Archive for the 'Uncategorized' Category

The Seventh Circuit insists that the district court in the Wisconsin ID litigation was too lenient with the option of an affidavit for voters who could not with reasonable effort obtain a qualifying photo ID. So the Court directs that this relief be limited to the class of voters in genuine need, and it is seeking from the court below “objective standards” election officials could use in determining what constitutes “genuine difficulties” in obtaining ID.  To support its position, the Seventh Circuit cites a portion of Crawford, offering this selection:

Yet the Supreme Court held in Crawford v. Marion County Election Board, 553 U.S. 181, 198 (2008), that “the inconvenience of making a trip to the [department of motor vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.” A given voter’s disagreement with this approach does not show that requiring one trip to a governmental office is unreasonable.

The Seventh Circuit chooses to omit the opening three words of this sentence in Crawford: “For most voters…” In other words, the Supreme Court in Crawford does not say that the inconveniences are minor for all voters, but more generally for most voters. It does not even suggest that the number of voters for whom these inconveniences would be significant are small or trivial in number, only that it is a “limited number” and that “most voters” don’t confront the problem. Crawford suggested that the limited number may include elderly persons born out of state and those economic and unspecified “personal” limitations. 553 U.S. 199.

Political Morality and the Trump Candidacy: Part II

August 8, 2016
posted by Bob Bauer

Donald Trump doesn’t have any particular feeling for irony and so he misses it altogether in his recent suggestion that the coming election is likely to be rigged against him. Of course he’s now doing the rigging: he’s rigging the post-election assessment of the results. If he wins, it reflects the will of the electorate; if he loses, that will has been thwarted, by a rigging.

This raises the question discussed here of whether, if there are limits to ends-justifies-the-means political ethics--if it is accepted that there are superior and inferior types of political morality-- Trump has exhibited clearly a moral style that is both distinctive and troubling.

It does not seem that there is a clear and shared view of when political ethics have become unacceptable, and so, in Trump’s case, the analysis has now shifted to issues of mental health. It is not suggested that his lying exceeds the limits of the ethically permissible but that we have departed from the domain of ethics altogether.

As the courts work their way through claims against ID and other voting restrictions, they continue on a course of “softening" voting impediments but not eliminating them altogether. They remain reluctant to deny states the authority to enact rules, on virtually non-existent evidence, to protect against in-person voter fraud. Remedies are then fashioned that provide relief to voters facing a “reasonable impediment” to voting but the question has been legitimately raised: how much of an impact can these sorts of measures be expected to have?

Like the right to a provisional ballot provided for under HAVA, these other remedies-- like accommodating indigent voters with access to cost-free identification--help voters, but only a limited number. The reach and effectiveness of these measures depend upon the states’ performance of their obligations: the information they provide to voters, and the good faith and competence with which they administer the remedies. The same may be true of more robust remedies, like the option recently ordered for Wisconsin, affording access to an affidavit alternative to documentary identification.

Still “softening” is useful. Political actors—notably, parties and presidential campaigns--and nonprofit voting organizations have dramatically improved upon their capabilities in effectively advising voters about remedial options and assisting them in exercising them. Voters are not, then, entirely dependent upon state officials for help. In successive election cycles, the effectiveness of these partisan and nonprofit voter protection programs has improved, each rebuilt successfully on the experience of the last.

One FEC Commissioner’s Answer to Citizens United

April 7, 2016
posted by Bob Bauer

FEC Commissioner Weintraub believes that she has hit upon a regulatory maneuver to stop publicly traded corporations from making independent expenditures, or unlimited contributions to independent expenditure committees.  At a time when newspaper editorialists carry on with attacks on the Commission as “worse than useless,” the Commissioner seems determined to prod the FEC to face the major “money in politics” issues of the day.

This is her theory: foreign nationals cannot make contributions or independent expenditures, which means that the FEC could establish that no corporation with foreign nationals as shareholders could engage in this political spending.  The rule would not bring about this result outright: it would require a corporation to "certify" that it was not making contributions or independent expenditures with these funds.  As a practical matter, corporations with foreign national shareholders could not risk making the certification and would forgo this political spending.  The Commissioner plans to direct lawyers to produce proposals that she and her colleagues can consider in a future rulemaking.

This is an interesting proposal, but it is generally appreciated that a Commission unable to agree on matters of lesser moment will not find a majority in favor of this one.  But even beyond that, the proposal is vulnerable to questions about its viability as a regulatory measure.

Single-Candidate Super PACs and the Transparency Option

January 8, 2016
posted by Bob Bauer

The Super PAC that sits most poorly with critics is the one devoted to a single candidate.  It comes across as a flaunting of the form: often established by a candidate’s friends or associates, created in just the election cycle in which the candidate runs, it just seems to them like a sham.  There been proposals to limit or cripple single candidate PACs, met in turn by objections that the constitutional law does not allow for it.  This objection has force because reform proposals focus solely on the question of spending limits, and it is on this point precisely that the constitutional barriers go up.  If the committee is not “coordinating” with the candidate on a specific expenditure, it retains it's right to spend without limit for his benefit.

But there is another issue presented by the single-candidate Super PAC, allowing more room for a regulatory response: transparency.  As it happens, the problem is created in part by the law.  Unless a Super PAC is committed to the defeat of a particular candidate, in which case it can use the candidate’s name in “projects” or communications, it cannot have the candidate's name built into its own. 11 C.F.R. 102.14(a), (b)(3).  The support that it provides the candidate is presented under an anodyne name, like Committee for An America Back on Track.  The press may well say that it is candidate X’s Super PAC, and candidate X may well try to sneak the independent committee’s fundraising into boasts about his financial position. On the public record, however, the candidate has no connection to the committee: he has “not authorized” it-- for purposes of contribution or spending limits.

Because the single-candidate Super PAC is new to the scene, it stands out as a type of committee that falls through various disclosure cracks.  For example, “draft committees” established to encourage an individual to run to have the right to use her name: there's no mystery about whom they're supporting. 11 C.F.R.102.14(b)(2).  The individual being implored to run may be asked to "disavow" the draft committee, so its spending is not treated as her own and does not trigger any related requirements that she register a campaign committee. 11 C.F.R. 100.3(a)(3).  But the draft committee can proceed clearly and by name to urge a candidacy.

So it is only an independent committee supporting a particular candidate that is barred from using the candidate’s name. In this case, there is no public link between the committee and the candidate.

One conceivable approach would establish that link without running into constitutional complications.  A Super PAC organizing or operating to support only one candidate could be deemed a “supporting organization”, or something like that, defined as an independent committee organized and operating for the primary purpose of supporting candidate X.  A rule might provide that X be notified of an independent committee meeting that test. As in the case of draft committees, the candidate could "disavow" the designation, disputing that the committee truly supports him.

Category: Uncategorized