Category Archives: Elections

Of Constituents and Contributors

Source: Richard Briffault, Columbia Public Law Research Paper No. 14-435, January 14, 2015

From the abstract:
In the stirring conclusion to his opinion in McCutcheon v. FEC, Chief Justice Roberts pointed to the close connection between campaign contributions and what he called the “political responsiveness at the heart of the democratic process.” Invoking Edmund Burke, the Chief Justice eloquently declaimed that “[c]onstituents have the right to support candidates who share their views and concerns. Representatives…can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the concept of self-governance.” ….. The Chief Justice is surely right that campaign contributions are a way to make officeholders “responsive.” But as Shaun McCutcheon’s donations and intended donations demonstrate, constituents and contributors are not the same people. Making elected representatives more responsive to contributors will not make them more responsive to their constituents.

This article explores some aspects of the constituent-contributor relationship. It finds that non-constituents provide the bulk of itemized individual contributions in contemporary congressional races and play a large part in financing many state and local elections, too. In effect, contributors, including outsiders, have become another constituency for our elected representatives. This creates important tensions for the American system of territorially-based representation based on residents voting in state, local and district elections, as contributors and constituents can have very different interests and concerns. To be sure, with the growing nationalization and partisanship of elections, outsiders may have a strong subjective interest in a state or local race in a distant jurisdiction even if, objectively, they are not governed by the results. But outsider financing inevitably complicates the responsiveness of elected representatives to the electoral constituents they are supposed to represent.
A few jurisdictions have tried to reduce the role of outside money in state and local elections. State limits on outsider contributions have been generally, albeit not uniformly, struck down and are almost certainly unconstitutional. However, state and local public financing systems that make candidate eligibility for public funds contingent on raising small donations from constituents are a constitutional means of ameliorating the impact of outside money.

The Chief Justice’s peroration is striking in going beyond the free speech argument – the McCutcheon’s right to use money to speak to candidates – which has been central to the current Supreme Court’s critique of campaign finance restrictions and makes the case for relaxing contribution limits in terms of the responsiveness of elected officials to donors. The argument that contributions affect the responsiveness of elected officials is more commonly a position taken by critics of the role of large campaign contributions in our system not supporters. Not only does the Chief Justice’s contention that striking down the aggregate limits will promote accountability to a representative’s constituency fail to persuade, it actually underscores exactly what many people find troubling about our campaign finance system. To the extent large donations make representatives more attentive to their donors, they undermine the very responsiveness to the electoral constituency which the Chief Justice celebrates as “key to the concept of self-governance.” The Chief Justice tried to add self-government to free speech in making the case against campaign finance regulation, but an examination of the constituency-contribution relationship to which his rhetoric calls attention actually demonstrates the tension between the Court’s program of campaign finance deregulation and democratic self-government.

Black Turnout & the 2014 Midterms

Source: Andra Gillespie, Tyson King‐Meadows, October 29, 2014

From the blog post:
Today the Joint Center for Political and Economic Studies released Black Turnout & the 2014 Midterms by Professors Andra Gillespie and Tyson King-Meadows, which examines the impact of black voters in determining competitive U.S. Senate and Governors’ races in thirteen states.

Key Findings:
∙ Black voters are a critical component of the electorate in eight competitive U.S. Senate contests (AR, CO, GA, KS, KY, LA, MI, NC) and nine competitive gubernatorial contests (CO, CT, FL, GA, IL, KS, MD, MI, WI).
∙ While black voter share generally declines in midterm elections, in five of the competitive states the black voter share was higher in the 2010 midterms than in the 2008 presidential (CT, FL, GA, IL, LA).
∙ Among the competitive states, AR, KS, and KY had the lowest voting rates among black voters in the 2010 midterms.
∙ MI, WI, NC, and KY witnessed the steepest declines in black voter turnout from 2008 to 2010 among the competitive states.
∙ If the black vote share in 2014 is identical to that in the 2010 midterms, 2014 will be a challenging year for Democrats.
∙ A highly mobilized black Democratic voting bloc would make it numerically possible for Democrats and Independent candidates to win outright majorities in U.S. Senate races in CO, MI, and KS, and gubernatorial races in MD and IL, and possibly FL and KS.

Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule

Source: Gabriel J. Chin, University of California, Davis – Legal Studies Research Paper No. 411, October 6, 2014

From the abstract:
In Shelby County v. Holder, the Supreme Court invalidated Section 4 of the Voting Rights Act of 1965, which required certain jurisdictions with histories of discrimination to “preclear” changes to their voting practices under Section 5 before those changes could become effective. This Article proposes that Congress ground its responsive voting rights legislation in the Constitution’s Guarantee Clause, in addition to the Fourteenth and Fifteenth Amendments. The Court has made clear that the Guarantee Clause is a power granted exclusively to Congress and that questions of its exercise are nonjusticiable. It is also clear from the Federalist Papers and from scholarly writing – as well as from what little the Court has said – that the purpose of the Guarantee Clause is to protect majority rule. That is precisely what was at issue after the Civil War when Congress first used the Guarantee Clause to protect African American votes. As an absolute majority in three states and over forty percent of the population in four others, African Americans possessed political control when allowed to vote; when disenfranchised, they were subjected to minority rule. African Americans are no longer the majority in any state. But in a closely divided political environment, whether African Americans and other minorities can vote freely may be decisive in many elections. For this reason, Congress could legitimately ground a revised Voting Rights Act in the Guarantee Clause, and the Court should treat its validity as a nonjusticiable political question committed by the Constitution to Congress.

The Battle to Protect the Vote: Voter Suppression Efforts in Five States and Their Effect on the 2014 Midterm Elections

Source: Ben Jealous and Ryan P. Haygood, Center for American Progress, December 2014

From the summary:
….The question that every American should ask is: How can we collectively encourage more people to participate in the political process? Instead of embracing this important principle of inclusion, however, too many states have recently sought to make it harder for Americans to vote in the 2014 elections through concerted legislative efforts or policy decisions. Today, the United States is experiencing an assault on voting rights that is historic in its scope and in its intensity….

….This report focuses on the impact of voting restrictions in Texas, Alabama, North Carolina, Virginia, and Georgia, listed in order of the number of negatively affected voters, for the following reasons:
∙ Citizens of color in each of these states participated in the past two presidential elections in record numbers and comprised a larger share of the eligible voting population than ever before.
∙ The data provided by the 2010 Census demonstrate that communities of color in these states—and eligible voters within those populations—are expanding rapidly and are on track to continue this accelerated growth for the foreseeable future.
∙ Each state introduced at least one new restrictive voting law or voter suppression policy that applied in the 2014 elections and disproportionately affected people of color.
∙ Four of these five states—with the exception of North Carolina—experienced sharp decreases in voter turnout from the 2010 midterm elections, likely due, at least in part, to these laws making it harder to vote in 2014.

To combat these challenges, this report proposes that Americans who value and seek to safeguard the fundamental right to vote for all citizens take the following actions:
∙ Urge lawmakers to repeal the various laws that suppress the vote
∙ Urge Congress to immediately restore Section 4(b) of the Voting Rights Act by passing the Voting Rights Amendment Act
∙ Closely monitor and report voter suppression to the appropriate authorities and groups, including the NAACP Legal Defense Fund
∙ Engage in massive voter registration as a potential antidote to massive voter suppression….

Political Activity Limits and Tax Exemption: A Gordian’s Knot

Source: Roger Colinvaux, Catholic University of America (CUA) – Columbus School of Law, September 12, 2014

From the abstract:
The article considers the correct tax treatment of organized political activity by the tax system and discusses the problems that have arisen from political activity depending on whether the organization is a charity, a noncharitable exempt, or a political organization. The article then examines administrative and legislative options to the problems raised by political activity. Quantum-based solutions to the problem of political activity by noncharitable exempts do not provide a clear advantage over present law. Formally quantifying the “primarily” test would result in more certainty, but would also require that the Service be more, not less, involved in the regulation of political activity. If the policy goal is to curb political activity by noncharitable exempts, changing the test from “primarily” to something more restrictive like “substantially” or “exclusively” would be effective, but would create new categories of taxable nonprofits that are treated worse than political organizations for engaging in less political activity, which is irrational. Further, it is not clear, especially after the Citizens United decision, why as a matter of tax exemption the regulations decree that political activity may not further noncharitable exempt purposes. Before Citizens United, the political activity limits were not especially relevant, but at least helped to differentiate organization types. However, Citizens United largely rendered existing tax law limitations obsolete by making a new kind of multi-purpose organization possible. As a result, definitional political activity limits are no longer justified and should be eliminated, but only if the 527(f) tax on investment income remains vital and the differences in the disclosure regimes between political organizations and noncharitable exempts are erased. In addition, Congress should affirm that the gift tax does not apply with respect to political contributions, but also extend the income tax to transfers of appreciated property to noncharitable exempts. Further, Congress should acknowledge that the increase in political speech by noncharitable exempts will lead to abuse of charitable organizations, and take steps to prevent the laundering of independent expenditures through the charitable form. Congress also should recognize that Citizens United has led to a need to develop a new tax baseline for political activity conducted “for profit” or outside of section 527.

