The law of politics and the politics of law:
election law, the California recall, campaign finance, legislation, voting rights, initiatives, redistricting
More on California recall See Dan Weintraub here, on Sec. Shelley's response to his query about signature verification. Longtime California political observer Tony Quinn e-mails the following comment: "I don't think Shelley will succeed in keeping the issue off a fall ballot. Even if they only verify the 375,000 in hand June 16, there will be 1.3 million in hand by July 16, and he will be forced to report that number July 23. That gives the counties one month to verify the 1.3 million, and that will be enough time that he cannot delay it until March."
1. Whether the District Court erred in effectively concluding that voters affiliated with a major political party may never state a claim of unconstitutional partisan gerrymandering, thereby nullifying this Court's decision in Davis v. Bandemer, 478 U.S. 109 (1986).
2. Whether a State presumptively violates the Equal Protection Clause when it subordinates all traditional, neutral districting principles to the overarching goal of drawing a congressional redistricting map that achieves maximum partisan advantage for members of one political party.
3. Whether a State exceeds its delegated power under Article I of the Constitution when it draws congressional-district boundaries to ensure that candidates from one political party will consistently capture a supermajority of the State's congressional seats even if those candidates win less than half the popular vote statewide.
Sam Hirsch reports that oral argument will probably be early next year. These are big questions, and it is sure to be interesting to follow.
Summary Affirmance in Voting Rights Case The Court today summarily affirmed the judgment of the three-judge court dismissing a claim under section 5 of the Voting Rights Act in No. 02-1577, City of East Combes, Texas v. East Rio Hondo Water Supply, 244 F. Supp. 2d 778 (S.D. Tex. 2003).
Supreme Court takes new elections case This morning, in its final order before recessing until the September 8 campaign finance argument, the Court granted probable jurisdiction in Vieth v. Jubelirer, no 02-1580, a challenge to Pennyslvania congressional districting. The lower court opinion is Vieth v. Commonwealth of Pa., 241 F. Supp. 2d 478 (D. Pa. 2003) (three-judge court).
"Shelley slows the recall count" Dan Weintraub has quite a scoop over on his blog, regarding the California secretary of state's apparent plan to delay the verification of signatures in the recal process, to push the process to the March date preferred by Democrats.
More Georgia v. Ashcroft news The Washington Post story is here. Law.com's article is here. This article notes that the attorney general is asking the Georgia Supreme Court to declare moot the state lawsuit over the governor's authority to withdraw the appeal in the Supreme Court.
The updated New York Times article is here. The updated A.P. story is here.
Now we get two hints about a Supreme Court retirement:
No retirement(s)? Just because no Justice announced from the bench of the Supreme Court of the United States this morning that he or she is retiring doesn't mean that such an announcement won't come at some other time soon.
When to move off tenterhooks: The idea of a U.S. Supreme Court Justice announcing retirement from the bench on the last day of the Term is a bit overrated. Why hold your colleagues captive for that, and why share the spotlight (or divert the spotlight from today's newsworthy rulings)? Instead, in recent memory, the announcement usually comes from behind a podium before the press corps. Accordingly, I would suggest waiting until the end of the day tomorrow before moving off the tenterhooks.
What does Howard know and when will the rest of us know it?
Georgia v. Ashcroft, a 5-4 opinion written by Justice O'Connor, is an extremely important case under section 5 of the Voting Rights Act. Section 5 requires certain covered jurisdictions (mainly, but not only, in the South) to seek "preclearance" from the Justice Department (or a special three judge court in Washington, D.C.) before making any change in a voting practice or procedure. Preclearance should be granted if the state or local body can prove the change has no "discriminatory purpose or effect." Under the earlier Beer v. United States case, 425 U.S. 130 (1976), a discriminatory effect is proven when the change "would lead to a retrogression in the position of racial minorities with respect to the effective exercise of the electoral franchise."
Background In the past, beginning with Beer, the "non-retrogression" analysis was fairly mechanical. Assuming the state has the same number of voters (and same percentage of minority voters), the question was basically whether the percentage of majority-minority districts (that is, districts in which a majority of voters from a protected racial minority could elect a representative of their choice) stayed the same or went up. Retrogression occurred only if the number went down.
