Levin ElectionLaw Fall 2018 Unlocked PDF

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LEVIN_ELECTION LAW_FALL_2018
 THE RIGHT TO VOTE
 Harper v. VA State Board of Elections- VA residents sued to have the VA poll tax
declared unconst.
o The EPC forbids discriminatory restrictions on the right to vote. Once the right to
vote has been granted, it can't be restricted discriminatorily.
o Voting is a fundament right afforded special protections.
o Ct distinguishes literacy tests from poll taxes bc there's a relationship b/w literacy
and voting. They believe that the ability to pay a poll tax has no connection to
someone's ability to vote.
o Black's dissent
 The record doesn't support a finding that the poll tax had any
discriminatory effect. If the record could support a finding that the law as
written or applied has such an effect, the law would be unconst.
 The mere fact that a law results in treating some groups differently
doesn't automatically amount to a violation of the EPC.
 Some discriminatory voting qualification can be imposed w/o violating
the EPC.
o Harlan and Stewart's dissent - state's rights/separation of powers argument.
o Notes
 bc SCOTUS hasn't wanted the EPC to be a means of voiding virtually all
legislation, it has said that only "invidious" distinctions are prohibited.
 certain types of classifications are regarded as "suspect." Classifications
drawn according to race or national origin are examples. When a law
draws a suspect classification, the Ct will subject it to "strict scrutiny."
 even if the classification drawn by a statute isn't suspect, it will still be
subject to SS if the classification burdens or denies a "fundamental right"
for some people while not burdening or denying the rights of others.
 if the classification being challenged isn't suspect and doesn't burden a
fundamental right, then it will be subjected to rational basis.
 Kramer v. Union Free School District- NY Law provides that in certain school districts
residents who are otherwise eligible to vote may vote in school district elections only if
they own or lease taxable real property w/n the district or have custody of children
enrolled in the local schools.
o the law is both under and over inclusive. While the statute purported to limit
voting rights to those who were "primarily interested" in the election's outcome,
the Court found the structure of the law too broad to achieve this goal.
o Stewart's dissent
 'ant isn't the victim of any discrimination.
 sees no distinction b/w this requirement and age, residency, etc.
requirements.
o notes
 Wit v. Berman, domicile isn't a perfect way to figure out voters' interests,
but it's better than any possible alternative.
 Skafte v. Rorex - Skafte, a permanent resident alien, was denied the vote in school elections
and then challenged the constitutionality of a CO law permitting only citizens to vote.
o 'ants claim was that the states prohibiting permanent resident aliens from voting in school
elections violate the EPC
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o the SCOTUS holds that the state's citizenship requirements for a school district election
do not contravene the EPC of the 14th A. the court argues that citizens are in a political
community bc they are invested in the country. the denial of suffrage to resident aliens "is
properly tailored to the state's interest.
o notes
 in cases such as Sugarman, cited in Skafte, the SCOTUS has treated most laws
discriminating against aliens as "suspect," but has made an exception for laws
restricting the ability of non-citizens to participate in gov’t.
 in Richardson v. Ramirez, the SCOTUS upheld provisions of the CA const.
denying the vote to people who had been convicted of felonies, even if they had
finished their sentences and paroles. the court relied heavily on § 2 of the 14th A.
§ 2 imposes a sanction consisting of reduced representation in the House upon a
state that denies suffrage to its inhabitants, but specifies several grounds upon
which suffrage may be denied that are exempt from the sanction.
 Richardson doesn't mean that all restrictions on the franchise for persons
convicted of crimes are constitutional. In Hunter, the SCOTUS unanimously
states that, notwithstanding Richardson, the 14th A doesn't permit purposeful
racial discrimination.
 Many groups are disenfranchised: youth, felons, aliens, the mentally unfit.
 REDISTRICTING
 The Right to an Equally Weighted Vote
 Reynolds v Sims - voters from AL challenged the apportionment of the state legislature.
Lines dividing electoral districts had resulted in dramatic population discrepancies among
the districts.
o SCOTUS imposed one person-one vote standard on state legislative districts
o EPC req’s that state leg. districts should be comprised of roughly = pops, if
possible. the right to direct representation is "a bedrock of our political system,"
the Ct held that both houses of bicameral state legs had to be apportioned on a
pop basis. States were req’d to make "honest and good faith" efforts to construct
districts as nearly of = pop as practicable.
o Harlan’s dissent - applying an originalist interpretation of the 14th A, which in
his opinion had not been meant by the drafters to protect voting rights. He
suggested that the Court was intruding on federalism principles protecting the
states in their control of local matters. says there are all kinds of things you
should consider besides population.
o this was not a historically grounded decision; was the policy arg strong enough?
 one of the args made is that there's nothing wrong w/ it bc we have the
senate.
 the ct. responds by citing the CT compromise. they say that smaller gov'ts
don't have the sovereignty to come to that agreement.
 the maj. doesn't insist on total equality
 ct says it's not likely that the leg. will fix the problem themselves, so the ct had to
get involved
 one reason it's worked out is that it's easy to apportion based on population
 Lucas v. 44th general assembly of Colorado- Lucas sued various officials connected with
CO's elections challenging the apportionment of seats in both houses of the CO leg.
Under CO's apportionment plan, the House of Representatives was apportioned based on
population but the apportionment of the Senate was based on a combination of population
and other factors (geography, compactness and contiguity, accessibility, natural
boundaries, and conformity to historical divisions). Consequently, counties with only
about one-third of the State's total population would elect most the Senate.
 Is a majority-approved state apportionment plan that permits one house of its
congress to be largely apportioned based on factors other than population
distribution in violation of the EPC?
 Yes. the EPC req’s all districts to be substantially apportioned on a pop
basis. some deviation from strict pop considerations may be permitted to
offset minor underrepresentations of one group, the wholesale neglect of
pop considerations is unconst. The Ct added that although a maj. of the
CO electorate approved its apportionment scheme, this can’t override
even a single indiv's constitutionally protected right to an equal vote. The
apportionment of CO's Senate rendered pop considerations virtually
insignificant, and was therefore unconst.
 notes
 US v. Carolene Products - the SCOTUS famously suggested that more
exacting judicial scrutiny is appropriate when legislation restricts those
political processes which can ordinarily be expected to bring about repeal
of undesirable legislation.
 Washington v. Davis – It’s a basic equal protection principle that the
invidious quality of a law must ultimately be traced to a discriminatory
purpose
 Burns v. Richardson - Although the SCOTUS has upheld redistricting on
a basis other than population, it has stated a preference for population
o Baker v Carr - challenges to malapportioned districts under the EPC are justiciable
in federal courts
o Gray v Sanders - struck down the unequal weighting of votes w/n a single
constituency
o Wesberry v Sanders – req’d that congressional districts be drawn on an =
population basis
o Avery v. Midland County- Having already held in 1965 in Reynolds v. Sims that
disparities in legislative districts violated the EPC, SCOTUS applied the same logic
to local gov’t districts for bodies which also have broad policy-making functions.
 The ct struck down local district inequality based their decision on the
precedent in Reynolds v. Sims. "Institutions of local gov’t have always been a
major aspect of our system. We see little difference, in terms of the
application of the EPC and of the principles of Reynolds v. Sims, b/w the
exercise of state power through legislatures and its exercise by elected
officials in the cities, towns, and counties."
 Harlan’s dissent: asserted that the Writ of Certiorari to SCOTX was
improvidently granted in that the decision wasn’t final, since the TX ct had
ordered the County to redistrict. "I continue to think that these adventures of
the Ct in the realm of political science are beyond its constitutional powers.”
o Karcher
o any variance in pop req’s justification. Even though the difference may be only 17
votes, if the justification is partisan gerrymandering, that's not good enough
 Partisan Gerrymandering
o Is gerrymandering a problem that the courts should fix? what is the problem here?
o so far, the courts have said that gerrymandering should be a political Q
o Rule from Bandemer: the issue of gerrymandering is judiciable. they say a mere
lack of proportionality isn't enough. you must have specific supporting evidence
that you've been completely out of the game for a while.
o However, no one ever won on that theory. So, Scalia came along and said we
should just give up.
o Efficiency gap - the difference b/w the amnt. of votes you get and how many
seats you get. But where does that leave litigants across the country in deciding
how much is too much?
o Scalia says in Veith that partisan gerrymandering isn't justiciable
o Kennedy says; I'm not convinced by what I see here, but maybe there's a way.
Maybe try the first A.? First A. has been a trend in partisan GM cases since Veith
o LULAC: Texas came up w/ a very creative ground to redraw lines, but even this
plan was found constitutional.
o Levin says C. should just legislate the issue. Trying to do it through the const was
never a good idea.
 Minority Vote Dilution: Voting Rights Act §5
o Applying § 5 – The Constitutionality of § 5
o § 5 of the VRA – (Now codified at 52 USC § 10304)
 whenever any covered j. shall seek to enact any voting qualification or
prerequisite to voting, that j. must either institute an action in the US
district court for DC for a judgment that such qualification neither has the
purpose nor the effect of denying or abridging the right to vote because of
race or color or submit the new policy to the AG. No covered j. may adopt
any new electoral practice w/o the consent of either the DC ct or the AG.
 No j.s are currently covered by §5 because of Shelby County, but j.s could
again be affected were C. to enact a new preclearance formula. §5 therefore
remains relevant even though it’s dormant. But what about practices that
dilute the electoral influence of minority voters without making it more
onerous for them to vote?
 Allen v. State Board of Elections - Voters and candidates in MS and VA
filed 4 cases seeking judgments that A.s to their states' election laws and
procedures were subject to the pre-approval req’s of §5, and hence were
not enforceable until the state complied with the requirements. The DCs
found that the VRA didn’t apply to the voting changes in the four cases and
dismissed the complaints. The voters and candidates filed direct appeals.
 The ct held that the VRA was "aimed at the subtle, along w/ the
obvious, state regulations which have the effect of denying citizens
their right to vote bc of race." The Ct concluded that C. intended that
"all changes, no matter how small, be subjected to §5 scrutiny."
 ct said that §5 applies to all changes. this is a very broad construction
of the statute. this was a decision based on history and aimed at
giving life to the VRA
 Dissent - Harlan argued that the language of § 5 referred only to laws
by which voters registered to vote and had their ballots counted, and
he therefore agreed that several of the disputed voting changes at
issue were covered by the Act but disagreed as to several others.
Black dissented on the ground that § 5 is unconst.
 Notes
 Perkins v. Matthews- annexations of new areas into cities are
subject to preclearance
 GA v. US - legislative districting plans are subject to
preclearance
 Beer v. US - the establishment of the principle in Allen did not provide
answers to Qs raised by Harlan in Allen regarding how the DOJ and the
cts should decide which electoral procedures impermissibly discriminate.
The SCOTUS addressed these issues here. This case established the non-
retrogression rule.
 the question here was of statutory construction.
 The leg. history reveals that the basic purpose of C. in enacting the
VRA was "to rid the country of racial discrimination in voting"
 the purpose of §5 has always been to ensure that no voting procedure
changes would be made that would lead to a retrogression in the
position of racial minorities with respect to their effective exercise of
the electoral franchise.
 Holding: a legislative reapportionment that enhances the position of
racial minorities with respect to their effective exercise of the
electoral franchise can hardly have the effect of diluting or abridging
the right to vote because of race within the meaning of §5. Such a
scheme can't violate §5 unless the scheme itself so discriminates
based on race or color as to violate the constitution.
