Carter-Baker Second Commission Meeting Today

Here is the agenda. See also this report.

"Senate committee OKs redistricting plan; GOP wants changes"

A.P. offers this report.

Pre-election Challenge to California Energy Initiative

So reports Dan Weintraub.

"Can Blogs Skirt Rules on Political Funding?"

The Minneapolis Star-Tribune offers this report.

"Hearing on 527 Bill Devolves Into Partisan Jabs"

Roll Call offers this report (paid subscription required). See this A.P. report.

"$200,000 in penalties paid to settle Evans campaign case"

The Chicago Tribune offers this report, which begins: "The Federal Election Commission and campaign committees that supported the re-election of U.S. Rep. Lane Evans (D-Ill.) have reached a court settlement resulting in more than $200,000 in civil penalties over alleged campaign finance violations that began in 1998."

"Felon plan seen as political"

The Des Moines Register offers this report, which begins: "Gov. Tom Vilsack insists politics played no part in his plan to restore voting rights to all Iowa felons, a move nonetheless loaded with political ramifications."

"FEC Wrestles With Internet Regs"

Roll Call offers this report (paid subscription required), which begins: "At the end of the first of two days of hearings on how — or if — the Federal Election Commission is going to regulate political activity on the Internet one thing was clear: The idea provokes a near-universal disquietude even among those who have traditionally embraced increased regulation as a way to mitigate the corrupting influence of money on federal campaigns." In somewhat related news, this column notes that Rep. Marty Meehan has started a website against the Pence-Wynn bill. Unfortunately, the website's address is not given in the article. UPDATE: Here is Meehan's site.

"Dan Walters: Senate's redistricting scheme is even worse than status quo"

See this Sacramento Bee column.

"Diebold Revisited: Council Should Stand for Equal Protection"

The Daytona Beach News-Journal offers this editorial.

"Top-Two" Primary Controversy Continues in Washington State

See this report.

New York Sun Editorial on NYC Majority-Minority District

See here.

A Second Majority Minority L.A. County District?

This report says a new section 2 lawsuit has been filed.

Peter Kirsanow on DNC Proposed Election Changes

See this National Review Online column criticizing the recent DNC set of recommendations for election reform.

Bauer on Yesterday's FEC Hearing on Internet Regulation

See here.

Jerome Armstrong Live Blogging From FEC Hearings

See here.

"Dems' redistricting plan based on political panel"

The LA Daily News offers this report. A snippet: " According to a copy of the proposal obtained by the Daily News, Gov. Arnold Schwarzenegger's plan to transfer the Legislature's redistricting power to a nonpartisan panel of retired judges would be scrapped. That authority would instead be given to a commission of seven political appointees, four of whom would be chosen by legislative leaders."

"EAC Releases Voting Guidelines"

Roll Call offers this report (paid subscription required), which begins: "The Election Assistance Commission released its Voluntary Voting System Guidelines late last week to help states meet mandatory requirements Congress laid out in the 2002 Help America Vote Act. The proposed guidelines update and augment standards the EAC laid out three years ago and address the evolving technologies offered by manufacturers of voting machines and HAVA’s expectations about how states are to administer elections." Dan Tokaji offers more analysis and links to the relevant documents here.

"Bloggers Fighting Government Regulations"

A.P. offers this report on the hearings about to begin at the FEC on Internet rulemaking. You can find Commisioner Toner's opening statement here. UPDATE: Commissioner Weintraub's statement is here.

"Political meddling erodes faith in election systems"

Christian Sande, a candidate for Secretary of State in Minnesota, has written this commentary.

New Report on Judicial Elections

Justice at Stake has issued this report. Here is the summary on the group's website:

A perfect storm of hardball TV ads, millions in campaign contributions and bare-knuckled special interest politics is descending on a rapidly growing number of Supreme Court campaigns, according to a major new report from Justice at Stake and its partners, the Brennan Center for Justice at NYU School of Law and the Institute for Money in State Politics.

Amid growing speculation over a near-term vacancy on the U.S. Supreme Court, and with interest groups posturing for a confirmation battle involving millions of dollars in television advertising and grassroots battles, this new report shows that many Americans are already seeing high-stakes court battles in their own backyards.

"After the 2000 elections, we sounded the alarm: no state that elects its judges is safe from the corrosive effects of big money, nasty TV ads, and special interest arm-twisting," said Bert Brandenburg, executive director of the Justice at Stake Campaign. "If 2000 was a turning point, then 2004 was the tipping point, when the threat spread across the country. The fairness and impartiality of the courts that protect our rights is in jeopardy."

The report is being released three years to the day after the U.S. Supreme Court ruled in Republican Party of Minnesota v. White that certain speech limitations on judicial candidates were unconstitutional. At the time, many observers predicted this would make state court races even more political and put interest groups in the driver’s seat, at the expense of fair and impartial courts. The data released today underscores how quickly interest groups have moved to politicize judicial elections across America. Download our national news release for a summary of the report’s major findings and comments from its authors.

Repository of Election Law Teaching Materials

There has been some interest in creating a repository of election law materials. I will begin by posting my own materials and will add others here as other instructors send them to me. You will be able to access the most updated version of this post by clicking on the link to "Repository of Election Law Teaching Materials" on the right side of this blog under "Election Law Resources."

Some documents may be protected by a password at the request of the instructor. The password I will use on request is the same password as used for the election law addressbook. You can send me an e-mail for the password (election law instructors only, please). If you are an instructor wishing to add materials to be linked on this page, please send me your materials. Let me know whether or not you want the materials protected by a password, and if so, make sure you send Word documents. My own documents are not password protected.

Materials

Doug Chapin:
Spring 2005 syllabus

Heather Gerken:
Spring 2001 exam
Spring 2002 exam
Spring 2003 exam
Spring 2003 syllabus

Rick Hasen:
Spring 2004 essay questions
Spring 2005 syllabus
Spring 2005 essay questions

Sam Issacharoff:
Spring 2005 exam

Pam Karlan:
Fall 1992 exam
Fall 1996 exam
Fall 1997 exam
Spring 1999 exam
Spring 2001 exam
Spring 2002 exam

Nate Persily:
Spring 2001 exam (answer)
Fall 2001 exam (answer) (student answer)
Spring 2003 exam
Spring 2004 exam

Rick Pildes:
Spring 1999 exam
Spring 2000 exam
Spring 2001
Spring 2002 exam

More to come.

Kerr Responds to Aspect of DNC Report on DREs

Michael Kerr, who works for ITAA and its Election Technology Council, a trade
association for the electronic voting equipment and services companies, sends along the following comments via e-mail on one aspect of the DNC's recent report on Ohio:

I am writing to raise your attention to some problems with the DNC's analysis of electronic voting and DRE usage in the recently-released Voting Rights Institute report on the 2004 Ohio election outcome.

To begin with, we know that there are actually very few recent DRE implementations in Ohio due to the issues they've had with paper-trail legislation and procurement - which Dan Tokaji has covered in considerable detail. So discussion of the role played by DREs in a report on the Ohio election outcome is strange and misplaced.

The section of the report on e-voting, "Electronic Voting: Accuracy, Accessibility and Fraud," is written by Dr. Dan Wallach of Rice. Dr. Wallach has never met a DRE fraud or tampering theory that he won't entertain -- in spite of the lack of any solid evidence that the machines are insecure or inaccurate and in the face of a track record of thousands of successful elections run on electronic voting equipment.

My primary criticism of Dr. Wallach's section is that he does not undertake any analysis of available election data, or the post-election analyses done by other parties, as a basis to support any of his arguments and recommendations. He simply throws out theories and characterizations of DREs as accepted fact and proceeds to support them with thin arguments and anecdotes. This is not a scholarly work in any sense so should not be characterized as a "study" or "independent analysis."

This first example of this approach is contained in the first section of the E-voting piece, titled "Incident reports and machine accuracy." Wallach states "Among statisticians, we have studies of voting residual rates, turnout, and other important issues, many of which have concluded that new (emph. added) DRE voting systems are less accurate than more traditional optical scan ballots."

Here, Dr. Wallach has mis-characterized his facts or based his assertions on old information, although its hard to tell where he is getting his data as there don't appear to be any cites in his report. Dr. Wallach seems to gloss right over the MIT-Caltech study released in early-2005 stating that in the November 2004 elections, the three states (GA, MD, and NV) with the lowest residual vote rates in the nation were the only three states with statewide use of new DRE equipment at the polls.

The Cal-Tech MIT study showed that, while the national average residual vote rate was 1.1 %, Nevada achieved a residual vote rate of just under .3%. Georgia and Maryland posted similar results. The authors highlight the improvements in residual vote rates obtained with the use of newer-generation DREs.

(Excerpt from the MIT-Caltech Report, starts at bottom of page 14)

Like the analysis in Columns 2 and 3, the coefficients from Column 4 are reduced substantially when the controls are added in Column 5. There is one exception, however. The coefficient associated with moving from optical scanning to DREs is only affected slightly when the other controls are added. This finding is intriguing because in previous research (VTP 2001; Ansolabehere and Stewart 2005), we discovered that optical scanners tended to have the lowest residual vote rates and that DREs tended to have higher residual vote rates. Here we discover that there may be particular gains to be had when a jurisdiction that already uses optical scanners chooses to use the newest generation of DREs. (emph. added)


So, Dr. Wallach's analysis is blown out of the water by readily-available reporting on the 2004 election. Most of the E-Voting section goes on to repeat the litany of familiar, and unsupported, theories on DRE accuracy and security with no data or factual evidence presented in support of those theories. This is a recurring theme in the paper. Even sections with hard data (such as the survey of voter experience) misuse or misinterpret the data. Long lines at the polls are blamed on DRE use in Franklin and other counties. Other likely factors, such as unprecedented turnout, are given no consideration.

Dr. Wallach's arguments are then briefly and badly summarized by the DNC VRI leadership and used to support their policy proposals. But without a complete analysis of the issues, and refusal to even consider data that don't support Dr. Wallach 's theories, how can these policy proposals be held out for serious consideration? Unfortunately, this report seems to be a vehicle more suited for carrying forward the DNC 's agenda than for serious analysis of election practices or the outcome in Ohio.

