Thursday, July 31, 2014

I woke up this morning to learn that Wisconsin's Supreme Court had upheld voter ID in the two cases it had jurisdiction over. (The statute is separately blocked in federal court.)

It's now 1:33 pm and I've finished a first read of the opinions.
From my perspective, the majority  (5-2 in one case, 4-3 in the other) is wrong and weak in its analysis.
It is only right in the sense that Wisconsin law is whatever they say it is. There is no federal question here to appeal further; the federal cases will continue on their own track.
The dissents have the better of the arguments, although there are flaws in each of the opinions.

But the most interesting part of the case is that the majority, in the NAACP case (not the LWV one)
finds that a fee for a birth certificate would be a severe burden, and the statute would not withstand a severe burden analysis, and therefor the authorities in charge of issuing IDs are strongly urged to make birth certificates free for those who ask.

This suggests that voter ID in Indiana and elsewhere would be unconstitutional under those standards.

Sunday, July 20, 2014

post removed at request of person being quoted.

Saturday, July 19, 2014

global warming and climate chilling effects:

 The campaign legal center and its cronies such as common cause are engaged in illegal efforts to get the federal government to punish tv stations for running ads against politicians.

Tom S is a guy who has money and cared about the envirnment. He funds a superPAC which runs TV ads.
TV stations run these ads, with a disclaimer that they are paid for by the superPAC.
The First Amendment forbids censorship by disclaimer. Talley, Mcintyre, ACLF, Watchtowe, AID v Open Society, etc.
The civil rights acts make it a federal crime to interfere in people's free speech under the First Amendment.
The campaign legal center is inciting criminal activity, trying to goad the FCC into violating more of the constitution than it already does. This conduct is illegal, but as a practical matter would never be enforced.
But the campaign legal center is run at least in part by some lawyers, and those lawyers have disciplinary commissions to answer to when they engage in this sort of of unethical conduct.

Global warming potentially at least affects everyone. For the purposes of this discussion, I take no position on whether global warming is a real threat or whether the politician discussed in the ads actively opposes measures to combat global warming. My point is that issues like this need a free marketplace of ideas, so that people can bring up such topics without having to get permission from the campaign legal center, or other self-appointed apparatchiks.

Wednesday, July 16, 2014


Rhode Island's voter ID sounds off hand constitutional, because provisional ballots are counted if the signature matches, so there's less disenfranchisement. Such a system could be gamed, by corrupt and partisan signature checking, but there can be safeguards against that.
After my recent hard drive crash, I was  able to recover an early draft of the amicus I'd been working on for the RI ACLU's suit about disclaimers.  So if I can find the time and energy I might get that done.


The Wild and Crazy Adventures of Rep. Don Young

Buried deep in this story is a bit about hillary clinton raising $100,000.
Also good discussion of how KBR aka Halliurton buys congressmen.

Tuesday, July 15, 2014

Via Hasen, IJ writes complaining that they didn't win big enough. They wanted facial as well as as-applied relief. See Crawford, Washington State Grange, and perhaps Ayote. I forwarded the link to Nick Sarwark, the new Libertarian Party national chair, who like me is an IJ fan. I pointed out that the WA LP could easily try to recall somebody and set up a second bite at the apple, being ready to obtain another as-applied relief, and at some point the state, even with their deep pockets, will give up.
The case is about whether pro bono legal help counts as a prohibited in kind contribution.

Monday, July 07, 2014


A delaware disclosure case I'd missed back in April. An appeal to the 3rd Circuit has been briefed by the state. I could see this going either way.


Andy Horning is now running for congress, in the 8th congressional district of Indiana, the Evansville area.
So I'll update the masthead one of these days. I should also redo the blogroll.
This blog endorses Andy, not just because he's a good guy, but as an example of civil disobedience - this blog engages in express advocacy of a federal candidate without a disclaimer.
Feel free to report me to the FEC.

Saturday, July 05, 2014


My friend David Schultz has done something very interesting in this editorial.
On the surface, it is a naive argument that lying is bad and therefore the government should prohibit politicians from lying.
But let's give him the benefit of the doubt.
The editorial is a lie, a useful lie, because it makes us think through the argument step by step, reading critically, spotting the internal contradictions, a  form of argument logicians use to prove a theorem by assuming its opposite. As hints along the way there are many sub-lies. If I find time I may list ten examples.
I wonder if his editor was aware of the deep game Professor Shultz is playing here.