Partisan Gerrymandering and the Efficiency Gap

Source: Nicholas Stephanopoulos, Eric McGhee, University of Chicago, Public Law Working Paper No. 493, October 2014

From the abstract:
The usual legal story about partisan gerrymandering is relentlessly pessimistic. The courts did not even recognize the cause of action until the 1980s; they have never struck down a district plan on this basis; and four sitting Justices want to vacate the field altogether. The Supreme Court’s most recent gerrymandering decision, however, is the most encouraging development in this area in a generation. Several Justices expressed interest in the concept of partisan symmetry — the idea that a plan should treat the major parties symmetrically in terms of the conversion of votes to seats — and suggested that it could be shaped into a legal test.

In this Article, we take the Justices at their word. First, we introduce a new measure of partisan symmetry: the efficiency gap. It represents the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. It captures, in a single tidy number, all of the packing and cracking decisions that go into a district plan. It also is superior to the metric of gerrymandering, partisan bias, that litigants and scholars have used until now. Partisan bias can be calculated only by shifting votes to simulate a hypothetical tied election. The efficiency gap eliminates the need for such counterfactual analysis.

Second, we compute the efficiency gap for congressional and state house plans between 1972 and 2012. Over this period as a whole, the typical plan was fairly balanced and neither party enjoyed a systematic advantage. But in recent years — and peaking in the 2012 election — plans have exhibited steadily larger and more pro-Republican gaps. In fact, the plans in effect today are the most extreme gerrymanders in modern history. And what is more, several likely will remain extreme for the remainder of the decade, as indicated by our sensitivity testing.

Finally, we explain how the efficiency gap could be converted into doctrine. We propose setting thresholds above which plans would be presumptively unconstitutional: two seats for congressional plans and eight percent for state house plans, but only if the plans probably will stay unbalanced for the rest of the cycle. Plans with gaps above these thresholds would be unlawful unless states could show that the gaps either resulted from the consistent application of legitimate policies, or were inevitable due to the states’ political geography. This approach would neatly slice the Gordian knot the Court has tied for itself, explicitly replying to the Court’s “unanswerable question” of “how much political…effect is too much.”

Rethinking Transparency in U.S. Elections

Source: Rebecca Green, William & Mary Law School Research Paper No. 09-287, November 3, 2014

From the abstract:
Bush v. Gore catapulted this country into a crisis of confidence in the management of our elections. Despite reforms since 2000, public confidence in election administration continues to wane. Are dead people on the rolls? Are non-citizens voting? Are provisional ballots wrongly rejected? State election transparency statutes meant to reassure the public that elections are producing legitimate results are often conflicting, vague, and even nonexistent. Exacerbating the problem, the last two decades have witnessed huge changes that offset the transparency balance. Dramatic changes in how Americans vote, how elections are administered, and who scrutinizes the election process call for a recalibration of election transparency norms. It is not immediately clear, as some are beginning to sense, that unqualified openness serves the fundamental goals of election transparency, that reactive access policies boost public confidence, or that current state transparency architectures tap the full potential technology offers. Circumstances demand not just statutory revision, but revisiting traditional assumptions about election transparency to accommodate radically changed circumstances. This paper contains a proposal pairing an increase in public access to election materials with penalties for harmful uses of election data. We have an opportunity to craft a modern transparency regime trained on the core goal of ensuring public confidence in election outcomes. Developing state transparency regimes that address – and take advantage of – modern realities is critical in an era when election controversy is the new normal.

