The Washington Post made a scary, misleading chart about McCutcheon

Campaign finance can be scary. Charts can communicate information in an easy-to-digest format.

So the Washington Post did a chart about campaign finance after McCutcheon v FEC (PDF), which found that federal biennial aggregate political contribution limits failed exacting scrutiny under the First Amendment and improperly abridged the freedom of speech.

The chart looks scary. (It's here.) According to OpenSecrets, 310 contributors (for contributions disclosed as of June 30, 2014) had exceeded the limit, which was previously at $123,000. It explains that an extra $11.6 million has been poured into elections this cycle, contributions that otherwise would have been prohibited prior to McCutcheon.

But the chart is misleading. Here's why.

First, it's important to note that the chart only includes data for these 310 contributors. That means there are thousands of other contributors left out who've been extremely active this cycle.

Second, it's only measuring those 310 contributors who exceeded the aggregate contribution limits. That, of course, is part of the point--it's meant to show the impact of McCutcheon.

But what's the articulated peril of McCutcheon? On the one hand, it's the concern that a few individuals are now capturing the political process with more money than they otherwise would have been able to contribute. That's limited in terms of influence--they can give no more to any individual candidate, but they can give the statutory maximum (per candidate) to every candidate.

But on the other hand, the concern is that these donors will have an outsized influence in the public debate--that their contributions, above and beyond the aggregate contribution limits, will have a corrosive effect on our public discourse. Political parties will be unusually beholden to these donors--even though the donors are capped per candidate, repeated donations to many candidates of a single party may have a more indirect corrupting effect.

So a better chart might be to look at these post-McCutcheon contributions, and compare them to all other contributions within the McCutcheon caps. The chart below uses the post-McCutcheon data from the Washington Post story, and uses the year-to-date contributions from others who comply with the pre-McCutcheon aggregate caps. It includes data from recent midterm elections, too.

View fullsize

Governor pardons Virgin Islands rep to avoid qualifications concerns

Earlier I blogged about a decision by the Virgin Islands Supreme Court upholding the removal of a candidate from the ballot because the candidate had previously committed a crime involving moral turpitude. I explained that I think this decision is profoundly incorrect--it is left to the voters to decide whether a candidate meets the qualifications enumerated, and then left to the legislature to decide whether a candidate meets the qualifications. The legislature had already seated Senator Alicia "Chucky" Hansen twice before. But this time, an executive official attempted to remove her from the ballot, and the judiciary approved the removal--profound meddling with the legislature's right to evaluate the qualifications of its own members.

Yesterday, the governor of the Virgin Islands pardoned Ms. Hansen. This effectively moots the concerns created by the elections officer and the Virgin Islands Supreme Court. Which is, in some ways, unfortunate--the governor has to spend political capital for the swift resolution of a bad judicial opinion, and the judicial opinion remains on the books. But it also shows that even judicial seizure of power can be trumped by other means of the law--and, in this case, the executive acting to preserve the role of the voters in selecting their representatives and the role of the legislature in evaluating the qualifications of its own members.

Virgin Islands Supreme Court blocks "unqualified" candidate from ballot

Alicia "Chucky" Hansen didn't file income tax returns for a few elections. She was convicted of a few misdemeanors. She ran for legislative office in the Virgin Islands, won, and was seated. She was re-elected.

But when she tried to run again, the chair of the board of elections filed a petition to block her from obtaining ballot access. He claimed that her tax convictions were "crimes involving moral turpitude," which rendered her ineligible to run for office.

The Supreme Court of the Virgin Islands agreed and blocked Ms. Hansen from obtaining ballot access in Bryan v. Fawkes. (PDF)

The Revised Organic Act at issue provides, "The legislature shall be the sole judge of the elections and qualifications of its members." In one way, this is even more robust a power than that given the United States Congress; here, it uses the word "sole," a word the Court in Nixon v. United States (1993) found to be significant. There, in the context of impeachment, the House had the sole responsibility of impeachment, and the Senate had the sole responsibility of removal; the Court found that these textual commitments to other branches precluded judicial review.