1. Lying is wrong; even children know it.
Children imitate adults,  and in cultures where adults lie, children lie.
2. deceivers lie to make themselves an exception to a rule that they expect everyone else to follow
That may have been true in Kant's day, but today everyone lies, and everyone is alert to the possibility that what is said may be a lie.
3. If trust did not exist, then business would never exist. Trust is earned, and is built up over time. Contracts would be meaningless, promises futile.  A well drawn contract has its own enforcement clauses, so that's it's cheaper to carry out the contract than to violate it. That's one of the key challenges in drafting contracts.
4. Courts rely on all parties playing fairly and not lying.  My courtroom experience is limited, but my experience has been that witnesses lie routinely. Lying is too deeply ingrained in our culture to set it aside for court.
5. Ethically there should be no debate that lying is wrong in politics. That's the goal of censorship, to prevent debate.
6. In its 1995 McIntyre v. Ohio Elections Commission decision, it ruled that Ohio had a legitimate interest in preventing fraud and libel in campaigns where false statements might have "serious adverse consequences."
 That was not the ruling of McIntyre, just dicta.
7. They rely upon political actors to tell them the truth so that they can make informed decisions. Lying prevents that. Lying does not prevent the truth from being spoken. Laws against lying do.
8. Without any limits, there are no real sanctions against lying. Reputation capital.
9. Finally, prohibiting lying actually enhances robust debate and democracy. Because election commissions are omniscient and onmibenevolent, no doubt. 
10. Making it clear that the First Amendment does not protect political lies is one way to strengthen democracy and encourage better political behavior.

Thursday, July 03, 2014

Vermont's unconstitutional disclaimer statute has been upheld again, this time by the 2nd circuit.

Green Mountain Future was an earlier similar case.

Once again, it's the wrong client, and the wrong arguments.

After Citizen's United, corporations aren't going to win these cases, at least without some clever arguments such as overbreadth. The suits need to be brought by individuals, even if some corporation is the real party in interest. It is hard sometimes to know whether James Bopp is losing these cases on purpose; he has a long history of sabotaging his own cases on exactly this issue, whether disclaimer statutes are constitutional. He has both won and lost more of these cases than anyone else.

Instead of directly saying these statutes are unconstitutional under the controlling precedents, he makes circular arguments about express advocacy, major purpose, vagueness, and so forth. Again, he has won many cases with these arguments over the years, but they lost in Terry v Ky RtL, they lost in McConnell v FEC, they lost in Citizens United, and they lost today in Vermont.

Having lost on disclaimers, he is now going to appeal a different part of the case, with a high chance for cert but an uncertain outcome.

Bopp is right to think there's something wrong with Vermont's scheme. In addition to disclaimers, there is an "obtain permission from your opponent" provision, a 24 hour reporting requirement, and a low reporting threshhold. Vermont is clearly trying to punish speech it can't directly prohibit, but doesn't like.
Since the client is a Right to Life group, I expect they will stick with Bopp as their lawyer, and we may get to see this play out.

I had a client once from Vermont, who was the Anonymous in Anonymous v Delaware (2000). I'm not sure what he (or she) is up to lately. I do not have co-counsel in Vermont. That's been one of my bottlenecks in trying to do these cases. I've been taking a bunch of CLE classes lately, so as soon as I send in my $200, motion, and 6 box-tops, I will be reinstated to practice in Indiana. I don't know yet how active I'll get in litigating these issues I still case a lot about.

Tuesday, July 01, 2014

N.Y. Pays $360,000 to Jones Day Lawyers
For Costs of Challenge to Super PAC Limit
New York State has agreed to pay $360,000 in legal costs to the challengers of the state’s campaign finance law limiting contributions to super political action committees (New York Progress and Protection PAC v. Walsh, S.D.N.Y., No….

Saturday, June 28, 2014

Open questions for Judge Posner:

1. You've said you didn't have enough information about how Indiana voters were disenfranchised, in the Crawford v Marion County Election Board case.
But you refused to grant leave to file an amicus brief by disenfranchised Indiana voters including myself.
Voter ID is headed back to the 7th Circuit in the Wisconsin case.
Will you continue to deny amicus briefs in voter ID cases?

In Crawford, the Supreme Court said you erred in using the permissive Burdick v Takushi standard of review. Might you have reached a different conclusion if you had used a better standard of review?

In Crawford, you failed to address any of plaintiff's state constitutional arguments. Later in LWV v Rokita an Indiana appeals court found the statute unconstitutional under the state constitution, although this result was later overturned. Several states, including Missouri Arkansas Pennsylvania Wisconsin and Georgia, have found voter ID to violate the state constitutions. Was it proper to fail to address these points in your opinion?


blog by a guy i just met, who wants to work together on ballot access lawsuits. today he either will or won't get elected libertarian party chair. https://m2.facebook.com/sarwark4chair


Friday, June 27, 2014

Just chatted with old* friend Richard Winger.
I had not realized his legal fees dispute re the top two litigation had been settled, by one of the others in that group.
Also he tells me that the case where the Ohio governor etc. is resisting depositions, is the Libertarian case I'd written a memo for, so I need to go back and check that story.
OK, I probably misunderstood his comments; that seems to be a different case.

