Tuesday, June 28, 2011
Howard reports that among the 13 cases the supreme court granted cert for for next term, is one about lame ducks.
This is was going to be a post about a factual error I think thought Justice Kagan made in her dissent in McComish.
Yesterday the Supreme Court decided McComish v Bennett pdf, the Arizona matching funds case. Justice Roberts wrote for the court and said the usual nice things about elections are free speech, and we already decided this issue in Davis anyway, and it's the Ninth Circuit so we'll just overrule them as usual.
What makes the case significant is its dissent. See McConnell.
Hasen is calling the case Arizona Free Enterprise. That's a nice touch for IJ to have their case called Free Enterprise.
I prefer FEC v Bennett. McComish sounds like a WB sitcom about a cop who's just one year away from retirement. Hayward prefers AFEFCPAC.
The dissent by Justice Kagan is as confrontational as one by Scalia. It shows that First Amendment protection of election speech is just one vote away from tragedy. Future cases that lose any of the Roberts-Kennedy-Scalia-Thomas-Alito coalition can lose. And this is not an especially cohesive bunch; look at the lineups on the other cases decided yesterday. So we are still in a world of what Hasen has called indeterminacy.
One thing neither side really discusses is stare decisis. The ninth circuit and the dissent both try to distinguish Davis on what I think are very shaky grounds.
Davis is to McComish as Heller is to McDonald. No one on the losing side is saying, we don't like the result, but we've already decided this issue,and should move on.
This approach is likely to be thrown back in their faces when at some future point the conservative majority invalidates some favorite precedent of the liberal wing.
There was a phrase that jumped out at me from the Kagan dissent. Ithink thought she was factually wrong about what the court has held about disclaimers.
On Page 58 of the slip opinion, in number two of part B, she states,
"Number two: Our decisions about disclosure and dis-claimer requirements show the Court is wrong. The Court has repeatedly declined to view these requirements as a sub-stantial First Amendment burden, even though they dis-courage some campaign speech."
OK, this is a slightly different claim than I thought she was making. She isn't saying the Court has never viewed disclaimer requirements as a substantial burden, just that they haven't always done so. That is correct; in McConnell and Citizens United flawed disclaimer arguments that failed were raised,and treated somewhat dismissively.
What does she say next?
She cites disclosure cases. She does cite Citizens United,and that single example might be enough to prove her point. OK, I was wrong,and Kagan was not wrong, and this post has now lost its focus.
On the other hand, her point is still open to criticism. Talley v California, 1960, is outside the post-Buckley time frame she is discussing. But in McIntyre v Ohio, 1995, the court did apply strict scrutiny in striking down a disclaimer rule. (One that applied to candidates, not just little old ladies named Margaret.)
In Victoria Buckley v ACLF, 1999, all nine members of the court found the disclaimer rule unconstitutional, in a variety of separate opinions. Justice Thomas, concurring, discussed disclaimer rules as a severe burden triggering strict scrutiny under the Norman v Reed framework.
See also Watchtower v Stratton.
So Justice Kagan's discussion of disclaimer cases is highly selective and ignores the main thrust of the court's cases during the period she is discussing.
That 4 members of today's court are willing to selectively edit the court's own history is not a good sign for the ongoing battle to finally enforce the civil rights victory Manual Talley won 51 years ago.
My failed attempts to get somewhere on this myself over the past 15 years [Stewart v Taylor, Anonymous v Delaware, Majors v Abell] suggest that I should work harder to find a competent ally to work with, such as the Institute for Justice.
Yesterday the Supreme Court decided McComish v Bennett pdf, the Arizona matching funds case. Justice Roberts wrote for the court and said the usual nice things about elections are free speech, and we already decided this issue in Davis anyway, and it's the Ninth Circuit so we'll just overrule them as usual.
What makes the case significant is its dissent. See McConnell.
Hasen is calling the case Arizona Free Enterprise. That's a nice touch for IJ to have their case called Free Enterprise.
I prefer FEC v Bennett. McComish sounds like a WB sitcom about a cop who's just one year away from retirement. Hayward prefers AFEFCPAC.
The dissent by Justice Kagan is as confrontational as one by Scalia. It shows that First Amendment protection of election speech is just one vote away from tragedy. Future cases that lose any of the Roberts-Kennedy-Scalia-Thomas-Alito coalition can lose. And this is not an especially cohesive bunch; look at the lineups on the other cases decided yesterday. So we are still in a world of what Hasen has called indeterminacy.