"Runoff Primary Elections Dropped"

The Miami Herald offers this report, which begins: "Florida's runoff primary election, which catapulted some of the state's most renowned politicians into office, became a historical footnote Wednesday when Gov. Jeb Bush signed a bill eliminating it."

"Ney Intends to Send Shays-Meehan Bill to Floor"

Roll Call offers this breaking news report (paid subscription required).

"Unions have blunted bids to curb political spending"

The Sacramento Bee offers this report.

"Wamp backs Dem redistricting plan"

The Hill offers this report, which begins: "Rep. Zach Wamp (R-Tenn.) became the first Republican to join a Democratic effort to limit gerrymandering. Wamp yesterday signed on as a co-sponsor of a bill introduced by Rep. John Tanner (D-Tenn.) that would establish bipartisan commissions to redraw state congressional districts every ten years."

LULAC/MALDEF to Appeal in Texas Redistricting Case

See here. I believe the Democrats have already announced that they will be appealing the ruling.

"Disputes over legislative redistricting can send politicos to court"

Steven L. Taylor offers these thoughts in the Mobile Register.

"Return of the $1 Million Donor"

The Washington Post offers this editorial on the Pence-Wynn bill.

"Follow the Money"

Chris Suellentrop offers this analysis in the Boston Globe, with the subhead: "Forget Howard Dean's mouth. The real issue facing the Democrats is dollars."

"Firms' gifts elude limit"

The Atlanta Journal-Constitution offers this report, which begins: "A Georgian who owns numerous companies can't legally use them to make multiple campaign contributions to a political candidate. That's the law on paper. The reality is that some corporate donors may be getting away with it in Gwinnett County because nobody's looking."

"Dim Outlook for 527 Overhaul Bills"

Roll Call offers this report (paid subscription required).

An O'Connor Retirement?

Howard Bashman links to this William Kristol post saying that Justice O'Connor, and not the Chief Justice, will retire. Not only does this sound plausible to me given what I've heard, it is also consistent with this May 27 post at Blue Mass Group. When I read that, I thought, the logical reason for O'Connor to hire fewer clerks is because she, not Rehnquist, is planning retirement.

In any case, an O'Connor retirement would have even more implications for election law than the implications I recently flagged because O'Connor is a swing vote on even more election law cases than Rehnquist.

I imagine we will know by next Thursday about all of this speculation.

DNC Issues Major Report on the 2004 Election in Ohio

You can find the report, "Democracy at Risk: The 2004 Election in Ohio," here.

It is worth reading at least this executive summary. The report finds numerous problems with voting in Ohio, but significantly rejects the assertion that has floated in some Internet circles of fraud causing the votes of John Kerry to have been misallocated to George Bush. Also significant is opposition to DREs and arguments in favor of precinct-based optical scans. These are the main findings:
A. Substantial numbers of voters experienced problems in voting and these problems varied significantly by race, geography and type of voting machine and tabulation system that was used.
B. Scarcity of voting equipment caused long lines and deterred people from voting. These problems varied significantly by race and type of voting machine.
C. Provisional ballots were vastly overused in Ohio and the types of voters forced to vote provisionally varied significantly by registration status, residential mobility and race. Anecdotal evidence suggests these problems were due to extremely faulty election administration.
D. Identification requirements were illegally administered and the effects varied significantly by race and age.
E. There were significant problems in processing new registrations and these problems varied by race and county.
F. Many voters experienced intimidation and this experience varied significantly by race.
G Voters were less likely to have their votes counted in counties using punchcard machines and optical scan machines that were centrally tabulated.
H. The study findings and independent analysis indicate that the use of DRE (touchscreen) machines is highly problematic and the use of precinct-tabulated optical scan systems is vastly preferable if accessibility issues can be successfully addressed.
I. The statistical study of precinct-level data does not suggest the occurrence of widespread fraud that systematically misallocated votes from Kerry to Bush.

Light Blogging Until Monday

I'm leaving tommorrow for the Russell Sage conference on the Voting Rights Act in New York. Regular blogging (and news of the day for listserv subscribers) will resume Monday.

Redistricting Reform Trailing in California

See page 2 of this Field Poll. A snippet: "Currently 50% of registered voters and 60% of likely voters have seen or heard something about this proposition. When asked how they would vote if the election were being held today, those opposing the initiative outnumber those who favor it both among all registered voters (44% No, 33% Yes, 23% Undecided), as well as likely voters (46% No, 35% Yes, 19% undecided)."

"Voting by Mail Could Improve American Democracy"

Rep. Susan Davis offers this Roll Call oped (paid subscription required). A snippet: "Critics of voting by mail claim that it causes a rise in voter fraud. Yet studies show that there are more incidents of alleged fraud at polling places than in voting by mail. There are also extremely low incidences of fraud with voting by mail when compared to other methods of voting. The state of Oregon, which runs its elections entirely by mail, has prosecuted only four cases of fraud in the last six elections."

"Battle over felon votes continue"

Newsday offers this article on Muntaqim v. Coombe, the Second Circuit felon disenfranchisement case being reheard en banc today. For those in NYC, the hearing is at 2 pm at the Second Circuit Court of Appeals, 40 Foley Square, 17th Floor.

"GOP cites flaws in election trial run"

The Asbury Park Press offers this report, which begins: "Echoing criticism leveled by Republican Party leaders at the Statehouse, Assemblyman Steven J. Corodemus, R-Monmouth, said the state's experiment to duplicate Arizona's publicly funded elections system is fraught with cumbersome requirements and lacks several 'crucial safeguards.'"

Pete Du Pont on Independent Redistricting Commissions

In this Opinion Journal piece on Gov. Schwarzenegger, Former Delaware Gov. Du Pont writes: "Finally comes the most politically explosive Schwarzenegger proposal--mandating the drawing of legislative district lines by retired judges. There is no question that when legislators of both parties work together to draw district lines there is political collusion to safeguard their own seats. As California economist Art Laffer (a supporter of the proposition) pointed out, among the 80 state Assembly seats, 20 Senate seats and 53 U.S. House seats up for election in 2004, 'not one seat of the 153 changed party affiliation.' The Declaration of Purpose of the proposition has it right: 'Partisan gerrymandering, uncompetitive districts, [and] ideological polarization' govern the redistricting process. No doubt three bipartisan, retired judges selected by lot from pool will do better than partisan, self-interested pols. But judges are no less human than the rest of us and no less inclined to follow their political instincts--Roe v. Wade being one example and the decision upholding McCain-Feingold's limitations on free speech another--so sooner or later the retired California judges will make ideological decisions in drawing district boundaries. Nevertheless this is a visionary solution to a political problem that will not be solved in any other way."

Is McConnell Out Because of Bush v. Gore?

Yesterday I wrote this lengthy post talking about how election law might change if Chief Justice Rehnquist retired to be replaced by Tenth Circuit judge Michael McConnell. Today's Chicago Tribune features this article on who might be on the White House's short list in the event that the Chief retires. A snippet: "Sources close to the White House said McConnell and Pryor are long shots. McConnell, a former University of Chicago Law School professor, is seen as too unpredictable--conservative on some issues, such as religion, but less so on others, including a recent opinion that exposes law-enforcement officers to liability. He also has criticized the reasoning of Bush vs. Gore, which ended the statewide recounts in Florida and handed the presidency to Bush."

"Gatekeepers to the Franchise: Shaping Electio Administration in New York"

I just received a copy of this new book by Ronald Hayduk. I read this book in draft form. It is a very interesting case study of New York election adminstration issues, and in particular the role that politics has played in election administration reform.

"Are Election Reforms Increasing the Margin of Litigation?"

Dan Tokaji offers these interesting thoughts on the question.

Charles on The Supreme Court and Election Law

Guy Charles's has published "Judging the Law of Politics," 103 Michigan Law Review 1099 (2005) reviewing my book, The Supreme Court and Election Law. Those with Westlaw access can find the review here.

Would a Rehnquist Retirement Make A Difference? Yes, in Some Important Areas

The common wisdom is that Chief Justice Rehnquist will retire in June, at the end of this term of the Supreme Court, and that his expected replacement wouldn’t make much difference in terms of the decisions of the Court: after all, President Bush will likely appoint another conservative to fill the seat of Rehnquist, a reliable conservative vote in the closely-divided body.

Others have explained that the first part of this common wisdom may be wrong. We have no good information beyond speculation based on the Chief’s health that he in fact will retire any time soon. But there’s reason to doubt the second part of the common wisdom too. In fact, replacing Rehnquist with even another “conservative” could make a great difference in many areas of the law. True, we likely won’t see a shift in the Court’s position on abortion, for example, an area that is likely to get a lot of attention in any confirmation hearings. Rehnquist doesn’t cast the deciding votes in those cases, and in any case anyone President Bush would appoint to replace Rehnquist is likely to have a similar view on abortion.

But we forget how important each of the nine votes on the Court is. Neither “conservatives” nor “liberals” on the Court are a monolithic bunch, and some issues transcend the conservative/liberal dichotomy.

Take the area I study, election law. Imagine if the Chief were replaced by Tenth Circuit Judge (and former law professor) Michael McConnell, the current "flavor of the month" (or not) among those who are prognosticating about a Rehnquist replacement.  McConnell is a constitutional law specialist, with an emphasis on the religion clauses of the First Amendment. McConnell has written two law review articles on election law topics (one on redistricting and one on Bush v. Gore) and two opeds on campaign finance reform. So there’s some basis to guess how he would decide future election law cases before the Court.

How might a McConnell Court differ on election law cases compared to a Rehnquist Court? First, there’s a much better chance that the Court would put limits on partisan gerrymandering, that is, the ability of legislators to draw strict lines to serve partisan purposes. Last year the Supreme Court split three ways on the topic. Four Justices (including Rehnquist) voted to keep courts out of the area. The four most liberal Justices voted to give courts a newly invigorated role in policing the most egregious partisan gerrymanders. Justice Kennedy, essentially punted, and the issue will be coming back to the Court next term now that a three-judge-court in Texas has rejected the partisan gerrymandering claim of Democrats complaining about the Texas congressional re-redistricting done for Republican advantage.

