Brennan Center: Federal Contractors Should Disclose Political Spending

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Ahead of the 2016 election entering full swing, President Obama should mandate disclosure of political spending by government contractors to boost public confidence in government, argues a new Brennan Center analysis issued today.

Since 2010’s Citizens United decision, dark money spending — by groups that conceal their donations from the public — has risen dramatically. The trend raises troubling questions about whether the public can effectively assess the influence of big donors on individual candidates’ policy positions. When it comes to those seeking government contracts, the opportunity for political corruption is even greater and could cost taxpayers millions, according to Requiring Government Contractors to Disclose Political Spending.

In fiscal year 2014, the federal government spent approximately $460 billion on private sector contractors, almost 40 percent of which went to just 25 companies. With so much money at play, the impetus to court politicians with power over those contracts is obvious – as is the American public’s interest in transparency.

“Whether pay-to-play activity is rampant in federal contracting today is unclear because so much federal election spending remains secret,” wrote authors Brent Ferguson, Lawrence Norden, and Daniel Weiner, “Without disclosure, such conduct will remain immune from routine public scrutiny – at least until the next major scandal comes to light. President Obama should use his authority to mandate federal contractors disclose their election spending, in order to ensure taxpayers are getting the best value for their dollars, and head off any potential improprieties that could create opportunities for corruption.”

The authors stress that an Executive Order must be issued soon if it is to be implemented before the 2016 election. More than 50 rallies are planned throughout the country on April 2, calling for President Obama to issue the executive order.

Read the full analysisRequiring Government Contractors to Disclose Political Spending.

Read more about the Brennan Center’s work on money in politics.

New Paper: “Applying Citizens United to Ordinary Corruption”

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We wanted to put the spotlight this Monday on an academic paper titled, “Applying Citizens United to Ordinary Corruption.”

The paper, which is authored by George D. Brown of the Boston College Law School, will soon be featured in the Notre Dame Law Review.

Here’s what the author had to say in the paper’s abstract:

Federal criminal law frequently deals with the problem of corruption in the form of purchased political influence. There appear to be two distinct bodies of federal anti-corruption law — one concerning campaign finance regulation, and one addressing corruption in the form of such crimes as bribery, extortion by public officials, and gratuities to them. The latter body of law presents primarily issues of statutory construction, but it may be desirable for courts approaching these issues to have an animating theory of what corruption is and how to deal with it. At the moment, the two bodies of law look like two ships passing in the night.

The Supreme Court has rendered important decisions in both areas. However, it is only in the campaign finance cases that the Court has articulated a vision of corruption. A well-known recent example is the 2010 decision in Federal Election Commission v. Citizens United. There the Court stated that “influence” and “access” brought about through campaign support, including contributions, are not corruption. The Court appears to embrace a narrow view of what is corruption, tied closely to the concept of quid pro quo.

This Article raises the question whether cases such as Citizens United and other campaign finance decisions should have generative force outside the electoral context. I contend that they should not — that preventing purchased political influence, whether generalized or particularized, is central to the federal anti-corruption enterprise. The matter is presented both on a theoretical level, and through examination of Supreme Court cases in what might be called the field of “ordinary corruption.” This examination yields an unclear picture. Some cases appear to be in harmony with the campaign finance decisions, raising the possibility that the Court does hold a unified view of corruption. However, the decision in Evans v. United States embraces a broad view of corruption in construing a key federal statute: the Hobbs Act. Evans has had extraordinary generative force in the lower federal courts. In particular, they have diluted any requirement of specificity in the concept of quid pro quo by emphasizing the presence of a “stream of benefits” as a means of securing somewhat generalized influence with public officials. The lower courts have thus reached results that further broad anti-corruption goals while ignoring intimations of a narrow view in the campaign finance cases. To the extent that the Supreme Court may extend this narrow view to ordinary corruption, the result could, as it has in the past, be a major ruling reining in the lower courts. The two ships would, in effect, collide.

Want to read more? Know this: You don’t have to wait until the law review is published to read the 45-page document, which is available by download here.

Voting in Pennsylvania’s Primary? Know These Dates

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In Pennsylvania, the primary election will be held on May 19. If you plan to vote in it, you should be aware of the registration deadlines.

As a rule of thumb: In Pennsylvania, the deadline to register to vote is 30 days prior to each election. Applications received after that date will be processed for the next primary, special, municipal or general election.

Want to vote via absentee ballot? To vote by absentee ballot, you must apply to the County Board of Elections for an absentee ballot. The County Board of Elections will send a paper absentee ballot to you to fill out and return.

