Voting Rights Disclosure

Spencer Overton, Voting Rights Disclosure, 127 Harv. L. Rev. F. 19 (2013).

Abstract:  In “Beyond the Discrimination Model On Voting,” 127 Harvard Law Review 95 (2013), Professor Samuel Issacharoff proposes that Congress turn away from what he considers the outdated and “limited race-driven use” of the Fifteenth Amendment and instead protect all types of voters from partisan manipulation using a “non-civil rights” Elections Clause approach. Specifically, Issacharoff proposes that jurisdictions disclose changes to voting rules for federal elections. This Essay argues that Issacharoff’s approach is incomplete. Contemporary discrimination exists and warrants attention — particularly where fast-growing minority populations threaten the status quo. This discrimination differs from simple partisan manipulation, as the discrimination reduces incentives for cross-racial coalitions and fuels racial division. Further, Issacharoff’s choice to move “beyond” race and abandon the Fifteenth Amendment limits his proposal to federal elections. As a result, his proposal would overlook significant problems — at least 86.4% of all election changes that resulted in VRA section 5 objections since 2000 would not have been disclosed under Issacharoff’s proposal. Unlike the high-profile restrictions he targets (e.g., photo ID triggered by “Republican control of the state legislature”), local voting changes missed by Issacharoff’s proposal are often decisive factors in non-partisan elections, attract little national media attention, and go unchallenged by local voters who lack resources to bring lawsuits. Congress should deter voting discrimination by using the Fifteenth Amendment and the Elections Clause to require disclosure of election changes for federal, state, and local offices, as well as to require more detailed reporting than Issacharoff’s proposal. Finally, disclosure alone is not enough. Congress should also strengthen the VRA Section 3(c) bail-in procedure and streamline voting rights litigation. Selecting between the Fifteenth Amendment and the Elections Clause is a false choice, as we can work both to prevent voting discrimination and to improve access to voting for all Americans.

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The Constitutional Structure of Voting Rights Enforcement

Franita Tolson, The Constitutional Structure of Voting Rights Enforcement (2013) (forthcoming Washington Law Review), available at http://ssrn.com/abstract=2303155.

Abstract:  Scholars and courts have hotly debated whether the preclearance regime of the Voting Rights Act is constitutional under the Reconstruction Amendments, but in answering this question, this Article is the first to consider the effect of section 2 of the Fourteenth Amendment on the scope of Congress’s enforcement authority. Section 2 allows Congress to reduce the size of a state’s delegation in the House of Representatives for abridging the right to vote in state and federal elections for “any reason except for participation in rebellion, or other crime.” This Article contends that section 2 influences the scope of congressional authority under section 5 of the Fourteenth Amendment, which gives Congress the “power to enforce, by appropriate legislation, the provisions of this article.” Section 2, with its low threshold for violations (i.e., abridgment on almost any grounds) that trigger a relatively extreme penalty (reduced representation), illustrates the proper means/ends fit for congressional legislation passed pursuant to section 5 to address voting rights violations. Renewed focus on section 2 also sheds light on the textual and historical links between the Fourteenth and Fifteenth Amendments, links that provide a broad basis for Congress to regulate state and federal elections. Contrary to the Supreme Court’s recent decision in Shelby County v. Holder, this Article concludes that requiring preclearance of all electoral changes instituted by select jurisdictions under the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and thus is consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments.

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Severability & Electoral Silver Linings after Shelby, Citizens United, and Bennett

Ciara Torres-Spelliscy, Severability & Electoral Silver Linings after Shelby, Citizens United, and Bennett, Stetson University College of Law Research Paper No. 2013-11 (2013) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2322180.

Abstract:  This short essay addresses severability in recent U.S. Supreme Court cases about election law: Shelby County v. Holder, Citizens United v. FEC, and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. The glass is actually half full because the high court tends to leave most of the laws they are reviewing intact.

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The Causal Context of Disparate Vote Denial

Janai S. Nelson, The Causal Context of Disparate Vote Denial, 54 B.C. L. Rev. 579 (2013).