No one knows what Kennedy will do with the Texas case when it returns, but with a Chief Justice McConnell, it appears that there will be five votes to police egregious partisan gerrymanders even without Kennedy’s vote.

In a 2000 law review article, McConnell wrote that "[p]artisan gerrymandering is designed to entrench a particular political faction against effective political challenge—sometimes even to give a political minority effective control." He strongly suggested it violates a provision of the Constitution known as the "Guarantee Clause." Such a holding could open up a whole new area of election law challenges because the courts have previously treated the Guarantee Clause as a part of the Constitution not to be enforced by the courts. McConnell could similarly vote with the four most liberal judges in getting rid of the "racial gerrymandering" cause of action, which the Court recognized in the 1993 case of Shaw v. Reno. In that same law review article quoted above, McConnell offered the Guarantee Clause as a means to "put an end to the embarrassingly standardless line of cases that began with Shaw v. Reno."

In addition, a McConnell Court would be much more likely to uphold the provisions of the Voting Rights Act that come up for renewal in 2007. These provisions, which require certain states (mostly in the South) to seek "preclearance" from the government before making any changes in voting rules, have been attacked as trampling state’s rights. Since the Rehnquist Court’s federalism revolution, many have believed that these renewed Voting Rights Act provisions could be viewed by the Supreme Court as an unconstitutional exercise of Congressional power. McConnell has been critical of this line of cases, and would be much more likely than Rehnquist to uphold the provisions should the law be renewed and attacked as unconstitutional.

Finally, McConnell seems more willing than Rehnquist to consider upholding novel campaign finance arrangements.In editorials appearing in the 1990s in the Chicago Tribune and the Wall Street Journal, McConnell agreed that the First Amendment limits the ability of the state to limit spending on campaigns, but he wrote that Congress could take steps to prevent the sale of access to politicians by political parties. "Americans have a First Amendment right to do what we can to sway public opinion, but not to buy privileged access to our leaders by giving money to their campaigns." Among the steps he endorsed were time limits for spending campaign contributions and a ban on contributions after election day.

In upholding the McCain-Feingold law, the Supreme Court by a 5-4 vote agreed that Congress did not violate the First Amendment in crafting some far-reaching laws aimed at preventing the sale of access to elected officials. Rehnquist was in the minority on this point, so a switch from Rehnquist to McConnell would not change Court doctrine. But it would solidify the moderately pro-campaign finance regulation position on the Court, particularly if Justice O’Connor were the next Justice to leave the Court—she was part of the 5-Justice majority upholding the major provisions of McCain-Feingold.

This little parochial exercise in my area of the law is meant to prove a simple point: Whoever comes next on the Supreme Court will have a great deal of power, with a chance to change and influence the law in many areas that most Americans don’t even think about. That’s true even if a non-controversial candidate of the same political orientation is confirmed to replace a retiring Justice.

"Addressing the Inequities of BCRA"

Rep. Bob Ney offers this Roll Call oped, which begins:

It should not come as a surprise that Roll Call columnist Norman Ornstein opposes the campaign finance legislation reported by the House Administration Committee recently. As he has acknowledged in the past, though notably not in his most recent column, he was personally involved in the drafting of BCRA, helped devise the strategy to get it passed and evidently takes great pride in the success of that effort. On other occasions, Ornstein has used his column to promote other pieces of legislation he has had a hand in drafting, specifically the continuity of government initiative and lobbying reform.

These three examples demonstrate the entirely unique position occupied by Ornstein. A journalist would normally tend to confine themselves to merely reporting or commenting on laws written by others. Those who actually make policy or write legislation usually have to convince journalists and commentators of the virtues of their proposals if they want favorable coverage in the media. By straddling these two roles, both journalist and policy maker, Ornstein is in a unique position that allows him to both write bills and then use his column to promote them.

Another snippet: "Finally, I have to respond to Ornstein’s utterly false suggestion that I have “avoided any efforts” to examine the implementation of the Help America Vote Act. In just the last year, our committee has held four separate hearings on election reform issues. We have examined the role of the Election Assistance Commission, taken testimony from its commissioners and regularly communicate with them. We have brought in technology specialists and election administrators to discuss voting system security, looked back at how HAVA was implemented nationwide during the 2004 election, and held a field hearing in Ohio to gain more information about how the 2004 election was conducted in that pivotal state. I expect to have further hearings on these issues in the months ahead and will continue to closely monitor progress on implementation of the act."

"Cunningham staying mum on home deal"

The North County Times offers this report, which begins: "U.S. Rep. Randy "Duke" Cunningham still has no timetable for releasing information about his relationship with a Washington contractor who purchased the congressman's Del Mar home in 2003 and shortly thereafter saw his company's defense contracts soar." Another snippet: "Cunningham has been under fire since a June 12 disclosure that Wade had purchased the congressman's Del Mar home in December 2003 for $1.675 million and sold it less than a year later in October 2004 for $700,000 less than the purchase price. Around the same time, MZM reported that the value of its defense contracts had soared, its revenues had tripled and its number of employees had grown substantially."

"Mr. Smith Leaves Washington"

The New York Sun offers this editorial, which begins: "All Americans who value the First Amendment will regret the retirement of Bradley Smith from the Federal Election Commission."

"Tied Up in Knots"

See this editorial from the Arizona Republic on state voter i.d. rules.

"The Reform that Isn't"

Harold Myerson writes this article for The American Prospect, with the subhead: "Chutzpah Department: Invoking McCain-Feingold, House and Senate Republicans want to put progressive 527s out of business."

"Dems stiffed counties on costs of recall election"

See this column by Phillip Matier and Andrew Ross in the San Francisco Chronicle.

Bauer Responds to Toner oped

See here.

"Iowa Governor Will Give Felons the Right to Vote"

The New York Times offers this report. See also this report from the Des Moines Register.

"Ballot accord talks rev up"

The Sacramento Bee offers this report, with the subhead: "Democrats, governor's staff say they're trying to work out compromises on initiatives."

"Mr. Smith Quits Washington"

Ryan Sager offers this NY Post column.

How Smart Was It for Plaintiffs to Support Cert in the Vermont Spending Limits Case?

You can find six amicus briefs supporting the winning side of the Second Circuit Sorrell case here. Usually, of course, the side that wins in the Court of Appeals opposes a grant of cert. But for years it has been the mission of some of the amici, such as NVRI, to try to get the Supreme Court to reconsider that aspect of Buckley v. Valeo striking down spending limits as violating the First Amendment rights of speech and association. Here's a chance, the argument must be, to push the issue, by noting the circuit split, and lining up some heavy hitters (current and former Senators, state Secretaries of State, state judges, and attorneys general) on the winning side to support review to revisit this issue in a high profile case.

On reflection, I think this strategy could well backfire. I had predicted a cert denial in the earlier 10th circuit spending limits case, Homans, because I doubted that the Supreme Court would grant review to upset the settled law that spending limits violate the First Amendment under Buckley. And the Court denied cert.

Now I've been predicting a cert. grant, except noting the odd procedural posture: the Second Circuit has remanded for additional findings, and there's a chance that this issue goes away after the case comes back to the Second Circuit after remand. For this reason, Tom Goldstein concluded that it is "very, very unlikely" that cert. is granted.

After Tom posted his comment, I started thinking about why I am more confident (though far from certain) about a cert grant. And the reason is this: it is hard for me to imagine that Justices Kennedy, Scalia, Thomas and the Chief (four votes for cert, assuming no retirements) would want to allow a Second Circuit opinion holding that spending limits may be constitutional to remain on the books for the year to two years likely before the case returns to the Second Circuit. So the impetus for cert. granting is going to be coming from those who would reverse the holding of the Second Circuit. We can never be sure where O'Connor's vote would be, but she has been a supporter of the entire Buckley framework (maybe the last real supporter on the Court), and if I were Justice Breyer or Ginsburg (or Stevens or Souter), I wouldn't be betting that she'd vote to allow spending limits at this point. So those who might be more sympathetic to the arguments of the Vermont plaintiffs should want to vote to deny cert., so things can percolate in the lower courts and there can be some experimentation, at least in the Second Circuit, with spending limits.

So in the end this strikes me as a big gamble. Plaintiffs should be careful what they wish for: a decision to grant cert now might mean a losing decision down the line, whereas waiting this out for another half decade or so, depending upon the composition of the Court, could have been a wiser strategy.

Wynn and Shays Debate Campaign Finance Reform

I received the following announcement via e-mail:

“The ‘527’ Fairness Act of 2005”
(Expected on House Floor before July 4th)

Pros and Cons

Rep. Albert Wynn (D-MD)
Rep. Chris Shays (R-CT)
Cleta Mitchell
(Foley & Lardner, LLP)
Trevor Potter
(Campaign Legal Center)


Moderator: Michael J. Malbin, Executive Director
The Campaign Finance Institute

* What’s in the bill?

* What impact would it have on money and politics?

* Time reserved for audience questions


Thursday, June 23, 2005
2:30 – 4 pm
1310 Longworth HOB
RSVP REQUIRED:
E-mail: events@cfinst.org, or call (202) 969-8890 ext.11
The Campaign Finance Institute
1990 M St, NW Suite 380
Washington, DC 20036
CampaignFinanceInstitute.org
info@cfinst.org

"It’s Gettin’ Hot (Headed) in Here: The FEC's Internet Summer"

Allison Hayward offers this analysis.

First Circuit Weighs in on Rhode Island Campaign Finance Issue

Following up on this post, see here.

"State GOP has 'army' to fight in election"

The Los Angeles Daily News offers this report, which begins: "Building on the strategy President George W. Bush used to lure record numbers of voters to the polls last year, California Republicans are poised to deploy a volunteer army to turn out votes for Gov. Arnold Schwarzenegger's initiatives and other measures on the Nov. 8 ballot."