In Pennsylvania, the County Board of Elections must receive your application for absentee ballot no later than 5 p.m. on the Tuesday before the election. In emergency situations (such as an unexpected illness or disability) you can submit an Emergency Application for Absentee Ballot, which must be submitted no later than 5 p.m. on the Friday before Election Day.

Want to learn more about voting, registration and deadlines in Pennsylvania? Click here!

absentee ballots must be received by 5 p.m. on the Friday before Election Day.

New Academic Paper Explores Harm of Campaign Spending

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A draft paper published this week on the Social Science Research Network explores what, if any, there is to campaign spending.

In the report, titled, “Rhetoric and Reality: Testing the Harm of Campaign Spending,” the authors 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, ” according to the abstract.

Here’s an excerpt:

Recent studies have shown that, as a group, affluent Americans have different interests from those of lower-income Americans. Thus, statistically, the assurances occasioned by a requirement of a communion of interests are lost when representatives are systematically diverted to consider the interests of their funders rather than their constituents in making policy judgments.

Want to read more? Here is the link.

Updated Report Addresses Cost of Modernizing Voter Registration Systems

One of the issues ever present for fair-elections advocates is the expansion of online voter registration systems.

In that vein, the ACLU recently updated a report it released in 2013 on the matter – using California and Arizona as case studies.

Titled, “Costs of Modernizing Voter Registration Systems,” it focuses heavily on the cost benefits.

However, here is an excerpt:

For elections officials, the benefits include a greatly decreased administrative burden, less time pressure on their work around election deadlines, the near total elimination of paper filing, and newly available office space.
For citizens, registering to vote online is more convenient, quick, and accurate. An added benefit is that some states have observed shorter DMV lines due to the reduced transaction time of those who choose to register to vote there.
And American society is perhaps reaping the greatest benefits. Each paperless voter registration contributes to environmental sustainability.
Want to read the entire report? It can be accessed here.
the evidence is clear that online voter registration is helping
to increase voter franchise and build a more robust and vibrant democracy.

ACLU Report Details Barriers to Online Voter Registration for Disabled

The ACLU recently released a report that detailed the barriers to disabled Americans regarding opportunities for online voter registration.

In the 68-page report, it details current online voter registration systems, even giving information state by state.

The report, issued just this year, comes at a time when there is growing consensus on the advantages of online voter registration.

The report indicates that online voter registration systems help election officials because it reduces administrative burdens that translate into saved tax dollars.
Here’s an excerpt:
This report focuses on one urgent issue: the accessibility of online voter registration websites for voters with disabilities.
By way of background for those unfamiliar: The American’s with Disabilities Act – also know as the ADA – requires all state and local government entities to ensure that people with disabilities have equal access to government programs and services. The ADA also require equally effective communication.
To read the entire report, click here.

New Paper Explores Role of Public Funding in Campaigns

In a new 38-page scholarly paper, the question is: What is the role of public campaign funding in elections? Can in level the proverbial political playing field..

Here’s an excerpt from the the paper, titled, “Leveling the Playing Field? The Role of Public Funding in Elections. It will be published in an upcoming edition of “American Law and Election Review.”

In a series of First Amendment cases, the U.S. Supreme Court established that government may regulate campaign finance, but not if regulation imposes costs on political speech and the purpose of regulation is to “level the political playing field.”

The Court has applied this principle to limit the ways in which governments can provide public campaign funding to candidates in elections. A notable example is the Court’s decision to strike down matching funds provisions of public funding programs (Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 2011). In this paper, we develop a contest-theoretic model of elections in which we analyze the effects of public campaign funding mechanisms, including a simple public option and a public option with matching funds, on program participation, political speech, and election outcomes.

We show that a public option with matching funds is equivalent to a simple public option with a lump-sum transfer equal to the maximum level of funding under the matching program; that a public option does not always “level the playing field” but may make it more uneven and can decrease as well as increase the quantity of political speech by all candidates, depending on the maximum public funding level; and that a public option tends to increase speech in cases where it levels the playing field.

Several of the Supreme Court’s arguments in Arizona Free Enterprise are discussed in light of our theoretical results.

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WyLiberty Attorneys File Brief in Wisconsin Free Speech/Campaign Finance Case

Wyoming Liberty Group attorneys filed an amicus curiae (friend-of-the-court) brief in the Wisconsin Supreme Court today in Three Unnamed Petitioners v. Peterson, a case consolidated with two others in what has become known as the “Wisconsin John Doe Investigation.” The prosecution in each case alleges illegal campaign finance coordination between political groups and ostensibly members of Wisconsin Governor Scott Walker’s campaign. WyLiberty’s brief argues that Wisconsin law governing coordination is unconstitutionally overbroad, and the latest effort to criminalize political participation.