In the lower court in the Georgia case, the Democratic Georgia legislature in drawing Senate lines decided to "unpack" some majority-minority districts by spreading out African-American voters (reliable Democratic voters in Georgia) into more districts. This meant that Democrats could create more districts in which there was a chance to elect a Democrat, through coalitions between black and white voters. Because the plan decreased the percentages of African-Americans in three districts from 55-60% to around 50%, the federal government took the position that the districts should not be precleared because they made it less likely that African-Americans in the districts could elect a candidate of their choice. The lower court agreed, and denied preclearance of the plan.
The Supreme Court's holding Today's opinion requires a richer, more nuanced, and perhaps unadministrable test for determining how to measure retrogression, or what it means for racial minorities to "effective[ly] exercise" their "electoral franchise." The majority rejects a pure mechanical count of the number of majority-minority districts. Slip op at 16 ("In assessing the totality of the circumstances, a court should not focus solely on the comparative ability of a minority group to elect a candidate of its choice.") Instead, "any assessment of retrogression of a minority group's effective exercise of the electoral franchise depends on an examination of all the relevant circumstances, such as the ability of minority voters to elect candidates of their choice, the extent of the minority group's opportunity to participate in the political process, and the feasibility of creating a nonretrogressive plan." Slip op. at 15.
After incredulously stating that the standard in section 5 is "simple," slip. op. at 16, the Court explained that there are both different theories of representation that a jurisdiction may use in determining effective exercise of political power by minorities and different means of measuring such effectiveness.
1. The number of majority-minority jurisdictions remains relevant, but "it cannot be dispositive or exclusive."
2. "[A] state may choose to create a certain number of 'safe' districts in which it is highly likely that minority voters will be able to elect the candidates of their choice." "Alternatively, a state may choose to create a greater number of districts in which is likely--although perhaps not quote as likely as under the benchmark plan---that minority voters will be able to elect candidates of their choice." (On this point, the majority (as well as the dissent) cited the indispensable article by Rick Pildes, Is Voting-Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000s, 80 N.C. L. Rev. 1517 (2002).) The state gets to choose, based on whether it prefers substantive or descriptive representation.
3. "[T]he other highly relevant factor in a retrogression inquiry is the extent to which a new plan changes the minority group's opportunity to participate in the political process...Thus, a court must examine whether a new plan adds or subtracts 'influence districts'--where minority voters may not be able to elect a candidate of choice but can play a substantial, if not decisive, role in the electoral process." (Here, the court relied upon the important empirical work by David Lublin, and Cameron, Epstein, and O'Halloran---citing also Swain, Grofman, Handly and Lublin, and Pildes.)
4. "In addition to influence districts, one other method of assessing the minority group's opportunity to participate in the political process is to examine the comparative position of legislative leadership, influence, and power for representatives of the benchmark majority-minority districts."
5. "And it is also significant, though not dispositive, whether the representatives elected from the very districts created and protected by the Voting right Act support the new districting plan."
Looking at the evidence from the state as a whole, the Court concluded that "Georgia likely met its burden of showing nonretrogression." But it vacated and remanded to the District Court to "reweigh all the facts in the record in the first instance in light of our explication of retrogression."
Initial thoughts
1. In the short run, the opinion is good for Democrats Democrats in the Georgia legislature supported the redistricting plan because it provided a way of moving reliable Democratic voters into a larger number of districts. The "packing" of minority voters into majority-minority districts tended to benefit Republicans.
2. Will the long run implications of the decision favor state governments that would discriminate on the basis of race? The four dissenters worry not only that the test is unadministrable (see point 4 below), but also that it will help states discriminate against minority voters: "[I]f in subsequent cases the Court allows the State's burden to be satisfied on the pretense that unquantifiable influence can be equated with majority-minority power, § 5 will simply drop out as a safeguard against the 'unremitting and ingenious defiance of the Constitution' that required the procedure of preclearance in the first place." Dissent slip. op. at 6.
3. Lack of partisanship on the Supreme Court? It is good to see an opinion helping Democrats (at least in the short run) being supported by the most conservative Justices on the Court and opposed by the liberals. Though perhaps one can point to the long-term potential consequences I flagged in number 2 above to make a counter-argument.
