(b), 214(c), and 212, Plaintiffs’ motion is DENIED
on justiciability grounds in accordance with the per curiam opinion; it is further
ORDERED that in regard to Section 203 of BCRA, judgment is entered for Defendants with
regard to that provision’s applicability to the backup definition of “electioneering communication”
as defined in Section 201 of BCRA, in accordance with Judge Leon’s Memorandum Opinion; it is
further
ORDERED that in regard to Section 204 of BCRA, judgment is entered for Defendants in
6
accordance with Judge Leon’s Memorandum Opinion; it is further
ORDERED that Judgment for Plaintiffs is entered with regard to Sections 213, 318, and 504
of BCRA; it is further
ORDERED that in regard to Sections 304, 316, 319, 305, and 307, Plaintiffs’ motion is
DENIED on justiciability grounds; it is further
ORDERED that Defendants and their agents are permanently enjoined from enforcing,
executing or otherwise applying those sections of BCRA found unconstitutional by this three-judge
District Court.
SO ORDERED.
/s/
KAREN LECRAFT HENDERSON
United States Circuit Judge
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
/s/
RICHARD J. LEON
United States District Judge

posted by Rick 1:13 PM

. . .

Final judgment
4
FINAL JUDGMENT
(May 1, 2003)
Pursuant to Rule 58 of the Federal Rules of Civil Procedure and the four opinions of the
three-judge District Court hearing these eleven consolidated actions, it is this 1st day of May, 2003,
hereby
ORDERED that Plaintiffs’ Motion for Judgment [#206] is GRANTED IN PART and
DENIED IN PART; it is further
ORDERED that Defendants’ and Intervenors’ Motion for Judgment [#204] is GRANTED
IN PART and DENIED IN PART; it is further
5
ORDERED that in regard to Section 101 of BCRA, judgment for Plaintiffs is entered in part
with regard to new FECA Sections 323(a) and 323(b) and judgment for Defendants is entered in part
with regard to new FECA Sections 323(a) and 323(b), in accordance with Judge Leon’s
Memorandum Opinion. Section 323(a) is constitutional only to the extent it bans national party
committees from using nonfederal funds for Section 301(20)(A)(iii) activities and Section 323(b)
is constitutional only as applied to Section 301(20)(A)(iii) activities; it is further
ORDERED that in regard to Section 101 of BCRA, judgment for Plaintiffs is entered with
regard to new FECA Section 323(d); it is further
ORDERED that in regard to Section 101 of BCRA, judgment for Defendants is entered with
regard to new FECA Sections 323(e) and 323(f); it is further
ORDERED that in regard to Section 201 (challenged disclosure provisions only), with the
exception of subsection (5), and in regard to Sections 202, 214(a), 214(d), and 311 of BCRA,
judgment for Defendants is entered in accordance with the per curiam opinion; it is further
ORDERED that in regard to subsection (5) of Section 201, judgment for Plaintiffs is entered
in accordance with the per curiam opinion; it is further
ORDERED that in regard to Sections 214(b), 214(c), and 212, Plaintiffs’ motion is DENIED
on justiciability grounds in accordance with the per curiam opinion; it is further
ORDERED that in regard to Section 203 of BCRA, judgment is entered for Defendants with
regard to that provision’s applicability to the backup definition of “electioneering communication”
as defined in Section 201 of BCRA, in accordance with Judge Leon’s Memorandum Opinion; it is
further
ORDERED that in regard to Section 204 of BCRA, judgment is entered for Defendants in
6
accordance with Judge Leon’s Memorandum Opinion; it is further
ORDERED that Judgment for Plaintiffs is entered with regard to Sections 213, 318, and 504
of BCRA; it is further
ORDERED that in regard to Sections 304, 316, 319, 305, and 307, Plaintiffs’ motion is
DENIED on justiciability grounds; it is further
ORDERED that Defendants and their agents are permanently enjoined from enforcing,
executing or otherwise applying those sections of BCRA found unconstitutional by this three-judge
District Court.
SO ORDERED.
/s/
KAREN LECRAFT HENDERSON
United States Circuit Judge
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
/s/
RICHARD J. LEON
United States District Judge

posted by Rick 1:12 PM

. . .

Link to the opinion here. I owe Bob Bauer a beer!.

posted by Rick 1:09 PM

. . .

AP News AlertThe associated press is reporting: "Federal court declares part of campaign finance law's soft money ban unconstitutional." That is the entire report.

posted by Rick 1:04 PM

. . .

BCRA Opinion is Out, But No One Knows What It Says Apparently the public can pick it up a 3:45 eastern time today, with "technical problems" perhaps causing the listserv option to be delayed. Whoever first gets me a copy of the opinion gets a beer.

posted by Rick 12:22 PM

. . .