* old in the sense that i have known him since the 70s; he never looks any older although in that time I've gone from being a teenager to having a grey beard.

Senate Leader Reid wants a vote on the DISCLOSE act. My question is, is this a re-vote on the second version of the Act, which took out most of the unconstitutional stuff from the first draft, or is this a third draft we haven't seen yet?


Something i want to look at later. I'm at the Libertarian Party's offyear convention in Columbus, where we are arguing about the process for changing commas in the by-laws, and such pointless minutiae. i'm a delegate from Nevada but really here as a volunteer, and probably catering a party tonight.
Will try to get a picture of me with Willy Marshall and Starchild.

This was the part from the link above that caught my interest:
update: but they don't seem to have real contact info, so there may not be much to it. met one kansas lawyer
i hope to talk to more; right now i'm on door duty.

    1. Institutional knowledge on ballot access issues must be preserved and accessible.
    2. Turnover and lack of knowledge in state affiliate leadership impacts a consistent approach to ballot access in the states.
    3. By taking a proactive approach fighting ballot access laws head on, the party will be more efficient with its resources in the long run.
    4. For many states with ballot access issues that lack dedicated professional staff, this service will improve our chances for full 50 state (plus Washington, D.C.)  access.

Thursday, June 26, 2014

Indiana legalized same sex marriage today, by order of a federal judge. While anticipated, it's been a long time coming. Marion County Clerk Beth White has issued marriage licenses to same sex couples while AG Greg Zoeller is pursuing a stay at the 7th circuit. White is the Dem's candidate for secretary of state.
Few actual issues separate the SecState candidates, so the race focuses on playing to core constituencies.
I most recently saw White at the pride parade a couple weeks ago.
The incumbent Connie Lawson may have a slight edge, but the race could go either way.
I have mixed feelings for  White. I've voted for her and sued her, and expect to sue her again.
I'm not sure who the Dems are running for county clerk (an office I once ran for.)
I could look that up.
I don't know her, but her middle name is Determination according to Facebook.

Wednesday, June 25, 2014


voter fraud in indiana?

i'm not going to look into this in detail right now, i'm trying to head off to the libertarian party national convention in ohio.


opportunity for public comment on whether expired ID's count.
my thoughts include that the regulation is reasonable in light of Harman v Forsennius.
the state senator wants people to have to purchase a new voting license ever 4 years or so,
for no reason at all other than red tape. my take is that this is exactly the kind of thing harmon v forsennius said as unconstitutional under the 24th amendment. but i'll probably never get around to formally submitting my comments - this post is sort of a challenge to myself to do so.

Wednesday, June 18, 2014


Tuesday, June 17, 2014


Good article on the Indiana Secretary of State's race. I know Beth White, the Democrat, fairly well, and have mixed feelings about her. I've sued her a time or two and voted for her once. Most recently saw her this weekend at the pride parade. I don't know the Libertarian candidate, which is who I would vote for if they let me vote, which they won't. The Libertarians need, and will get, 2%, so they can stay on the ballot. This could affect a close race.

Monday, June 16, 2014

SBA list v Driehaus unanimously reversed, opinion by Thomas.
Doesn't mention my previous case Majors v Abell, which had come up in some of the briefs,
because today's opinion only discusses Supreme Court cases.
The court distinguishes Golden v Zwickler, getting the facts wrong today int he same way the court got the facts wrong in 1968. Zwickler's concern wasn't with his particular congressman; he was concerned about US policy in Israel, and wanted his congressman, whoever that would be, to do more.
But it is not unreasonable to distinguish the cases today based on how the court characterized the facts in 1968. Driehaus had moved to Africa, Zwickler's congressman had been appointed a federal judge and left congress, so the cases have some similarity.

This was the expected result in the case, and the court stayed away from discussing the merits,
which remain unresolved, but the statute is unlikely to withstand scrutiny.

Meanwhile in Abramski v US, the liberal wing of the court, 5-4, upheld an infringement on the right to bear arms.

Friday, June 13, 2014


canadians get right to be anonymous online.

Tuesday, June 10, 2014

more voter ID propaganda at the wall street journal.

primaries were held today in several states including n carolina, so voter ID got another workout.
I hope some useful data comes out of it. I may update this post later this week with related articles.

Monday, June 09, 2014

i guess the big election-related news recently is the MS gop primary, which split roughly 49-49-2, so there will be a runoff, tea party v establishment. i may add a link later. voter ID got its first trial in MS, and AR, and a few more upcoming. it looks like the Driehaus opinion may not come out until the last day of term later thus month, although it could show up any time.

Sunday, June 08, 2014

apparently i'm not the craziest lawyer to come out of delaware.
naked gay delaware lawyer suspends hunger strike.