 The test is set at non-retrogression
 "If it made minority voters worse off, it will fail §5"
 If a plan is super discriminatory, it will still pass as long as
minorities are no worse off than before
 State action is unlawful if it’s discriminatory in effect or purpose - §5
 dissent: the issue is when does a redistricting plan have the effect of
"abridging" the right to vote because of race or color? All the
purposes of the statute are met by the inquiry of §5's language
plainly contemplates: whether, in absolute terms, the covered j. can
show that its proposed plan meets the constitutional standard.
 notes
 Justice Stewart's straightforward conclusion glossed over
difficult Qs about what should be regarded as retrogression.
 Bossier Parish - the purpose prong of §5 covers only
retrogressive dilution and thus doesn't cover discriminatory but
non-retrogressive intent. Bossier Parish had a dramatic impact.
Discriminatory retrogressive purpose prong is still there, but
now we look at the "totality of the circumstances" to determine
if there's a discriminatory purpose. The 2006 reauthorization of
the VRA added a new ¶ to §5 overturning Bossier Parish.
 Village of Arlington Heights- the Ct set forth a non-exclusive
list of factors relevant to the determination or discriminatory
purpose under the EPC.
 GA v Ashcroft - O'Connor argued that the retrogression inquiry
should not overemphasize minority voters' ability to elect their
preferred candidates. Rather, it should also consider their
ability to influence (but not determine) the outcome in certain
districts, the quality of representation and other related factors.
 this is no longer the law of the land. in a recent A. to §5,
ability to elect preferred candidates is the marker.
 This all traces back to Allen bc Allen broadened the
scope of §5 to cover more than obvious discriminatory
voting regulations
 Kinds of districts implicated in §5 disputes: majority-minority
districts, crossover districts, coalition districts, influence
districts. The maj. in Georgia seems to permit two kinds of
tradeoffs among these district types. j.s may substitute fewer
packed majority-minority districts, crossover districts, and
coalition districts for more packed maj-min districts, and more
provocatively, j.s may substitute (a larger # of) influence
districts for (a smaller # of) districts where min members are
able to elect their preferred candidates.
 2006 A.s - contained a few notable changes to the VRA. The
most important of these were intended to nullify the SCOTUS
rulings in Georgia and Bossier.
o Shelby County v. Holder – RULE: A federal law that departs from the
fundamental principles of federalism must be justified by current needs.
o there is no longer a substantial disparity in voter registration or turnout b/w
whites and blacks in the states covered by the formula in § 4(b). This
coverage formula is based on 40-year-old data and does not reflect modern
reality. C. must justify these restrictions using the current conditions, not
those of 40 years ago. Therefore, § 4(b) of the VRA Act is unconst.
o Concurrence (Thomas, J.) - The same reasons that support the decision that
§ 4(b) is unconstitutional also establish that the restrictions in § 5 are also
unconstitutional.
o Dissent (Ginsburg, J) - The 15th A. gives C. the authority to ensure equal
voting rights by appropriate legislation. C. determined that the req’s in the
VRA were still necessary to ensure equal voting rights to continue progress
and prevent a return to discriminatory voting restrictions. The success of
the VRA is being used to find it unconst. Additionally, minorities are
facing barriers other than attempts to simply block the ballot, such as vote
dilution through GM, at-large voting, and discriminatory annexations. C.
has already developed a record to support the initial legislation and has
built in a periodic-review req. The legislative record should naturally be
more limited when considering a reauthorization than when legislation is
originally passed. Therefore, the VRA satisfies the rational basis test.
o notes
 Relatively little of the record explicitly compared conditions in
covered and non-covered areas.
 Another option, noted by the dissent, is to base coverage on rates of
racial polarization in voting. Polarization, however, is not typically
considered a voting rights violation in and of itself; rather, it is
usually viewed as a condition that makes such violations more likely
 since Shelby County, there has been a great deal of commentary on
the options open to C. Some commentators have suggested a
disclosure req. Another possibility - one focused on barriers to
participation - is to enact uniform registration and ID rules for
federal elections that would trump stricter state rules.
 Shelby County declares §4(b)'s coverage formula unconst, but it does
not completely eliminate preclearance. Under §3(b) of the VRA,
state and local j.s may be subjected to preclearance (or "bailed in") if
a ct. concludes that they have violated the 14th or 15th A.
 Levin suggests that C. probably did not actually read through the
legislative record here. He says to be skeptical any time courts say
"C. should handle this," bc they can't do anything
 The South is more racist, but the Q is how much of a difference there
has to be.
 They didn't clarify which standard of review they were applying
 Mobile - 15th A. applies only to intentional discrimination
 C. expanded §2 of the 15th A. to apply to actions w/ a discriminatory
impact.
 let's say that bc of the equal sovereignty doctrine, VRA reformers
have to find a new way to deal w/ discrimination, what are the
options?
 Sensenbrenner Act - expand the bail-in, disclosure agreements,
new coverage formula and change the preliminary injunction
standard
 One illustration of the importance of §5, a photo ID law was struck
down bc the state didn't carry the BofP in showing there would be no
discriminatory impact. In other scenarios, this kind of challenge has
failed bc the civil rights groups haven't been able to carry the BofP.
Where the BofP lies makes all the difference
 Minority Vote Dilution: Voting Rights Act § 2
o §2 of the VRA - a legal sword enabling minority voters to improve their electoral
position, while §5 is a shield that prevents minority voters' position from worsening.
o White v. Regester - Disproportionately low representation for minority groups
alone does not amount to a const. violation. There must also be findings that the
political processes leading to nomination and election were not equally open to
participation by the group in Q. what about it was unconst? they were unconst bc
the districting scheme was set up to prevent the minorities from participating in the
political process
o Zimmer v. McKeithern - the Fifth Circuit struck down at large elections for a
Louisiana parish's police jury. The "zimmer factors": lack of access to the process
of slating, unresponsiveness of legislators, tenuous state policy, past discrimination,
large districts, maj. vote requirements. The fact of dilution is est. upon proof of the
existence of an aggregate of these factors.
o City of Mobile - a plurality held that discriminatory intent to further racial
discrimination had to be shown. Stevens agreed that the Zimmer factors should be
rejected but didn’t believe that the focus should be on subjective intent. He thought
the proper test should focus on the objective effects of the political decision.
o req'd discriminatory intent
o shortly thereafter, C. amended §2 of the VRA. Several features of the A.
are notable. They included a results test, making clear that intent is not
necessary. They added a reference to having "less opportunity than
others to participate in the political process." Then they listed several
factors derived from Zimmer and White. Finally, they added a proviso
saying that nothing in §2 est. a right to have members of minority groups
elected proportionately.
o §2 claims can now be based on discriminatory affects, f minority
members have less of an opportunity to participate or elect the candidates
they want
o however, this doesn't mean we have proportional representation.
 Thornburg says that you're guaranteed the opportunity to elect
reps. of your choice, not guaranteed that it will happen
 this case req’s compactness, political cohesiveness and
majority bloc voting. This is the threshold.
o Rogers v. Lodge - the Ct upheld the invalidation of at-large elections for a GA
county board of commr's even though the lower ct had relied primarily on the
Zimmer factors.
o Thornburg v. Gingles - the ct found that 5 out of 6 contested districts discriminated
against blacks by diluting the power of their collective vote. The District Court
properly performed its function "to ascertain whether minority group members
constitute a politically cohesive unit and to determine whether whites vote
sufficiently as a bloc usually to defeat the minority's preferred candidate." The
District Court correctly analyzed data from three election cycles to determine that
black voters strongly supported black candidates, whereas whites usually voted
against black candidates. The redistricting plan apportioned "politically cohesive
groups of black voters" into districts where blocs of white voters would
consistently defeat the black candidates. In violation of the VRA, this damaged the
ability of black citizens "to participate equally in the political process and to elect
candidates of their choice."
o notes: §2 analysis
o The threshold requirement: the SCOTUS identified three "necessary
preconditions" that Ps must est. to show that multimember districts
violate §2: 1. compactness, 2. political cohesiveness, and 3. majority bloc
voting. The analysis then proceeds to the totality of the circumstances
stage, at which the Zimmer factors (and other issues) are considered.
o the results in these cases really seem to turn on what kind of judge you
have. this is especially true if you make it through the 3 preliminary req's
in Thornburg and to the totality of the circumstances.
o O'Connor in Thornburg: electing reps. of your choice is not the only goal
of §2; participating in the process is an important goal as well.
o are judges reps for the purpose of §2
o Chisolm v. reosner - Yes. the word rep. w/n the statute means winners of
representative elections. They are for §2 purposes but not const. purposes
o the fact is that people elect them for their own interests, whether they're
supposed to be representative or not
o Houston lawyers - a state's interest in electing judges on an at large basis
is a factor that can be considered in the totality of the circumstances.
o LULAC v Perry - Did the TX leg violate the Const and VRA when it used 2000
census data to redistrict in 2003 for partisan advantage, resulting in districts that
(by 2003 numbers) did not conform to the one person, one vote standard?
o SCOTUS held that TX Leg's redistricting plan did not violate the Const, but
that part of the plan violated the VRA. Kennedy, writing for the majority,
stated that District 23 had been redrawn in such a way as to deny Latino
voters as a group the opportunity to elect a candidate of their choosing,
thereby violating the VRA. he also wrote, however, that nothing in the
Constitution prevented the state from redrawing its electoral boundaries as
many times as it wanted, so long as it did so at least once every ten years.
o Kennedy said that the communities were too far apart to count as compact.
they also said that county lines were split and the district was not socially
contiguous. the ct. focuses on the difference b/w the two Latino groups in the
district. Kennedy says that the two populations had such different interests
that neither of them would be able to achieve their political goals by electing
the candidates of their choice. the big factor here was that TX dismantled a
district where Latinos were working together
o funny looking districts as such are not unconst. if it's done just for partisan
reasons
o Racial polarization is a req. of the §2 COA (bc there is no candidate of
choice). Even if you have only white candidates, you can still have a claim,
though
o Notes
 relatively few lower courts have confronted LULAC based arguments
in the years since the decision. When such arguments have been raised,
they have been resolved in narrow, fact specific ways
 The ct held in LULAC that §2 doesn't protect "influence districts" in
which minorities may assist in the election of their 2nd-choice. The
status of crossover districts is addressed in the next case.
o Bartlett v Strickland – PLURALITY OPINION
o A min. group joined w/ whites to elect the minority groups first choice
(Crossover district). Is this protected by the VRA? No.
o Maj rule: The VRA doesn’t req/ state officials to redraw lines to create
crossover districts if the minority group makes up less than 50% of the
voting pop. in that redrawn district. unless you have a maj. min. district,
you have no claim. the Court, relying on its decision in Gingles, stated
that the VRA allows redistricting only when a geographically compact
group of minority voters could form a majority in the redrawn election
district.
o plurality holding ONLY. they say that it would req. too difficult an
analysis by judges and that it would increase the dependency on race
driven districting. they also said that we don't grant special protection to
political coalitions
o the statutory language is the opportunity to participate AND to elect
candidates of their choice.
o they also say that §2 applies to ALL election nationwide and do we
really want to do this analysis for schoolboard and city council elections
o Dissent: Souter dissented, arguing that a district may be redrawn so long
as a cohesive minority population is large enough to elect its chosen
candidate when combined with crossover voters. Ginsburg also wrote a
separate dissenting opinion, encouraging C. to remedy what she viewed
as the Ct's misinterpretation of the VRA. Breyer wrote a separate dissent,
criticizing the ct's reliance on a 50% threshold as too simplistic because it
fails to account for the realities of how people actually vote.
o Notes:
 most cts to have considered the Q have admitted the possibility that a
"rainbow coalition" can est. a §2 claim, but only if the component
minorities can show that they in fact constitute an electoral coalition.
 the analysis of racial polarization in voting has been further
complicated by 2 more problems: extreme case analysis becomes less
feasible when there are multiple minority groups, not just one, living in
a more residentially integrated pattern and election results are only
partly a function of voter preference.
