Second Brennan Center Event on Plutocrats United

On January 21, 2016, a lunch workshop, by invitation, may interest academics, law students, and policy folks, and it will feature Yasmin Dawood, Janai Nelson, Nick Stephanopoulos and Rick Hasen:

Plutocrats United - A Brennan Center Workshop

Thursday, January 21, 2016 - 12:00 p.m. – 2:30 p.m.

Brennan Center for Justice
161 Avenue of the Americas, 12th Floor
New York, NY 10013

In October 2015, the New York Times reported that just 158 families contributed nearly half of all early money in the 2016 Presidential race. A Princeton political scientist recently concluded that the preferences of most Americans rarely are reflected in government policy.

Against this challenging terrain, the time has come for a fundamental rethinking of how we approach campaign finance regulation. On January 21, 2016, the Brennan Center will host an invitation-only workshop to discuss Professor Rick Hasen’s most recent contribution to the debate, his forthcoming new book Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections. He will be joined by several other leading academics in the field.

In Plutocrats, Hasen explores how our campaign finance system reduces political equality and diminishes democracy. He argues that advocates on all sides have misunderstood the greatest challenge posed by Citizens United, the need to balance political inequality with free speech. With the goal of promoting creative and practical thinking, the invitation is to a diverse group of advocates, activists and academics to discuss these critically important and timely issues.

To request an invitation, contact Ava Mehta at ava.mehta@nyu.edu or (646) 292-8371.











NYC Wins When Everyone Can Vote! Michael H. Drucker

Congress Starts Discussion On New Preclearance Rules

My take on the Hill reporting on the prospect that Congress might create new rules for Section 4 of the Voting Rights Act.  The old Section 4 was suspended by the U.S. Supreme Court in June, 2013.  According to the article, there is support among some Democrats and Republicans for a bill to enact new rules for Section 4, the Preclearance rules.

Section 4 was the part of the Act that determined which parts of the nation are subject to Section 5, the Preclearance requirement.  The original act, passed in 1965, said certain parts of the country that had a bad record on voting rights must get permission from the Justice Department before changing any election laws.  Section 5 is still intact, but it has no practical usefulness if there is no rules on which parts of the country should be included in Section 5.

Both chambers are working behind the scenes to draft legislation to re-install the Voting Rights Act protections.  But in a sign of the delicate nature of the topic, Senate Democrats are taking care not to rush ahead of the House, for fear of sinking the bill's chances in the GOP-controlled lower chamber.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) is working with House Democrats and a small contingent of House Republicans, notably former Judiciary Chairman Jim Sensenbrenner(Wis.), who championed the 2006 Voting Rights Act re-authorization, in an effort to defuse the partisan politics surrounding the thorny issue and forge a bill that has the best chance of becoming law.

Leahy said he'd hoped a July hearing on the Voting Rights Act, which featured testimony from Sensenbrenner and Rep. John Lewis (D-Ga.) the civil rights hero, would have propelled the debate and made the case for bipartisan support of a fix.

But the August recess, the arrival of the Syria crisis and the fight over the government shutdown have all intervened to slow the process, and the negotiators have yet to produce even a draft bill.

Sensenbrenner has been vocally supporting a legislative response to the Supreme Court's Voting Rights Act decision, which found that the decades-old formula dictating which states must get federal approval to change election laws is outdated and therefore unconstitutional.

But he could have a powerful ally in House Majority Leader Eric Cantor (R-Va.), who has signaled support for a response to the high court's ruling.  Before the August recess, Cantor had met one-on-one with Lewis to discuss the subject, and Lewis said afterwards that the Virginia Republican is "by all means" supportive of a legislative fix.  Cantor continues to meet with members of both parties in the hopes of finding a positive path forward regarding the Voting Rights Act.

Rep. Bobby Scott (D-Va.), a member of the Congressional Black Caucus and one of the leaders in the effort to rewrite the Voting Rights Act, suggested last week that a draft bill will be finalized near mid-November.  Pushing the debate to next year, Scott warned, risks entangling the debate in the tough politics of the mid-terms.