“The law requires Wisconsin citizens to swear they are not coordinating with candidates or campaigns before they speak out about political issues,” said Ben Barr, lead counsel to WyLiberty. “But ‘coordination’ under the state’s law includes everything from speaking out while working on a campaign or speaking out after discussing issues with a candidate. Basically, Wisconsin threatens what most Americans consider honest civic engagement.”

In the celebrated Citizens United case in 2010, the U.S. Supreme Court ruled that government could not place limits on “independent expenditures”—speech that calls for the election or defeat of candidates—by corporations and unions. However, messages that are coordinated with campaigns are considered contributions to campaigns, and may be regulated.

“With caps lifted on how much people can speak out, Wisconsin prosecutors are now bent on re-defining as many forms of communication as they can into contributions, which can still be limited,” said Steve Klein, WyLiberty staff attorney. “They’re ignoring the Supreme Court’s broad rulings for free speech and cases that have specifically narrowed what constitutes coordination. This case is but another attempt to make an end-run around free speech, and like every other effort it should fail.”

Founded in 2008, the Wyoming Liberty Group has directly represented clients in numerous free speech cases and has weighed in as a friend-of-the-court in free speech cases nationwide. Late last year, its efforts played an instrumental role in overturning the conviction of Tom DeLay for money laundering in Texas.

Diverse Coalition Urges Congress to Pass the Democracy Restoration Act

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U.S. Sen. Ben Cardin (D-Md.) and U.S. Rep. John Conyers (D-Mich.) today introduced the Democracy Restoration Act, which would restore voting rights in federal elections to nearly 4.4 million American citizens with past criminal convictions upon release from incarceration.

The Democracy Restoration Act has garnered broad support from a diverse coalition that includes law enforcement associations, the faith community, racial justice advocates, and civil rights organizations. Versions of the bill were introduced in past sessions of Congress.

“Restoring voting rights to people with past criminal convictions will expand our democracy, increase public safety, and streamline America’s election system,” said Nicole Austin-Hillery, director and counsel of the Brennan Center’s Washington, D.C., office. “At a time when our country is considering the legacy of Selma, and the equality at the ballot box it helped bring, preventing people from voting is just not acceptable. Government at every level should act to restore voting rights and ensure our voting system is free, fair, and accessible to all eligible Americans.”

“Millions of American citizens are without a political voice in federal elections because the current patchwork of laws that disfranchise people with criminal records has created an inconsistent and unfair electoral process,” said Deborah J. Vagins, ACLU senior legislative counsel. “Many criminal disfranchisement laws proliferated during the Jim Crow era with the intent of keeping African Americans from voting and the effects of this are still being felt today. The Democracy Restoration Act will ensure that returning citizens are fully able to participate in our democracy. We urge Congress to swiftly pass this bill.”

Rights restoration continues to gain bipartisan support. Last month, U.S. Sen. Rand Paul (R-Ky.) introduced a more limited bill that would restore voting rights for those who have committed non-violent offenses. Momentum is also building in the states, with bills moving in Maryland, Minnesota, and Kentucky — some with bipartisan support. Currently, 35 states disfranchise people after they are released from prison.

View the ACLU’s factsheet on the Democracy Restoration Act and map of criminal disfranchisement laws nationwide.

View the Brennan Center’s proposal to restore voting rights upon release from incarceration and state-by-state guide on criminal disenfranchisement laws.

On Voting Rights: Three Scholarly Articles You Need to Read

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The recently released William & Mary Bill of Rights Journal includes three voting-rights related articles that you need to read.

Here’s what you need to know:

1. “The Right to Vote: Is the Amendment Game Worth the Candle?” by Heather K. Gerken. Here is an excerpt:

“It’s difficult to develop a robust case law when you only know what you can’t do. For this reason, several academics and reformers have proposed amending the Constitution to include a right to vote. They argue that a constitutional amendment would produce any number of progressive goodies, including an end to partisan gerrymandering, strict policing of burdens placed on the right to vote, and a expansion of the franchise.

Count me as skeptical…”

2. “Three Questions for the “Right to Vote” Amendment” by Richard Briffault. Here are the three questions:

– What would a right-to-vote amendment say?

– Why have a right-to-vote amendment?

– How would a right-to-vote amendment affect some of the most pressing current voting issues?

3. “Democratic Capital: A Voting Rights Surge in Washington Could Strengthen the Constitution for Everyone” by Jamin Raskin.