One thing neither side really discusses is stare decisis. The ninth circuit and the dissent both try to distinguish Davis on what I think are very shaky grounds.
Davis is to McComish as Heller is to McDonald. No one on the losing side is saying, we don't like the result, but we've already decided this issue,and should move on.
This approach is likely to be thrown back in their faces when at some future point the conservative majority invalidates some favorite precedent of the liberal wing.
There was a phrase that jumped out at me from the Kagan dissent. I
On Page 58 of the slip opinion, in number two of part B, she states,
"Number two: Our decisions about disclosure and dis-claimer requirements show the Court is wrong. The Court has repeatedly declined to view these requirements as a sub-stantial First Amendment burden, even though they dis-courage some campaign speech."
OK, this is a slightly different claim than I thought she was making. She isn't saying the Court has never viewed disclaimer requirements as a substantial burden, just that they haven't always done so. That is correct; in McConnell and Citizens United flawed disclaimer arguments that failed were raised,and treated somewhat dismissively.
What does she say next?
She cites disclosure cases. She does cite Citizens United,and that single example might be enough to prove her point. OK, I was wrong,and Kagan was not wrong, and this post has now lost its focus.
On the other hand, her point is still open to criticism. Talley v California, 1960, is outside the post-Buckley time frame she is discussing. But in McIntyre v Ohio, 1995, the court did apply strict scrutiny in striking down a disclaimer rule. (One that applied to candidates, not just little old ladies named Margaret.)
In Victoria Buckley v ACLF, 1999, all nine members of the court found the disclaimer rule unconstitutional, in a variety of separate opinions. Justice Thomas, concurring, discussed disclaimer rules as a severe burden triggering strict scrutiny under the Norman v Reed framework.
See also Watchtower v Stratton.
So Justice Kagan's discussion of disclaimer cases is highly selective and ignores the main thrust of the court's cases during the period she is discussing.
That 4 members of today's court are willing to selectively edit the court's own history is not a good sign for the ongoing battle to finally enforce the civil rights victory Manual Talley won 51 years ago.
My failed attempts to get somewhere on this myself over the past 15 years [Stewart v Taylor, Anonymous v Delaware, Majors v Abell] suggest that I should work harder to find a competent ally to work with, such as the Institute for Justice.
Yesterday the supreme court decided FEC v Bennett, aka McComish v Bennett aka sundry other things. I'll have a post up shortly about the dissent's comments about disclaimers, but first this. In a new york times blog, hasen and others discuss the impact of the decision.
Where to Now on Public Financing?
How will the Supreme Court's rejection of an Arizona matching-funds law affect the political landscape?
New York City as a Model?
Public financing, now that it can no longer be promoted as evening the playing field, Harrison Bergeron-style, is often promoted as an alternative to corruption.
In New York, there is a matching funds provision whereby donations of up to $175 get matched 6-1. To me, this is an open invitation to corruption. It turns every political race into a horse race where those in the know have a sure thing, a horse that pays out 6-1. New York is one of those places that has a culture of corruption, part of the local culture that has continued since Tammany Hall days. Boston, Chicago, New Orleans and parts of Philadephia are similar. There are rural examples as well.
I am no Damon Runyon, and this post won't have the colorful idioms it deserves.
But as someone with a long time interest in game theory and political shennanigans, it's not hard to see how this matching funds program provides leverage for schemes that include legal, illegal,and a broad gray area in between.
Probably legal: Society hostess invites her friends to a tea party to meet local candidate, where there is an expectation, a social norm, that those who attend will contribute $175 each. 100 guests at 175 x 6. $100,500, less expense of tea and sandwiches. Local candidate gets elected and society hostess now has a friend at city hall, and can get invited to fancy dinners.
Probably illegal: City worker/union member/community organizer/etc, call him "joe", told to contribute $175 to campaign, "or else", but "you'll get it back." Campaign gets matching funds, $175x6= 1050, joe gets $250 in a brown envelope, campaign pockets $800. Times 100 = $80,000.
Gray area. Joe is invited to a beer and brats lunch, hears a rousing speech by candidate, is asked to pony up $175, does. $1050 to campaign. Campaign drops by Joe's house with 50 signs, asks him if he would put them up for $200 and talk up the campaign with his friends. Times 1000 = $850,000.