"BROAD COALITION URGES US SUPREME COURT TO REVIEW CAMPAIGN SPENDING LIMITS CASE"

NVRI has posted this press release on the Vermont spending limits case. It begins: "- A broad coalition of United States Senators, state attorneys general, former US Senators Bill Bradley and Alan Simpson, and others filed a series of legal briefs today urging the United States Supreme Court to review the constitutionality of Vermont's limits on campaign spending. The filings set the stage for the nation's highest court to revisit its 1976 decision in Buckley v. Valeo, which struck down congressional campaign spending limits on First Amendment grounds." The news release promises that the briefs supporting cert. filed in the Supreme Court will be posted online. I'll provide a link when they are posted.
It will be interesting to see if the Court takes any actions on these petitions before its summer recess. I've noted earlier that I think a cert. grant is very likely, except that there's a procedural wrinkle in the case. UPDATE: Tom Goldstein responds here.

"It's a crime to stop felons from voting"

Sheryl McCarthy offers this column in Newsday on the pending en banc rehearing in Muntaqim v. Coombe, a felon disenfranchisment case being heard by the Second Circuit.

Bauer on Smith's Departure

See here. See also this A.P. report these comments at Red State, and this C|NET News report.

"FEC Could Face Massive Turnover at the Top"

Roll Call offers this report (paid subscription required).

"Wal-Mart Urges Hill to Act on VRA"

Roll Call offers this very interesting report (paid subscription required). A snippet:

A White House spokesman said he was unfamiliar with the Wal-Mart letter and referred comments about voting rights to a Jan. 31, 2005, transcript in which Scott McClellan told reporters the “president is firmly committed to protecting the voting rights of all Americans.” In the same statement, McClellan added that “the president said that he would take a look at” the reauthorization.

"King County elections superintendent takes new county job"

A.P. offers this report, which begins: "King County's election superintendent is leaving his post following a court challenge of November election results that revealed problems with the voting process in the state's most populous county. Bill Huennekens will step down as superintendent effective July 11, the county said in a statement today. He's been reassigned to supervise enactment of recent federal voting rules, which require installation of handicapped-accessible balloting equipment at more than 500 county polling sites."

Toner Op-ed

Here is the text of the Roll Call oped by FEC Commissioner Michael Toner that I linked to earlier (reprinted with permission):

Pass Pence-Wynn So We Can Fix Coordinated Expenditures

By Michael E. Toner
Special to Roll Call

June 15, 2005

Last week the House Administration Committee approved a campaign finance bill sponsored by Reps. Mike Pence (R-Ind.) and Albert Wynn (D-Md.) that would make significant changes to the nation’s campaign finance laws. The House is expected to vote on the Pence-Wynn bill before the August recess.

Potentially the most significant component of the Pence-Wynn bill is a proposal to abolish the limits that apply to political-party spending coordinated with federal candidates. Current law severely restricts such party spending, known as coordinated expenditures, on behalf of candidates.

The coordinated-expenditure limits do not prevent corruption or the appearance of corruption and serve no rational purpose in today’s campaign finance system. Regardless of what else Congress decides to do in the campaign finance area, it should repeal the coordinated expenditure limits and allow the parties to spend as much money as they want on behalf of, and in full consultation with, their candidates.

Under current law, political parties may only make coordinated expenditures out of hard dollars — that is, non-corporate, non-union donations received from individuals that are raised subject to the federal contribution limits. Soft money may not be used to make coordinated expenditures.

However, the current limits on coordinated expenditures are low. For the 2004 election cycle, state and national party committees were each limited to spending only $37,310 on behalf of U.S. House candidates. In U.S. Senate races, the coordinated spending limit varied based on the population of each state and ranged as low as $74,620 in the least populous states.

Thus, in the fierce South Dakota Senate race last year between then-Senate Minority Leader Tom Daschle and former Rep. John Thune (R), the Democratic and Republican state and national parties were restricted to spending less than $75,000 apiece on coordinated expenditures for the entire election, or about 13 cents per voter. Similarly, in Colorado, where Ken Salazar (D) defeated Pete Coors (R) in a key open-seat Senate race, the parties could spend only seven cents per voter.

The coordinated expenditure limits are adjusted for inflation each election cycle. Nevertheless, given that the cost of a postage stamp is 37 cents, the spending limits in effect in 2006 will still make it illegal for a political party to consult with a candidate about sending even one letter to every voter in any state or Congressional district in the country.

These Draconian party spending limits are an anachronism and serve no legislative purpose. Instituted in the 1970s, the coordinated party expenditure limits are a vestige of the many other spending limits that were declared unconstitutional by the Supreme Court in Buckley v. Valeo.

Passage of the campaign finance law co-sponsored by Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) has made the limits even more of an anachronism. Under McCain-Feingold, the national parties are barred from raising and spending soft money for any purpose, and state parties are prohibited from using soft money in connection with federal elections.

By enacting McCain-Feingold, Congress made a fundamental distinction between, on the one hand, political parties raising and spending corporate, union, and other soft-money funds in connection with federal elections — something Congress determined to have a corrupting influence — and, on the other hand, parties using hard money in federal elections, which Congress found did not create corruption and therefore sought to encourage. Given that every single dollar that a political party wishes to spend on coordinated expenditures must be made out of hard money, there is no anti-corruption rationale for continuing to limit these party expenditures.

Moreover, abolishing the coordinated spending limits for parties is sound public policy. Given that the coordinated expenditure limit is so low, political parties have, in recent election cycles, increasingly relied on independent expenditures to aid their candidates — a kind of spending that the Supreme Court has ruled cannot be limited. For example, in the 2004 cycle, the Democratic National Committee spent $120 million in independent expenditures on behalf of Sen. John Kerry (D-Mass.).

Even more striking in relative terms has been the increase in independent expenditures by the national Congressional party committees on behalf of House and Senate candidates. The National Republican Congressional Committee made $47 million in independent expenditures during the 2004 election cycle, which was 39 times more than what the NRCC had spent on independent expenditures in 2002. Similarly, the National Republican Senatorial Committee made $20 million in independent expenditures during the 2004 cycle, which was 20 times greater than what it spent in 2002.

The growth in independent spending has been equally striking on the Democratic side. During the 2004 cycle, the Democratic Congressional Campaign Committee spent $36 million on independent expenditures — an amount 36 times higher than what it spent in 2002. The Democratic Senatorial Campaign Committee, for its part, spent $18 million, an 18-fold increase.

Although political parties have a constitutional right to make unlimited independent expenditures on behalf of their candidates, almost everyone agrees that it is an artificial undertaking. Parties exist to promote candidates and the political philosophies they espouse. Allowing political parties to speak to voters, but only apart from their candidates, is contrary to the institutional nature of the parties themselves. Removing the coordinated expenditure limits would allow the parties and candidates to jointly tailor their advertising messages as they see fit. The parties also would likely cease making independent expenditures.

In addition, political scientists have repeatedly found that political parties invest more resources in challenger and open-seat Congressional races than do other kinds of entities, such as political action committees, which tend to favor incumbents. If the limits on coordinated party expenditures were lifted, both major parties would be able to increase the resources they devote to challengers and to open-seat elections, which could make Congressional races more competitive.

Finally, abolishing the limits on coordinated expenditures would potentially reduce the importance of soft-money spending by outside 527 organizations. If the Democratic and Republican parties could each legally spend as much hard money as they wanted in targeted Congressional races, in a way that’s fully coordinated and managed jointly with their candidates, it could help offset and perhaps ultimately neutralize soft-money spending by 527 groups across the political spectrum.

Given that the Bipartisan Campaign Reform Act sought to reduce the influence of soft money in federal elections, abolishing the party coordinated expenditure limits would allow Congress to build on BCRA and increase the role of hard money in federal elections. It would also end archaic spending limits that serve no rational purpose. Let’s hope that Congress takes advantage of this key opportunity to improve the campaign finance system when it considers the Pence-Wynn bill in the weeks ahead.

Michael E. Toner is vice chairman of the Federal Election Commission.

Breaking News: Brad Smith Resigns from FEC, Effective Aug. 21

See this A.P. report. He plans to return to law teaching at Capital University Law School in Ohio. Here is the FEC press release. If I can find a link to the resignation letter, I'll post it. UPDATE: The letter is here.

"ELECTION REFORM: Congress called on to fix problems"

The Toledo Blade offers this report, which begins: "Nearly five years after the 2000 election chaos, angry citizen groups are still storming Capitol Hill demanding change, task forces and special commissions are still churning out reports on fraud, and lawmakers are still vowing “never again” will America show the world elections marred by voting irregularities." Dan Tokaji also provides this update on coming election reform controversies.

Two Roll Call Opeds

Norm Ornstein writes So Much for Reform: House’s ‘527’ Bill Is a Turkey and FEC Commissioner Michael Toner writes Pass Pence-Wynn So We Can Fix Coordinated Expenditures. Paid subscription required.

"Millionaire Club Grows in Senate"

Roll Call offers this report (paid subscription required) on the latest financial disclosure forms filed by Senators.

"Senate Considers ID's for Voters"

A.P. offers this report from Ohio.

"Voter ID bill could unfairly target some"

The Milwaukee Journal-Sentinel offers this report, with the subhead: "More minorities lack driver's licenses than whites, study finds."

"Elections board votes to allow Cranston mayor back on air"

Following up on this post, the ABC affiliate in Rhode Island offers this report.

"Pence-Wynn Bill Is No Vehicle for Reform"

Donna Brazile offers this commentary in Roll Call (paid subscription required). A snippet:

Here’s how it would work in the real world. It would allow federal officeholders (including Members of Congress) to solicit contributors to give more than a million dollars to a party, and more than $2 million to federal candidates. The Pence-Wynn bill would also relax restrictions designed to keep corporations from pressuring rank-and-file workers to make contributions to corporate political action committees, and ease the way for trade associations to pressure the employees of their members to solicit PAC contributions.

If this bill is allowed to pass, can you imagine the pressure some workers would be under to pony up their hard-earned wages to help support someone who, for instance, opposes raising the minimum wage? The Democratic Party has no business getting behind any of this bill, which would only contribute to the sense of powerlessness most citizens feel about their lives. No reasonable campaign finance system should allow one person to give millions of dollars directly to the parties and candidates.