Sunday, June 01, 2014


A case i worked on slightly has been decided adversely to the Ohio LP a month ago- I just got around to checking on it.
I don't know yet if there will be an appeal to the Supreme Court, or perhaps a motion for en banc review - I guess that would have had to filed already. Chances of a cert grant are slim, but the 6th is currently the most reversed circuit.
There's a line in the opinion that P's had abandoned and waived their as-applied challenge. If true, that would hurt their case; the as applied challenge was much stronger than the facial one.

This case reminds me a bit of Toner v Illinois.Secretary of State Ryan kept Toner off the ballot, illegally in my opinion, but got away with it and became governor Ryan, before becoming inmate Ryan.
Here I'm not alleging any wrong doing by anyone involved, just a bad decision to put a trivial technicality about how the forms are filled out, over a fair and open election.

Friday, May 30, 2014

best use of "literally" i've seen in a while:
mccutcheon meets citizens united.

Friday, May 23, 2014

CU lately
Citizens United files suit in NY.

First sentence of the complaint has a grammatical error.
NY has arbitrarily started requiring CU to disclose certain confidential IRS filings, so the suit appears to be meritorious.

Beth White, Indianapolis' county clerk, expected to be picked for the Dem's candidate for Secretary of State.

Thursday, May 22, 2014


i spent some time today trying to track down a cryptic reference to "just another lizard for peace" that was mentioned on the election law list recently.

my office internet was supposed to be fixed today and still isn't, but soon.

i now have a better link for that recent 7th circuit decision wrtl v barland

it upholds a challenge to a disclaimer requirement, that is, the disclaimer was unduly burdensome on those facts, but doesn't directly take on disclaimers. it addresses a slew of regulatory issues and is mostly a win for jim bopp.

Tuesday, May 20, 2014


wrtl v barland recent ruling.

Friday, May 09, 2014

book about 1840's armed rebellion in rhode island for voting rights.
found while looking for something else.

Some voter ID stories lately. Of course the biggest story right now is that PA has dropped its appeal, so voter ID is dead there for now.

rand paul.

editorial on mississippi voter ID
two WI GOP legislators talk up their voter ID bill.
count the errors.
article on the WI decision.
http://www.npr.org/blogs/codeswitch/2014/05/06/309815487/as-states-vote-in-primaries-voter-id-laws-come-under-scrutiny NPR.
First PennsylvaniaMissouriTexas and ArkansasNow, Wisconsin. Racist voter identification laws are going to court, and they’re not surviving in front of judges.
GOP congresscritter shills for voter ID in Louisiana.

Tuesday, May 06, 2014

Today I voted, for only the second time since 2005. They were getting ready to do a provisional ballot after I refused to show ID, but then they went ahead and let me cast a regular ballot.

Tuesday, April 29, 2014

wi federal judge finds voter ID unconstitutional, federal and state, and violates VRA.

this will go up to the 7th circuit and could return to the supreme court.
i have been saying since 2006, that's 8 years, that a followup case was needed. this might be it.
haven't read the decision yet.
frank v walker.
two reasons why it might not be the followup case:
there are adequate independent state grounds.
there is a statutory basis so the constitutional issues might not be reached (which is ok.)

Sunday, April 27, 2014

Mark Martin seeks to pry into private lives of Voter ID plaintiffs


Voter ID in national focus


NYT: Arkansas: Voter ID Law Is Invalidated  http://www.nytimes.com/2014/04/25/us/arkansas-voter-id-law-is-invalidated.html



Friday, April 25, 2014

Brave Hungry Crocodiles


Arkansas judge strikes down voter ID law as unconstitutional



state will appeal.

It is correct and concise, rooted in the state constitiution's list of qualifications for voting,
the free and equal elections clause, and the voter registration clause. The judge correctly found that by adding a qualification violated the 2/3 requirement fro changing voter registration rules.
Indiana, erroneously in my opinion, upheld voter ID on a qualifications argument, but has not reached the free and equal elections clause issue. I had raised that issue, but the state case was improperly dismissed while the case had been removed to federal court. 

Thursday, April 24, 2014


thedemocrats are in trouble when the new york times only thinks they have a 51% chance of keeping the senate.



Wednesday, April 23, 2014

democrats may hold onto  the senate in the south

Silenced by Golden?

The usual expectation for SBA List is that it will be 9-0 to reverse the 6th circuit on standing/ripeness and not reach the merits. That's not the only possible outcome. Breyer, Scalia, and Roberts all expressed concerns about how long remand would take, especially if certification to the Ohio Supreme Court becomes part of the process. The merits were not fully briefed and argued, but it is still possible that the court will go straight to the merits. Perhaps a stay or injunction is an option, which gets further into Supreme Court procedure than I know about.