Abstract:  For nearly 50 years, the Voting Rights Act of 1965 and its amendments have remedied racial discrimination in the electoral process with unparalleled muscularity. However, modern vote denial practices that have a disparate impact on minority political participation increasingly fall outside the Act’s ambit. As judicial tolerance of disparate impact claims has waned in other areas of law, the contours of Section 2, arguably the Act‘s most powerful provision, have also narrowed to fit the shifting landscape. Section 2’s “on account of race” standard to determine discrimination in voting has evolved from one of quasi-intent determined by a totality of the circumstances, to a short-lived intent requirement, followed by an enhanced disparate impact analysis, culminating in a more recent standard that simulates proximate cause. This Article proposes a test for Section 2 vote denial claims that comports with the narrowing construction of disparate impact claims and reclaims the robust contextual analysis that the Voting Rights Act contemplates. The “causal context” test proposed here is anchored to the “core values” of Section 2 mined from the legislative history of the Act, particularly the “Senate factors.” The causal context analysis relies on proof of explicit or implicit bias, as well as circumstances internal and external to elections that give rise to disparate vote denial, without requiring proof of intent. This approach is historically consistent with the Act’s totality of the circumstances test and cognizant of courts’ increasing demands for proof of a causal link within disparate impact jurisprudence. Moreover, the proposed causal context analysis is consonant with recent federal proceedings evaluating the racially disparate impact of voter ID laws, voter purges, early voting restrictions, and other forms of modern vote denial.

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The SEC and Dark Political Money: An Historical Argument for Requiring Disclosure

Ciara Torres-Spelliscy, The SEC and Dark Political Money: An Historical Argument for Requiring Disclosure, Stetson University College of Law Research Paper No. 2013-16 (2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2282576.

Abstract:  In traveling across the country to talk about the impact of the Supreme Court’s 2010 decision in Citizens United, I frequently encounter resistance from audiences when I suggest that the Securities and Exchange Commission (“SEC” or the “Commission”) has a vital role to play in providing greater clarity about corporate money in the American political process. One version of this objection is: “you’re asking the wrong thing of the wrong agency.” This paper is meant to provide a fulsome explanation about why the SEC should continue its leadership in fighting pay-to-play corruption by requiring transparency of corporate political spending across the board.

Some may think regulating money in politics is outside the SEC’s wheelhouse. But this is a mistaken view. Contrary to common misconceptions, securities regulators had to grapple with the problem of corporate money in politics four decades before Citizens United. In actuality, the SEC has been sitting at the nexus of campaign finance law and corporate securities law since the mid-1970s. In addressing this issue, I first explore the investigations conducted by the SEC of public companies following the Watergate scandal, which revealed that corporate treasury funds had been given to President Richard Nixon’s 1972 reelection campaign. The SEC found that the money that went to Nixon’s campaign was just the tip of the iceberg. The SEC discovered that hundreds of American companies had made political payments to both political parties in American elections as well as significant payments to politicians abroad, much of these political payments were made secretly in ways that hid them from investors. Following this discovery, the SEC was instrumental in pushing Congress to pass the Foreign Corrupt Practices Act to require more corporate transparency as well as to outlaw bribery of foreign officials by US businesses.

The next major intervention of the SEC into the regulation of money in politics came in the 1990s when SEC Chair Arthur Levitt made fighting pay to play in the municipal bond market a top priority for the Commission. The SEC found that contracts to underwrite municipal bonds were often being awarded to those investment companies that had given sizable campaign contributions to state and local elected officials. Many investment companies, it appeared, were “paying to play” in the profitable municipal bonds market – essentially, rigging the awarding of government contracts. To stop this practice, the SEC through the Municipal Securities Rulemaking Board (MSRB) promulgated Rule G-37 to clamp down on pay-to-play corruption. Finally in 2010, after a string of further embarrassments in the public pension fund market sent numerous elected officials to jail for kickback schemes, the SEC acted again to curb pay to play in this market as well. This time the SEC promulgated Rule 206(4)-5, which restricts the amount of campaign money investment advisers can give to public officials in charge of investments for public pensions.

This piece argues that just as the SEC acted in these three previous cases to prevent corruption in the capital markets whether the source was foreign or domestic, federal state or local, the Commission likewise has a duty to step up to the plate to provide sensible new rules for corporate political spending again post-Citizens United. Citizens United is the Supreme Court case from 2010 which allow corporations to spend an unlimited amount of money in state and federal American elections. Already, millions of dollars that can be traced from publicly traded companies has been spent in the 2010 and 2012 federal and state elections. Unfortunately, there are hundreds of millions of dollars being spent in the federal election alone that cannot be traced. Investors and voters are left in the dark about how much of this money is from public companies.

This new era of corporate political spending raises a similar problem of transparency for investors as the previous three cases and threatens the integrity of our capital markets. This is why the SEC should act on Petition No. 4-637 to establish clarity of how much money is being spent by public companies for exactly which political causes, candidates and parties.

