Election Law Commons^™

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

Journal Articles

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

Journal Articles

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 …

Politics At The Pulpit: Tax Benefits, Substantial Burdens, And Institutional Free Exercise, Lloyd Hitoshi Mayer

Journal Articles

More than fifty years ago, Congress enacted a prohibition against political campaign intervention for all charities, including churches and other houses of worship, as a condition for receiving tax deductible contributions. Yet the IRS has never taken a house of worship to court for alleged violation of the prohibition through political comments from the pulpit, presumably at least in part because of concerns about the constitutionality of doing so. This decision is surprising, because a careful review of Free Exercise Clause case law - both before and after the landmark Employment Division v. Smith decision - reveals that the prohibition …

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

Journal Articles

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 …

The Much Maligned 527 And Institutional Choice, Lloyd Hitoshi Mayer

Journal Articles

The continuing controversy over 527 organizations has led Congress to impose extensive disclosure requirements on these political organizations and to consider imposing extensive restrictions on their funding as well. The debate about what laws should govern these entities has, however, so far almost completely ignored the fact that such laws raise a complicated institutional choice question.

This Article seeks to resolve that question by developing a new institutional choice framework to guide this and similar choices. The Article first explores the context for making this determination by describing the current laws governing 527s, including both federal election laws administered by …

How Not To Count Votes, John Copeland Nagle

Journal Articles

Rutherford B. Hayes defeated Samuel Tilden by one electoral vote in the presidential election of 1876. In Fraud of the Century: Rutherford B. Hayes, Samuel Tilden, and the Stolen Election of 1876, Roy Morris, Jr. concludes that the election was stolen from Tilden by Republican partisans serving on the canvassing boards in the three Southern states - Florida, Louisiana, and South Carolina - that were still under the control of Republican governments backed by the federal army. But in Centennial Crisis: The Disputed Election of 1876, Chief Justice William H. Rehnquist defends the integrity and the actions of the …

The Appearance Of Election Law, John Copeland Nagle

Journal Articles

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. …

The Lame Ducks Of Marbury, John Copeland Nagle

Journal Articles

The election of 1800 was one of the most contested - and important - in American history. After it became clear that neither President John Adams nor a Federalist majority in Congress had been reelected, they acted during the lame-duck period to preserve their influences far into the future. They did so by appointing John Marshall as Chief Justice, ratifying the Treaty with France, creating numerous new federal judicial positions, and filling many of those positions with friends, family, and Federalists (including William Marbury). Not surprisingly, Jefferson and his supporters protested these actions as contrary to the will of the …

Voluntary Campaign Finance Reform, John Copeland Nagle

Journal Articles

Any effort to achieve voluntary campaign finance reform raises two questions: Is it really voluntary, and does it really work? In Part I of this Essay, I examine the voluntariness of "voluntary" campaign finance reform. Agreements like that reached by Clinton and Lazio last year—what I term "purely voluntary agreements"—satisfy most legal tests for voluntariness. By contrast, the voluntariness of spending limits and other campaign restrictions that are imposed as a condition for receiving government funding of a political campaign—what I term "governmentally induced agreements"—is more doubtful. The extant jurisprudence recognizes that Buckley prohibits governmental actions that are more coercive …

The Recusal Alternative To Campaign Finance Legislation, John Copeland Nagle

Journal Articles

Typical campaign finance proposals focus on limiting the amount of money that can be contributed to candidates and the amount of money that candidates can spend. This article suggests an alternative proposal that places no restrictions on contributions or spending, but rather targets the corrupting influence of contributions. Under the proposals, legislators would be required to recuse themselves from voting on issues directly affecting contributors. I contend that this proposal would prevent corruption and the appearance of corruption while remedying the first amendment objections to the regulation of money in campaigns.