Sotomeyer, I think, was the first to bring up Golden. Golden v. Zwickler was Zwickler's second visit to the Supreme Court; it had been there earlier as Zwickler v Koota. Last fall I got interested in this case and went and read the lower court opinions for the first time. I have not found them online. I have known of the case for about 15 years. Zwickler had authored anonymous fliers criticizing his congressman for not being sufficiently pro-Israel. Koota was the district attorney. Koota's grandson has been in the news lately as the guy who won a so-far unenforceable large judgment in Ecuador against Exxon/Chevron.
The case built on Talley v California, and could have been the next McIntyre, except that in Golden the Court found that his claim had become moot.

His congressman had accepted a job as a federal judge, so the court ruled that his circumstances were not capable of review. Similarly, Driehaus has moved to Africa where he is working in the Peace Corp in Swaziland. I think the Court got Golden wrong. His concern was not with his particular congressman, but had to do with US policy. Golden was circa 1969, McIntyre didn't come along until 1995, 26 years later. The issue of the constitutionality of anonymous criticism of congresscritters remains unresolved.

It is possible, if unlikely, that Sotomayor or one of the others will find the case moot following Golden. It is possible, but unlikely, that the court will overrule Golden. More likely they will reverse this case, and mention Golden as distinguishable although it probably really isn't.

After CU, the reform community has looked to enhancing disclosure as a way to chill speech, thinking that they now have the Court on their side. SBA is not about disclosure specifically, but is about government microregulation of campaign speech. Ohio's regulatory system seems to have no defenders. Ohio's "ministry of truth" has been on my radar for years, but now that it's finally been challenged, it's turned out to be a paper tiger. It will be interesting to see if the opinion or opinions
in SBA will give any ammo to further challenges to the speech police.
Amazon offers, for $25ish, a collection of briefs and such on Zwickler's case. It's on my wishlist.
Sales may get a bump now that the Court has called attention to the case.


nixon to be impeached?

Tuesday, April 22, 2014



sba transcript is up. and the first batch of news stories. i've been looking at the amicus briefs.
about 5 briefs in this case cite majors v abell I. it looks good, 9 votes to reverse the 6th circuit,
up to 3 votes to strike down the statute already instead of waiting for remand.

Monday, April 21, 2014

Tomorrow the Supreme Court will hear argument in SBA List v Driehaus.
Both side's briefs, and at least two of the amicus briefs, cite my case majors v abell.
Reasonable chance of the case being cited in the supreme court opinion.
Hasen expects 9-0, with no discussion of the merits. I am hoping Thomas will concur and discuss the merits.

This blog endorses steve dillon for governor in 2016.

Sunday, April 20, 2014

This Court’s holdings
demonstrate that in such circumstances “the threat
is latent in the existence of the statute.” Majors v.
Abell, 317 F.3d 719, 721 (7th Cir. 2003).

Majors cited to supreme court by Cato/Ij brief in Susan B Anthony case.

 See also Majors v. Abell, 317 F.3d 719, 722-23
(7th Cir. 2003) (“A candidate plaintiff no more has a duty to
run in every election . . . to keep his suit alive than an
abortion plaintiff has a duty to become pregnant again at
the earliest possible opportunity . . . . Politicians . . . often
wait years before running again; obviously this doesn’t
show they’re not serious about their political career.”).

Majors cited to the Supreme Court in a Bopp cert petition,


includes slideshow on history of R I corruption.

I'd digging into the Rob Horowitz arrest a bit while researching a possible amicus brief,so i may add various articles and such to this post. like this one.
Consultant charged with campaign violation





Loser Legalization of Marijuana

 The pieces were falling together for the effort to pass legislation to legalize marijuana in Rhode Island. Speaker Fox was a social progressive. Judiciary Committee Chair Edith Ajello, who may lose her post in the power shift, was the legislation's sponsor and in command of the key committee.
In addition, Governor Lincoln Chafee has voiced support for the idea.
 But, a shift to a more conservative Mattiello would throw a barrier in the way to a 2014 passage.

James W. Archer
Public Affairs Director
10 Crestview Drive
Greenville, RI 02828
Tel: (401) 349-4210 x6300
Fax: (401) 949-5814
archer doesn't seem to be a lawyer, but wrote a very lawyerly brief in support of gun rights.
archer is the guy who filed a complaint against horowitz after horowitz distributed a flyer publicizing archer's arrest (not conviction) for stealing or defacing campaign signs.
update: archer won a gun rights lawsuit in 2002. good for him.
also led the 2007 recall of a city council member who was a dirty cop, a bagman for bribes and got immunity for ratting the bribee. r.i politics seem interesting.

Wednesday, April 16, 2014

as reported by hasen, arkansas is the latest voter ID case.

