Category Archives: Elections

‘Rhetoric and Reality’: Testing the Harm of Campaign Spending

Source: Rebecca L. Brown, Andrew D. Martin, USC Law Legal Studies Paper No. 15-10, March 23, 2015

From the abstract:
This is an empirical piece prepared for a conference entitled Testing the Constitution, held at the University of Chicago Law School. Brown and Martin collaborated to design a survey experiment aimed at testing some of the factual claims made by the Supreme Court in Citizens United v. FEC. The paper shows that there is a demonstrable harm to the electorate’s faith in democracy, and argues that these findings supply a government interest, separate from prevention of corruption, in regulating campaign spending.

Vulnerability in Numbers: Racial Composition of the Electorate, Voter Suppression, and the Voting Rights Act

Source: Ian Vandewalker, Keith Gunnar Bentele, Harvard Latino Law Review, Vol. 18, 2015

From the abstract:
In Shelby County v. Holder, the Supreme Court rendered one of the most potent antidiscrimination provisions of American law a dead letter: the preclearance regime of the Voting Rights Act of 1965 (VRA). Shelby County held that the formula determining which jurisdictions are required to obtain federal approval for voting law changes was outdated and offensive to states’ rights. The Court ignored ample evidence of discrimination in the covered jurisdictions, focusing instead on improvements in voter turnout and registration. We present new empirical evidence that the proposal and passage of restrictive voting laws, such as photo identification requirements and reductions of early voting opportunities, are associated with racial factors such as larger African American populations and increases in minority voter turnout. These results are consistent with the interpretation that restrictive voting laws have been pursued in order to suppress Democratic-leaning minority voters, and they are suggestive that racial discrimination is a contributing factor to this type of legislation. The increases in registration and turnout that Shelby County hailed as evidence that preclearance is no longer needed are actually risk factors for potentially discriminatory voting laws. We suggest opportunities for countering discrimination after Shelby County. The evidence we present is relevant to litigation under remaining provisions of the VRA, especially the prohibition on voting laws with a discriminatory effect under Section 2. Finally, we suggest that our findings should inform the Congressional response to Shelby County: a new coverage formula should include the racial characteristics we identify as risk factors.

States of Change: The Demographic Evolution of the American Electorate, 1974–2060

Source: Ruy Teixeira, William H. Frey, Rob Griffin, Center for American Progress, American Enterprise Institute, Brookings Institution, February 2015

From the summary:
10 big trends that are transforming America
The States of Change: Demographics and Democracy project is a collaboration supported by The William and Flora Hewlett Foundation that brings together the Center for American Progress, the American Enterprise Institute, and demographer William H. Frey of the Brookings Institution. The project’s goals are:
– To document and analyze the challenges to democracy posed by the rapid demographic evolution from the 1970s to 2060
– To project the race-ethnic composition of every state to 2060, which has not been done for 20 years
– To promote a wide-ranging and bipartisan discussion of America’s demographic future and what it portends for the nation’s political parties and policy

This report presents the first tranche of findings from this project—including detailed analyses on the nation as a whole and on every state—which we hope will both inform and provoke discussion. We outline 10 broad trends from our findings that together suggest the scale of the transformation our country is living through and the scope of the challenges it will face in the future.

These changes admit to a wide variety of interpretations, and as with any report as extensive as this one, it should not be surprising that there are some differences in interpretation among the participating institutions. We believe, however, that differing interpretations are to be welcomed and that they will be useful in stimulating discussion both within and outside our project on the implications of demographic change. ….
Interactive: The Demographic Evolution of the American Electorate, 1980–2060
Introduction & summary

Court-Ordered Campaign Finance Deregulation and Stock Value of Contributors

Source: Haishan Yuan, American Law and Economics Review, Advance Access, First published online: February 26, 2015
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From the abstract:
The Bipartisan Campaign Reform Act of 2002 addressed two issues, soft money and independent expenditures on issue ads for electoral advocacy. The Supreme Court initially upheld most provisions in 2003 but subsequently weakened and struck down provisions on independent expenditures. I examine the stock value of firms with a long history of campaign contributions around the key developments of three Supreme Court cases. Stock prices of contributing firms react positively to Court events associated with campaign finance deregulation. It implies that the average rates of return to these rights of political spending are between 1 and 2% of stock values.

Administering Section 2 of the VRA After Shelby County

Source: Christopher S. Elmendorf, Douglas M. Spencer, University of California – Davis, Legal Studies Research Paper No. 372, February 7, 2015

From the abstract:
Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, low-cost tool for blocking potentially discriminatory changes to election laws and administrative practices. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking changes before they take effect. This paper argues that the courts, in partnership with the Department of Justice, could reform Section 2 so that it fills much of the gap left by the Supreme Court’s evisceration of Section 5. The proposed reformation of Section 2 rests on two insights: first, that national survey data often contains as much or more information than precinct-level vote margins about the core factual matters in Section 2 cases; second, that the courts have authority to create rebuttable presumptions to regularize Section 2 adjudication. Section 2 cases currently turn on costly, case-specific estimates of voter preferences generated from precinct-level vote totals and demographic information. Judicial decisions provide little guidance about how future cases — each relying on data from a different set of elections — are likely to be resolved. By creating evidentiary presumptions whose application in any given case would be determined using national survey data and a common statistical model, the courts could greatly reduce the cost and uncertainty of Section 2 litigation. This approach would also end the dependence of vote-dilution claims on often-unreliable techniques of ecological inference, and would make coalitional claims brought jointly by two or more minority groups much easier to litigate.

