Law Commons^™

Shareholder Proposal Settlements And The Private Ordering Of Public Elections, Sarah C. Haan

Sarah Haan

Reform of campaign finance disclosure has stalled in Congress and at various federal agencies, but it is steadily unfolding in a firm-by-firm program of private ordering. Today, much of what is publicly known about how individual public companies spend money to influence federal, state, and local elections—and particularly what is known about corporate “dark money”—comes from disclosures that conform to privately negotiated contracts.

The primary mechanism for this new transparency is the settlement of the shareholder proposal, in which a shareholder trades its rights under SEC Rule 14a-8—and potentially the rights of other shareholders—for a privately negotiated social policy commitment …

Business Lobbying As An Informational Public Good: Can Tax Deductions For Lobbying Expenses Promote Transparency?, Michael Halberstam, Stuart G. Lazar

Stuart Lazar

The view that “lobbying is essentially an informational activity” has persistently served the suggestion that lobbying provides a public good by educating legislators about policy and the consequences of legislation. In this article, we link a proposed tax reform with a substantive disclosure requirement to promote the kind of “information subsidy” that serves the public interest, while mitigating – at least to some extent – the distortion that may result from the imbalance of financial resources on the business side and other institutional contraints identified in the literature. We argue that corporate lobbying should be encouraged – by allowing business …

Breaching A Leaking Dam?: Corporate Money And Elections, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

With a brief order issued at the end of its last term, the Supreme Court dramatically raised the stakes in Citizens United v. FEC. What many had predicted would be a case decided on narrow, technical grounds has now become a possible vehicle for overturning two key campaign finance precedents. By ordering re-argument and supplemental briefing on the issue of whether it should overrule either or both Austin v. Michigan Chamber of Commerce and the part of McConnell v. FEC which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, the Court signaled that …

Charities And Lobbying: Institutional Rights In The Wake Of Citizens United, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

One of the many aftershocks of the Supreme Court’s landmark decision in Citizens United v. FEC is that the decision may raise constitutional questions for the long-standing limits on speech by charities. There has been much scholarly attention both before and after that decision on the limit for election-related speech by charities, but much less attention has been paid to the relating lobbying speech limit. This article seeks to close that gap by exploring that latter limit and its continued viability in the wake of Citizens United. I conclude that while Citizens United by itself does not undermine the limit …

Disclosures About Disclosure, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

An often overlooked aspect of the Supreme Court’s recent decision in Citizens United v. FEC is the sharply contrasting factual accounts regarding disclosure of independent election-related spending. For eight of the Justices, such disclosure is constitutionally defensible because it enables voters to make informed decisions. For Justice Thomas, however, such disclosure is constitutionally suspect because of its potential to result in retaliation and related chilling of First Amendment speech in the form of financial contributions. The continuing importance of these contrasting narratives can be found not only in the pending Supreme Court case of Doe v. Reed, in which the …

Disclosures About Disclosure, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

An often overlooked aspect of the Supreme Court’s recent decision in Citizens United v. FEC is the sharply contrasting factual accounts regarding disclosure of independent election-related spending. For eight of the Justices, such disclosure is constitutionally defensible because it enables voters to make informed decisions. For Justice Thomas, however, such disclosure is constitutionally suspect because of its potential to result in retaliation and related chilling of First Amendment speech in the form of financial contributions. The continuing importance of these contrasting narratives can be found not only in the pending Supreme Court case of Doe v. Reed, in which the …

Charities And Lobbying: Institutional Rights In The Wake Of Citizens United, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

One of the many aftershocks of the Supreme Court’s landmark decision in Citizens United v. FEC is that the decision may raise constitutional questions for the long-standing limits on speech by charities. There has been much scholarly attention both before and after that decision on the limit for election-related speech by charities, but much less attention has been paid to the relating lobbying speech limit. This article seeks to close that gap by exploring that latter limit and its continued viability in the wake of Citizens United. I conclude that while Citizens United by itself does not undermine the limit …

Breaching A Leaking Dam?: Corporate Money And Elections, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

With a brief order issued at the end of its last term, the Supreme Court dramatically raised the stakes in Citizens United v. FEC. What many had predicted would be a case decided on narrow, technical grounds has now become a possible vehicle for overturning two key campaign finance precedents. By ordering re-argument and supplemental briefing on the issue of whether it should overrule either or both Austin v. Michigan Chamber of Commerce and the part of McConnell v. FEC which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, the Court signaled that …

Reforms In Florida After The 2000 Presidential Election, Jon L. Mills

Jon L. Mills

Much has been written concerning the Florida recount, and the final U.S. Supreme Court decision in Bush v. Gore. Moreover, the popular media has mostly focused on the negatives of the Florida recount without delving into the exact reasons why Florida became the epicenter of this controversy. Not much has been written pinpointing the actual circumstances precipitating Florida's position after the election, nor discussing the theoretical underpinning of Florida election law, which embraces a broad liberal concept of respecting the “will of the voter.” By examining both the actual circumstances surrounding Florida in 2000 and recognizing that Florida election jurisprudence …

Instead Of Government Truth Police, A Wiser Course Is Informed Citizenry, Alan E. Garfield

Alan E Garfield

No abstract provided.