"Wallets Opening Wide for Election"

The Los Angeles Times offers this report on the campaign financing behind the California special election Gov. Schwarzenegger called yesterday. The article's subhead reads: "Rivals on measures that could be on the Nov. 8 ballot are expected to tap donors for more than $100 million." In somewhat related news, Roll Call offers Redistricting Reform on Fall Ballot (paid subscription required).

"Hard Cash Is Main Course for GOP Fundraiser"

The Washington Post offers this report, with the subhead: "Selling of $2,500-a-Plate Tickets Is Laborious but Necessary, Lawmakers Say."

My Article on Contribution and Expenditure Limits Now Available

Although it won't be available in hard copy for several weeks, you can now download a copy of the final version of Richard L. Hasen, Rethinking the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns, 78 S. Cal. L. Rev. 885 (2005) at this link. The article is part of a symposium on The Impact of Direct Democracy. If the rest of the issue becomes available on line (including comments by Bernie Grofman and Dan Ortiz in part on my paper), I'll provide another link.

"Frist's finances questioned"

The Atlanta Journal-Constitution offers this fascinating report (link via Political Wire).

A Comment on Comments

I think the experiment in comments has for the most part been a positive one. There have been a number of thoughtful posts and debates in the comment section so far.

Unfortunately, I need to temporarily suspend comments on the site. I discovered this morning that a number of marketers (for casinos, sexual dysfunction products, and worse!) have been filling the comments section with links selling their wares.

I need to figure out how to approve comments before they post to avoid this garbage appearing on the list. When I get this worked out, the ability to comment will be restored. Thanks for your patience.

Another Interview with Brad Smith on FEC and Blogging Regulations

See here. For those interested in the topic, this is not to be missed. UPDATE: Bob Bauer responds.

"Dean blasts GOP over voting rights"

The Chicago Tribune offers this report, with the subhead: " Support for 1965 law must be first step to court blacks, he says."

"GOP disregards vote discrepancy"

The Seattle Times offers this report, which begins: "More ballots than voters? Republicans, who made much of that and other 2004 election discrepancies in their unsuccessful court bid to unseat Democratic Gov. Christine Gregoire, found themselves with the same problem at their King County convention in Bellevue yesterday."

Connections Between A Vacancy on the Supreme Court and California Politics?

See the last paragraph in this essay by Jeffrey Rosen in the New York Times Magazine.

"Revisiting the Limits on Hard Money"

Eliza Newlin Carney's latest column is here.

A Summary Affirmance in the Texas Redistricting Case?

In a thoughtful and lengthy analysis of the Texas redistricting case, Beldar predicts a summary affirmance by the Supreme Court. I'm not so sure. That is certainly possible, and perhaps it is the most likely result. But as I've indicated here, the only rational way of reading the remand of the Texas redistricting case is that Justice Kennedy wanted another crack at this issue, and he might make up his mind about what to do by the time this case reemerges at the Supreme Court. Also, if the Chief retires and is replaced by someone more sympathetic to the policing of partisan gerrymanders, we could well end up with a 5-justice majority reviving the cause of action. I don't think we can predict anything with confidence on this issue. (By the way, here is another partisan gerrymandering case out of Pennsylvania that is working its way through the courts.)
I have enabled comments.

Schleicher on Political Markets

David Schleicher has posted 'Politics as Markets' Reconsidered: Natural Monopolies, Competitive Democratic Philosophy and Primary Ballot Access in American Elections on SSRN (forthcoming Supreme Court Economic Review. Here is the abstract:

Over the past decade, mainstream election law scholarship has been based largely on a simple but forceful set of analogies: politics are like markets, parties are like competing firms and voters are like consumers that decide at election-time which party's public policies they would like to buy. Proponents of this theory have been criticized for taking the analogy between markets and politics too far and for relying too heavily on one method - electoral competition - to solve all the problems of American democracy. However, the true problems of the "politics as markets" theory lie at the inverse of these criticisms. Our understanding of markets can explain a great deal about electoral behavior, but scholars have failed to apply the lessons of economic theory to the central fact of American politics: the existence of a two-party system. Economists have developed a long literature explaining how to regulate markets that, as a result of extreme economies of scale, trend toward having only a few participants (known as the problem of natural monopoly). These ideas - which permit a natural monopolist (or, in the case of elections, a natural duopoly) to become entrenched but regulate its pricing behavior, and deregulate downstream markets that are not naturally monopolistic - should be the basis for any analysis of American elections based on a market metaphor.

Moreover, competition is not too narrow a concept on which to base the regulation of elections, but rather too broad. There are a number of conflicting normative justifications for using competition as a guide for electoral regulation, each of which suggests different policy outcomes. Specifically, electoral competition can promote the ends of representative government or decisive electoral results, but policies that enhance one of these often harm the other. Rather than assume away the benefits of either representation or decisive outcomes, as much of "politics as markets" scholarship does, judges should balance these ends when determining the constitutionality of state regulation of electoral competition.


The Supreme Court has created one line of cases that does not suffer from these flaws. Its holdings in primary ballot access cases like Timmons v. Twin Cities Area New Party, California Democratic Party v. Jones and Clingman v. Beaver, much pilloried by "politics as markets" scholars, are in fact consistent with the application of economic theory to electoral markets and feature a balanced approach to the conflicting normative justifications for favoring competition. This paper stands as a defense of the Court's approach to resolving the constitutional law of primary ballot access as a matter of economic theory and competitive democratic theory.

"Governor ready for election gamble: Call for ambitious, risky vote expected Monday"

The San Diego Union Tribune offers this report.

"Council Moves Toward Easing Term Limits"

The New York Times offers this report.

The FEC Blogging Issue is Getting Nasty

See here and here.

Redistricting Measure Qualifies for the California Ballot

Dan Weintraub reports here. We should know soon for sure whether Gov. Schwarzenegger will be calling a special election for the fall to consider this and the other measures that have qualified.

"In the South, Partisan Voting Gets Stronger"

Roll Call offers this report (paid subscription required). A snippet: "Surveys from 2004 show that voters have become less and less likely to cross party lines when voting for president or Members of Congress. Not only that — these voters were also paying attention, and quite possibly making up their minds, early in the election cycle."

"We haven't seen the last of election litigation"

The Seattle Times has published my oped, which begins: "The gubernatorial election contest in Washington state has ended, but its impact will extend far beyond the state for many years. I draw three main lessons from the Dino Rossi-Christine Gregoire battle: High-profile legal contests in very close elections will proliferate; public opinion about the legitimacy of the election process and the courts remains fragile; and the government must put more resources into fixing both election-administration problems and election law." And don't miss this accompanying cartoon.

D.C. Circuit Decides Latest Appeal Concerning Third Party Complaints against the Commission on Public Debates

The opinion is here. Once again, the appellate court has rejected the complaints of third parties. Of particular interest to me is the court's discussion of the deference owed the FEC in deciding claims by third party candidates:

At oral argument, counsel for Hagelin explained that what he meant was that because the FEC is dominated by the two major parties, courts cannot trust it to deal fairly with third-party complaints. Assuming Hagelin properly raised this issue—which we doubt given the footnote’s opacity—we see no basis for thinking that third-party complaints warrant more demanding review. To begin with, the FEC’s bipartisan structure is but one of several reasons the Supreme Court cited
in support of deferential review. As the Court explained, the FEC also merits deference because (1) “Congress has vested the Commission with ‘primary and substantial responsibility for administering and enforcing the Act,’” including “‘extensive rulemaking and adjudicative powers,’” (2) the FEC “is authorized to ‘formulate general policy with respect to the administration of this Act,’” and (3) the FEC has “‘sole discretionary power’ to determine in the first instance whether or not a civil violation of the Act has occurred.” DSCC, 454 U.S. at 37 (citations omitted). Moreover, the arbitrary and capricious and substantial evidence standards seem to us fully adequate to capture partisan or discriminatory FEC behavior. If the FEC engages in “unjustifiably disparate treatment” of third parties as compared to major parties, those actions would “work[] a violation of the arbitrary-and-capricious standard.” See FEC v. Rose, 806 F.2d 1081, 1089 (D.C. Cir. 1986).

"Federal Panel Backs Texas Redistricting"

A.P. offers this report. See also this report in the Dallas Morning News.

"Idea to tax nonvoters is floated"

The Boston Globe offers this report. As I see it, what is proposed is functionally equivalent to compulsory voting with a fine for non-voting. The proponent of this measure needs some public relations advice. Compulsory voting is a hard enough sell without calling it a "tax."

"Liberals May Put Mayor Bloomberg on Ballot in November"

The New York Sun offers this report, which begins: "Because of a quirk in New York election law, the words 'liberal' and 'Republican' could both appear next to the name 'Michael Bloomberg' on ballots in November."

"Backers in Conn. lament failed campaign-finance bills"

The Philadelphia Inquirer offers this report. Thanks to Duane Dow for the pointer.

National Journal Q&A with Bob Bauer on McCain-Feingold

You can find it here (paid subscription required).

"Donor Woes"

Newsweek offers this report, with the subhead: "The White House refunds money to a contributor who may have violated campaign-finance laws." Thanks to Michael McDonald for the pointer.