AP: The Rhode Island chapter of the American Civil Liberties Union is suing the town of Smithfield to keep it from enforcing a ban on anonymous political literature. The lawsuit filed Tuesday says the town has said it will enforce the law, despite a 1995 decision by the US Supreme Court that struck down a similar law in Ohio and upheld the right to anonymous free speech. The Police Department did not respond to a message seeking comment, and the attorney general’s office, also named in the lawsuit, did not comment. Last year, Smithfield police charged a political consultant with distributing anonymous campaign materials.

last year the Smithfield Police Department arrested a political consultant for purportedly violating it. The Attorney General’s office later dismissed the charges, citing the Supreme Court case. In January, the ACLU wrote town officials to seek assurances that Smithfield police would no longer enforce the statute. The ACLU received no response; instead, news stories quoted town officials as calling the ACLU request “absolute nonsense” and stating that they intended to continue initiating criminal complaints under the statute. - See more at: http://www.rifuture.org/aclu-sues-smithfield.html#sthash.ZFkTPy36.dpuf


Copyright © 2014 Town of Smithfield, Rhode Island  USA. All rights reserved.
Smithfield Town Hall • 64 Farnum Pike  Smithfield, Rhode Island 02917
Phone (401) 233-1000  Fax (401) 233-1080
info@smithfieldri.com • http://smithfieldri.com/

Letter sent: 
Hi. I'm an online journalist covering the recent ACLU case against Smithfield. My story will be updated as it develops.
Does the city have any statement?
Please put me on a list to receive emailed copies of any filings or public statements in the case.

Section 20. Freedom of press. -- The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defense to the person charged.
Section 21. Right to assembly -- Redress of grievances -- Freedom of speech. -- The citizens have a right in a peaceable manner to assembly for their common good, and to apply to those invested with the powers of government, for redress of grievances, or for other purposes, by petition, address, or remonstrance. No law abridging the freedom of speech shall be enacted.
http://www.blishcavlaw.com/alves.htm the town solicitor. cc'd him the letter above.
The january 16th article in which the town solicitor refused to abide by mcintyre.


the aclu's letter which, when ignored, triggered the lawsuit.

related: cop tells candidate he needs permit to go door to door. at least the town backed down on this one.

more press:

Tuesday, April 15, 2014


jonathan adler aka juan non-volokh posts about a case that finds a compelled disclaimer unconstitutional even under the more deferential central hudson test.

Friday, April 11, 2014


Thursday, April 10, 2014

corporate antelope superpac.

Wednesday, April 09, 2014

“Judge Rules Delaware Disclosure Law Unconstitutional”

CCP: “A federal court today issued an order barring enforcement of a recently adopted Delaware law that would have forced a group that publishes non-partisan voter guides to violate its members’ privacy.”
I was pleased to see this. I'm from Delaware, took my first civil liberties class at age 17 at the University of Delaware, and litigated Anonymous v Delaware (2000), so it's nice to see a win here for CCP. I met a young woman today at a bar association meeting who went to Widener Law School, Delaware's only law school (although it's part of a Pennsylvania university.) Widener is just down the street from what used to be Lynnthwaite's ice cream stand and is now Concord Mall.  


This latest decision comes years after the Supreme Court eased spending by outside political organizations in the 2010 Citizens United case. The decision opened the floodgates for outside money in politics and ballooned the amount of money spent on campaigns.
While Democrats have taken to criticizing the Citizens United case, many – including Clinton – have benefited from it. The ruling has allowed a cadre of former Clinton advisers and confidants to form Super PACs that are helping build a campaign infrastructure should the former secretary of state decide to run.
The response came after Clinton was asked about Congress' unpopularity and the standing of the legislative body.Clinton suggested that voters don't give money to people who "tell you they will not compromise" because "it only encourages them."
So Hillary Clinton is, indirectly, complaining about the case that held the government can't put a corporation in jail for criticizing Hillary Clinton.

trial set in kansas voter id suit.

Saturday, April 05, 2014

                                                            McCutcheon's escutcheon:

Friday, April 04, 2014

I should mention that I was wrong on McCutcheon. I thought it was a simple affirm, on circumvention grounds. Hasen and others thought it would be reversed, and they were right.

I am at a CLE at Valparaiso. Brad Smith and Richard Briffault will be talking next, and Jim Bopp and Paul Ryan later. i'm living blogging this and can edit or hide it later.
First time at Valpo; it looks like a law school. It is one of 4 or 5 in the state.
We're in the intro remarks now and the coffee and croissants phase.
So far I've only read about half of McCutcheon, which came out 2 days ago when i was offline in missouri, so i may be brushing up on that during breaks or slower parts. http://www2.bloomberglaw.com/public/desktop/document/McCutcheon_v_Fed_Election_Commn_No_12536_2014_BL_89958_US_Apr_02_

Bopp is skewering the intro speaker, on issues such as confusing correlation and causation.
The speaker, Nick Stephanopolis, says congresscritters should represent their constituents, instead of their donors. The speaker is now discussing statistics and controls to show he is still right. He calls his argument 'alignment' and says it is or should be a compelling state interest, which, as a Boppist, I find unpersuasive. arguing political science with lawyers at this point, a debate i don't get to see in person too often.
Brad S. is visiting at WVa La School in Morgantown this year, so if i go to the morgantown clinic for work this year, it's across the street, so i should consider stopping in to say hi. He looks not like his recent photo. gave his usual talk. briffault looks a bit like detective munch/richard belzer.. 3rd speaker
spoke well, about tracing dark money.