Representing the Preferences of Donors, Partisans, and Voters in the U.S. Senate

Source: Michael Barber, Brigham Young University, This Draft: February 4, 2015

Why are legislators so polarized? This paper addresses this question by investigating the degree of ideological congruence between senators and constituents on a unified scale. Specifically I measure congruence between legislators and four constituent subsets—donors, co-partisans, supporters, and registered voters. To estimate the preferences of these groups I use a large survey of voters and an original survey of campaign contributors that samples both in- and out-of-state contributors in the 2012 election cycle. I find that senators’ preferences reflect the preferences of the average donor better than any other group. Senators from both parties are slightly more ideologically extreme than the average co-partisan in their state and those who voted for them in 2012. Finally, senators’ preferences diverge dramatically from the preference of the average voter in their state. The degree of divergence is nearly as large as if voters were randomly assigned to a senator. These results show that in the case of the Senate, there is a dearth of congruence between constituents and senators—unless these constituents are those who write checks and attend fundraisers.
A New Study Shows How Donors Distort Democracy
Source: Sean McElwee, Dēmos, Policy Shop blog, February 18, 2015

It’s early, but arguably the most important paper of the year has already been released. The author, Michael Jay Barber, finds persuasive evidence that those who donate more than $200 (.22% of the population in 2014), wield more influence over our political system than anyone else…..

Big business crushed ballot measures in 2014 – Corporate interests pump more than $200 million into initiative fights

Source: Liz Essley Whyte, Center for Public Integrity, Who’s Calling the Shots in State Politics?, February 5, 2015

Key findings:
– More than three-quarters of the $266 million given by the top 50 donors to ballot measure groups nationwide ahead of the 2014 elections came from corporations or business trade groups.
– Business interests among the top 50 donors were almost always successful, winning 96 percent of the time.
– Four out of every five dollars that the top contributing business groups gave to ballot measure fights went to the sides trying to defeat the proposals.
– Totaling $88 million, health care groups gave more than any industry among the top 50 donors. Casino companies were a close second, giving nearly $60 million across the nation to 2014 ballot measure fights.
– Five of the top 50 ballot measure contributors also gave big for elective office and were among the top 50 donors to races for state-level candidates: Wal-Mart Stores Inc., Sheldon Adelson, Michael Bloomberg, the California Democratic Party and the National Education Association teachers union.
States consider requiring shareholder approval for political gifts – Buzz for legislation growing among other states in wake of ‘Citizens United’ decision
Source: Liz Essley Whyte, Center for Public Integrity, Who’s Calling the Shots in State Politics?, February 17, 2015

National donors pick winners in state elections – Top 50 contributors dump $440 million into 2014 races
Source: Ben Wieder, Kytja Weir, Reity O’Brien, Rachel Baye, Center for Public Integrity, Who’s Calling the Shots in State Politics?, January 28, 2015

12 ways ‘Citizens United’ has changed politics – Center for Public Integrity investigations illuminate political ‘dark money’
Source: Michael Beckel, Jared Bennett, Center for Public Integrity, Primary Source, January 21, 2015

On Commercial – and Corporate – Speech

Source: Jonathan Weinberg, Wayne State University Law School Research Paper No. 2014-12, October 31, 2014

From the abstract:
Government, the Supreme Court has told us, has a lot of freedom to regulate commercial advertising on the ground that it’s false or misleading, but almost none to restrict its content on any other ground. That distinction isn’t justifiable; it never has been. But it relates to a parallel tension in the law’s treatment of speech by for-profit corporations. Both the law of commercial speech and the law of corporate speech are riven, rooted in foundational contradictions between the libertarian principles bound up in conventional first amendment philosophy and an alternative approach recognizing the ways private power distorts public discourse. Nuanced understanding of what commercial speech and corporate speech have in common, and what they are not, supports the conclusion that the Supreme Court is taking the law of commercial speech in the wrong direction.

Dear I.R.S., It Is Time to Enforce the Campaigning Prohibition. Even Against Churches

Source: Samuel D. Brunson, Loyola University Chicago School of Law Research Paper No. 2015-003, January 7, 2015

From the abstract:
In 1954, Congress prohibited tax-exempt public charities, including churches, from endorsing or opposing candidates for office. To the extent a tax-exempt public charity violated this prohibition, it would no longer qualify as tax-exempt, and the I.R.S. was to revoke its exemption.

While simple in theory, in practice, the I.R.S. rarely penalizes churches that violate the campaigning prohibition, and virtually never revokes a church’s tax exemption. And, because no taxpayer has standing to challenge the I.R.S.’s inaction, the I.R.S. has no external imperative to revoke the exemptions of churches that do campaign on behalf of or against candidates for office.

This argument makes the normative case that, notwithstanding the I.R.S.’s administrative discretion and the inability of taxpayers to challenge its nonenforcement in court, the time has come for the I.R.S. to begin enforcing the campaigning prohibition. Failing to do so harms the Rule of Law, the taxpaying public, and churches themselves. Moreover, the moment is correct for enforcement, as Pulpit Freedom Sunday has virtually eliminated the I.R.S.’s search costs, people are more aware than ever that churches are violating the prohibition, and, in the aftermath of the Supreme Court’s Citizens United decision, the campaigning prohibition may represent the final regulatory barrier between charities and politicking.

Even if enforcing the campaigning prohibition is the right thing to do, it would potentially be unpopular, and could provoke a backlash against the I.R.S. After making the normative case for enforcement, then, this Article provides a strategy for enforcement that will allow the I.R.S. to explain what it is doing and why to the general taxpaying public, and will further permit the I.R.S. to avoid the appearance of partisanship. Ultimately, enforcement will allow the I.R.S. to responsibly administer the tax law, will permit the question of the prohibition’s constitutionality to get in front of the judiciary, and will demonstrate dedication to the Rule of Law.