4. Administrability The dissent is no doubt right that this new test for non-retrogression will be much harder to administer. The majority said the old test was itself "fact intensive," slip. op. at 21, but of course the facts of racially polarized voting are easy to measure. The new standards set forth above involve measuring things for which either (1) there are no hard data (e.g., how much influence does a majority-minority member have in a legislature?) or no data at all (e.g., did the state decide to decrease the number of majority-minority districts because it had read Pitkin's theories on representation or because it wanted to discriminate against minority voters?). In the constitutional context, I have praised the Court for coming up with initially unmanageable standards, so that the contours of constitutional rights can be fleshed out with experience from lower court cases over time. Perhaps the new multi-factor test of the Court in the section 5 context can be defended on this basis as well. I'll have to think about it more. It certainly makes work harder for the Justice Department's preclearance division, and creates more work for election lawyers.
5. A Congressional Rewrite? If the Court has it "wrong" here as a matter of statutory interpretation, Congress may well fix the problem before the next round of redistricting. Section 5 comes up for renewal before Congress in 2007, or it sunsets.
What would a retirement mean for the fate of BCRA in the Supreme Court? I had earlier noted that a Rehnquist retirement could doom the fate of certain BCRA provisions. I made these comments on the (perhaps overly pessimistic assumption) that Justice O'Connor could well vote with Justices Kennedy, Scalia, Thomas and a Rehnquist replacement to strike down certain aspects of the law. I am now less certain of Justice O'Connor's vote after Beaumont, for reasons stated here.
If Rehnquist stays and O'Connor goes, this increases the chances of significant parts of BCRA being upheld. You have the likely coalition of Rehnquist, Breyer, Ginsburg, Souter, and Stevens voting to uphold the law, leaving Kennedy, Scalia, Thomas, and a possible replacement to vote against. So that is a 5-3 or 5-4 vote.
If this thinking is correct, it might explain why O'Connor but not Rehnquist would agree to retire now. If Rehnquist retires, he runs the serious risk of a 4-4 split in the BCRA case. If O'Connor retires, she poses much less of a risk of such a split.
The Recall and a Davis resignation Robert Novak incorrectly writes here that Governor Gray Davis "could derail the recall at any time prior to the actual balloting by just quitting." Daniel Weintraub of the Sacramento Bee corrects this error on his blog (links to both via Mickey Kaus): "The state elections code says the election goes forward if Davis quits after the petitions have been filed. It's not entirely clear what 'filed' means, but I think it means when a sufficient number to trigger the election have been filed. It could even be sooner. It is most definitely not the date of the election itself."
Weintraub appears to have it absolutely right. Elections Code section 11302 states that "If a vacany occurs in an office after a recall petition is filed against the vacating officer, the recall election shall nevertheless proceed." The section also provides that the vacancy is filled under usual succession rules (meaning the Lt. Governor becomes governor), but only until the winner of the recall election is declared qualified.
So when is a recall petition "filed" pursuant to 11302? There is no relevant caselaw that I could find. Section 11101 provides that "each section of a recall petition shall be filed with the elections official of the county in which it was circulated." A section is simply a page (or set of pages) from the recall petition with signatures on it. There is no single "filing." These sections are then counted by the election officials, with results sent to the secretary of state. when there are enough signatures, the Secretary of States certifies that there are enough signatures. 11102. Some petition sections have already been filed. So at the earliest, it is too late now for Davis to resign to prevent triggering a recall election. At the latest, once (if) the Secretary of State certifies, it should be too late for Davis to prevent the election from going forward. Not that anyone thinks Davis would actually resign before certification, but yet another gap in the recall statutes. (For more gaps, see here.)
UPDATE: Mickey Kaus responds here.
The U.S. Supreme Court is expected to rule Thursday on a Georgia case that asks how much minority voting strength can be reduced without violating the Voting Rights Act.
If the justices rule in Georgia's favor, a previous state Senate map preferred by Democrats would replace the one now in effect. The current map was adopted after a three-judge panel in Washington rejected its predecessor.
The third matter is before the Georgia Supreme Court. That court is to decide whether Republican Gov. Sonny Perdue had the authority to force Baker, a Democrat, to drop the U.S. Supreme Court appeal.
Ten days after the U.S. Supreme Court agreed to take Georgia's redistricting case, Perdue ordered Baker to drop the appeal and, after Baker refused, eventually sued.
The state Supreme Court is scheduled to release rulings on Monday, but a decision could come as late as December.