Not so here. The Supreme Court of the Virgin Islands felt comfortable not only allowing the executive election official to adjudicate the qualifications of candidates for ballot access, but also in allowing itself to review that decision-making process, too.

I think this is flawed, and the better argument lies with the one I make in my forthcoming Indiana Law Journal piece, Scrutinizing Federal Electoral Qualifications.

I'll briefly mention some of the more curious arguments:

The Court notes that the 30th (and present) Legislature had no ability to adjudicate the qualifications of candidates for the 31st (next year's) Legislature. That isn't much of an answer at all: it might be the case that no one adjudicates the qualifications of candidates for the 31st Legislature until the voters choose them and they seek to be seated.

The Court explains that the Revised Organic Act gives election officials the power "of directing the administration" of elections, which means that "the power to determine whether a candidate meets the minimum qualifications for office so as to appear on a general election ballot is clearly not exclusive to the legislature." I suppose one could conflate the former power with the latter, but that's far from "clearly" established.

The Court notes that the legislature's power to evaluate the qualifications and returns of its own members is different from the power to review the qualifications of candidates. First, it would pretty much eviscerate the power of the legislature, because, presumably, all candidates on the ballot would be qualified and there wouldn't be anything left to review. Second, and relatedly, it gives the judiciary and the executive branches a power to review these candidates in advance, effectively usurping that power from the legislature.

It tracks a couple of state supreme court decisions that were deeply worried that the ballot might include some unqualified candidates--15 year olds or non-citizens or what not--and leave it to the voters and the legislature to review qualifications.

To insert a bit of snark: heaven forbid that a body other than the judiciary have the last word in interpreting what the law says!

There is, of course, recourse in these cases--simply not judicial recourse.

The Supreme Court in Roudebush v. Hartke (1972) affirmed that such a cramped understanding of the legislature's power cannot hold. There, a dispute arose during a recount in a Senate election. The parties disputed whether the state's election process could even include a recount, and the Court concluded it could. It emphasized, however, that it could only do so as long as it did not thwart Congress's power to review the qualifications, elections, and returns of its members. If Congress had the ability to independently review the recount process after it was complete, then its power was not thwarted.

I argue in my forthcoming article that excluding would-be candidates on the basis of qualifications effectively thwarts the legislature's power. After all, there's nothing left to review, because the candidate cannot present herself for the legislature for review--she cannot win the election because she cannot get on the ballot.

Even more dangerous to the legislature's power are the facts of this case. Twice already, Ms. Hansen has presented herself before the voters of the Virgin Islands and to the legislature. Twice, she has been elected and seated. A "crime involving moral turpitude" has a meaning, and perhaps even a meaning that the judiciary would like to reach in other cases similar to this one. (Ultimately, it did so.) But how the legislature interprets that crime is another matter. And as it has concluded that her misdemeanor tax convictions do not disqualify her, then its judgment should be respected.

There is much more to discuss throughout the opinion, but this post is long-winded enough. I highlight these facts to note the judiciary's approval of executive entanglement in the evaluation of the qualifications of prospective members of the legislature--executive interpretations that run contrary to the legislature's own conclusions. And that is significant, indeed.

Paul Clement enters pending Arizona redistricting litigation

I've previously blogged about what the Constitution means when it uses the word "legislature" in the context of the Times, Places and Manner Clause, and the Arizona state legislature's challenge to the ballot proposition that shifted the authority to draw congressional districts from the legislature to an independent commission. A three-judge panel rejected the Arizona state legislature's argument by a 2-1 vote.

Yesterday, the Arizona state legislature filed its reply brief (available via Scribd). Of note: former United States Solicitor General Paul Clement of Bancroft PLLC is now the counsel of record. Bringing in someone of his caliber suggests an increase in the stakes--and perhaps even an increase in the likelihood the Supreme Court will consider the merits of the case.

Justin Levitt's All About Redistricting, Ballot Access News, and SCOTUSBlog all have some coverage of the pending Arizona State Legislature v. Arizona Independent Redistricting Commission litigation. The Supreme Court will likely decide in late September whether to hear the case.