 Racial Gerrymandering
o There is a distinct COA for racial gerrymandering that cts have recognized under the EPC
o Jewish Orgs: A fractured ct rejected a claim by the Hasidic Jews that they had been
harmed by unconst racial gerrymandering. 1. no "per se rule against using racial factors
in districting", 2. NY had done no more than what was req'd by §5, 3. the plurality
grouped the Hasidic Jews w/ other white voters. The plurality thus seemed to treat
racial gerrymandering as a claim indistinguishable from racial vote dilution.
o In the wake of Jewish Orgs, racial vote dilution (under the const and section 2 of the
VRA) was the only game in town for almost 2 decades. that changed in '93 when the
SCOTUS issued Shaw v. Reno
o Shaw v. Reno
 A reapportionment plan violates the EPC if it can’t rationally be understood as
anything other than an attempt to segregate voters based on race, & if there is not
sufficient justification for the segregation. The same SS that applies to all racial
classifications similarly applies to racial GMs. The country’s history of racial
discrimination in voting supports this conclusion. Moreover, racial GM can’t be
classified as a benign racial discrimination to be afforded the same scrutiny as
non-racial gerrymandering. The EPC req’s SS of all racial classifications bc w/o
that level of heightened scrutiny there is no way to determine whether such
discrimination is indeed benign. Racial GM must therefore be afforded SS.
 the White people's objection is an expressive harm. It's not so much the direct
dilution of your vote, it's what the government means by it. The appearances
matter. O'Connor believes that it perpetuates racial stereotypes, everyone elected
in such a district would feel beholden to the racial majority, etc. She believes that
a bizarrely shaped district sends a message that a normally shaped one doesn't.
Society shouldn't make decisions based on race more than they need to
 Dissent (White) - A threshold requirement for an EPC violation in a GM case is a
showing of discriminatory effects, in addition to a discriminatory purpose. Here,
the purpose behind NC’s redistricting plan was not to discriminate against the
majority white population by impairing their ability to participate in the political
process. However, even if the plan did have a discriminatory purpose, there has
been no showing that the plan has had any discriminatory effects.
 Dissent (Stevens)- District boundaries may be drawn to provide representation
for rural voters, union members, Republicans, and other voter groups. It should
be equally permissible to provide adequate representation for the racial group for
which the EPC was created.
 Dissent (Souter) - Bc members of racial groups tend to vote in racial blocs,
redistricting decisions always require a consideration of race to prevent dilution
of minority voting strength.
 Notes -
 expressive harm - one that results from the ideas or attitudes expressed
through a governmental action. On this view, the meaning of governmental
action is just as important as what that action does. Expressive harm as a
rationale for Shaw has not gone without criticism: normatively, the
expressive harm explanation is vulnerable to the charge that law based on
"appearances" rather than reality can have to firm grounding.
 Hayes: only the residents of the district have standing to bring the claim
o Miller places less emphasis than Shaw on the shape of a district as an element of the
const. violation and more emphasis on the underlying racial motivation, with shape
being significant primarily as an indicator of the existence of racial motivation. Miller
req's a P to prove that race was the predominant factor motivating the leg's decision.
 the district doesn't necessarily have to be bizarre looking on its face. that is just
circumstantial evidence
 GA had to redistrict bc of the census and went from 1 maj. min. district to 2 to
avoid retrogression. But the DOJ said "you could've done 3,” so they adopted one
drawn by the ACLU.
 Ct strikes it down saying races was the predominate factor in drawing the district.
 Shaw and its progeny is the opposite of the §5 cases.
o AL Leg. Black Caucus is doctrinally notable for several reasons: 1. racial GM claims are
inherently district-specific, 2. = pop is not an objective that might predominate over a
racial purpose; it’s a background const. req., 3. the ct construes the post-2006 version
of §5 of the VRA for the first time.
o Easley case - O'Connor switches sides and says that compliance w/ the VRA is a
compelling state interest. SS applies.
o After the 2010 redistricting, there was a decline in these cases. One reason is that the ct.
in Easley says you can take account of politics, just not race. However, race and
politics often go hand in hand.
 ELECTION ADMINISTRATION
 Equal protection - counting and recounting votes
 Bush v. Gore - In the event of a contested presidential election, the EPC req’s states
conducting a manual recount of votes to issue uniform rules governing the recount to
determine the intent of the voters and give equal weight to each vote. standardless manual
recounts of votes violate the EPC.
o Reasoning - if a state holds such an election, the right to vote is fundamental and
= weight must be accorded to each vote. Ensuring equality of votes extends
beyond making the right to vote available. Equality can be compromised if the
voting process accords more weight to certain votes over others. The SCOFL, in
issuing its ruling for a manual recount, directed that such ballots be examined to
determine the intent of the voter. This ruling is abstract and standardless and does
not satisfy the min. req’s for non-arbitrary treatment of voters necessary to secure
the fundamental right of voting. The formulation of uniform rules to determine
intent based on these recurring circumstances is both practicable and necessary.
Otherwise, diff. standards will be applied throughout the recount for determining
whether a vote was cast, resulting in impermissible inequality of treatment.
o Dissent (Stevens) - It is fully w/s the power of the SCOFL to enact a new system
of recounting ballots that takes into account the intent of the voter. Such a
standard is not so vague and arbitrary as to amount to a constitutional violation.
o Dissent (Ginsburg) - SCOFL’s interpretation of its own electoral law is entitled
to deference. Additionally, Bush has not presented a substantial EPC claim.
o Dissent (Breyer) - The case should have been resolved by SCOFL based on an
interpretation of state law.
o Notes:
 some ppl have arg'd that this is better understood as a due process case.
Usually EPC violations are said to req. intentional discrimination.
 They say the holding applies only in this case, not to future situations.
 Rehnquist's concurring opinion. - he thought that FL was grossly
misapplying its own law. since when has SCOTUS overseen how the
states’ decisions of state law should be made? Rehnquist, in response to
that, would say that the state ct. was overstepping their power. the
response to that is that it's still not SCOTUS's job to correct SCOFL's
mistakes, it should be the job of the FL leg.
 Judge Posner's opinion: wrote a book abt this saying ‘Their decision is
hard to defend on doctrinal terms, but sometimes it's the job of the
SCOTUS to resolve const. crises and not leave it up to the states.’ Levin
says Shelby County is a worse example of judicial activism than this case
bc they didn't need to decide it at all.
Voter Identification and Related Burdens

o Crawford – a plurality upheld IN's Voter ID law (the strictest in the country at the time),
but didn’t clear up all controversy; Rule of Law-A state statute requiring photo
identification as a prerequisite for voting is not unconstitutional.
o Reasoning - In Harper, the Ct invalidated a state-sponsored poll tax, but
concluded some rational restrictions on the right to vote may be considered if
unrelated to voter qualifications. In Anderson, the court found that “evenhanded
restrictions that protect the integrity and reliability of the electoral process itself”
are not invidious and satisfy the standard set forth in Harper. Applying these
principles to the present case, IN identifies several interests that justify the
burdens that the photo ID statute imposes on voters: deterring and detecting
fraud, which further encompasses IN’s interest in participating in a nationwide
effort to improve and modernize election procedures; keeping a large # of names
off its voter registration rolls of people that are either deceased or no longer IN
residents; and safeguarding voter confidence in the integrity of its electoral
processes. Although there is no evidence in the record showing that such fraud
has occurred in IN, significant examples of this type of fraud occur in other
polling places throughout the country. Additionally, such fraud can have a
profound effect on the outcome of a close election. For these reasons, IN has a
legitimate interest in counting the votes of eligible voters only. Even a small
burden on the right to vote has to be balanced against the state interest
 Concurrence (Scalia) - the maj asserts incorrectly that the ID law might impose a
special burden upon some voters. However, Crawford did not amass enough
evidence to show that the burden is severe enough to warrant SS. The law is a
generally applicable, nondiscriminatory voting regulation. As such, the Ct’s EPC
jurisprudence does not require weighing the burden of the law as applied to each
individual voter and applying exceptions for particularly vulnerable voters. The
law does not single out a suspect class of voters, as the burden of producing
photo ID is applied to all voters. Voters w/o photo ID can comply with the req. at
no cost. The burden on these voters is very minimal in light of the significant
interest in preventing fraud. unless it imposes a severe burden on voting, there is
no EPC Challenge and it should be left to the states. Scalia does not endorse the
balancing test.
o Dissent (Souter)- the burden is of sufficient magnitude to outweigh the purpose.
IN needs to get their act together and figure out how to keep better records.
o Notes:
 no one argues for SS; what is the standard of review?
 people haven't totally accepted Crawford, although it's an important
precedent.
 Crawford is a facial challenge and they left it open for an as applied
challenge.
 Ballot Propositions
 Pros and Cons
o representative democracy has long been supplemented by direct votes on propositions.
the 3 mechanisms most often used are:
o the initiative is a mechanism that permits a specified number of voters to
propose a statute (and, in many states, a const. A) by signing petitions.
o the referendum permits voters to challenge a statute passed by the leg.
o the recall is a device whereby voters may attempt to unseat an elected official
whose term hasn't expired
o Pros: enhances gov't responsiveness and accountability, provides safety valve when
legs prove timid, corrupt, or dominated by special interests, brings about rule by
common people, reduces the influence of special interests, permits less well-
represented groups to bring their ideas before the public, stimulates educational debate
on important policy issues, stimulates voter interest in public issues and turnout, and
promotes trust in gov't
o Cons: undermines representative democracy, produces unsound legislation, endangers
minority rights, depends on voters who aren't capable of competent policy judgements,
amplifies special interest influence, lacks accountability bc it is not subject to the usual
checks and balances.