they took away the coffee so i am surviving on fresh fruit and crackers and valpo branded water.

this next panel is about the irs v tea party scandal. tax policy doesn't hold my interest.
they turned the fans on and then turned them back off. it's way hot.

lunchtime speaker, former schumer aide discussing DISCLOSE act. "post-McCutcheon".

pay-to-play, lowest air rate, more disclaimers, some 4th thing, more regulation of electioneering.
could not find a GOP co-sponsor in senate.

another "post-McCutcheon" sighting at hasen.

disclaimers, the 5 top donors list, stand by your ad, all that.

lowest air rate. "disclosure" when he means disclaimers.
 came within one vote of passage in senate, passed house, Obama was ready to sign it.

disclose 2.0 disclaimers dropped.
again lost by 1 vote, i think.

currently back in congress, again won't pass.

the link for another live blog of this event isn't working for me.

Live Blog of Valpo Money and Politics Conference

Following up on this post about Friday’s Valpo conference, they will be live blogging the action all day at http://blogs.valpo.edu/moneypolitics/.

Delaware chancery court ruling. section 220. shareholder access to corporation records. new york state was shareholder in Qualcomm. case settled. good topic for a law review article, i'm hearing at the post-CLE reception. speculating about whether ban on corporation contributions to candidates will stand.
discussion of other states such as cal fppc.

3rd use of "post-McCutcheon" era, on his slides.

congress - not going to do anything.
executive order on pay to pay - went away after criticism.
SEC- not going forward on new regulation of shareholder disclosure.

admits other side is winning court cases. finished, questions?

i asked him about how schumer's office, behind the scenes, dealt with issues of constitutionality of the disclaimer provisions of the disclose act, in light of talley and mcintyre. he said they were aware of the issue, felt they were on solid ground (apparent reference to mcconnell v fec, CU.). his response seemed tactical, what can we get away with, rather than any sense of an ethical obligation to act constitutionally. but maybe that's just my bias reading into it. 4 other questions from audience. we are on break now. just went and shook hands with brad smith. he was friendly, i kept it short, i'm not a good mingler. see also http://electionlawblog.org/?p=59949 post-McCutcheon Brad Smith in WSJ.
I keep trying to pay for this thing, because I didn't preregister, and they are saying call back Monday.
It's the opposite problem as at the IndyBar election CLE where they sent me a bill for twice what they said it would cost. 30 CLEs down, 20 to go before I apply to be re-admitted. They have the fans on now.

Next speaker, Liz Kennedy? is here by video link, skype, because she broke her foot or something. Bopp moving to the desk. Paul S Ryan looks like Jason Stratham.
role of the court. elevates first amendment above other values.
McCutcheon will add 1 billion per election cycle, she estimates.
"political speech does not exist in a vacuum" -my attention span is fading,
note to self i will need to read the breyer dissent, although it's long and i don't care for it. still to do before monday: update last brief with some mccutcheon quotes.
confidence in congress at lowest rate ever. non-voters give government corruption as reason for not bothering to vote. 10% of americans are confident of congress. she's ending now.
unstable untested 5-4 majority. compares to dred scot. , Bopp is up, talking superpacs, he said mconnell but i think he meant mccutcheon.  also mentions citizens united. "simple"
the 1% and the bottom 25% vote democrat, the middle class votes gop.
today's program is being videotaped, so there should be some way to get and stream it?
"gratitude is not corruption". still bopp. "could prohibit newspaper editorials" celebrity endorsement is or isn't corruption. discussing co-ordination by joint fund raising by candidates. i am skeptical of this part.
will i be awake enough to drive home safely? slept part of 2-5 am. this post has been linked at electionlawblog.com.
paul ryan is saying that being a lawyer involves learning to count to five.
2002 bcra, soft money, increased aggregate limit to $123,200,  up from $95,000 after inflation index.
campaign legal center filed amicus at the district court.
object lesson: early amici can be highly effective, even if ultimately wrong. ( as determined by 5)
standard of review: they (CLC) were worried that the court might seriously change the standard. instead, they just tweaked it a little. court mostly punted on the standard issue. said it did not meet either standard.
the case is not just about the result, it's the process. Bopp is smiling and slightly shaking his head.
a candidate, using 3 federal party committees and 50 state party committees, can now ask donors for $1 million each. we can expect this to happen. "post-McCutcheon." Question: is "Post-McCutcheon" common, proper, hybrid, or what? gtbear at gmail. now 4:05 pm. we are 36 minutes over time and he's still going. reception to follow, to 4:30. he may be winding up? yes. he's saying people with deep pockets will be shaken down.
brad smith is asking a question. citing the brief and saying he's wrong,and maybe dishonest to the court. "monsters under beds". breyer's long appendix borrows from the clc brief. "the constitution is only what 5 members of the supreme court say it is." - in one sense that's true, in another sense that's a corrupt statement.
bopp is geting a bit high pitched, defending the right of unions and other groups to pool funds. he' sounding a bit patronizing here, but he's basically right on lots of the details.
drinks to follow. i will put away my computer so this concludes the liveblog.