Looking for the Constitution in Rand Paul's proposed felon voter law

Last month, Senator Rand Paul of Kentucky proposed a federal law that would guarantee the right of ex-felons to vote in federal elections. The text of the bill, S.B. 2550, has just been released.

It's just missing one small things: a constitutional basis for the federal government to enact such a law.

A few months ago, a group of senators, led by Senator Ben Cardin, introduced S.B. 2235, the Democracy Restoration Act, that would do a similar thing.

But what, exactly, is the constitutional basis for Congress extending the right to vote to ex-felons in federal elections?

It isn't, as Section 2(2) of Mr. Cardin's bill says, the Times, Places and Manner Clause, which Arizona v. Inter Tribal Council expressly notes precludes federal authority over voter qualifications (and, indeed, apparently killed Oregon v. Mitchell in the process regarding federal power over voter qualifications in federal elections).

Section 2(3) of Mr. Cardin's bill cites "[b]asic constitutional principles of fairness and equal protection," which is not exactly a basis for legislative authority. The third sentence of the section cites the 13th, 14th, 15th, 24th, and 26th amendments empowering "Congress to enact measures to protect the right to vote in Federal [ed: this power also extends to state] elections," which is true, but does not necessarily (except, see below) empower Congress to enforce qualifications regarding felon status. And the third sentence of the section cites the 8th Amendment's ban on cruel and unusual punishments, which is certainly correct, but, alas, does not empower of Congress.

Section 2(4)(C) or Mr. Cardin's bill notes that felon disenfranchisement law "disproportionately impact racial and ethnic minorities," (see also Section 2(10)-(11)), which is certainly the case--the harder question, under existing Supreme Court jurisprudence, is whether a racially disparate impact is a sufficient basis for the exercise of congressional power to expand voter qualifications under the Reconstruction Amendments--which, I think, is a great question, and would likely fracture the majority that wrote the statements in Inter Tribal regarding the congressional power over voter qualifications.

So that's, I think, the best possible constitutional hook for Mr. Cardin's bill.

Mr. Cardin's bill would enfranchise all ex-felons, violent, non-violent, and those who convicted of an election-related felony.

Mr. Paul's bill does something different.

First, Mr. Paul's bill extends only to "non-violent" ex-felons, "non-violent" meaning crimes that defined as crimes of violence under 18 U.S.C. § 16 and analogous state laws.

Second, Mr. Paul's bill excludes felons serving a term in prison from the scope of his bill, and those serving a term of probation if it's less than one year (or the first year of a longer probation term). Mr. Cardin's bill extends to enfranchise those who are serving a term of probation.

Third, Mr. Paul's bill includes no mention of a constitutional basis for enacting this law.

Given Mr. Paul's abiding concern over the scope of federal authority in other areas, I found the complete lack of any constitutional hook as a slight surprise.

Perhaps Mr. Paul would rely on similar constitutional bases as Mr. Cardin, but he would run into some of the same problems. At best--in my own understanding of the Constitution's authority granted to the federal government--he might be able to argue that the disparate impact of felon voting laws on racial minorities would authorize Congress to enact this law, pursuant to its power under the Reconstruction Amendments.

But that constitutional claim is not made explicitly. And we are left merely to guess.

Portions of this post originally appeared in emails sent to the Election Law listserv.

McCutcheon in non-election law litigation

In McCullen v. Coakley (PDF), the Supreme Court found that a Massachusetts law prohibiting congregating within 35 feet of abortion clinics to be in violation of the First Amendment's guarantee of the freedom of speech. The Court referred to its recent opinion in McCutcheon v. Federal Election Commission (PDF).

The basis? One of process. Chief Justice Roberts wrote the plurality in McCutcheon, in which he refused to decide which level of scrutiny to use, concluding that the campaign finance restriction at issue failed either proposed test. He also wrote the majority in McCullen, in which there was a question about which test should apply:

The Court does sometimes assume, without deciding, that a law is subject to a less stringent level of scrutiny, as we did earlier this Term in McCutcheon v. Federal Election Commission. But the distinction between that one and this one seems clear: Applying any standard of review other than intermediate scrutiny in McCutcheon--the standard that was assumed to apply--would have required overruling a precedent. There is no similar reason to forgo the ordinary order of operations in this case.