 Procedural Requirements and Judicial Review
o content restrictions
o people's advocate v. superior court - peoples advocate - you can't use initiative to
make a fundamental change, but you can use it to make incremental changes
 the people adopted a statutory initiative measure that made sweeping
changes to the organization and operation of the CA leg. and limited the
content of future legislation which appropriates money for their operations.
 the CA app ct found that the provisions of the act relating to secrecy in
legislative proceedings were severable and were valid. Relief was denied
as to the provisions of the Act found to be violative of the constitution.
 they said that the people have the power to adopt laws, not rules regulating
who can and can't be appointed to internal committees of the leg
 there is an enclave of things you can regulate by initiative, but you have to
leave the leg autonomous
 notes
 courts will often protect the legislature's autonomy from interference
through the initiative process.
o would it be proper to say that you should have an especially strict standard of
review when the initiative affects individual rights?
 could argue that everything affecting indiv. rights (be it legislation or ballot
initiative) should be looked at w/ an especially strict view
o What's the approach to courts slamming down initiatives before it's even passed?
 courts are split on pre-enforcement review
 I would say that unless it's facially contradictory to the const., then it
should go to a vote and it should be battled out afterward
 there's also an arg. that says "let's get this over with" but this conflicts w/
the idea of judicial restraint from interfering
o in the context of procedural req’s, what if you have a technical flaw? What if
what ends up on the ballot is marginally diff. than what was on the petition?
 the ct in one case said who cares, we'll allow it
 if it actually changes what's adopted, there should arguably be a remedy.
o law passed by initiative are subj. to JR under the state and fed const, and state const A.s
passed by initiative are rev'd under the US const.
o One contention has been that the initiative process itself violate Art. IV, § 4 of the
Const. (the guaranty clause). the constitutionality of a tax adopted by initiative in OR
was challenged on this theory in Pacific states v. OR. The SCOOR declined to reach
the merits of the challenge, holding instead that Qs raised under the Guaranty clause
are nonjusticiable.
o Typical challenges to initiatives include arguing that the measure isn't one that can be
adopted by initiative, that a measure or portion of it is substantively unconstitutional,
and charges of failure to comply with procedural reqs
o one of the most important legal reqs in direct democracy is the signature threshold and
related reqs. 13 states have a geographic distribution req. for signatures on direct
legislation pets. Other important procedural rules include the time period a measure can
remain in circulation, the process whereby the measure is given its official title and
summary, limits on the subject matter that may be part of the measure, etc. The process
of summarizing and titling measures is often challenged in court (Costa case).
o Strict enforcement or substantial compliance? The SCOCA said in the Costa case that
an overly literal or inflexible app. of the rules can lead to a system that sets traps and
barriers for the unwary. But judges who are favorably disposed to a candidate or
proposition are likely to be more receptive to the idea that removal is unreasonable.
o Pre-election judicial review: challenges to initiative measures may be brought on a
variety of grounds, which often fall into 3 categories: violations of a substantive
provision of the US Const or state const, not something that can be enacted by
initiative, or didn’t receive enough signatures. Like the state cts, commentators are
divided on the desirability of pre-election review of substantive const. Qs. It can be
argued that going through the charade of an election to pass a measure that cannot
withstand legal scrutiny not only wastes time, energy, and other resources, it also
mocks the electoral system it supposedly honors. Most of the controversy involves
judicial review of initiatives for substantive constitutionality. Cts typically will engage
in pre-election review of procedural Qs relating to the qualification of an initiative.
o Hooker v. IL
 goes the opposite way of Ppl’s Advocate. they say that the general assembly
won't make those changes itself. in IL, the initiative process can only be used to
alter the leg. process. However, the cts have applied the restriction very narrowly.
o CA provision - initiatives can amend the CA cons't, but can't revise it. CA has this
restriction, but most states don't.
 The Single Subject Rule
 in re advisory opinion to the AG - not a valid initiative because it has too much goin' on.
it had 10 classifications, but they're only looking for one answer.
 if it has multiple subjects, you have the potential for log rolling
 all j.s have this rule: You can't adopt initiatives that contain more than one subject, but
determining what's one subject and what's multiple subjects is difficult (note: the SSR
generally applies to legislation as well)
 cts interpret SSR broadly (i.e., spending, agriculture, etc.)
 Redistricting by Initiative
 the legislature thereof (missing case name
 the public voting by initiative is the legislature thereof
 legislature means the power to make laws and initiative is the power to make
laws, so they could adopt redistricting via initiative
 critics say this is wrong & if ever there was a plain meaning case, it’s this one
 the policy arg. here is that the leg won't adopt a redistricting plan themselves, so
the initiative should be another option
 Campaigns
 Campaigns and Campaign Speech
o Republican party of MN v. White- a state can’t pass a law that prohibits candidates for
judicial election from announcing their views on disputed legal and political issues.
o we must allow some leeway if we're going to have judicial elections, but there's a
strong arg. to restrict the speech to preserve judicial elections and impartiality.
The state can't prevent you from explaining your views publicly
o The announce clause regulates an extremely broad array of conduct as it prohibits
a judicial candidate from even stating his or her own current, personal views on
an issue, regardless of whether he or she planned to maintain those views after
election. The practical effect of the announce clause is to prohibit a judicial
candidate from stating his views on any specific non-fanciful legal Q that could
be considered by the court for which he was running, except in the context of
discussing past decisions. The constitutionality of the announce clause is
analyzed under SS bc it both prohibits speech on the basis of its content &
burdens “political speech” related to the qualifications of candidates. the
announce clause is not narrowly-tailored to serve a compelling state interest, and
prohibits a wide array of legally-protected speech in violation of the 1st A.
o Concurrence (O’Connor) - concerns still exists over judicial elections generally.
The very practice of electing judges undermines the state’s interest in an actual
and perceived impartial judiciary bc judges who are constantly up for reelection
cannot help but develop a personal stake in the outcome of these elections.
o Concurrence (Kennedy) - The majority properly invalidates the announce clause,
and there is authority for the application of SS analysis to resolve some 1st A.
cases. However, content-based speech restrictions that do not fall within any
traditional exception should be invalidated without inquiry into narrow tailoring
or compelling government interests.
o Dissent (Stevens)-The majority’s analysis is improper bc it obscures the
fundamental distinction b/w campaigns for the judiciary & political branches. In
doing so, the maj. seriously undermines the importance of maintaining both
actual and perceived judicial independence & impartiality. The announce clause
should have been upheld as const. bc it furthers this important state interest.
Additionally, judicial candidates are elected for a different purpose than other
political candidates, and thus do not have as significant an interest in publicizing
their views on controversial political issues.
o Dissent (Ginsburg) -Regardless of their judicial office, judges always perform a
function that is fundamentally different from that of the people’s elected
representatives. The guarantee of an impartial judiciary is fundamental to
American democratic society, and the announce clause directly furthers this goal.
The majority fails to distinguish political and judicial elections, as judges are not
and should not be political actors.
o Williams-Yulee v. Florida Bar - Williams-Yulee ran for a seat on a county court. She
sent a letter to all county voters, soliciting donations to her campaign. The Florida Bar
filed a disciplinary complaint against Williams-Yulee. In response, Williams-Yulee
challenged the constitutionality of the Florida Bar’s donation-solicitation prohibition.
o The state can ban personal solicitation from candidates for judicial office. But
you can form a committee that can solicit money for you and tell you who
donated.
o A state law prohibiting elected judges and judicial candidates from personally
soliciting funds for their campaigns does not violate the 1st A.’s guarantee of free
speech. Content-based restrictions on speech must pass SS. Under SS, a
challenged restriction must be narrowly tailored to serve a compelling
governmental interest. In this case, the prohibition on direct campaign
solicitations passes SS and therefore does not violate the 1st A. A judicial
election can be regulated more closely than a political election for precisely that
reason. Politicians should by definition be responsive to the wants and needs of
their constituents. Judges, on the other hand, should not be; judges should
maintain objective impartiality. The Florida Bar’s interest in judicial objectivity
is compelling. Further, the prohibition is narrowly tailored to serve that interest.
o Concurrence (Ginsburg) - Given the diff. that the Ct acknowledges b/w judicial
and political candidates, the Ct’s political-campaign-speech jurisprudence should
not apply to this case. The Florida Bar’s prohibition should not be subject to SS.
o Dissent (Alito) - The prohibition in this case is not narrowly tailored to meet the
compelling interest. The prohibition applies to any kind of solicitation, in any
amount, to any person, even if the person being solicited has not had and will
never have an interest before the court for which the candidate is running.
o Dissent (Kennedy) - Elections are the foundation of the guaranteed freedoms in
this country and should be the last place the Court allows a content-based
restriction on speech. The 1st A. applies equally to judges and judicial candidates
as it does to the voters who elect them.
o Dissent (Scalia) - the prohibition in this case is not narrowly tailored to serve the
government’s interests related to the judiciary. The prohibition applies regardless
of whether the solicited individual is a lawyer, litigant, or will ever appear in the
solicitor’s courtroom. This application is too broad to pass SS. Moreover, the
Florida Bar does not present any evidence, other than supposition, that the
prohibition will improve public confidence in the judiciary.
o WA had a statute prohibiting false statements w/ actual malice from being sponsored
by a campaign. This statute was found to be unconst. (WA state case)
o the judiciary leaves it up to the campaigns to counter the false speech w/ more
speech.
o Talmage argues that this isn't functionally different from defamation law. he said
that the law at issue here wouldn't reach the deliberate lie standard. one problem
w/ such a law is that it would be too hard to administer
o the maj. in this case is more in line w/ other j.s on this issue
o another problem is that someone would have to decide what's true and what's not.
also it could be used maliciously by candidates as a weapon by bringing claims
indubiously esp. in the last few weeks
o should a state be able to govern false claims of incumbency or endorsement? I would
say no, even though they seem much more manageable.
 Judicial Recusal
o the spending limit proposals came to a grinding halt after the SCOTUS decision in CU.
that case held that spending limits violate the 1st A. in any campaign. the ct had an
opportunity to distinguish spending limits in judicial campaigns, but it declined to do
so. with judicial speech codes of uncertain constitutionality, and with limits on judicial
campaign spending likely foreclosed by the first A, critics of judicial elections have
argued for stronger recusal rules.
o Caperton v. Massey - A judge is biased and should recuse himself when a contributor’s
influence on his election is so substantial that it would offer a possible temptation to the
average judge to lead him not to be impartial.
 Although not every campaign contribution by a litigant or attorney creates a
conflict of interest, there is a serious risk of bias when a person with a personal
stake in litigation before the court had a significant and disproportionate
influence on placing the judge on the case by contributing to the judge’s election.
The factors to be considered are: the contribution’s relative size in comparison to
the total amount contributed, the total amount spent on the election, and the
effect of the contribution on the outcome of the election. The test of whether due
process has been violated is whether the contributor’s influence on the election
under all the circumstances would offer a possible temptation to the average
judge to lead him not to be neutral.
 Dissent (Roberts) - I disagree that a judge’s failure to recuse himself bc of a
probability of bias violates DP. A “probability of bias” cannot be defined and
provides no useful guidance to judges who are asked to recuse themselves.
 BRIBERY
 Bribery of candidates
 People v Hochberg - assembly man who tries to convince people to not run a primary
o the D was convicted under several bribery statutes
o He makes several arguments as to why it was not a bribe and they're all struck
down. ct says he should be punished. the act was wrongful
o "a person of ordinary intelligence would realize that it is illegal to offer
Assembly staff positions to another as a payoff not to run against him in an
 The elements of bribery
 the wording of bribery statutes in the US vary considerably. For the most part the
elements of the crime are similar. The fed. statute is representative. there are 5 elements
to the crime defined in it and most other statutes:
o there must be a public official
o the D must have a corrupt intent
o A benefit, anything of value, must redound to the public official.
o there must be an intent to influence the public official (or to be influenced if the
recipient of the bribe is the D).
o that which is intended to be influenced must be an official act
 of the 5 elements, only the 1st is relatively straightforward. state and local officials can be
prosecuted under other federal statutes as well as state statutes. the boundary b/w public
and private sector is often unclear, and there can be difficult Qs as to whether officials in
entities that straddle both sectors are "public officials." Some state statutes apply to
persons who are not public officials, such as party officials or, like Hochberg, candidates.
 the elements of bribery should be contrasted w/ unlawful gratuity, a federal offense and
an offense in many states. The federal statute is again representative.
 a comparison of the elements of the unlawful gratuity offense w/ bribery:
o a transaction involving a former official can be an unlawful gratuity but not a
bribe. a bribe must look forward to an official act
o actions proscribed by the bribery subsection must be done corruptly
o under the bribery statute the benefit may be received by the official or any other
person, while under the unlawful gratuity provision the benefit must be received
by the official "personally"
o there need be no intent, as in bribery, that the official be influenced by the benefit
o the req. of an official act is seemingly identical for bribes and unlawful gratuities.