My solution is to make the Preclearance issue part of the Census and take it out of Congressional hands.  The test rules should also always include any new schemes that would put barriers to eligible voters from exercising their voice.

Every ten years all states are "Bailed-In", and they have 90 days to submit their prior 10 years voting records.  Those states that prove they have complied would then be able to "Bail-Out".  This should be done before redistricting begins.

In the meantime, we could institute this Jan. 2014 before the mid-term election process begins.

What do you think of this idea?










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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Citizen United Round 2 or McCutcheon is Corruption

The Supreme Court is hearing a campaign finance case called McCutcheon v. FEC. or as some are calling it, Citizen United Round 2.  McCutcheon could strike down aggregate donation limits for political campaigns.  How many people do you know who are running up against the “limitation” of donating no more than $117,000 every two years!?

Activists from Represent.Us were out in force at the Supreme Court for the opening of oral arguments in McCutcheon v. FEC.


Ernest Van Derr Bribes Speaks at SCOTUS

The American Anti-Corruption Act will make cases like McCutcheon irrelevant.

DEMANDS TO THE U.S. SUPREME COURT:

- The 2010 Citizens United ruling has had disastrous effects on our country.

- We The People demand that you use your power to represent us and preserve the few election-spending laws still in place.

- Rule against McCutcheon and protect free and fair elections in America.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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SCOTUS Overturn of Section 4 and 2013 NYC Primary

Now that the Supreme Court has struck down Section 4, preclearance, the changes made by the New York Legislature for just the 2013 Primary and Runoff will not need approval by the Justice Department.

So the following will happen:

1. The old lever machines will be used that have no way to verify the vote or do a recount.

2. The New York City Police Department, an executive agency of the Mayor, has been cut out of the reporting process. Election workers will upload the results directly to the New York City Board of Elections website, making the data available immediately. Under the old system, results would go to police precincts and then be distributed to the Associated Press. Now, the AP is no longer the gatekeeper.

"The news media and then the general public will have access in real time, as the election results come in from each poll site," said Manhattan Assemblyman Brian Kavanagh.

Do you see problems with this process?










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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How Congress Can Overrule Citizens United

This is from an article by Bruce Ackerman and Ian Ayres, professors of law at Yale, and the authors of Voting with Dollars: A New Paradigm for Campaign Reform.

The president should call upon Congress to pass a statute that forces the Supreme Court to reconsider its extreme position in Citizens United.

Justice Kennedy explicitly says that it "surely" would be a "cause for concern" if "elected officials succumb to improper influences from independent expenditures." He simply found that Congress hadn't established that improper influence was a real problem, and even suggested that he would give "due deference" to such a finding.

The president should call on the House and Senate to take up Kennedy's invitation. Congress no longer needs to speculate on how "independent" Super PACs, controlled by each candidate's loyalists, might degrade our politics. The latest figures already show Super PACs allied with Republican presidential candidates have collected $70 million -- almost half the $155 million the candidates have collected on their own. In the cases of Newt Gingrich and Rick Santorum, the "independent" Super-PAC is the dominant financial player. If Mitt Romney fails to win a clear majority by the time he gets to Tampa, the financial backers of these minority candidates will have real weight in defining the deal that puts Romney over the top. With Obama joining the fray, Super PACs will be playing a very large role in the general election as well.

While this is inevitable, the president should call for a statute that urges the Supreme Court to make this the last election that lurches toward plutocracy. Congress should pass a law that puts the Court on notice of emerging realities. After formally finding the facts, the statute should grant the Attorney General standing to urge the judiciary to issue a declaratory judgment repudiating Citizens United in the light of changed conditions.

Congress has used this strategy before. Section Ten of the Voting Rights Act of 1965 took aim at the Breedlove case, in which the Supreme Court had squarely upheld the poll tax in federal elections. Section Ten responded by finding, after lengthy hearings, that the tax "imposes unreasonable financial hardship" and "precludes persons of limited means from voting." It then directed the Attorney General to urge the Justices to overrule Breedlove in the light of its factual findings. On signing the act, President Johnson followed through, announcing that "tomorrow at 1 p.m., the Attorney General has been directed to file a lawsuit challenging the constitutionality of the poll tax."