Justice Scalia, who joined the plurality in McCutcheon, was not convinced in his opinion concurring in the judgment in McCullen:

Just a few months past, the Court found it unnecessary to "parse the differences . . . between two [available] standards" where a statute challenged on First Amendment grounds "fail[s] even under the [less demanding] test." McCutcheon. What has changed since then? Quite simple: This is an abortion case, and McCutcheon was not.[fn.2] By engaging in constitutional dictum here (and reaching the wrong result), the majority can preserve the ability of jurisdictions across the country to restrict antiabortion speech without fear of rigorous constitutional review. With a dart here and a pleat there, such regulations are sure to satisfy the tailoring standards applied in . . . the majority's opinion.

[fn.2]: The Court claims that McCutcheon declined to consider the more rigorous standard of review because applying it "would have required overruling a precedent." That hardly distinguishes the present case, since, as discussed later in text, the conclusion that this legislation escapes strict scrutiny does violence to a great swath of our First Amendment jurisprudence.

Detroit News op-ed: "Fix Michigan election law"

I wrote an op-ed that appears in today's Detroit News. It begins:

Over 1,200 Detroit-area registered voters signed petitions to get Congressman John Conyers, D-Detroit, on the August 5 primary ballot.

Under normal circumstances, that would assure him a spot—Michigan law only requires 1,000 signatures.

But the Wayne County Clerk concluded that Mr. Conyers fell 400 signatures short because of a law that requires petition circulators to be registered voters. Two women who circulated petitions on Mr. Conyers’s behalf were not registered to vote.

Michigan has had this law on the books for a half century, but it’s hard to figure out why. Supporters have suggested a variety of reasons this law makes sense: it prevents fraud, it ensures that only people who care enough to register to vote circulate petitions—and regardless, the burden is not great.

These reasons are inadequate.

Colorado files petition for rehearing en banc in Guarantee Clause case

I've blogged about the Tenth Circuit's decision on Kerr v. Hickenlooper, which extended legislative standing and found the Guarantee Clause justiciable for legislators challenging an initiative that requires tax increases to be approved by the voters before taking effect. (I wrote a piece for Jurist on the matter here.) The Governor has petitioned the Tenth Circuit for rehearing en banc; the petition is available at Scribd here.

National Popular Vote passed in New York legislature

After perceived shortcomings in the electoral college in the 2000 election, and after Bush v. Gore, the National Popular Vote ("NPV") was introduced as a mechanism to convert the election of the president from the electoral college to popular vote. The goal was to avoid federal involvement: rather than enact a constitutional amendment, the NPV could garner support from individual states to give their electoral votes to the winner of the national popular vote, rather than the winner of their own state's popular vote.

Such unilateral disarmament would not be politically feasible, so the NPV included a trigger that conditioned it taking effect only when states comprising a majority of the electoral college's votes (at least 270) had enacted the legislation.

There was a flurry of enactments several years ago, but the pace slowed. That said, progress continues. Yesterday, New York's assembly joined its senate in supporting the interstate compact. The NPV is halfway toward taking effect; 136 electoral votes' worth of states have passed it. If signed by Governor Andrew Cuomo, it would push up to 165 votes.

As the proposal has been more popular in Democratic-controlled state legislatures, there are few big prizes left for NPV supporters, as California (55 electoral votes) and Illinois (20) have already enacted it. It has made progress previously in Pennsylvania (20). This year, it remains actively pending in Arizona (11), Connecticut (7), Nebraska (5), and Oklahoma (7). (The Wikipedia entry has excellent citations to the pending legislation.)

I've written extensively about the electoral college. I've concluded that the NPV likely fails absent congressional consent because it runs afoul of the Compact Clause, which prohibits states from entering agreements with each other that shift the balance of political power toward compacting states. I've also written about the "invisible federalism" undergirding presidential elections and explained that complications would arise should we decide to have 50 states' individual elections commingled into a single nationwide election.

Several more states would need to enact the compact before it takes effect, but New York's support shows that the issue is not over yet.