 Candidate Bribery and Corrupt Intent
o O’Neill - cts will read the req. of a corrupt intent into a bribery statute where it is not
stated expressly.
o Refer to Hochberg
o Kaisner - Sheriff says, "if you w/draw from the runoff, I'll make you my deputy." is
that ok? no bc they're taking the choice away from the people
o There's a range of situations where the controversy is "what is corrupt?" the elements of
bribery must be kept in your mind.
o Dickenson v. Van de Carr -
 put deal in writing - not OK
 based on what we know, it's unlawful. It was the duty of Dickenson to make his
vote independently based on the merits or demerits. Of course, this case was over
100 yrs ago, and these are very fact specific cases.
 Thing of Value
o the most interesting Qs that arise regarding the benefit to the official under bribery laws
involve benefits that are political rather than personal. Of central importance are
campaign contributions. Without apparent exception, American courts have held that a
campaign contribution is a "thing of value."
o some states have statutory bans on logrolling (i.e., I’ll vote for your corn bill if you vote
for my wheat bill.)
 Intent to Influence
o on its face, the typical bribery statute does not require an agreement. most of the statutes
require only that the benefit be given (or received) with an intent to influence (or to be
influenced on) the official action. courts generally hold that campaign contributions
may be bribes. in this section, we consider when they're bribes.
o electoral strategy: seeking to influence policy by enhancing the chances of candidates
who are likely if elected, to pursue the policies the contributor favors.
o legislative strategy: consisting of contributing to a person presently in office or a
candidate who is likely to be elected, in the hopes of influencing the recipient to pursue
the favored policies by reason of gratitude, a desire to encourage future donations from
the same or additional sources, or similar motivations
o one diff relates to the specificity of the influence sought by the contributor.
o the second difference relates to the explicitness (and therefore certainty) of the influence
o State v. Agan - campaign contributions can be bribes
 there was no explicit/demonstrable deal. clearly in this case, Agan was intending
to influence even though there was no deal/handshake
 there's no requirement for any meeting of minds
 also saying "do this for me or I'll pay your opponent $10k" can be a bribe
o it is commonly said that one of the elements of bribery is consideration or what is
referred to as a quid pro quo
o three cases decided by the SCOTUS- McNally, McCormick, and Evans - reflect an
apparent desire upon the part of the SCOTUS to control the extent of a federal
engagement in anti-corruption activity in states and localities. Together with a fourth
decision, Sun Diamond Growers, they may also reflect concern by the ct with possibly
excessively broad interpretation of anti-corruption laws
o there are four possible situations in which bribes may be prosecuted
 fed prosecutors may bring charges against fed officials and those who attempt to
influence them under federal bribery statutes. Brewster and Sun Diamond are
examples of this type of case
 fed prosecutors may bring charges under fed statutes that est. fed standards that
may be imposed, under specified circumstances, on state and local officials. at
issue in McNally.
 fed prosecutors may bring charges against state or local officials under fed
statutes that, in effect, incorporate the standards of predicate statutes, including
state bribery statutes
 state prosecutors may prosecute state or local officials under state bribery laws.
o McCormick v. US - A promise of official action or inaction in exchange for campaign
contributions is necessary to uphold an indictment for extortion under color of official
right.
 To hold otherwise would be to completely change the norm of campaign
contributions. Supporting legislation that will help their constituents is the job of
politicians. It is only normal that groups representing those constituents will
contribute to politicians’ campaign funds. Politicians are thus not guilty of
extortion when they receive campaign contributions unless they make a specific
promise to act or not to act in exchange for the contribution.
 this case gives a rule: A quid pro quo is req'd and must be explicit.
 dissent says, "what about implicit promises?"
 notes
 the ct offered a somewhat different statement of the quid pro quo req. in
Evans. the Evans maj. concluded that inducement by the official wasn't an
element of the offense. the ct briefly addressed McCormick - we hold
today that the gov't need only show that a public official has obtained a
payment to which he was not entitled, knowing that the payment was made
in return for official acts. Evans says implicit deals can be prosecuted
outside the context of campaign contributions.
 the ct is torn b/w the desire to set forth clear standards for bribery type
offenses and the recognition that the only clear standard that suggests itself
fails to match normative intuitions about what is and isn't corrupt conduct.
 McDonnell v. US - "the agreement need not be explicit, and the public
official need not specify the means that he will use to perform his end of
the bargain." This statement appears to resolve the Q, although it might be
characterized as dicta. Says implicit deals can be prosecuted but only in
dicta.
 McNally v US - the Ds were convicted on an interpretation that had been
accepted by several lower courts, holding that it extends to "schemes to
defraud citizens of their intangible rights to honest and impartial gov't."
The SCOTUS rejected this interpretation, holding that the statute "does not
refer to the intangible right of the citizenry to good govt." The practical
effect of McNally was short-lived, as C. in 1988 adopted a new section
stating that for purposes of the mail and wire fraud statutes, "the term
scheme or artifice to defraud includes a scheme or artifice to deprive
another of the intangible right of honest services.
o US v. Sun-Diamond Growers - there must be a specific link b/w the giving of a gratuity
to a government official and the latter's performance of a specific act in order to sustain
an illegal-gratuity-statute conviction
 The Ct reasoned that a statutory interpretation that punished the giving of any
gifts to public officials would not fit comfortably with the legislation's spirit and
traditions. The Ct noted that the giving of gratuities to officials, by virtue of their
position, is not the same as bribery of officials for the performance of specific
conduct.
 Scalia says he wanted them to be asking for a specific thing. This is the gratuity
statute, which doesn't req. quid pro quo. Scalia says even though it was explicit,
it was only in exchange for warm and fuzzy feelings
o Brandstetter case (in supplement)
 Brandstetter
 citizen activist tried to lobby for the ERA; ct. upholds conviction
 she gave a note offering $1000 for an ERA vote
 Phyllis Schlafly
 says "stand w/ the ERA" and I'll support you; not bribery
 are these really different? Shlafly is experienced and knows that you must be
intentionally vague and the ct rewards her for that. This isn't necessarily a great
policy, but if you don't draw the line there, then everyone is committing bribery.
 Official Act - the federal bribery statute req's an official act. the hobbs act, the honest services
fraud statute, and state laws impose a similar req. for bribery convictions.
o McDonnell v. US
 An “official act” is a decision or action on a question, matter, cause, suit,
proceeding, or controversy that involves a specific exercise of formal
governmental power. arranging a meeting, contacting another official, or hosting
an event - on its own – isn’t sufficient to rise to the level of an official act.
Adopting a broader reading of the statutory language would likely chill public
officials’ interactions with their constituents due to fears of prosecution and
therefore make it more difficult for them to do their jobs.
 ct takes a narrow view bc they don't want to make officials' every day activities
bribery. you have to have clear lines or every politician is at risk.
 CAMPAIGN FINANCE LAWS AND REFORM
 The Buckley Framework
o Buckley v. Valeo - FECA of 1974
 SCOTUS decided that the contribution limits were constitutional, but the
expenditure limits weren’t bc expenditures are individual speech
 I think both should be restricted bc both can lead to interference
 expenditure is personal speech bc you decide what it says. when you contribute,
you're communicating "I support ______," no matter how much you give.
 the independent expenditure must be independent. Coordination would be
considered a contribution. the ct. thinks there's less risk if there's no coordination.
there is less risk of corruption when you work on your own and contributions are
only substituted speech
 Rule of Law - Spending money to influence elections is a form of
constitutionally protected speech and federal limits on general campaign
expenditures, independent expenditures to a specific candidate, and expenditures
by individual candidates from their own personal funds are not permissible.
o The 1st A. extends broad protections to political expression as well as political
association; both of which are implicated in the spending of money for political
campaigns. This spending of money is properly viewed as speech and thus
subjected to SS. Restrictions on the amount of money a person or group can
spend on political communication during a campaign necessarily reduces the
quantity of expression by restricting the number of issues discussed, the depth of
their exploration, and the size of the audience reached. Thus, these provisions
represent substantial restraints on the quantity and diversity of political speech
and are impermissible under the 1st A. In contrast, the limitation on the amount
towards a candidate or political committee entails only a marginal restriction
upon the contributor’s ability to engage in free speech. Such a contribution serves
as a general expression of support for the candidate and his views, but does not
communicate the underlying basis for that support. Thus, the FECA’s limits on
individual campaign contributions are constitutionally permissible, while the
limits on independent expenditures by individuals and groups to an identifiable
candidate violate the 1st A. Limits on self-expenditures by a candidate in
connection with his campaign violate the 1st A. because they impose a
substantial restraint on the ability of persons to engage in protected 1st A.
expression. A candidate, no less than any other person, has a 1st A. right to
engage in the discussion of public issues and to vigorously and tirelessly
advocate his own election and the election of other candidates. Finally, the limits
on overall campaign expenditures are also unconstitutional because there is no
countervailing government interest that would justify the restriction on the
quantity of political expression that could be expressed by a campaign. To the
extent that the FECA’s provisions placed substantial and direct restrictions on the
ability of candidates, citizens, and associations to engage in protected political
expression, FECA violates the 1st A.
o Express v. Issue Advocacy: The ct construed the statute as reaching only
Communications that, In Express terms Advocate the election or defeat of a
clearly identifiable candidate. The upshot of this part of Buckley is that
advertisements intended to or likely to influence the outcome of an election but
lacking words of Express advocacy were unregulated by the feca. Such
advertisements became known as issue advocacy. And advertisement lacking
Express advocacy but criticizing a senator in the weeks before an election was
not subject to disclosure under FECA, and could be paid for with corporate or
Union funds, and is subject to no contribution limits.
o reasons the court gave to distinguish independent spending:
 contribution limits only limit substituted speech. the message that you
support the campaign expresses the same message whether you give a lot
or a little
 independent expenditures are direct speech and less likely to lead to
corruption
o What level of scrutiny is the ct applying in this case? strict in independent
expenditures; something less in contribution limits. They don't have a clear
theory.
o the ‘drown out’ rationale - if you allow people to flood the zone and advertise
heavily, other people won't be heard. There are scholars that say this whole
theory is incorrect.
o Buckley focuses exclusively on the corruption rationale. Spending limits could
equally serve an equalization rationale, although the court doesn't buy in.
o One of the points the court addressed was whether C should be able to restrict the
amnt that a person contributes to his or her own campaign. - the Act sets limits
on such expenditure. The Court said these restrictions are unconst bc we don't
care about equalizing and corruption doesn't make sense in this situation.
o What did the ct say abt what a candidate could spend? C cannot legislate this bc
if preventing corruption is the goal, then contribution limits are the best way to
do that and there is no reason to allow this limit as well. They also thought that
C. didn't have the best intention bc it may give incumbents an unfair advantage.
 Spending Limits
o Spending Limits Before Citizens United
 In Buckley, SCOTUS struck down several provisions of the FECA limiting
campaign spending, (i.e., limits on a candidate's own spending and a $1,000 limit
on Independent spending by an indiv. supporting or opposing candidates for
federal office). The Ct held that the independent expenditure limit violated the
1st A. bc it was not necessary to prevent corruption. The ct also rejected a
political equality rationale for spending limits, ruling that such a rationale was
foreign to the 1st A.
 Corporate spending limits in ballot measure campaigns
 Bellotti- Under the 1st A., a state may not make a law that prohibits
corporations from making contributions or expenditures in connection
with ballot initiatives and referenda.