Might the U.S. Supreme Court put its case off until next term, as some have suggested to me, to force the state's hand?
Edward Lazarus, author of Closed Chambers and a former Supreme Court clerk said:
“The fact that they took this campaign finance reform case and scheduled it for a September argument and that it engenders very strong feelings, one has to wonder whether the Chief [Justice William Rehnquist] … will step down."...
Carter Phillips, a Supreme Court practitioner at the Washington office of Sidley Austin Brown & Wood, said: “The tradition of the chief justice is to retire upon his replacement. But his replacement is not going to be ... [in office] by September” to hear the arguments in the campaign finance reform case.
If Rehnquist retired before hearing McConnell v. FEC, the court could split 4-4, and a tie reaffirms the lower court’s ruling without a written opinion.
The unwritten assumption here is that affirmative action programs are safe for the next 25 years. That is wishful (or perhaps, depending on one's politics, not wishful) thinking. Eventually, a president will get to replace Justice O'Connor. If it is President Bush, and he fulfills his promise to replace retiring Justices with Justices in the mold of Justices Scalia and Thomas, the Court could well reverse this holding much sooner than in 25 years. I doubt that respect for stare decisis would hold back a new (more) conservative majority.
We already see signs of conservatives making affirmative action a new litmus test for nominees. See this just posted New York Times article. No doubt liberals will do the same. This gives more reasons for a liberal filibuster. Although I have been disputing Larry Solum's claims of a downward spiral on judicial nominations, I am beginning to see one on the horizon with the next Supreme Court nomination. Perhaps the best course will be for the Justices to wait to retire until after the next election. By then, President Bush may have a mandate, in which case Democratic resistance will likely crumble, or Republicans will no longer have the control to attempt to force through a nominee opposed by centrist Democrats. Otherwise, it is hard to imagine how the confirmation battle will go. My prediction if there is an O'Connor retirement: Bush tries to push through a very conservative African-American or Latino candidate, probably a woman. Democrats filibuster. After that, I find the future hard to predict.
"Some Say Inquiry Could Lead to Overhaul in Picking Judges" The New York Times offers this report, which includes the following statement: "The election of judges has been a process little understood by the public, and long sheltered from great scrutiny. But according to the lawyers and others involved in the Brooklyn case, Justice Garson, facing arrest on charges of accepting money and gifts from lawyers, made his own sort of admission. Judgeships in Brooklyn, he told investigators, could be bought from Democratic party officials, and four judges, he said, were rumored to have done just that."
More on AFL-CIO v. FEC case The A.P. offers this report. In my initial read of the case, it looks like the Court got it about right. On page 17 of the slip opinion, the court endorses the idea that the FEC may be able to release additional information about its investigations to serve the twin purposes of "deterring future violations and promoting Commission accountability." But it must craft new regulations to do so in a way without unnecessarily infringing on the First Amendment rights of those under investigation by the FEC. The court was particularly disturbed that the FEC was going to release 10,000 to 20,000 pages of material on AFL-CIO election strategy that it had not even reviewed before it decided not to proceed further with the investigation.
I have no idea if the FEC will take up the invitation to craft more narrowly tailored regulations.
You're referring to Sergio Bendixen's survey. Bendixen is a Democratic pollster and in my experience I have found him to be competent and honorable. But he is a Democrat and presumably anti-Estrada.
I think Bendixen's survey underlines the point that I made off of the pro-Estrada Committee for Justice survey. And that is that there is a fairly high threshold awareness of the Estrada issue among Hispanics-- ordinarily, one would think, a low informational group when it comes to federal judicial appointments. The confusion with Erik Estrada may exist--although is he really a big star still? I simply don't know, and just ask the question.
