Crawford and the Politics of Voter ID

October 20, 2014
posted by Bob Bauer
A recent posting here suggested that the constitutional analysis of ID statutes is foundering on the issue of partisan motivation—the politics of ID. The centrality of this motivation is inescapable. it is impressing itself on a prominent jurist like Richard Posner, once dismissive of claims against ID statutes, and it is supported by the evidence considered by political scientists (see here and here). Yet the jurisprudence developed around ID has fared poorly in showing how political motivation can be incorporated into a constitutional test.

Voter ID Facts and Motivation: Easterbrook v. Posner

October 16, 2014
posted by Bob Bauer
Judges Easterbrook and Posner square off in their opinions on the Wisconsin voter ID statute and their exchange comes down to two questions: the differences in the design and effects of ID statutes, and the significance of partisan motivation. Frank V. Walker, Nos. 14-2058 & 14-2059 (7th Cir., Oct. 6, 2014). Easterbrook is casual, if not careless, in discussing the differences, and in his treatment more generally of facts. Posner insists on their importance. Easterbrook sweeps aside the question of political motivation, and Posner does not.

This is the position I submitted to the New York Times’ “Room for Debate” Forum, on the question of the state of campaign finance regulation and possible directions for its future:

 

Forty years after the passage of the federal campaign finance laws, we have considerable experience with how they work, but the debate about them has become tired and repetitive. No one is happy with the situation as it now stands: not those who worry about corruption, not those troubled by the First Amendment cost of extensive regulation, and not those who yearn to bolster public confidence in the integrity of their government. There is everywhere evidence that reconsideration and rebuilding are in order.

A Functioning Agency and the Sources of Dysfunction

October 10, 2014
posted by Bob Bauer
The Federal Election Commission approved rulemakings to conform its regulations to the Supreme Court’s decisions in Citizens United and McCutcheon.  This was not accomplished in a hurry, more than four years having passed since CU was decided. That it happened at all was generally received well, but with dissents, which are worth noting as the sources of agency functioning or dysfunction are analyzed.
The Campaign Legal Center and Democracy 21 have filed and published with a press release comments on a matter, scheduled tomorrow for FEC consideration, involving political party financing of national conventions.  These organizations have strong views on the alternatives before the Commission, as would be expected. But their choice of arguments says much about contemporary campaign finance debates.  (Note: I am counsel to one of the parties that filed the request for an Advisory Opinion).