 The MA statute fails bc it is both under-inclusive and over-
inclusive in its protections. The statute is under-inclusive in that
it prohibits corporate expenditures with respect to a referendum,
while it permits corporate activity that pertains to the passage or
defeat of legislation. The statute is over-inclusive in that it
prohibits a corporation from supporting or opposing a
referendum proposal even if its shareholders unanimously
authorized the contribution or expenditure. This interferes with
the normal rights and functions of shareholders. Thus, the MA
statute is an unconst. restriction on the free speech of
corporations protected by the 1st A.
 ppl have the right to hear what the corp has to say. This is how
the ct avoids deciding whether corps. have 1st A. rights.
 the ct doesn't have a clear theory here
 Rehnquist says "I don't see why we need to protect the rights of
corporations."
 However compelling the marketplace of ideas is, it might not be
supported by the 1st A. The 1st A doesn't protect a message's
right to be heard, it protects the right for it to be said. the officers
of the bank should have just formed a PAC and got their
message out that way
 What about the arg. that the corp is drowning out individual
voters bc they have such vast resources? Has merit, but might
not be the most sound arg.
 Ct says maybe corp spending can be limited in candidate
elections bc of the fear of corruption (foreshadows CU)
 In CARC v. Berkeley, the ct struck down a $250 limit on contributions to
committees formed to support or oppose Municipal ballot measures
 given Buckley, Bellotti, and CARC it is clear that a state may not limit
total spending for or against ballot propositions
 Limiting spending by corporations, labor unions, and others in candidate
elections
 The court confronted the Q of corporate spending limits in candidate
elections directly in FEC v. MACFL.
 Q - Did MACFL violate the FECA by distributing flyers asking
voters to vote “for life” paid for with treasury funds? Does that
section of FECA violate the 1st A. as applied?
 A - Yes and yes. the Ct held unanimously that MACFL’s flyers
violated FECA’s prohibition on expenditures. The ct pointed to
the general definitions section of FECA, where ‘expenditures’
included the provision of anything of value made for the purpose
of influencing a federal election. also looked to the legislative
history and determined that C. did not intend to abandon its
restrictions on expenditures to support candidates. they rejected
MCFL’s argument that it did not expressly advocate for a
candidate, noting that the flyers exhorted readers to vote for
specific ‘pro-life’ candidates. they also held that FECA was
unconst. as applied to MCFL’s flyers. While acknowledging that
FECA’s req’s were not an absolute restriction on MCFL’s 1st A.
rights, he argued that they were a substantial restriction. He
noted that MCFL was forced to comply with several burdensome
requirements only because it was a corporation; these req’s
potentially created a disincentive for engaging in political
speech. they held that the state’s compelling interest in
restricting corporate spending on elections did not extend to
MCFL because 1) MCFL was formed for an exclusively political
purpose, 2) it had no shareholders, and 3) it was not formed by a
business corporation or labor union. they noted that even if
FECA’s disclosure req’s no longer applied, MCFL was still
req’d to identify anyone contributing over $200.
 O’Connor concurred with both holdings. She emphasized that
the significant burden on MCFL arose from FECA’s addt’l
organizational restrictions, & not from its higher disclosure req’s
 Rehnquist dissented on the constitutionality of FECA. He
described the majority’s three-part test as legislative in character.
 ct said they have 1st A rights but that there's a countervailing
right in 441(b). however, the ct says MCFL is exempt. most
corps could be regulated but not this one.
 why did the ct say most corps could be regulated? Bc they have
an unfair advantage of the corporate forum
 mostly dicta here but lays out themes that become important later
 Austin - the constitutionality of campaign spending limits in candidate
campaigns app’d against corps not entitled to the MCFL exemption.
States can constitutionally restrict corps' independent expenditures to
support or oppose political candidates.
 The mere fact that corporations may collect large amounts of
wealth, alone, does not justify the restriction. However, the
unique corporate structure that allows corporations to collect that
wealth does justify the restriction. Corporations can use
independent expenditures to "unfairly influence elections." The
goal of the restriction is to avoid corruption. Therefore, the Court
holds that Michigan had compelling reason to support its
restriction on corporations' independent expenditures.
 they apply SS and say that the statute is narrowly tailored to
protect the state's interest.
 corrosive, distorted effect - there are special advantages that the
corp has. Therefore, you can have a ban that applies to corps
generally to protect against corrosion of the political process
 Dissent - MI's restriction on corporations' independent
expenditures to support or oppose political candidates violates
the 1st A. The majority's reasoning turns anything politically
undesirable into political corruption. Besides, protecting
shareholders does not constitute a compelling need to support the
restriction. In joining a corporation, a shareholder knows that
management may take any action with a majority vote. A
dissenting shareholder can either try to get a majority vote or sell
his stock. This dissent foreshadows CU.
 Notes and question -
 Austin's recognition that Corporations’ spending could
be limited to prevent the corrosive and distorting effects
of immense aggregations of wealth that are accumulated
w/ the help of the corporate forum & that have little or
no correlation to the public support of the corporations
political ideas is called the anti-distortion rationale.
 C. passed the most Significant Campaign Finance changes since 1974,
the bipartisan campaign Reform Act of 2002 (BCRA).
 By a 5-4 vote, the SCOTUS upheld section 203 of BCRA. McConnell v.
FEC, rejected any constitutionally significant distinction b/w express
advocacy and issue advocacy.
 8 justices agreed that the presence of Express words of advocacy
did not limit the universe of election-related advertising the
legislature is made constitutionally regulate.
 That determination called Austin directly into Q bc, w/o a
meaningful distinction b/w express advocacy an issue advocacy,
the ban on Independent spending by corporations and unions
upheld in Austin was far more expansive than at the time Austin
was decided.
 WI Right to Life v. FEC- McConnell did not produce an as applied
challenge to bcra § 203 for a corporation or Union whose ads were not
the functional equivalent of Express advocacy.
 FEC v. WI Right to Life, the Ct held that bcra § 203 could not be
constitutionally applied to such ads. in making the functional equivalent
determination the Q the FEC or a ct must consider is whether w/o regard
to context and w/o detailed discovery of the intentions of the advertisers
that advertisement was susceptible of no reasonable interpretation other
than as an advertisement supporting or opposing a candidate for office.
 This test was short-lived, thanks to CU which overruled Austin and the
McConnell on corporate spending limits in candidate elections.
o The Citizens United Revolution.
o Citizens United v. FEC - Under the 1st A., the gov’t may not suppress political
speech on the basis of the speaker’s corporate identity.
 The film and advertisements amounted to “express advocacy” by CU, and thus
raised concerns under § 441(b) of the BCRA. Section 441(b) makes it a felony
for all corporations–including nonprofit advocacy corporations–either to
expressly advocate the election or defeat of candidates or to broadcast
electioneering communications w/n 30 days of a primary election or sixty days
of a general election. Section 441(b) carves out an exception for Political
Action Committees (PACs) in that it permits the political speech of these
groups, even when the PACs are formed by corporations. CU challenged the
constitutionality of § 441(b) in federal district court against the FEC on the
ground that § 441(b) was an unconst restriction of 1st A rights for corporations.
 Although this exact issue has not previously been squarely presented to the
Court, precedent decisions in Buckley and Bellotti suggest the 1st A. doesn’t
allow political speech restrictions based on a speaker’s corporate identity.
However, the decision in Austin overruled this precedent by holding that the
government has a compelling governmental interest in preventing “the
corrosive and distortive effects of immense aggregations of wealth”
accumulated by corporations and funneled into the political process. This
“distortion” rationale led the Court to hold that the 1st A. does not protect
political speech by corporations. However, this rationale is unsound because it
is overbroad; it includes millions of corporations that do not have a large
“aggregation of wealth” and media corporations which are necessarily
excluded from § 441(b)’s ban on political speech. Thus, the FEC’s reliance on
Austin in its argument against corporate political speech is rejected.
Additionally, the FEC’s argument that corporate political speech should be
banned for the purpose of preventing corruption or the appearance of
corruption is rejected, as there is no factual showing that corporate speech
actually promotes corruption. Additionally, the government’s interest in
preventing corruption is not strong enough to outweigh corporations’ interest in
free speech. Finally, the FEC’s argument that corporate political speech should
be limited to protect dissenting shareholders who do not wish to be forced to
fund political speech is also rejected because dissenting shareholders have
sufficient avenues for redress through the corporate democratic process, and
their interests do not justify a blanket denial of political speech for all
corporations. For these reasons, and because principles of stare decisis do not
prevent this result, the previous decision in Austin is overruled. The principle in
Buckley and Bellotti that government may not suppress political speech on the
basis of the speaker’s corporate identity is once again the law. Additionally, §
441(b)’s restrictions on corporate independent expenditures are overruled.
Section 441(b) cannot constitutionally restrict corporate speech,.
 Dissent (Stevens) - There is a significant diff. b/w human and corporate
speakers in the context of a public election. Corporate spending can skew the
democratic process by providing large amounts of money to candidates who
support the interests of corporations, rather than of individuals.
o American Tradition Partner v Bullock - A Montana law states that a corporation may
not "make an expenditure in connection with a candidate or a political committee that
supports or opposes a candidate or a political party."
 the Ct held that the findings in CU applly to this case, and that political speech
is protected regardless of the source. The Ct also held that all of the relevant
args. were addressed in CU decision and rev’d the decision of the SCOMT.
 Breyer dissented and noted that he disagreed with the Ct's original holding in
CU. In this case, he argued, MT did have a compelling interest to limit
electoral and political corruption by limiting corporate political expenditures.
o Blumen - there was a challenge to a law saying that foreigners may not
participate or spend independently in a US election.
 The SCOTUS aff's the lower ct saying that this law is different than CU
and they distinguish it on the grounds that American democracy is for
Americans. They didn't want to compromise in the context of corporate
rights, but made a compromise of alien rights.
 Contribution Limits
o Ballot Measures
 In Buckley, the SCOTUS upheld several laws limiting campaign contributions to
candidates for fed office. The ct held such limits only "marginally" restricted free
speech rights and were justified by the govt's interest in preventing corruption
and the appearance of corruption
 CARC- there is no significant state or public interest in curtailing debate and
discussion of a ballot measure. The court struck down contribution limits for
ballot measures. In this case, Buckley does not control
 Concurrence – the city failed to present adequate ev. the ordinance was
needed to preserve voter confidence.
 the rule of Buckley is an exception to the rule that you cannot limit
political spending. In Buckley, the limitation was to prevent corruption.
In this case, there is no risk of corruption, so the limit will not stand.
However, it is arguable that ballot measures can lead to corruption
 Equality v. intensity argument - the amount of money you spend does
not equal how intensely you feel about an issue.
o Low Contribution Limits
 Shrink MO- the 8th Cir. struck down MO's legislatively-enacted campaign
contribution limits. SCOTUS rev'd the 8th Cir. the opinion's holding may be on
shaky ground. the concurring opinion of Breyer stakes out an egalitarian
"participatory self-gov't" theory of how cts should review campaign finance laws.
Thomas' dissent defended a deregulationist approach to such laws under the 1st A
 Rule of Law - The principles of Buckley govern state limits on
contributions to state political candidates, regardless of the specific
dollar amounts outlined in the FECA of 1971. Buckley is controlling
authority for state limits on contributions to state political candidates,
regardless of the amount.
 Holding and Reasoning - The Court resolved the issues by asking
whether the contribution limits were so radical in effect (1) to render
political association ineffective, (2) to “drive the sound of a candidate’s
voice below the level of notice,” and (3) to render campaign
contributions pointless. Cts applying this test should not feel constrained
by the dollar amounts upheld in Buckley. Thus, Buckley is controlling,
and the Missouri state law is upheld as constitutional.