Rumors, rumors So I've had people complain to me that they missed lunch or even cancel a haircut [!} to see the opinion. What is going on? Conflicting rumors swirl, including rumors of technical difficulties at the court. It may not be so easy to send such a large file to so many people over a listserv. Let me give an example. I run a listserv with Dan Lowenstein on election law for specialists in the field. The listserv sends out a message from its server usually within minutes after the poster submits it. But it then usually takes 1 to 3 hours to make it through to people's e-mail in-boxes. The larger the file, the longer it takes. I think this is because listservers send messages as bulk mail.

Bottom line, even when the court pushes the button, we don't know when we'll see the opinion. Maybe the court thinks that if it comes out late on Friday the story will get buried in the newspapers.

I take no responsibility if you cancel your dinner plans.

posted by Rick 12:13 PM

. . .

Sources on the Hill say BCRA opinion may be issued within the hour The rumors have been wrong before. We'll see....stay tuned.

posted by Rick 8:30 AM

. . .

Going to court to strike down the constitutionality of the filibuster? See this A.P. report via How Appealing. I am quite skeptical that such a suit would be successful. Conservative Doug Kmiec made the point in an op-ed recently, and Ewrin Chemerinsky and Catherine Fisk made the point when Republicans had the filibuster power. (See my March 7 post on this topic.) Besides the fact that a court should view this as a non-justiciable political question (the Constitution textually commits the Senate to making its own rules, and there are serious prudential concerns related to the separation of powers, as Prof. Goldman says in the A.P. article), there is also a substantive response to the Kmiec point: the Senate views itself as a continuing body, where only about 1/3 of its membership overturns every two years. So when the Senate continues its rules from earlier Congress's, it views itself as the same body using the same rules. In contrast, the House rules are recast every two years when the entire body turns over. So it is not, as Kmiec put it, a prior legislature binding the hand of the current legislature--or at least it is permissible for the Senate to so see itself.

posted by Rick 6:12 AM

. . .

BCRA opinion tomorrow? The conventional wisdom (from court watchers, journalists and others) was that the opinion would be out 24-48 hours after the three judge court set up the special listserv for issuing its opinion. It is now after 5 pm on the East Coast. So the best guess is that the opinion will be out tomorrow, but don't be surprised to see it go to next week. After all, it is already 3 months after the expected due date.

As an historical sidebar, the Supreme Court issued its opinion in Buckley v. Valeo on January 30, 1976. I recently published an article on the drafting history of the opinion based upon my review of the papers of Justices Brennan, Marshall, and Powell. (The article, The Untold Drafting History of Buckley v. Valeo, 2 Election Law Journal 241 (2003), just became available on Westlaw to those readers who have it.) According to the papers, after Justice Brennan circulated a memo noting that the opinion would likely come out on January 30, Justice Powell wrote to the other Justices that "[i]t is important to make that date if possible. The Act directs us to 'expedite' this case. It sounds more 'expeditious' for the record to show we brought the case down in January rather than February!"

posted by Rick 2:46 PM

. . .

Why Isn't Larry Solum Being Called to Testify? How Appealing reproduces here a press release from Sen. John Cornyn about a hearing on a "fresh start in the judicial confirmation process." If the Senator really wants a fresh start, he should look for more diversity of opinion among the constitutional scholars called to testify. All four scholars are well respected constitutional scholars, but all have reputations for being quite conservative. I'm not saying that the panel should call Erwin Chemerinksy or Larry Tribe (that would be a great idea to get a diversity of opinion), but how about someone who does not have a reputation for being strongly in one camp or another....like Larry Solum? A "fresh start" would be when the hearing might be surprising, where people might actually engage in unscripted dialogue. Instead, we run the risk of such a hearing being simply a show for Republicans to show further Democratic "intransigence."
UPDATE: How about inviting some political scientists as well?, asks Brett Marston here.

posted by Rick 2:40 PM

. . .

More on Kentucky governor woes The Lexington Herald-Leader offers this report. (Thanks to Ed Feigenbaum for the pointer.)

posted by Rick 2:37 PM

. . .

New Issacharoff draft Anyone remember Bush v. Gore? Legal Theory reports on this new scholarship up on SSRN:

Samuel Issacharoff (Columbia) posts The Enabling Role of Democratic Constitutionalism: Fixed Rules and Some Implications for Contested Presidential Elections, forthcoming in the Texas Law Review. Here is a taste:

This article explores the preconditions for the transfer of power within democratic regimes. Invariably, constitutional discussion of the necessary preconditions for a successful, peaceful transition to power focuses primarily on rights guarantees to the defeated minority. The minority must be assured of the ability to proclaim its views in the future, the ability to assemble and to organize itself, the ability to be secure in their person and property—in short, much of the formation of rights associated with democratic liberties. But just as surely as the rights domain is necessary for a rudimentary formulation of democratic legitimacy, it is also incomplete. Just as central are the structural protections, which include the obligation to stand for election anew at some fixed or relatively fixed interval, the limitations on the powers of office, and the accountability of the governors to the structures of office, as exemplified in this country by the divisions of powers among coordinate branches of power. This article focuses on the structural components of constitutionalism as a necessary constraint on democratic politics. This precommitment necessarily thwarts or limits deliberative choices after constitutional enactment, yet serves as a precondition for the functioning of democratic politics. The article focuses on the work of political theorists Jon Elster and Stephen Holmes to argue that current constitutional scholarship underestimates the importance of constitutional obduracy. The article concludes with a reexamination of the Florida electoral crisis of 2000 from the vantagepoint of the entrenchment of ex ante constitutional procedures.

posted by Rick 2:35 PM

. . .