"Lawmaker may return donation by Love"

The Chattanooga Times Free Press has run the following story, reprinted here with permission:

Lawmaker may return donation by Love

By Ian Berry Staff Writer
A state representative who is considering running for a vacant Tennessee
Senate seat said Wednesday she wasn't sure if she would return a $150
campaign donation from Chattanoogan Charles Love.
Rep. Barbara Cooper, D-Memphis, said she wasn't aware that Mr. Love had
made a contribution to her campaign until after federal authorities made
arrests in Operation Tennessee Waltz on May 26. She said she didn't know the
intent of Mr. Love, a Hamilton County Board of Education member indicted in
the sting.
"I never talked to him," Rep. Cooper said.
She said she would have to speak with House Speaker Jimmy Naifeh,
D-Covington, and others about the matter.
Several legislators not charged in the federal sting received legal
campaign donations from people associated with E-Cycle Management, the
company operating as a front for the FBI sting. Drew Rawlins, executive
director of the state Registry of Election Finance, said there is no state
regulation requiring return of the money.
Daniel Lowenstein, a UCLA law professor specializing in election law, said
there likely is no requirement that the donations be returned, though they
often are in such circumstances.
"My impression is that the recipients of contributions almost invariably
return them when scandalous intimations arise," he stated in an e-mail.
State Rep. Ulysses Armstrong, D-Memphis, received a $1,000 campaign
contribution from an FBI informant and said earlier this week he has
contacted authorities about returning it. The state Democratic caucus said
it will return its $200 donation, and the Republican caucus said it will
donate to charity the $1,000 it received.
Other legislators who received contributions, including Rep. Joe
Armstrong, D-Knoxville, Rep. Larry Miller, D-Memphis, and Sen. Jeff Miller,
R-Cleveland, could not be reached for comment.
Rep. Cooper said she didn't know why Mr. Love would have given her
campaign a $150 check, but she speculated it stemmed from her position on
the House Education Committee.
"I don't think they were trying to snag someone with $150," she said.
She also said she had picked up the paperwork necessary to qualify for the
special election to fill the seat of indicted former state Sen. John Ford,
who resigned two days after the scandal broke.
Candidates must get 25 signatures from registered voters to qualify for
the Aug. 5 primary and Sept. 15 general election. The qualifying deadline is
June 23. E-mail Ian Berry at iberry@timesfreepress.com

Posted by Rick Hasen at 10:36 AM

Useful Election Law Litigation Update...

posted by Electionline.org here.

Some Initial Thoughts on the Texas Decision

[UPDATE: I have enabled comments.] I have had a chance to skim the decision of the three-judge court rejecting partisan gerrymandering and one person, one vote challenges to the Texas re-redistricting, on remand from the Supreme Court to reconsider in light of Vieth. Some initial and very tentative thoughts:

1. All three judges agree that the standard plaintiffs came up with could not be distinguished from the standards identified and rejected by the Supreme Court in Vieth. (The concurring judge on the panel had different views on the permissibility of re-redistricting mid-decade in light of one person, one vote requirements, but believed the issue was not properly before the court on remand.)

2. As I suggested months ago, the judges saw their task as essentially giving Justice Kennedy a chance to reconsider whether there is a judicially manageable standard for separating permissible from impermissible use of party in drawing district lines. After recounting the holding of Vieth, the majority writes: "While the state's contention that most, if not all, of [plaintiffs] arguments have been rejected by a majority of the Court [in Vieth] is strong, we decline to stop there, given the unusual fracture of the Court in Vieth. We can only fairly read the remand to suggest that the Justice providing the fifth vote sees the possibility of a workable standard emerging from this case, the rejected allegations of the complaint in Vieth aside." (pdf at 11).

3. The majority engages in an extensive discussion of the lack of connection between the plaintiffs' individual rights claims and the claimed structural defect in the redistricting: the absence of competitive districts. The court sees little connection. It notes the lack of competitive districts in Texas for 4 1/2 decades, and notes that non-competitive districts can emerge from both bipartisan gerrymanders and even lines drawn by "neutral" redistricters. In short, it sees no connection between the competitiveness issue and the partisan nature of the redistricting. (see part C, beginning at page 30 of the pdf)

4. The court engages in a very interesting discussion of the mid-decade redistricting argument (part IV, beginning on page 36 of the pdf). Particularly interesting is the court's discusion of how OPOV acts as a legal fiction, given changes in population throughout a decade. The court also turns the tables against the university professors who brought the argument forward in their amicus brief, citing Prof. Sandy Levinson's North Carolina article on OPOV against the argument advanced in the brief.

5. As I have stated, I would not expect this lower court opinion to have much influence on the Supreme Court. It just bought Justice Kennedy another year to think about things, and with a possible replacement of the Chief Justice with a Justice such as Judge Michael McConnell (whose work is cited by the three judge court), there's the possibility that Justice Kennedy's vote would not be needed to overturn the results of Texas. But with the timing of things at the Supreme Court, that might not happen even in time for the 2006 elections.

Breaking News: Three-Judge Court in Texas Rejects Challenge to Re-Redistricting

This according to a report in The Quorum Report (paid subscription required). I'll link to the opinion just as soon as I find it (or if someone e-mails it to me, I'll post it). More once I've seen the opinion. UPDATE: I have received the opinion, but it is too large to post on the blog. It is 58 pages. Judge Higgenbotham wrote the majority opinion; Judge Ward "specially concurring." UPDATE II: You can find the opinion here.

"Not all election suits resolved"

The Seattle Times offers this report, which begins: "The state Supreme Court will consider hearing legal challenges to the 2004 governor's race even though Dino Rossi and the Republican Party won't appeal their case. Four separate election-contest petitions asking that the November election of Gov. Christine Gregoire be overturned were filed in December and January. They've been on hold while the Supreme Court waited for what was seen as an inevitable appeal of the election lawsuit filed by Rossi, state Republican Party Chairman Chris Vance and other party members."

"In Campaign Law, 'Less' Is Not Always More"

Trevor Potter responds in Roll Call to Marc Elias's recent commentary there. You can find Trevor's oped without a subscription here. A snippet:

The truth is that campaign finance isn't more complicated than most other areas of the law, and is a good deal less complex than many. And like most areas of the law, when the regulated community expresses its desires in the sheep's clothing of "simplicity," what they really want is the wolf — complete freedom from laws that restrict their activities, even if those rules serve the public interest.

Multi-millionaires to Face Off in N.J. Gov.'s Race

See here.

Will a Special Session of the Connecticut Legislature Tackle Public Financing of Campaigns?

See this report.

The Costs of Uncertainty Over Which Bloggers Might Be Covered by the Media Exemption

Allison Hayward, formerly counsel to FEC Commissioner Brad Smith, weighs in here on the question over at her new blog, Skeptic's Eye. The blog covers, among other topics, FEC and Campaign Finance Law.

"GOP Pushes Bill Easing Election Spending Limits"

The Washington Post offers this report, which begins: "The House Administration Committee, acting with the support of the Republican leadership, yesterday approved legislation to dismantle many of the campaign contribution and spending limits enacted over the past 30 years. Under the bill, one donor could direct as much as $1 million in support of a candidate for federal office."

BCRA Sponsors Weigh in on FEC Internet Blogging Regulations

You can find the comments of Sens. McCain and Feingold and Reps. Shays and Meehan here. These comments, unsurprisingly, track the comments of the Campaign Legal Center, Democracy 21, and the Center for Responsive Politics. Like those comments, the BCRA sponsors want an exception for incorporated internet bloggers whose primary purpose is to blog and they endorse the pretty draconian rules on the use of corporate-owned computers for personal blogging. (For more on this point, see here and here.)

Who Wants to Comment at FEC Hearing on the Internet?

See here.

Conference on the Future of the Voting Rights Act

The Russell Sage Foundation is holding a conference, "The Coming Fire: Conference on the 2007 Renewal of the Voting Rights Act," June 24-25 in New York. The foundation will also publish a book based on the conference papers, "The Future of the Voting Rights Act," edited by Rick Pildes, Rudy de la Garza, David Epstein, and Sharyn O'Halloran. Here is the agenda for the conference:

Session 1: Political Background
Friday, 1:30 - 3:00 PM

1) Morgan Kousser (Caltech):
The Strange Career of Section 5 of the Voting Rights Act
2) Bruce Cain (UC Berkeley) & Karin MacDonald (UC Berkeley):
Phases of VRA Enforcement over Four Decades
3) David Epstein (Columbia) & Sharyn O’Halloran (Columbia):
Redistricting & Substantive Representation

Discussant: Fred Harris (Rochester)

Session 2: Legal Background
Friday, 3:30 - 5:00

4) Rick Hasen (Loyola):
Congressional Power to Renew Section 5
5) Heather Gerken (Harvard):
A Third Way for the Voting Rights Act?: Toward a More Dynamic Regulatory Strategy
6) Sam Issacharoff (Columbia):
The Legal Conundrum Facing VRA Section 5 Renewal

Discussant: Robert Lieberman (Columbia)

Session 3: Emerging Issues in Voting Rights
Saturday, 9-10:30

7) Rodolfo de la Garza (Columbia) & Louis DeSipio (UC Irvine):
Re-envisioning the VRA for 21st Century Latino Communities
8) Laughlin McDonald (ACLU Voting Rights Project):
Native Americans and Section 5 of the VRA
9) Steve Ansolabehere (MIT):
Technological Innovations and Minority Enfranchisement

Discussant: Jennifer Hochschild (Harvard)

Session 4: Looking Ahead: Legal Options
Saturday, 11 – 12:30

10) Pam Karlan (Stanford):
The Evidentiary Standard for a Renewed Section 5
11) Rick Pildes (NYU):
Section 5 and the Regulation of Political Competition
12) Nathaniel Persily (University of Pennsylvania):
Retrogression in an Age of Partisan Competition

Discussant: Richard Briffault (Columbia)

Session 5: Looking Ahead: Political Options
Saturday, 1:30 – 3:00

13) Bernard Grofman (UC Irvine) & Lisa Handley (Frontier IEC):
Extending Section 5 of the Voting Rights Act
14) David Epstein (Columbia) & Sharyn O’Halloran (Columbia):
The Unintended Consequences of Section 5
15) Michael McDonald (George Mason):
A View from Afar: Options for VRA Extension

Discussant: Robert Erikson (Columbia)

Session 6: Final Wrap-up / Discussion
Saturday, 3:30 – 4:30

New Lawsuit Against Schwarzenegger Committees

Therestofus.org has posted this press release, which begins: " Campaign finance watchdog TheRestofUs.org filed a motion in Sacramento County Superior Court on May 31, 2005, asking the court to enjoin the Recovery Team from accepting any further contributions over $5,600 and to force the Recovery Team to disgorge any contributions in excess of the legal amount. The activity that would be enjoined is just part of a larger pattern of using multiple committees to evade California’s contribution limits, said the group." You can find the law and facts supporting the motion for preliminary injunction here.

Maybe No Public Financing in Ct. After All

The Hartford Courant offers this report, which begins: "The state Senate and House of Representatives passed competing campaign finance reform bills early today, each seemingly destined to die when the General Assembly adjourns its 2005 session tonight at midnight."