 The maj called its analysis a "routine application" of Buckley, but it
appeared to lower the level of scrutiny, expand the def. of corruption and
the appearance of corruption, lessen the evidentiary burden to prove
corruption (at least in novel cases) and made it v difficult to challenge
any contribution limit as too low. It marked one of the most deferential
approaches to campaign finance we have seen at the ct
 the maj opinion remained w/n the Buckley framework, even as it
stretched it in new deferential directions. Buckley did not set a floor for
the limit
 there was not really anything in the record proven corruption. in Randall,
the court says the limits were too low. The court used a balancing test in
Randall. There was a record in this case that they were able to look at it
and say it really does look unmanageably Low. This case is probably on
the way out along with shrink Missouri. With our new court, it is likely
that regulation on campaign Finance is going to disappear
 Davis case - following Randall, the court Struck down the millionaires
Amendment. The MA said that donors to people running against
millionaires could donate three times as much as the millionaire’s
donors. The court Struck it down. The problem was that they were
directly favoring one candidate over another. the idea of Equalization is
just hard to conceptualize. The MA looks like it would help out the
average Joe, but the only people that would benefit are those who could
afford to donate $6,900.
 In Randall, the SCOTUS rejected two aspects of Act 64. The main dispute in
Randall concerned Act 64's contribution limits, however. the plurality set forth a
two-part test for judging the constitutionality of the amnt of a campaign
contribution limit in the exercise of independent judicial judgment:
 1 - are there "danger signs" that the risks to the political process in terms
of decreased political competition are too high?
 2 - if so, based on the record, is the measure "closely drawn" or is it too
restrictive given the anticorruption goals it is trying to accomplish?
 Campaign contributions and political parties
o CO I – PLURALITY - the 1st A. prohibits the application of the Party Expenditure
Provision of the FECA to expenditures by political parties made w/o coordination with
any candidate. CO GOP started attacking the likely democratic senate nom. The ct. held
that the party could run these ads even if they weren't issue advocacy. the ct says "if it's
independent, you can do it." Is the repub party doing these things indep. of the repub
candidate? No, not in my opinion. This is known as the coordinated expenditure rule.
o CO II - Following its opinion in shrink MO, the ct treated the coordinated expenditure
rules as functional contribution limits. It then held that C. could impose such a limit to
prevent corruption and its appearance. The Ct held that "a party's coordinated
expenditures, unlike expenditures truly independent, may be restricted to minimize
circumvention of contribution limits." Justice Souter noted that "'there is little evidence to
suggest that coordinated party spending limits adopted by C. have frustrated the ability of
political parties to exercise their 1st A rights to support their candidates.'" Dissenting,
Justice Thomas argued that the spending limit "sweeps too broadly, interferes with the
party-candidate relationship, and has not been proved necessary to combat corruption."
CO II Dealt w/ spending that didn't purport to be independent. Can you limit that? This
case dealt w/ coordinated expenditures. the ct. said that this could be limited. Does that
make sense? Part of what the ct says it's all just one coordinated action, but the parties
can't be the tools of all their donors. One criticism of this case is that coordinated
expenditures aren't necessarily just doing the donors bidding. But the ct hasn't thought of
a better solution than Buckley, so they just force them into the Buckley framework.
o CO I & CO II taken together allow parties to spend independently w/o limit but permit
controls on their spending that is coordinated with candidates. The cases create a strong
incentive for parties to separate their activities from their candidates.
o Soft money - nonfederal money that doesn’t have to be reported.
 The FEC ruled that parties could fund mixed purpose activities, including get-
out-the-vote drives and generic party advertising, in part with soft money.
 As the permissible uses of soft money expanded, the amount of soft money raised
and spent by the parties increased exponentially. The national parties transferred
large amounts of their soft money to the state parties, which could use larger
percentages of soft money to finance mixed purpose activities under FEC rules.
 The solicitation, transfer, and use of soft money does enable parties and
candidates to circumvent feca’s limitations on the source and amount of
contributions in connection with Federal elections.
 McConnell- this case’s greatest doctrinal significance came in its further
relaxation of the definition of corruption to include ingratiation and Access.
However, that significance has proven to be short-lived.
 the abuse of soft money led to campaign finance reform.
 giving money to candidates for any use they want is called hard money and it
was limited
 however, there were some reasons to give money that C. wanted to encourage, so
they let people give money for those reasons freely. This was called soft money,
but this system led to abuse. This led to regulation which was challenged by
McConnell v. FEC. The SCOTUS upheld these rules at least for a while.
o The emergence of super Pacs and other outside groups
 Since CU, PACs and other outside groups have gained tremendous importance in
federal campaign election financing.
 The restrictions on solicitation of contributions by PACs apply to corporate and
union PACs which have the offsetting advantage of being able to use treasury
funds of the sponsoring Corporation or Union to pay their administrative
expenses. The total number of federal PACs grew rapidly in the first decade
following the 1974 amendments to the feca, and then leveled off.
 As the FEC began to regulate 527 organizations some election-related activity
shifted to 501 C 4 social welfare orgs and other nonprofits. Among other things
501 C 4 status made it easier for groups to hide the identity of their donors. After
CU, opponents of campaign Finance limits challenge the limit on contributions to
independent PACs in both the court and at the FEC. They had remarkable
success, and are transforming campaign financing in the US.
 they'd already said that if you act independently, we don't care if you are
coordinating. groups figured out a way to operate as separate from the candidate
and avoid all limits on contributions just because they're not coordinating.
 SpeechNow.org v. FEC - independent expenditures, including those made by
corporations, do not give rise to corruption or to the appearance of corruption.
The fact that speakers may have influence over or access to elected officials does
not mean that these officials are corrupt.
 Feca defines independent expenditures as expenditures expressly
advocating the election or defeat of a clearly identified candidate that are
not made in concert or proper operation with or at the request or
suggestion of such candidate, the candidates authorized political
committee, or their agents, or a political party committee or its agents.
 Because of SCOTUS's recent decision in CU, the analysis is
straightforward. There the Ct held that the gov’t has no anti-corruption
interest in limiting independent expenditures.
 Because CU holds that independent expenditures do not corrupt or give
the appearance of corruption as a matter of law, then the government can
have no anticorruption interest in limiting contributions to Independent
expenditure only organizations. No matter which standard of review
governs contribution limits, the limit on contributions to speech now
cannot stand.
 Notes
 This case is an offshoot of CU allowing unlimited contributions
to Super PACs bc corruption has been limited to quid pro quo.
Independent expenditures do not lead to the appearance of
corruption according to CU. Limits on expenditures to
independent expenditure groups cannot stand. In accordance
with CU, corruption isn't possible here. The ct claimed to be
bound by CU. If you form as a (c)(4), you don't have to disclose
membership. this means they must be a "social welfare" org.
Could the St. Louis Tea Party register as a (c)(4) w/ the IRS?
Yes, but they might draw a little more scrutiny.
 After this case, the FEC issued 2 advisory opinions which
determined that corporations and labor unions could also
contribute unlimited Sums to Super PACs
 These new independent expenditure committees are called Super
PACs
 Carey v. FEC - a PAC which makes direct donations to
candidates also may accept unlimited donations, if it segregates
the 2 funds. So, every PAC, provided it does its paperwork right,
can become a Super PAC.
 Contribution limits - the new skepticism
 McCutcheon v. FEC-A law restricting how much money a donor can
contribute in total to all political candidates or committees is
unconstitutional under the First Amendment.
 ct says law is not narrowly tailored enough to anti-corruption
interest. there is no proof that a high amnt of money = corruption
in the first place, and even less that a high amnt when split
among many people can lead to a quid pro quo.
 ct continues to move away from influence definitions of
corruption.
 a limit on the total political donations a person may make does
not protect against corruption. The law setting an aggregate cap
on donations to individual candidates and committees is not
sufficiently related to avoiding corruption. Any concerns that a
donation to a committee or another candidate will end up
flowing to a specific candidate in circumvention of the
individual limit are overly speculative.
 Dissent - The Ct’s judgment improperly overrules Buckley. In
deciding that aggregate limits do not prevent corruption, the
opinion defines corruption too narrowly. Preventing corruption is
not merely a factor to be entered into a constitutional analysis.
Rather, protecting the integrity of the political process is an
interest rooted in the goal of the 1st A. itself, which is to create a
democracy of the people. The individual-candidate limit that the
opinion leaves in place is ripe for circumvention and inadequate
to prevent corruption.
 Notes
 Yamada v. Snipes - The 9th C. similarly upheld Hawaii's
ban on campaign contributions by state contractors
 some states have attempted to place special restrictions
on contributions by lobbyists
 NC Right to Life v. Bartlett - the ct, applying SS, upheld
a NC law prohibiting a lobbyist, a lobbyist's agent, or a
PAC that employs a lobbyist from contributing to a
member of or a candidate for the NC general assembly
or council of state (an advisory body) while the general
assembly is in session.
 Thalheimer v. City of San Diego - in addition to bans on
particular individuals or entities, cts have considered
challenges to the timing of contributions more than a
year before an election
 Beaumont - pre CU case but still good law - banned corp
contributions directly to candidates. there are still
concerns abt dissenting shareholders, etc.
 Public Financing
o Pros: the only way to reduce or eliminate this gap so that informative, competitive
campaigns can be run, while reducing campaign financing as a source of undue pressure
and influence; it promotes political equality; other reformers support public financing not
for its own merits, but bc they believe it is important to have some form or other of
spending limits.
o Cons: general opposition to new or expanded gov't programs; Taxes should not be used
for the propagation of political views that the taxpayers may disagree with or even find
offensive; it would endanger the autonomy of the political process from the state; to make
candidates and parties dependent on public funds and the strings that are or might be
attached to them would greatly magnify the danger of abuse, according to opponents of
public funding.
o Public benefits
 Buckley – the ct rejected the claim that the public financing portions challenged
in Buckley were facially unconstitutional.
 C. enacted Subtitle H in furtherance of sufficiently important
governmental interests and has not unfairly or unnecessarily burdened
the political opportunity of any party or candidate.
 the Const. doesn't require C. to treat all declared candidates the same for
public financing purposes.
 appellants have made no showing that the election funding plan
disadvantages minor parties by operating to reduce their strength below
that attained w/o any public financing.
 notes
 one of the most persuasive args against the allocation formula is
its discrimination against new political parties. New parties can't
obtain public funding w/o a showing of electoral support, but it
may not be able to get electoral support w/o public funding. It's a
catch 22.
 Greenberg v. Bolger - This exclusion of small parties from the
postal subsidy was found to violate both the 1st A. and the EPC.
o public financing presidential elections
 public financing is available to presidential candidates in both primaries and
general elections. In presidential primaries, partial public financing is provided
on a matching basis. In the general election, the campaigns are entirely funded
from public funds. At least that was the original conception. In the 2012 election
season, not a single credible major party candidate accepted public funding.
 in primaries, candidates become eligible for public funding by raising 5K or
more in contributions of $250 or less in at least 20 states. Candidates who accept
public financing are subject to campaign spending limits.
 After primaries, the major parties receive flat grants to pay the costs of their nat'l
nominating conventions. The parties are not permitted raise private funds to add
to the public funds they receive.
 in the general election, the major party candidates receive a flat grant, which is
equal to the spending limit. In other words, presidential candidates who accept
public funding cannot spend any private funds in the general election campaign.
 candidate acceptance of public funding was nearly universal in the early years of
the program.
 the public money for presidential public financing has been paid out of the
presidential election campaign fund. the main reason the amnt in the Fund
became inadequate was that the check-off was fixed at one dollar, whereas the
amnt candidates could collect were raised w/ the cost of living.
o Public Financing: Voluntary or coercive/
 in footnote 65 of Buckley v. Valeo, SCOTUS wrote:
 C. may engage in public financing of elections and may condition acceptance
of funds on an agreement to abide by specified expenditure limitations
 there is no explanation in Buckley why C. may "condition acceptance of public funds
on an agreement by the candidate to abide by expenditure limitations."