The dangers of ignoring the BCRA, even if the lower court strikes parts of it down and there is no stay Professor Bruce LaPierre writes:

Even if the three-judge court grants an injunction pending appeal (or if the Court grants similar relief), there is some risk that individuals and parties acting in reliance on such an injunction might still face enforcement proceedings.

In my Missouri Republican Party litigation (challenging party contribution limits) and the earlier Nixon v. Shrink Missouri litigation (challenging limits on individual contributions), the 8th Circuit enjoined enforcement of Missouri's contribution limits pending appeal and final resolution on the merits. Under the protection of these injunctions, individuals and political parties made contributions in excess of the enjoined limits. After final decisions on the merits upholding the state law limits, the state of Missouri threatened to enforce the limits with respect to contributions made while the 8th Circuit's injunctions were in effect. We took the position that contributions made while the injunctions were in effect were fully protected and that any effort to enforce the contribution limits retroactively was inconsistent with the purpose of the court's orders. Missouri ultimately decided not to test the bounds of the injunctions. If the Court upholds BCRA provisions that were enjoined pending appeal, any risk that the government might be tempted to follow Missouri's example probably can be addressed by drafting the injunction expressly to protect contributions made and accepted while the injunction is in effect.

posted by Rick 2:11 PM

. . .

The dangers of ignoring the BCRA, even if provisions are struck down posted by Rick 2:09 PM . . .

Interesting strategic decision for Democrats should the court strike down the BCRA's soft money provisions CQ.com offers this very interesting report about the imminent ruling in the McCain-Feingold case. What happens if the lower court strikes down the ban on soft money, and it does not issue a stay of its decision? According to the article, Jan Baran, a lawyer for Mitch McConnell "said it is likely that everyone would continue to abide by the new law until the high court rules. Even if the Supreme Court does not take up the case until the fall, he predicted the justices would settle the case by the end of the year." A spokesperson for the Democrats "said her group will follow whatever rules are in place — and do whatever it takes under those rules to stay competitive. 'If all the other committees are raising soft money, then we will too,' she said."

This could well put Democrats into a difficult position. Republicans are doing better than Democrats in fundraising for 2004 thus far, because, for various reasons, they have an easier time raising those "hard money" contributions of up to $2,000 from individuals. Republicans might decide not to be the first to raise soft money in case the lower court strikes down the soft money ban. Democrats could decide to follow suit (as the spokesperson suggests), meaning they will remain at a disadvantage, or they could choose to raise soft money first and look like hypocrites (although the law is the Birpartisan Campaign Reform Act, it had much greater support among Democrats than Republicans).

posted by Rick 11:40 AM

. . .

Signs of Life from Judges Reviewing CFR case The headline of this article in Roll Call (registration required) says it all.

posted by Rick 9:57 AM

. . .

The difference is political Howard Bashman here asks why is it that the Senate Judiciary committee appears ready to move John G. Roberts out of committee and on to a vote, while Miguel Estrada remains captive to a filibuster on the Senate floor. Both Roberts and Estrada, Bashman contends, may have been less than forthcoming about their views.

There are two plausible and mutually reinforcing reasons for the different treatment.

First, and more importantly, Estrada has been mentioned as a potential Supreme Court nominee. As a conservative Hispanic only 41 years of age, the thinking is he would have a good chance to get a nomination to the Court. The Democrats' best chance of blocking his nomination to the Supreme Court is to keep him off the D.C. Circuit now. Then Democrats can claim he has no judicial experience. In contrast, if he is on the D.C. court for six months and issues a few non-controversial innocuous rulings, Republicans can claim he has the proper judicial experience and is no extremist.

Second, Democrats and their allies on the left have targeted Estrada as a symbol. The Democrats can't overuse the filibuster for reasons I explained in a post yesterday. So they energize their base by focusing on a few nominees that have (rightly or wrongly) been demonized.

posted by Rick 8:03 AM

. . .

It's 10 am. Do you know where your opinion is? So I keep checking my in-box for e-mail from "Clerk's Office," which apparently is how the McCain-Feingold opinion will arrive via the listserv instructions I posted yesterday from the District Court. What if the document comes when I'm at home (with my wimpy dial-up connection), and it is a 1,000 page pdf file? Will I be waiting an hour for the document to load?

posted by Rick 7:18 AM

. . .