floyd abrams on mccutcheon at scotusblog:

Maybe he'd be the right person to bring a challenge to stand by your ad, if I could find a plaintiff.

this panel is called the court the constitution, the crisis of confidence in american democracy. demos, i forget who they are.part of "reform". so that's the title of liz's part, not the whole thing. she thinks the court is all wrong. chipper and cheerful. graphs and charts. impact of largest donors.
0.4% of americans make a disclosed contribution, over $200. 2/3 of the 1% are donors.

connecticutt congressman spends his time talking about bankers' problems than about bartenders' problems, because he talks to those with money. so it changes the agenda of what congress does.

rise of the 1%. problem of regulatory capture by the rich.
her point, an interesting one, is that money buys power, and the 1% can oppress the rest, not directly with their money, but indirectly by using wealth to get political power and using the political power to 
oppress people. why did my font just change? fixed.

buckley v valeo. problem with corrupting influence of large contributions.
shifting definitions of compelling interests, corruption and appearance of corruption.

find who disagrees with you, make their speech illegal. he points out how the enemies of citizens united want to put rules back on corporations, but not unions. because it's partisan and content non-neutral. [he has a pending cert petition on this issue, notes scotusblog.]
backstory on mccutcheon. RNC chair (riece? probus or something?) came to Bopp, said these limits are a problem. my guess is they then constructed the case as a test case. Bopp had won 12 cases. Sean McCutcheon had already asked for an FEC advisory opinion. so they got together. mccutcheon called him. so no barratry issue, he's just the go to guy for these things. McCucheon got his own lawyer once it went to s court. rnc paid for it (Bopp's participation.). he's discussing how the regulation regime has changed since buckley v valeo 1976. this is part of what persuaded the s ct. no longer the same justification for the limit.
"liberal agenda, standing in way of."

replay as a cle elsewhere?

vermont case sorrell as example of same kind of thing.
"collective speech".  he is attacking the perspective of the previous speaker.
does the government decide what the will of the people is? this is echoed in the roberts opinion.
he mentions pol pot and totalitarian states. freedom v government. "pernicous".
ordered liberty, breyer book. criticized.

here is a short musical tutorial on how to count to five. pentatonix.

no quid pro quo corruption the record of mcconnell. but a link between money and access.
no record in McCutcheon, unlike McConnell which had 100,000 pages.
access is not corruption. ryan says the reason CU is different than McConnell is just because the conservatives picked up a 5th vote, alito.

that amicus was cited in the district court. that's rare. they also filed an amicus at the supreme court, cited by breyer's dissent, obliquely referenced by plurality.

hypothetical: aside from overt bribery, is there anything this court won't strike down?
he thinks disclosure will hold up, but i intend to prove him wrong, eventually.

he points out you can add leadership pacs, and get in two more millions. Bopp: "I'm really glad we taped this."
bickering at this point. oh! we're not an hour over, i forgot about the time zone change.
bopp says money isn't speech. gives example of right to travel. money enables speech.

the intro speaker is asking a question about canada and britain. 
"you get thrown in jail for passing out a pamphlet, i know a guy it happened to. we fought a war against those sobs" (this is a cheerful colloquy. people are packing up and rustling seats.) Bopp is explaining parliament.

had a nice chat later with Brad Smith after he'd read this post.

Saturday, March 29, 2014

 U.S. Investigates Brothers From Ecuador Who Donated $90,000 to Obama.
 Charlotte Mayor Allegedly Boasted About His Obama Connection While Accepting Bribes.
(powerline, tho, is not an unbiased source.)
current future projections show a senate tied or maybe gop after november.
we were wrong about that in 2010 though.

gop fec chair defends free speech rights of john greg, indiana governor candidate.

Thursday, March 27, 2014



was reading FIRE's amicus brief in Susan B Anthony List v Driehaus, and was pleased to see one of my cases, Majors v Abell, cited to the Supreme Court.  Now, that's hardly the same as seeing it cited by the Supreme Court, but it could happen. plan to update post with link, just wanted to note it before i forgot. Susan B is a wonderful case about whether Ohio can have a truth commission. However, it's not clear that they will reach the merits, so we'll see. It'll be argued in April. This week the Su[prmee Court did not announce that big election law case we've been waiting on. They might hold it back til the last day to keep us in suspense, or it could come any time.


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