 Critics of public financing conditioned on the acceptance of spending limits point out
that the simultaneous enactment of contribution limits may put considerable pressure
on candidates to accept the public financing/spending limits package.
 Leventhal found fn 65 evidence that despite its rhetoric, the ct regarded spending
limits as "substantially and significantly less restrictive than content prohibitions."
 There are some campaign finance reformers who are less than enthusiastic about
spending limits but who strongly favor public financing of campaigns and either
favor or are willing to tolerate spending limits so long as they are accompanied by
public financing.
 efforts to extend public financing to congressional campaigns have consistently failed
over a period of 30 yrs.
 whatever the merits of the criticisms of fn 65, their prediction that the fn would fail to
w/stand further scrutiny has turned out to be incorrect. the issue was presented more
concretely in RNC v. FEC
 RNC v. FEC
 the DC held that the fact that a statute req's an indiv to choose b/w 2 methods
of exercising the same const. right doesn't render the law invalid. They found
a compelling state interest in assuring that candidates who receive public
funding should be relieved of the burdens of soliciting private contributions.
 SCOTUS summarily aff'd which shows that there is an authoritative
reaffirmation that expenditure limits may be imposed as a condition on
public funding, but it is no indication whether the SCOTUS relied on an or
all of the reasons given by the DC.
 the Q whether particular public financing laws are voluntary or coercive continues to
be litigated. The ability of states to design public financing systems which are both
const and attractive enough to get serious candidates to participate was put to the test
by the following case
 AZ free enterprise club PAC v. Bennett - A state law that financially hinders 1
candidate in favor of an opposing candidate in the absence of a compelling state
interest burdens free speech and violates the 1st A.
 The 1st A. req's the ct to apply SS to any legislative measure that seeks to, or
has the effect of, restricting political speech. Thus, Ds are req'd to prove that
the Act furthers some compelling state interest and is narrowly tailored to
achieve that interest. the burden imposed by the matching funds provision on
privately-funded candidates and groups reduces their speech. Even if the
provision did result in more speech by publically-funded candidates, it would
do so at the expense of burdening privately-funded candidates. Moreover,
there is no compelling state interest to justify the Act. the Ct has held that
leveling the playing field is an insufficient justification. It is not legitimate
for the State to attempt to equalize electoral opportunities by burdening the
free speech rights of one group. The State’s matching scheme substantially
burdens protected political speech without serving a compelling state interest
and thus violates the 1st A.
 Dissent - The 1st A.’s core purpose is to foster a healthy, vibrant political
system full of robust discussion and debate. There is nothing in the Act that
violates the 1st A. rights of political candidates. the Act enhances the
opportunity for free political discussion. The Ct recognized in Buckley that
public financing of elections “facilitate[s] and enlarge[s] public discussion”
in support of 1st A. values.
 Notes
 the ct applies strict scrutiny to the trigger provision of AZ's law. it
was an odd application, given when the burden here was that more
money would be provided to pay for someone else's speech. This
case could imply that SS now applies to all public funding cases.
 this holding creates a substantial barrier to state public financing
schemes. The alt. would be to shell a huge amnt. out at the start
which isn't super popular
 Disclosure
o With many limits gone after CU, some who proposed disclosure as a more narrowly
tailored solution to concerns about corruption have come to regard disclosure itself as
threatening protected 1st A. rights
o SCOTUS in Buckley recognized 3 governmental interests in disclosure
 disclosure deters corruption (the anti-corruption interest)
 disclosure provides information helpful to voters (the information interest)
 disclosure aids in the enforcement of other campaign Finance laws (the
enforcement interest)
o Buckley Upheld the disclosure provisions of the feca. The court has Revisited the
disclosure issue in subsequent cases.
o Buckley on disclosure
 The disclosure req’s directly serve substantial gov’t interests. In determining
whether these interests are sufficient to justify the req’s we must look to the
extent of the burden that they placed on individual rights.
 It is true that the governmental interest in disclosure is diminished when the
contribution in question is made to a minor party with little chance of winning an
election. But a minor party sometimes can play a significant role in an election.
 the substantial public interest in disclosure identified by the Legislative history of
the act outweighs the harm generally alleged.
 that strict requirements of proof could impose a heavy burden, but it does not
follow that a blanket exemption for minor parties is necessary.
 Section 434 e -
 This section imposes independent reporting req’s on individuals and
groups that are not candidates or political committees only in the
following circumstances: when they make contributions earmarked for
political purposes or authorized or requested by a candidate or his agent,
to some person other than a candidate or political committee, and when
they make expenditures for communications that expressly Advocate the
election or defeat of a clearly identified candidate.
 The disclosure req. is narrowly limited to those situations where the
info sought has a substantial connection with the governmental
interest sought to be advanced.
 The burden imposed is a reasonable and minimally restrictive method of
furthering 1st A. values by opening the basic processes of our federal
election system to public View
 Dissent - "do you really need to record every $11 contribution?" "Do you really
need to disclose every $100 contribution?" Maj. says it sounds low, but we don't
want to draw that line.
 in Buckley, the SCOTUS holds, almost unanimously, that candidates must keep
records of contributions of $10 or more and must publically disclose if you
receive more than $100. ct. says "we know that some ppl won't want to donate,
but this is generally acceptable." They say that it will help identify people who
are violating contribution limits and deter people from making violations
(enforcement), but they apply even to lawful contributions bc there is an anti-
corruption and information interest. then, the ct. turns its attention to the way this
may work out very badly for certain groups of people in Brown v. SWP
o Brown v. SWP
 Buckley - the 1st A prohibits the gov’t from compelling disclosures by a minor
political party that can show a “reasonable probability” that the compelled
disclosures will subject those identified to “threats, harassment, or reprisals.”
 In Buckley, the ct set forth the following test for determining when the first A
req’s exempting minor parties from compelled disclosures: The evidence offered
need show only a reasonable probability that to compel disclosure of a party's
contributors’ names will subject them to threats harassment or reprisals from
either government officials or private parties.
 We hold therefore that the test announced in Buckley for safeguarding the 1st A.
interest of minor parties and their members and supporters applies not only to the
compelled disclosure of campaign contributions but also to the compelled
disclosure of recipients of campaign disbursements.
 this is an exception to the general rule regarding disclosure laid out in Buckley.
 I am concerned abt the harassment, but we still need to know who they'd be
influenced by if they won or if they were the spoiler. The diff b/w minor and
major parties isn't that big. However, the record here was replete w/ ev. of
tangible harassment. they req. this bc they want to do what they can to bolster an
effective disclosure scheme and they only want to apply the exception to these
fringe groups even though the rationale isn't that solid
 O'Connor concurred only in part and said that their records of expenditures
should be kept. She was trying to limit the scope of the decision. Nice idea, but
the logic falls apart.
o McIntyre v Ohio Elections Commission - The First Amendment protects a speaker’s
right to remain anonymous.
 The importance of anonymity far outweighs the state’s interest in disclosure.
Speaking anonymously allows unpopular people to broadcast their speech
without risking their messages being prejudiced by a listener’s personal bias.
Further, speakers may opt for anonymity out of fear of potential political or
economic consequences. Therefore, in order to be constitutional, a regulation
requiring a speaker to disclose his or her identity must be narrowly tailored to a
compelling government interest. This form of core political speech is entitled to
the highest level of protection from the 1st A., and the OH statute requiring
disclosure is thus subject to SS. The state argues that it has a compelling interest
in informing the electorate and in preventing fraud and libel. With respect to
informing the electorate, the state may not force a speaker to include content that
the speaker would not otherwise include in the message just to provide more
information to voters. Further, a private citizen who is opposing a school tax will
not add relevant information by including his or her name and address, and the
readers will be able to sufficiently understand the speaker’s message. The state
does have a compelling interest in preventing fraud and libel. However, the
means adopted by the statute—a categorical rule affecting any writing intended
to influence a vote—is over-inclusive. The statute applies to any document, even
if that document does not include false or misleading speech, and applies to any
person, regardless of whether that person is working for a professional campaign.
Further, the statute is under-inclusive, bc a speaker can merely use a false name
in his or her message when giving false speech. These facts support the
conclusion that the OH law is not narrowly tailored to a compelling government
interest and thus violates the 1st A.
 they say that anonymity prevents people from being biased against the people
disseminating information and protects from fraud/libel. People might not speak
if they have to put their names on the speech
 the ct distinguishes Buckley bc Buckley involves candidates. that can be req'd. at
points bc contributions are more potent and therefore need to be more thoroughly
regulated. McIntyre isn't an elected official, just an ordinary citizen. The
corruption issue isn't present. Buckley said v clearly that info provided through
disclosure can help ppl make up their minds. the ct here says that's diff bc putting
your name to $ has a limited speech value, but putting your ideas on a pamphlet
associates your name w/ all of those ideas.
 Dissent - The maj. incorrectly concludes that the law is not narrowly tailored. A
speaker will be less likely to lie on a document with his or her name on it.
Further, a person will be more likely to sign his or her name to a document if it is
illegal to omit the name. Therefore, the law makes it less likely that people will
disseminate false or misleading documents anonymously. Further, there is
additional value in the signature req. in that the req. will reduce the amount of
disparaging speech that is not actionable as libel or fraud.
o Doe v reed- upheld release of petition signatories generally, but left open an as-applied
exception. The 1st A. allows a state to impose disclosure req’s in an electoral context
if the req’s are substantially related to an important government interest.
 Disclosure req’s are subject to SS. States are afforded flexibility when deciding
how to organize their voting rules. Further, disclosure req’s don’t prevent speech.
Thus, to be const., disclosure req’s must be substantially related to an important
gov’t interest. The state has an important interest in protecting the integrity of the
electoral process, which includes preventing fraud and ensuring the validity of
signatures on a petition. public disclosure can help to catch fraudulent or
otherwise invalid signatures that the secretary of state misses or is unlikely to
notice, such as forged signatures. The petition’s signatories are the parties best
situated to help catch fraud. Further, public disclosure promotes transparency in
the electoral process. These facts support the conclusion that the PRA is
substantially related to the important government interests of preventing fraud
and promoting the integrity of the democratic process.
 Concurrence - When a citizen of a state signs a petition to put a law to a state
referendum, the citizen is essentially acting as a legislature. The First
Amendment does not prohibit disclosure requirements in the exercise of
legislative power.
 Concurrence - Bc the disclosure requirement does not prevent any speech, the
requirement’s burden on speech is minimal. Further, the signatures are usually
given in public and submitted to circulators. There is no expectation that these
signatures will be kept confidential.
 Dissent - The maj. inappropriately applies exacting scrutiny. Signing a petition to
submit a law for state referendum is a form of political association protected by
the 1st A. Therefore, SS should be applied, which mandates disclosure
requirements be narrowly tailored to a compelling government interest. The PRA
does not adopt the least restrictive means to restrict speech, and thus, the
disclosure requirement is unconstitutional.
o the disclosure system is abt. all we have left as far as campaign finance regulation goes.
o disclosure has had a pretty successful run as compared to contribution and expenditure
limits.
o big pic: The ct is pretty accepting of disclosure req's w/ the exception of McIntyre and
some cases of harassment.

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