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Campaign Disclosure in Direct Democracy

Michael S. Kang, Campaign Disclosure in Direct Democracy, 97 Minn. L. Rev. 1700 (2013).

Abstract:  Not long ago, Justice Sandra Day O’Connor declared disclosure the “‘cornerstone’ to effective campaign finance reform,” but campaign disclosure laws now are under legal and political attack as never before. In several prominent cases, plaintiffs challenged campaign disclosure laws in direct democracy, alleging a likelihood of harassment as a result of compelled disclosure in today’s Internet age. Although the legal challenges so far have been unsuccessful, the Supreme Court has invited further challenges along the same lines on an as-applied basis. What is more, legal scholars who once universally agreed on disclosure’s value now call increasingly for scaling back compelled campaign disclosure. Campaign disclosure thus has emerged as a new front in election law, with direct democracy as the main battleground.
The new attacks on disclosure are explained by recent political and technological developments in campaign finance. On the political side, the sudden transformation of campaign finance law after Citizens United re-set the stakes for campaign finance reform by stripping away so much of longstanding campaign finance regulation, leaving disclosure laws as one of the most prominent regulatory elements still in place. Opponents of regulation once in favor of “deregulate and disclose” no longer feel compelled to settle for disclosure now that the “de-regulate” component of their former approach has already taken place. On the technological side, the Internet dramatically decreased the costs of acquiring disclosed information, which is now at the touch of a finger away from anyone with web access. The lower cost of information has made it simpler to pursue political opponents identified by their disclosed activity, particularly within the contentious single-issue politics of direct democracy.

In this Article, I argue that recalibration of campaign disclosure laws in direct democracy may well be advisable in light of these developments but are best addressed legislatively, not judicially. Legislatures are better positioned than courts to calibrate the extraction of useful information of voters against competing interests in privacy and potential harassment based on that compelled disclosure. Disclosure laws serve as an important source of voter information about the political merits of ballot measures by revealing their most intense and well-known supporters and opponents. In direct democracy, such in-formation is particularly helpful to voters in figuring out how to vote because the familiar voting cues upon which they rely in candidate elections, such as party identification and an incumbent’s past performance, are not as salient or simply unavailable.

What is more, broader privacy worries about campaign disclosure are, even in the Internet age, fairly limited as best we can tell so far. The low-grade chilling and harassment alleged in recent challenges to campaign disclosure laws in direct democracy are the type of generalized worry that any citizen is susceptible to suffer and amenable to redress through the political process. With the changing dynamics of campaign disclosure in the Internet age, courts should let legislatures do their jobs in adapting the law appropriately to a problem that they have proper incentives to monitor.

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Taking Opt-In Rights Seriously: What Knox v. SEIU Could Mean for Post-Citizens United Shareholder Rights

Ciara Torres-SpelliscyTaking Opt-In Rights Seriously: What Knox v. SEIU Could Mean for Post-Citizens United Shareholder Rights, 74 Mont. L. Rev. 101 (2013).

Abstract:  This article will explore the implications of the Supreme Court’s disparate treatment of similarly-situated, politically active corporations and unions. Two paths lead to more equitable treatment of these two groups: either (1) corporate political speech should be regulated more or (2) union political speech should be regulated less. This piece argues in favor of the former. In particular, corporate political spending lacks the transparency and consent mechanisms present in union political spending. Policymakers should address both of these failings in the corporate context.

The Roberts Supreme Court’s asymmetrical treatment of corporations and unions was on full display in the 2011–2012 term. American Tradition Partnership, Inc. v. Bullock coupled with Knox v. Service Employees International Union, Local 1000 demonstrates that a double standard persists between corporations, who are now privileged speakers in the Court’s eyes, and unions, who are currently disfavored speakers. The Supreme Court imposes different degrees of consent from corporations’ and unions’ constituent parts before they electioneer. Under U.S. law, corporations are not required to get consent from their shareholders before the corporate entity speaks politically using corporate funds. By contrast, public-sector unions must receive nonmembers’ consent before political spending in certain circumstances.

With the Supreme Court unlikely to change legal positions on this issue until the Court’s composition itself changes, the responsibility to foster more equitable regulations for corporations is left to the American electorate, Congress, the States, and executive agencies, such as the Securities and Exchange Commission (“SEC”), which must work within the boundaries of current precedent. The Supreme Court’s ruling in Knox requiring opt-ins for union political expenditures provides an additional basis for arguing that publicly traded American corporations should likewise marshal shareholder consent before corporate political expenditures are made.

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