The strategy proved remarkably successful. While lower courts generally treat Supreme Court precedent as binding, the Justice Department used the Congressional findings to convince the courts of appeal to ignore Breedlove and declare the poll tax unconstitutional. The Supreme Court then dealt the final blow by declaring all poll-taxes unconstitutional in its landmark decision of Harper v. Board of Elections. The Court announced its decision just as the Section ten cases were reaching its docket. But its great turnaround cannot be understood without recognizing the role of Congress and the president in shifting the terms of the constitutional debate.

Congress should take the same path today. Perhaps the five judge majority in Citizens United will be unimpressed by Congress' statement of real-world facts, and its assessment of the dangers of pervasive corruption that lie ahead.

But perhaps not. It is very likely that Justice Kennedy simply didn't predict the revolutionary implications of his decision. While constitutional revolutionaries like Clarence Thomas or Antonin Scalia might dismiss Congressional findings, Justice Kennedy is of a Burkean disposition -- attentive to the facts, and reluctant to endorse radical change. If given the opportunity, he may well lead the Court to rethink Citizen's United basic premises.

It is in nobody's interest to see the Court's legitimacy damaged as Super PACs increasingly erode Americans' fundamental commitment to democracy. The Court should be given a second-chance to engage in a collaborative effort with the president and Congress to define the meaning of free speech after confronting the hard truths of American politics.









NYC Wins When Everyone Can Vote!

Michael H. Drucker
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The Constitution and The Supreme Court

In January 2010, in a stunning reversal of the nation's federal campaign finance laws, the Supreme Court ruled 5-4 that free-speech rights permit groups like corporations and labor unions to directly spend on political campaigns, and also struck down part of the landmark McCain-Feingold campaign finance bill that barred union- and corporate-paid issue ads in the closing days of election campaigns.

Siding with filmmakers of "Hillary: The Movie," who were challenged by the Federal Election Commission on their sources of cash to pay for the film, the court overturned a 20-year-old ruling that banned corporate and labor money. The decision threatens similar limits imposed by 24 states.

I am reading "Scorpions" by Noah Feldman, which is about the battles and triumphs of FDR's Supreme Court Justices. I am in the period of October, 1937 when Justice Hugo Black takes the bench. From chapter 15 - Original Intent:

Black's very first independently authored dissent, in an otherwise obscure tax case, already contained the seeds of what would become Black's immensely influential theory of constitutional law: that the text of the Constitution means what it originally intended to mean. This is the philosophy known as originalism. Black's version of this philosophy was that the original meaning should be found by looking at the text of the Constitution as it would have been publicly understood when written. It guided his pen from the very first months he arrived on the Court and for the next thirty-four years. Although earlier justices had occasionally used historical materials to argue about the original meaning of this or that provision of the Constitution, Hugo Black was the first justice to frame originalism as a definitive constitutional theory and to explain why and how he was using it. In this sense, Black was the inventor of originalism.

The case in which Black rolled out his theory was brought by a Connecticut-based insurance company that had been taxed in California and wanted the Court to find the out-of-state tax unconstitutional. The other eight justices saw the case as routine, and they held in favor of the Connecticut company. Black, though, disagreed. The Constitution, he declared, did not protect corporations-only people.

His reason was simplicity itself: The due process clause of the Fourteenth Amendment gave the rights only to persons. "I do not believe the word 'person' in the Fourteenth Amendment includes corporations," Black wrote. To include corporations was to invent new rights, rights that had, "a revolutionary effect on our form of government." Black was alluding to the Lochner era, when the justices has invented the liberty of contract to protect corporations and their property. He was saying that all this could have been avoided if the justices has only followed the original intent of the Constitution. Black's opinion flew in the face of precedent dating back to 1886: but Black did not care. "A constitutional interpretation that is wrong should not stand," he insisted.

I always believed the court was made up of humans, men and women who can make mistakes, takes in the current political and social climate, and can be convinced to reverse precedent. What is interesting is this issue has be bounced back and forth since 1886.









NYC Wins When Everyone Can Vote!

Michael H. Drucker
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