Political Polarization as a Social Movement Outcome: 1960s Klan Activism and Its Enduring Impact on Political Realignment in Southern Counties, 1960 to 2000

Source: Rory McVeigh, David Cunningham, Justin Farrell, American Sociological Review, Published online before print October 31, 2014
(subscription required)

From the abstract:
Radical social movements can exacerbate tensions in local settings while drawing attention to how movement goals align with political party agendas. Short-term movement influence on voting outcomes can endure when orientations toward the movement disrupt social ties, embedding individuals within new discussion networks that reinforce new partisan loyalties. To demonstrate this dynamic, we employ longitudinal data to show that increases in Republican voting, across several different time intervals, were most pronounced in southern counties where the Ku Klux Klan had been active in the 1960s. In an individual-level analysis of voting intent, we show that decades after the Klan declined, racial attitudes map onto party voting among southern voters, but only in counties where the Klan had been active.

Fixed Fortunes: Biggest corporate political interests spend billions, get trillions

Source: Sunlight Foundation, November 2014

From the blog post:
Between 2007 and 2012, 200 of America’s most politically active corporations spent a combined $5.8 billion on federal lobbying and campaign contributions. A year-long analysis by the Sunlight Foundation suggests, however, that what they gave pales compared to what those same corporations got: $4.4 trillion in federal business and support.

That figure, more than the $4.3 trillion the federal government paid the nation’s 50 million Social Security recipients over the same period, is the result of an unprecedented effort to quantify the less-examined side of the campaign finance equation: Do political donors get something in return for what they give?

Four years ago, the U.S. Supreme Court suggested the answer to that question was no. Corporate spending to influence federal elections would not “give rise to corruption or the appearance of corruption,” the majority wrote in the landmark Citizens United v. Federal Election Commission decision.

Sunlight decided to test that premise by examining influence and its potential results on federal decision makers over six years, three before the 2010 Citizens United decision and three after.

We focused on the records of 200 for-profit corporations, all of which had active political action committees and lobbyists in the 2008, 2010 and 2012 election cycles — and were among the top donors to campaign committees registered with the Federal Election Commission. Their investment in politics was enormous. There were 20,500 paying lobbying clients over the six years we examined; the 200 companies we tracked accounted for a whopping 26 percent of the total spent. On average, their PACs, employees and their family members made campaign contributions to 144 sitting members of Congress each cycle….

…For example, the federal government issued contracts to purchase goods and services that totaled a little more that $3 trillion during the period; companies among the top 200 corporate political givers won $1 trillion of that, a third of the total. The Treasury Department managed $410 billion in loans and other assistance issued under the Troubled Asset Relief Program, created by Congress to cope with the 2008 financial crisis; of that amount, $298 million, about 73 percent, went to 16 firms among the Fixed Fortune 200. When the Federal Reserve took extraordinary measures in the wake of the 2008 financial crisis, it funneled nearly $2.8 trillion through 29 Fixed Fortune firms. The companies that participated the most in politics got huge returns.

Of the 200 corporations we examined, we could sum the financial rewards for 179. Of those, 138 received more from the federal government than they spent on politics, 102 of them received more than 10 times what they spent on politics, and 29 received 1,000 times or more from the federal government than they invested in lobbyists or contributed to political committees via their employees, their family members and their PACs…..

Empirically Measuring the Impact of Photo ID Over Time and Its Impact on Women

Source: Michael J. Pitts, Indiana University Robert H. McKinney School of Law Research Paper No. 2014-29, August 12, 2014

From the abstract:
This article is part of a series of studies related to the impact of Indiana’s photo identification law during the two presidential election cycles at which it has been implemented — 2008 and 2012. This article tracks the number of provisional ballots cast and not counted because of a lack of voter identification at Indiana’s 2012 general election. Importantly, this article also addresses an argument against photo identification laws that has became more prominent in recent years — the idea that photo identification laws disparately disfranchise female voters. This article addresses that argument by tracking the gender of those persons who cast provisional ballots due to a lack of valid photo identification — something that does not seem to have been previously done anywhere in the literature. While the research presented here allows for several conclusions, the most important of those conclusions are as follows. First, Indiana’s photo identification law has a relatively small (in relation to the total number of ballots cast) overall actual disfranchising impact on the electorate. Second, Indiana’s photo identification law’s actual disfranchising impact seems to be headed in a downward direction when one compares data from the 2012 general election to the 2008 general election. Third, Indiana’s photo identification law appears to have a disparate impact on women.