The Appearance Of Election Law, John Nagle

John Copeland Nagle

The recent attention to election law implies that questions of reapportionment, voting rights, campaign finance, and the counting of votes belong to the same category of legal questions. In each instance, the evolving Supreme Court jurisprudence emphasizes appearances. The appearance of legislative districts, the appearance of corruption, and the appearance of partisanship are just some of the distinct ways in which the Court has concluded that appearance matter. As with other appearances, what looks to some observers like a gerrymandered district or a corrupting contribution is seen by others as a legitimate apportionment or an innocent expression of political support. …

Voluntary Campaign Finance Reform, John C. Nagle

John Copeland Nagle

No abstract provided.

Tools To Fight Voter Suppression Still Are Needed, Alan E. Garfield

Alan E Garfield

No abstract provided.

Shelby County, Alabama V. Holder: Must Congress Update The Voting Rights Act’S Coverage Formula For Preclearance?, Michael Dimino

Michael R Dimino

No abstract provided.

The Brief History Of "Voter-Owned Elections" In Portland, Oregon: If Public Financing Can't Make It There, Can It Make It Anywhere?, Paul A. Diller

Paul Diller

From 2006 to 2010, Portland, Oregon, experimented with a publicly financed campaign system called "Voter-Owned Elections." In 2010, Portland's voters declined to renew the system. This article assesses Portland's experience with public financing and draws lessons therefrom that may inform efforts to promote public financing at the national, state, and local levels.

Regulating From Typewriters In An Internet Age: The Development & Regulation Of Mass Media Usage In Presidential Campaigns, Anthony J. King

Anthony J. King

The American election process has become a misleading process of campaign promises and self-promotion, thus diluting its primary and most fundamental purpose. This discrepancy can be traced to three primary groups; (1) the candidates, who supplied the motive; (2) the mass media, who supplied the means; and (3) the electorate, who so far have allowed it to happen. Seeking to remedy the situation lawmakers have turned to regulations of the media in attempt to assure fairness and nurture the marketplace of ideas. These numerous attempts at fairness have been met with a mixed reception and mixed results leading to questions …

Invisible Federalism And The Electoral College, Derek Muller

Derek T. Muller

What role do States have when the Electoral College disappears? With the enactment of the National Popular Vote on the horizon and an imminent presidential election in which a nationwide popular vote determines the winner, States would continue to do what they have done for hundreds of years — administer elections. The Constitution empowers States to decide who votes for president, and States choose who qualifies to vote based on factors like age or felon status. This power of States, a kind of “invisible federalism,” is all but ignored in Electoral College reform efforts. In fact, the power of the …

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

Mark D. Rosen

Democracy does not spontaneously occur by citizens gathering to choose laws. Instead, representative democracy takes place within an extensive legal framework that determines such matters as who gets to vote, how campaigns are conducted, and what conditions must be met for representatives to make valid law. Many of the “rules of the road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against partisan gerrymandering—which is partly responsible for the fact that most congressional districts are no longer party competitive, but instead are either safely Republican or safely Democratic—and against onerous …

The Natural And The Familiar In Politics And Law, Michael R. Dimino

Michael R Dimino

Section 5 Of The Voting Rights Act And Its Place In Post-Racial America, Enbar Toledano

Enbar Toledano

The Fifteenth Amendment purported to withdraw race and color from the calculus of suffrage. Instead, it gave rise to an era of creative exclusion in which Southern states erected one barrier after another and Congress floundered in its attempts to secure the black vote it had promised. After ninety-five years, progress at last seemed possible with the introduction of the Voting Rights Act of 1965 (VRA), an echo of the Fifteenth Amendment fitted with shiny, new teeth. Section 5 of the VRA reversed the inertia of discrimination by requiring states with a demonstrated history of employing disfranchising voting practices to …

Voting Rights And Election Law, Michael Dimino, Bradley Smith, Michael Solimine

Michael R Dimino

Disclosures About Disclosure, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

An often overlooked aspect of the Supreme Court’s recent decision in Citizens United v. FEC is the sharply contrasting factual accounts regarding disclosure of independent election-related spending. For eight of the Justices, such disclosure is constitutionally defensible because it enables voters to make informed decisions. For Justice Thomas, however, such disclosure is constitutionally suspect because of its potential to result in retaliation and related chilling of First Amendment speech in the form of financial contributions. The continuing importance of these contrasting narratives can be found not only in the pending Supreme Court case of Doe v. Reed, in which the …

Voting And Registration Technology Issues: Lessons From 2008, S. Candice Hoke, David Jefferson

S. Candice Hoke

This chapter reviews the 2008 election performance and scientific assessment records of the two major Help America Vote Act (HAVA) promoted election technologies considered here, the voting systems themselves and, to a lesser extent, the statewide voter-registration databases, to delineate both their performance records and the statutory and regulatory apparatus that produced the technological shift. Perhaps surprisingly, HAVA's role in generating each of these election technologies is quite different. While HAVA mandated and constituted the originating impetus for most of the statewide voter registration database systems that were in use for the 2008 election cycle, and provided major financial incentives …

Breaching A Leaking Dam?: Corporate Money And Elections, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

With a brief order issued at the end of its last term, the Supreme Court dramatically raised the stakes in Citizens United v. FEC. What many had predicted would be a case decided on narrow, technical grounds has now become a possible vehicle for overturning two key campaign finance precedents. By ordering re-argument and supplemental briefing on the issue of whether it should overrule either or both Austin v. Michigan Chamber of Commerce and the part of McConnell v. FEC which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, the Court signaled that …