I think Bendixen is right to say that Bush and the Republicans have not yet many points on the issue among voters today. But Bendixen is also my source for the statement in my column that Spanish- dominant Hispanics are the fastest-growing and most fluid segment of the electorate (I had a long and illuminating discussion with hime on this point). They are much less committed to the Democratic party than English-dominant Hispanics. And so I think there is a big opportunity for the Bush campaign to use this issue with Hispanics, especially Spanish-dominant Hispanics. I used to be a political pollster, and I know that you can raise the salience of an issue with an intensive free and paid media campaign. The Bush campaign, with $200 million, will be able to saturate Spanish-language media any time it wants to. They've got the raw material (the Democrats are blocking Estrada and subjecting him to a different standard than any nominee has ever been subjected to). And what can the Democrats say in response? That they're blocking Estrada because they believe that he could otherwise be nominated to the Supreme Court where he might vote to overcome Roe v. Wade? Are Hispanic voters really eager to block a Hispanic from the Supreme Court? Do they care as much as the Democrats' feminist constituency about preserving Roe v. Wade? You don't have to believe that Latinos are 1950s incense-burning Irish Catholics backing Church doctrine on every point to believe that they aren't particularly sympathetic to abortion rights. Polling shows they're a little less pro-abortion rights than the population generally.
I think Bush and the Republicans have got a great issue here that they can develop and on which they can win votes. And I think that Karl Rove figured this out long before I did.
Unique among federal administrative agencies, the Federal Election Commission has as its sole purpose the regulation of core constitutionally protected activity —‘‘the behavior of individuals and groups only insofar as they act, speak and associate for political purposes.’’ FEC v. Machinists Non-Partisan Political League, 655 F.2d 380, 387 (D.C. Cir. 1981). As a result, Commission investigations into alleged election law violations frequently involve subpoenaing materials of a ‘‘delicate nature TTT represent[ing] the very heart of the organism which the first amendment was intended to nurture and protect: political expression and association concerning federal elections and officeholding.’’ Id. at 388. At the close of such investigations, a Commission regulation has long required public release of all investigatory file materials not exempted by the Freedom of Information Act. In this case, the subjects of a now-closed investigation challenge the regulation as inconsistent with both the Federal Election Campaign Act and the First Amendment. We hold that the regulation, though not contrary to the plain language of the statute, is nevertheless impermissible because it fails to account for the substantial First Amendment interests implicated in releasing political groups’ strategic documents and other internal materials.
Judge Henderson (one of the three BCRA judges) issued a concurring opinion.
"Free Speech, Inc." See this essay by Lisa J. Danetz of the National Voting Rights Institute on corporate free speech rights. The issue may get some clarification in Nike v. Kasky, one of the cases remaining to be decided this term. I have been wondering whether footnote 5 of FEC v. Beaumont might play in the Nike decision. There, the Court writes: "Within the realm of [campaign] contributions generally, corporate contributions are furthest from the core of political expression, since corporations' First Amendment speech and associational interests are derived largely from those of their members, and the public in receiving information. A ban on direct corporate contributions leaves individual members of corporations free to make their own contributions and deprives the public of little or no material information." (Citations omitted)
Miguel/Erik Estrada, continued Following up on this post, a reader was kind enough to send me the entire survey that was the basis for the Washington Times article. The polling questions look less problematic than the last poll, though there were still enough earlier questions before the pollsters got to the Estrada question to make me wonder about this poll too. In any case, both polls indicate that Hispanics (like most other Americans) are not paying much attention to the Estrada filibuster, and that has been my main point.
The Fourth Circuit rejected the argument as applied to political gerrymanders:
Discriminatory political effects instead emanate from majority action that establishes political mechanics that preclude minority participation, to some degree, in the political process writ large. Bizarre looking congressional districts do not imply such action because, despite their strange appearance, all affected voters still have a congressional representative, cast equally weighted votes for that representative, and so enjoy true representation — the essence of participation in the political process. There is thus no rationale for inferring from a district’s appearance that it has discriminatory political effects, as opposed to non-discriminatory political effects."
The court then went on to try to explain why it believed that shape could be relevant in the racial context but not in the partisan context. It concluded: "Ultimately, [plaintiff] complains simply that more Democrats than Republi-cans live in his district, and thus that Republican candidates are bound to lose. This outcome is not evidence of discriminatory effect. To the contrary, it is the embodiment of democratic representation: the majority of people selecting their choice of representative."
The briefs of the parties who were plaintiffs in the District Court are not to exceed 50 pages for the opening
briefs and 20 pages for the reply briefs, except that the plaintiffs in No. 02-1674 may file an opening brief not to
exceed 75 pages, and the political party plaintiffs in Nos. 02-1727, 02-1733, and 02-1753 may file a consolidated
opening brief not to exceed 100 pages. The Solicitor General may file a brief not to exceed 140 pages, and the intervenor-defendants may file a brief not to exceed 75 pages.