California Initiative News

Rough and Tumble links to a large number of California newspaper stories on the initiative process in California, including this report in the San Jose Mercury News, which begins: "No one uses California's initiative process quite like Gov. Arnold Schwarzenegger, who swept into office through the recall election and promptly embarked on a perpetual ballot box campaign. Born nearly a century ago as a populist tool to break the railroad industry's grip on the Legislature, initiatives have morphed into a billion-dollar industry over the last decade." The site also links to two reports in the Contra Costa Times on California's initiative industry.

"Getting on the Ballot, a Signature at a Time"

The New York Times offers this report.

"Election contest law gets scrutiny; 'A Ridiculously High Standard'"

The Tacoma News Tribune offers this report. For other analysis in the wake of the Washington election contest trial, see this Seattle Times report, George Howland for the Seattle Weekly, and other coverage Howard Bashman has collected. The Weekly also has posted this transcript of the judge's decision.

"Wynn Tweaks Party Leaders Over 527 Bill"

Roll Call offers this report (paid subscription required), which begins: "Rep. Albert Wynn (D-Md.) penned a letter to his colleagues late last month taking aim at the Democratic leadership for failing to embrace his campaign finance reform measure, all but accusing leaders of being wedded to policies that keep the party in the minority."

A Comment About Comments

If you try to leave a comment on the blog posts that allow comments, don't worry if you get an error message. The comments are getting posted. Sorry for the inconvenience.

"ACLU Files Brief Urging Appeals Court to Overturn Ban on Rhode Island Mayor’s Radio Show "

See this press release.

An Unfortunate Statement Impugning the Judiciary at the End of the Washington State Election Contest

As I have argued elsewhere, post-election litigation has apparently unavoidable costs in terms of harming the public's perception of the legitimacy of both the election process and the judiciary. And those on the losing end of things tend to see things as worse than the winners. That meant nationally after 2000 that Democrats had lower opinions of the election process and the judiciary than Republicans.

This process is now replicating itself in Washington state, but with Republicans on the losing end of things. According to a January 2005 Elway poll of Washington state voters (referenced in my forthcoming article on election administration -- pdf at 10), "68% of Republicans thought the state election process was unfair, compared to 27% of Democrats and 46% of Independents."

That statistic points to public concern over the election process. What about the legitimacy of the judiciary? Consider the unfortunate comments of losing gubernatorial candidate (and election contestant) Dino Rossi in deciding not to appeal the trial judge's ruling. According to this Seattle Times article, "GOP candidate Rossi said the 'political makeup' of the high court would have made it almost impossible to get Bridges' decision overturned...Rossi didn't elaborate on his comments about the political makeup of the Supreme Court. Last year the court ruled twice on lawsuits related to the governor's election, each time ruling unanimously, once for Democrats and once for Republicans."

Rossi's comments were gratuitous and unfortunate. Yesterday I listened closely to the judge's ruling and explained why I thought the Republicans would have a tough chance of succeeding on appeal, particularly given the factual findings of the trial judge and the standard of review on appeal. I concluded that "[i]t could well be that after analyzing the judge's ruling today and the chances of reversal, that the Republicans decide to abandon the appeal in this case." I made that assessment knowing nothing of the political makeup of the Washington state supreme court, or its method of selection. Perhaps I am naive, but I assumed the justices on that court would be making a decision on the merits, not based on political outcomes.

Statements like Rossi's only tend to denigrate further the public's faith in the judiciary and the election contest. The litigation may have been unavoidable given a 129-vote difference out of 3 million votes cast, but those comments were certainly avoidable.

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"Daniel Weintraub: Term limits change still a possible deal closer"

Dan Weintraub offers this Sacramento Bee column.

"Former Mass. House Speaker Indicted in Redistricting Probe"

The Washington Post offers this report, which begins: "Former Massachusetts House speaker Thomas M. Finneran was indicted Monday on federal charges of lying under oath about his role in redrawing state legislative districts."

"Even Judges Can’t Follow Campaign Finance Laws"

Mark Elias offers this Roll Call commentary (paid subscription required), which begins: "Anyone looking for an assessment of the state of America’s campaign finance system need look no further than the recent criminal trial of Democratic fundraiser David Rosen. Rosen’s trial and subsequent acquittal for underreporting in-kind contributions was remarkable in many respects. The trial featured testimony about Hollywood stars, their perks and their habits. It had a roster of characters straight out of central casting. But perhaps most striking was insight it offered into how much confusion exists about exactly how the campaign finance laws work. During the course of the two-week trial no fewer than eight witnesses and four lawyers offered divergent, contradictory and (in many cases) incoherent views on how in-kind contributions were to be treated and allocated. At issue was whether the inclusion of a large in-kind contribution would have an adverse consequence on the amount of money that would be available to the campaign."

How Will Washington Republicans Do on Appeal?

From following the Washington state proceedings from afar, and from listening to the trial judge's findings of fact and conclusions of law today, it appears that there will be at least three major issues for Republicans to raise on appeal:

1. Whether the trial judge erred in ruling that those challenging an election in Washington must show not only that there were more illegal votes cast than the difference between the top two candidates but also what the trial judge termed "causation:" that there were enough illegal votes cast for the leading candidate so as to change the outcome of the election. This legal question will be ruled upon de novo (that is, without deference to the trial court's legal finding), with the court likely accepting as a given the trial court's factual findings that there was not enough proof of illegal votes cast for Gregoire so as to change the outcome of the election.

2. Whether the different treatment of ballots across different counties violates equal protection under Bush v. Gore. This could well be an important issue on appeal, and it is a federal constitutional issue that could potentially end up in the U.S. Supreme Court. The trial judge dismissed this argument early on, and it will be subject to de novo review.

3. Whether the trial judge erred in refusing to accept the Republicans' proportionate deduction method for proving the number of illegal votes cast for Gregoire. This will be a tough issue for Republicans to win on appeal. The question whether novel scientific evidence is sufficiently reliable so as to be admitted (under the so-called Frye test) in Washington is subject to de novo review. See State v. Cauthron, 846 P.2d 502, 505 (Wash. 1993). So the Republicans could relitigate the issue of the reliability of the Republicans' expert method. But even if they win on that, the trial judge made a factual finding that under that standard, the evidence was that Gregoire, rather than Rossi, would have had more votes. That looks like a factual finding that the Washington state Supreme Court would defer to under a "clearly erroneous" standard of review. For this reason, the argument based on the expert analysis seems likely to fail, leaving instead the first two legal issues.

I haven't looked at the first legal issue in any detail, and the second legal issue (under Bush v. Gore) is quite a controversial issue (and one that would be ironic for Republicans to push). It could well be that after analyzing the judge's ruling today and the chances of reversal, that the Republicans decide to abandon the appeal in this case. As I mentioned yesterday, there will be a significant public relations boost for the winning side now pending appeal.

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BREAKING NEWS: REPUBLICANS LOSE ELECTION CONTEST

My notes are below:

The judge is giving detailed factual findings, so far, only for background.

Important factual finding: The judge has rejected the assumptions behind the "proportionate deduction" Republican model for determining illegal votes. This is the major legal ruling. It means the judge is likely to conclude that the Republicans' claim will fail.

The judge has said that the Katz model suffers from the ecological fallacy. But he also appears to be concerned about the cherry picking of data.

Court concludes that if the proportionate deduction method were in fact used, it appears that Gregoire would have won.

The court has turned to the conclusions of law.

It appears pretty clear that the Republicans are going to lose at the trial court.

Court concludes it is not enough that illegal votes were cast, but that petitioners establish the elements of causation: that there were enough illegal votes to change the outcome of the election. While there is evidence of irregularity, there is no substantial evidence by clear and convincing evidence that illegal conduct caused Gregoire's election.

Live Feed of Judge's Ruling in Washington Case

You should be able to watch the judge here, beginning at 9 am PDT. UPDATE: Try this link.

"Republicans press plan to take over some duties from secretary of state"

A.P. offers this news from Oregon, with the subhead: "Bradbury says move is retaliation for his redistricting."

"Laws Fail to Limit Political Spending"

The LA Times offers this report, with the subhead: "Despite regulations that are intended to restrict the influence of wealthy donors, noncandidates spent $4.2 million on L.A.'s mayoral race."

Bauer on Reformers' Comments to FEC in Internet Rulemaking

See here.

Washington State Ruling Expected 9 AM Monday; What Comes Next?

The trial judge in the Washington state gubernatorial contest trial has said he expects to rule from the bench Monday at 9 am (PDT). (You can find Howard Bashman's links to weekend coverage here and here.) There seems little question that the case, whatever the outcome, will be appealed to the Washington state supreme court.

How much weight will the trial judge's opinion have? First, it is likely to influence public opinion. Whoever wins before the trial judge will have momentum ("the trial judge has vindicated our position....") On the legal front, the most important aspect of the trial court's ruling will be his factual findings. Thus, the findings of the judge related to the extent of fraud, or the number of illegal votes cast, are likely to be issues that the the state Supreme Court would take as given on appeal.

But on legal questions, the review is likely to be de novo, without any regard to what the trial court finds. For example, early on in the case the trial judge rejected an equal protection argument under Bush v. Gore based on allegedly different treatment of provisional and other ballots across counties. This issue could well reemerge in the state supreme court. That court also likely won't defer on legal questions such as the standard for knowing when a vote is illegal, or on the question whether the "proportional deduction" standard for determining the number of illegal votes is a proper way to determine the number of illegal votes cast for a particular candidate.

Regardless of the outcome, this case surely helps to lower any resistance that losing candidates may have to challenge the result of close elections in court.

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Public Financing Coming to Connecticut

The Hartford Courant offers this report, which begins: "Gov. M. Jodi Rell's surprise call for the public financing of campaigns set the state Capitol abuzz Thursday morning. By nightfall, it was riding a bandwagon. The Senate's Republican minority set aside its longstanding opposition to public financing, albeit grudgingly, and pledged unanimous support, a gesture as startling as Rell's proposal."