Given the mix of New York's culture of corruption and the structure of this matching funds program, I see it as an open invitation to graft and looting of public funds.
Is this the model we want to promote nationally? Will we call it "clean elections"?
Where to Now on Public Financing?
How will the Supreme Court's rejection of an Arizona matching-funds law affect the political landscape?
New York City as a Model?
Public financing, now that it can no longer be promoted as evening the playing field, Harrison Bergeron-style, is often promoted as an alternative to corruption.
In New York, there is a matching funds provision whereby donations of up to $175 get matched 6-1. To me, this is an open invitation to corruption. It turns every political race into a horse race where those in the know have a sure thing, a horse that pays out 6-1. New York is one of those places that has a culture of corruption, part of the local culture that has continued since Tammany Hall days. Boston, Chicago, New Orleans and parts of Philadephia are similar. There are rural examples as well.
I am no Damon Runyon, and this post won't have the colorful idioms it deserves.
But as someone with a long time interest in game theory and political shennanigans, it's not hard to see how this matching funds program provides leverage for schemes that include legal, illegal,and a broad gray area in between.
Probably legal: Society hostess invites her friends to a tea party to meet local candidate, where there is an expectation, a social norm, that those who attend will contribute $175 each. 100 guests at 175 x 6. $100,500, less expense of tea and sandwiches. Local candidate gets elected and society hostess now has a friend at city hall, and can get invited to fancy dinners.
Probably illegal: City worker/union member/community organizer/etc, call him "joe", told to contribute $175 to campaign, "or else", but "you'll get it back." Campaign gets matching funds, $175x6= 1050, joe gets $250 in a brown envelope, campaign pockets $800. Times 100 = $80,000.
Gray area. Joe is invited to a beer and brats lunch, hears a rousing speech by candidate, is asked to pony up $175, does. $1050 to campaign. Campaign drops by Joe's house with 50 signs, asks him if he would put them up for $200 and talk up the campaign with his friends. Times 1000 = $850,000.
Given the mix of New York's culture of corruption and the structure of this matching funds program, I see it as an open invitation to graft and looting of public funds.
Is this the model we want to promote nationally? Will we call it "clean elections"?
Monday, June 20, 2011
as blogged by hasen, usa today article on voter ID
Thursday, June 16, 2011
http://saos.nictusa.com/saos/searchao?SUBMIT=ao&AO=3250
coments on the facebook FEC AO 2011-09, including mine.
Everybody opposes draft A, except "democracy 21".
coments on the facebook FEC AO 2011-09, including mine.
Everybody opposes draft A, except "democracy 21".
Wednesday, June 15, 2011
Nevada Com'n on Ethics v Carrigan, and the Nevada Constitution.
http://www.supremecourt.gov/opinions/10pdf/10-568.pdf
http://sblog.s3.amazonaws.com/wp-content/uploads/2010/12/01-07-Nevada-Commission-opinion-below.pdf
Carrigan was on the county council of Sparks Nevada (or something; I am blogging on the fly without checking the facts.) He was censured for voting on a matter that his campaign manager had a financial interest in.
he challenged his censure on first amendment grounds in state court,and won 5-1 with one recusal at the state supreme court. He was then reversed 9-0 by the US supreme court.
(The case continues on remand;he may still win on other grounds.)
What I want to know is why didn't he sue based on the Nevada constitution?
If he had, and the nevada court agreed with him, and said so clearly, his case would have been insulated from USSCt review. Was it malpractice by his attorneys? Was it some strange procedural obstacle? Were there no grounds under the Nevada constitution?
http://www.supremecourt.gov/opinions/10pdf/10-568.pdf
http://sblog.s3.amazonaws.com/wp-content/uploads/2010/12/01-07-Nevada-Commission-opinion-below.pdf
Carrigan was on the county council of Sparks Nevada (or something; I am blogging on the fly without checking the facts.) He was censured for voting on a matter that his campaign manager had a financial interest in.
he challenged his censure on first amendment grounds in state court,and won 5-1 with one recusal at the state supreme court. He was then reversed 9-0 by the US supreme court.
(The case continues on remand;he may still win on other grounds.)
What I want to know is why didn't he sue based on the Nevada constitution?
If he had, and the nevada court agreed with him, and said so clearly, his case would have been insulated from USSCt review. Was it malpractice by his attorneys? Was it some strange procedural obstacle? Were there no grounds under the Nevada constitution?
Thursday, June 09, 2011