Now comes word of another poll (I haven't seen the poll so I cannot comment on its validity) that finds the issue has very little salience among Hispanic voters. According to this article in the Washington Times (link via How Appealing), "Hispanics Tune Out Estrada Filibuster," 61% of Hispanics had not even heard of the controversy, and among those Hispanics supporting Estrada, "it was clear many of those who supported Mr. Estrada were also confusing him with actor Erik Estrada, who was on the 1977-1983 television police drama 'CHiPS' and is now a popular Spanish-language soap-opera star."
California voters are being asked to sign petitions to recall Gov. Gray Davis. Recall supporters need over 897,000 valid signatures to qualify the recall for the ballot. Given the governor's current unpopularity and the large amounts of money that Rep. Darrell Issa, R-Vista, and others are pouring into the effort to collect signatures, the betting is that the recall will qualify for the ballot, perhaps as early as the fall.
Before California voters decide to sign a recall petition, they should first consider four troubling aspects of the special rules governing recall elections that may make them think twice.
Cuauhtemoc Ortega offers this oped in the New York Times. Nick Schulz has this oped in the Los Angeles Times. The Vero Beach Press Journal offers this editorial. The Long Beach Press Telegram weighs in here. Tim Cavanaugh offers this commentary at Reason Online.
George Will Will offers this oped on Democrats and McCain-Feingold. Will refers to a forthcoming article in the July/August 2003 Atlantic. The article is not on the website, but here is a summary that is available:
The Democratic Party Suicide Bill by Seth Gitell
Democrats knew that campaign-finance reform would cripple their fundraising ability—but they backed the idea anyway, largely on principle. Republicans knew that it would give their party an even bigger edge than it already had—but they staunchly opposed it, also largely on principle. The fate of McCain-Feingold ultimately rests with the Supreme Court. But principle has already cost the Democrats plenty.
Where Congress is concerned, the old truism that "what goes around comes around" needs to be amended. Around here, it comes back around with a vengeance, creating a precedent for more vengeance the next time. In the Senate, Republicans blocked President Bill Clinton’s judicial nominations in the Judiciary Committee and now Democrats are filibustering President Bush’s nominees. When a Democrat next becomes president, Republicans surely will filibuster his (or her) nominees.
When Democrats ruled the House, as we’ve been reminded lately by The New Republic and The Washington Post, they treated Republicans with contempt, especially by passing closed rules which barred the GOP from offering amendments on the floor. Republicans bitterly complained, and justifiably so. In its cover piece this week on the current "oppressed" condition of House Democrats, TNR’s Michael Crowley unearthed a 1993 statement from Rep. Tom DeLay (R-Texas) accusing the Democrats of "squelching and squashing the minority." As the Post recalled, Rep. David Dreier (R-Calif.) lamented in 1994, "All we are asking for is fair treatment on both sides of the aisle here."
What is going on with Georgia v. Ashcroft and Baker v. Purdue? Georgia v. Ashcroft, a potentially very important redistricting case, is one of the last ten cases remaining on the Supreme Court's calendar for this term. (See this list at How Appealing.) As How Appealing notes, the case "could become moot at any second depending on how the Supreme Court of Georgia rules in a companion case," Baker v. Purdue. In that case, the Republican governor of Georgia is trying to get the Democratic attorney general of Georgia to withdraw the appeal.
Is the United States Supreme Court holding the opinion for the outcome in the Supreme Court of Georgia? Is the Georgia Supreme Court holding its opinion in the hopes it could duck the state law issue as moot? Oral argument was heard on an expedited basis in the Georgia court, but no word. Recall that in the New Jersey dispute over who got to run on the ballot as a Democrat in the Senate race last year, the New Jersey Supreme Court issued a short order to resolve the election law dispute and then issued an opinion much later, after it had time to craft something more substantial. Why isn't that approach being used here?
"Excluded 2000 Candidates Ask FEC for Help" The A.P. offers this report, which begins, "Former third-party presidential candidates who were excluded from debates in 2000 asked election officials Tuesday to block the Commission on Presidential Debates from sponsoring next year's forums."