Sale of Access to Gov. Schwarzenegger

The Los Angeles Times offers Candid Talk on the Party Line; Major donors are given an unfiltered channel to Schwarzenegger's office for strategy sessions. It begins: "When wealthy contributors write checks to Gov. Arnold Schwarzenegger, they often get a few canapes and a drink — and a secret telephone number that grants them access to his closest advisors and even the governor himself." Apparently, this includes contributors to Gov. Schwarzenegger's candidate controlled ballot measure committees.

"Groups Weigh In on Web Politicking; FEC Urged to Exempt Most Activists From New Regulations"

The Washington Post offers this report.

Sholk on New Jersey Corporate PACS

Steven Sholk has written "A Guide to New Jersey Corporate Political Action Committees After the 2004 Campaign Finance Legislation and Executive Order," published in Volume 29, Number 1 of Seton Hall Legislative Journal.

"Blogs Face Possible FEC Regulation"

FOXNews offers this report.

More Comments on FEC Blogging

Red State has collected some very interesting comments filed with the FEC today. Besides those mentioned in earlier posts, there are comments from the Institute for Politics, Democracy, and the Internet, Joe Birkenstock, and Markos Moulitsas, Matt Stoller, & Duncan Black (of Daily Kos, BOPNews, and Atrios/Eschaton). Meanwhile, I've just received a copy of these comments, which mention this blog on pages 4-5.

It is fascinating how so many of the comments make arguments that go to the heart of the debate over whether the media exemption remains viable in the Internet age. Some of the commenters suggest a demarcation between journalists and bloggers that appears quite unrealistic in theory and unworkable in practice.

Interesting Comments by Campaign Legal Center, Democracy 21, and Center for Responsive Politics on FEC Blogging Rulemaking

I have only had a chance to skim these comments. From the headline of the press release I just received, "Watchdog Groups Urge FEC to Exclude Bloggers from Internet Regulation; Say Soft Money Ban Should Apply to Online Activity by State Parties," I thought these groups were going to take a completely hands-off approach to the regulation of blogging. From my skim, that does not appear to be the case. Instead the groups appear to advocate the following:

1. Individual bloggers (that is, bloggers who are neither incorporated nor part of a labor union) would be exempt from most FEC rules, though there would have to be disclaimers on paid advertisements.

2. Blogs (and I presume other websites) paid for by corporations or unions would have to stick with normal rules for corporations and unions unless some other exception applied. This means, for example, that a corporate owned blog could not expressly advocate for the election or defeat of a candidate for federal office unless another exception applied.

3. Such corporate-owned blogs could not automatically take advantage of the press exemption, but it would instead be on a case-by-case basis. Slate and Salon should get the exemption, but a blogger who solicits money for a campaign likely does not, because "[t]hese are not characteristics associated with the media in the off-line context." (Page 18)

4. The groups suggest the FEC consider if it has the power to exempt certain corporate owned blogs whose primary purpose is blogging (as opposed to, say, selling cars). See page 13: "We recognize the need to ensure that individuals who act as bloggers but incorporate for liability purposes are not thereby made subject to the panoply of campaign finance restrictions that apply to corporations. By analogy to so-called 'MCFL corporations,' see 11 C.F.R. 5 1 14.10, the Commission should consider whether it has authority to define an exempt category of 'blogger corporation' as an incorporated entity whose principal purpose is to conduct blogging activities. Such corporations could be treated as individuals for purposes of the campaign finance rules applicable to Internet activity. This would treat incorporated bloggers as individuals for purposes of the definition of 'public communication' (a definition which should
otherwise be made generally applicable to corporations), as well as allow incorporated bloggers to take advantage of the exemptions from the basic definitions of 'contribution' and 'expenditure' for Internet activities by individuals, proposed in the NPRM and discussed below."

5. The groups appear to agree with the proposed rulemaking that individuals should be prohibited from blogging on their own time about campaigns for more than a limited time on corporate or union owned computers (e.g., someone who blogs from work, but not as part of the work activity).

6. The groups do not appear to advocate that bloggers who are paid to blog by a campaign disclose that fact on their website.

This is all based on a quick read, and if I've made some mistakes in interpreting the groups' views, I'll post an update here. Also, I have enabled comments.

Washington Trial: Day 8

See this report. A ruling from the bench is expected Monday.

"Md. GOP Wins Ruling On Veto Ads"

The Washington Post offers this report, which begins: "The Maryland Republican Party did not violate state law when it launched a $25,000 radio and newspaper advertising campaign in January to dissuade three key Democratic senators from overriding the vetoes of Gov. Robert L. Ehrlich Jr. (R), the state attorney general's office ruled yesterday."

"Selling Washington"

Elizabeth Drew offers this lengthy article in the New York Review of Books. A snippet:

The McCain-Feingold campaign finance reform bill in 2002 didn't stop powerful companies and members of Congress from buying and selling influence. Representative Barney Frank, a major backer of the reform bill, says, "It works about the same as it did before." But, he adds, because the new law banned large soft money contributions by individuals, corporations, and labor unions to campaigns for federal office, and maintained overall limits on how much a person can contribute to federal elections—doubling them from $2,000 to $4,000 per election cycle—everyone has to work harder to raise the money.[3] Still, congressmen are seldom heard to complain that they can't raise enough money and in fact, according to data compiled by the Center for Responsive Politics,[4] both the political par-ties and individual candidates are raising more money than ever. Lobbyists still manage to deliver large amounts to legislators by "bundling" smaller contributions.

They contribute most of the money they raise to incumbents who can be depended on to do favors—a major reason (in addition to gerrymandering) why there is serious competition in only 10 percent of House races, and only about five seats change hands in each congressional election. Members of Congress expect to receive contributions from local industries (and their workers)—say, the coal industry in West Virginia—and they back legislation to help them out as a matter of doing constituent work. It's illegal for a firm to compensate employees for their political contributions, but, a Republican lobbyist says, a job applicant is often told that he or she is expected to make contributions, and salaries are adjusted accordingly.

It's virtually impossible to show that a particular campaign contribution resulted in a specific vote—such quid pro quo is illegal. Fred Wertheimer, of the public advocacy group Democracy 21, told me, "The system's designed so that you don't see who gets what for their money. It's designed for me to give money to you and you do something for me in the Congress—without either of us saying a word about it. But if I give money, I know it and the candidate knows it. It's an investment, and down the road you collect on it." While much of the money buys access to a member of Congress, or key staff members, that is only the entry point to making one's case. As John McCain puts it, "You give money, you get an ear." Still, one can sometimes even trace what Larry Noble carefully calls "correlations" between contributions and legislative successes.

"Branding Campaign Finance: Gov. Arnold Schwarzenegger wants this to be the Pepsi Generation(TM) that says "no" to higher taxes and Ruffles(TM) the feathers of special interests"

The LA Times offers this editorial. For my earlier coverage, see here.

Bauer's Comments on Internet Regulation

...can be found here.

Repository for Comments on FEC Blogging Issue

Mike Krempasky is collecting the documents here.

"California receives election money held up during investigation"

A.P. offers this report.

" Howard Dean's Raised Voice Isn't Raising Cash"

Business Week offers this report.

Blogging/FEC Update

As we get close to the end of the comment period and the next stage of the FEC rulemaking, news and commentary on this topic will increase. See this Washington Times editorial; Peter Overby's "Pennsylvania Avenue" column on NPR's website (featuring a very interesting quote from Trevor Potter of the Campaign Legal Center); and the Chicago Tribune.

Comments are also starting to be posted. One set of comments that should receive significant attention are these from the Online Coalition, a group of right and left leaning bloggers. There is much in here with which I agree, and much that I think likely will be reflected, in substance, in the FEC's final rules. My two big areas of disagreement concern the treatment of paid bloggers (letter, page 6) and its suggestions for changing the news media exemption (letter, page 9): "A better approach would be to exempt 'news, opinion or commentary' regardless of mode of dissemination or the press or media bona fides of the speaker. Critics of this simpler approach object that the 'exception would swallow the rule' and allow for unlimited expenditures on political speech by corporations and other prohibited sources." This is sure to be an interesting discussion.

Washington Trial: Day 7

See here. See also Rossi hard-pressed to prove fraud, says man whose case set precedent.

Bauer on Abrams on the Buying Time Studies

See here.

Washington Trial: Day 6

See here.

How Will Reform Groups Come Down on FEC Regulation of Blogging?

With comments due to the FEC by Friday on its proposed regulations of campaign finance activity on the Internet, I still have not seen any comments submitted from the leading campaign finance organizations on the topic (for example, here is the Campaign Legal Center's page on the topic, with no mention of any filed comments). Back on May 2, I wrote: "One interesting observation from the Post article: 'Scott Thomas, the FEC's Democratic chairman, said it has yet to hear from the authors of the 2002 campaign finance reform legislation or any of the prominent watchdog groups on the disclaimer issue.' We really haven't gotten any of the usual suspects to submit a comment yet,' Thomas said." I think it is no mystery why: an online coalition of left and right bloggers are arrayed against it, and relentless in their opposition to any regulation of the blogosphere." Paul Ryan responded to this comment noting that there was still a month to go before comments were due.

Now, there are just days to go before comments are due. The fact that the comments have not yet been posted may reflect the tremendous political pressure that these groups will face should they decide to advocate any kind of regulation, even (as I have advocated) the modest requirement that bloggers who are paid by campaigns disclose this fact on their blogs.

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"A Different Tack For Campaign Finance Reform"

Eliza Newlin Carney offers this "Rules of the Game" column on bills to address the "demand" side of campaign finance.

"Prosecutor probing political Web site"

The Asbury Park Press (NJ) offers this report, which begins: "The Monmouth County Prosecutor's Office is investigating whether any crime was committed in the creation of a Web site that is run by a Democratic campaign volunteer but uses the names of two Republican candidates for state Assembly."

"Defend Campaign Cash Reform"

The Denver Post offers this editorial, which begins: "Boy, that didn't take long. The sharks are already circling in the House of Representatives in a bid to loosen some of the restrictions of the 2002 McCain-Feingold campaign finance law. One bill would abolish contribution limits on individuals. The bill would also remove spending limits on national political parties."

(More) Bauer on (More) Treglia

See here.

Roll Call Endorses Rep. Tanner's Redistricting Bill

See here (paid subscription required). You can find a copy of the bill here.