Bush's fundraising From this PubliCampaign press release: "Officials with the Bush-Cheney ’04 re-election campaign are telling reporters that they expect to raise at least $170 million for next year’s presidential primaries. In inflation-adjusted dollars, that is more money than the combined amounts raised for the presidential primaries by Ronald Reagan in 1980 and 1984, George H.W. Bush in 1988 and 1992, and Bob Dole in 1996."
Is Beaumont important news for BCRA? Bob Bauer says "no" here on the election law listserv. I take strong issue with Bob's post. (By the way, both Ed Still and I on our blogs incorrectly predicted before oral argument that this case could have come out the other way. So much for Bob's "no one---not one person" language.)
Bob may be right about the problem with using the "rebuke" language in some press release, and he may be right that I'm overreading the "historical prologue," but my view is that this case is big news. I've already given my detailed analysis, but let me just give a few headlines here, and Bob can refute them one-by-one if he likes:
1. The Court reaffirms and bolsters Austin's rationales for limits on corporate campaign finance activity. Austin is a case that has been considered somewhat shaky as precedent. Austin is a key case toward upholding the constitutionality of BCRA's separate segregated funds requirement for corporations and unions extended to "electioneering communications."
2. The Court reaffirms and strengthens the anti-circumvention rationale, mentioned in Colorado Republican II and extended to justify limits on corporate election activity. This supports BCRA's soft money ban.
3. The Court changes its views as to the merits of limiting the First Amendment rights of corporations, at least in the context of elections. (Note Jan Baran's unconvincing counterspin in the Washington Times piece linked below, where Baran suggests that Nike v. Kasky would be more on point.)
4. The majority managed to keep Justice O'Connor's votes on all these propositions, where, given her dissent in Austin, one might have thought to be quite difficult.
In Hicks, the Court confirms that it is an empirical inquiry into the extent of the relative amount of constitutional applications of the law to unconstitutional applications of the law that matter. Perhaps what is most significant about today's case for BCRA purposes is Justice Souter's short concurrence (joined by Justice Breyer). There is a discussion of a "denominator" problem that sounds very much like it could have been written with the lower court BCRA opinions in mind.
More FEC fines in the news See this A.P. report The article notes that the $210,000 fine against N.J. Representative Mike Ferguson "is the sixth largest assessed by the FEC since 1980, according to the commission's Web site." So maybe the Schumer $130,000 fine (see two posts below) is not so noteworthy after all.
Trading Votes for Sterilization Be sure not to miss this Wall Street Journal article, which begins: "During the last local election in this northeastern Brazilian town, Sarah da Silva and her sister accepted a curious favor in exchange for their votes. Instead of offering cash or medicine, a candidate paid for the two mothers to be sterilized." (Thanks to Steven Sholk for the pointer.)
I know very little of the charges brought against Schumer, or whether or not a $130,000 fine against him is newsworthy. I would be interested in others' comments on the nature of the charges. According to this Newsday article cited in the post, "Last month, Schumer's 1998 campaign committee was cited by the FEC for accepting about 765 contributions totaling about $915,000 that exceeded allowable limits. It was ordered to refund $120,455 and slapped with a $130,000 civil fine."
Now the Committee for Justice has released the results of its poll of Hispanic voters. If the internal Republican polling is anything like this, it is simply not credible. As David Bernstein put it here, "[i]t's laughably biased in favor of Estrada. Basically, the pollsters asked a series of 'questions' designed to make Estrada look great, and the nomination process unfair, without providing any of the Democrats' counter-arguments. If I was teaching a class on polling, this one would get an F." Let's see if anyone can send me the internal Republican poll to see if it is any better.
The possibility of a Rehnquist resignation also has set off a guessing game about the outcome of the extensive campaign-finance law enacted last year. The Supreme Court, whose term doesn't begin until October, has agreed to expedite the case by convening in September to hear arguments. This action, of course, has fed speculation that the chief justice doesn't plan to leave.
Jan Baran, an lawyer specializing in election issues, says proponents of the new law hope to win Chief Justice Rehnquist's vote. Indeed, Mr. Ornstein, who headed a working group that helped shape the law, says the bill "is designed to try to fit within the framework that Rehnquist embraced" in a number of campaign-finance cases the court has heard over the years.
But will Chief Justice Rehnquist be presiding when the case is decided? Washington is still feverishly trying to find out the answer to that one.
