Suchergebnisse

Recent years have witnessed the growing use by elected officials, particularly state and local chief executives, of affiliated nonprofit organizations to advance their policy goals. Some of these organizations engage in public advocacy to advance a governor's or mayor's legislative program. Others operate more like conventional charities, raising philanthropic support for a range of governmental social welfare programs. Elected officials fundraise for these organizations, which are often staffed by close associates of those elected officials, and the organizations' public communications frequently feature prominently the name or likeness of their elected-official sponsor. As these organizations do not engage in electioneering, they operate outside election law, and as they do not personally enrich their sponsors, they are usually not covered by ethics restrictions. Yet, due to their close connection to elected officials, their fundraising raises the same concerns of official favoritism or the appearance of such favoritism to donors that lie at the heart of public integrity law. This article examines the rise of elected official affiliated nonprofits, the public integrity gap revealed by their activities. It presents proposals that would close that gap by requiring transparency and restricting pay to play donations, and considers the constitutional questions that likely would be raised by these proposals, The proliferation of elected-official-affiliated groups demonstrates that the connections between the elected officials and their supportive committees are real, as are the possibilities for undue influence and its appearance. It is past time to close the public integrity gap. Targeted disclosure requirements and limitations on pay to play donors are constitutionally appropriate mechanisms for doing so.

The administration of elections in the United States—including elections for federal office – is highly decentralized. Fundamental election law decisions – such as registration and voter identification requirements, and early in-person voting and vote-by-mail rules – are made by the state legislature, but the actual conduct of elections is handled almost entirely by local governments. Local officials register voters, process absentee ballot applications, design ballots, recruit and train poll workers, manage early voting and election day operations, acquire, maintain and secure voting equipment, and count, canvass, and report the results. In most states, local officials also pay for most of the costs.

With one Supreme Court decision, lower federal and state court decisions, pending litigation, and proposals around the country for major changes in how elections are conducted, COVID-19 has already had and likely will continue to have a significant impact on election law. The discussion that follows proceeds in two parts. The first addresses the initial consequences of COVID-19 as an electoral emergency. Voters were due to go to the polls in states around the country just as the pandemic was gathering force and governors and mayors were calling on people to stay at home and avoid large gatherings – which, of course, often occur at crowded polling places during contested elections. Although many states managed to move their late March and April elections to May, June, or later without incident, heated political and legal battles broke out in Ohio and Wisconsin over changing election dates and formats, with the Wisconsin dispute winding up in both the state and United States Supreme Courts the day before the election, and Wisconsin conducting an in-person election in the middle of a pandemic. The second part looks beyond the immediate effects of COVID-19 to the middle term, that is, to the host of changes to election laws that will be needed for the November 2020 election if, due to the pandemic, large gatherings remain a public health threat. Some form of primarily vote-by-mail system will be needed, but such a system is currently in place only in five states, and those states took several election cycles to make the transition from traditional polling-place voting. Indeed, right now, one-third of the states permit only voters with one of a limited number of excuses specified in the states' statutes to obtain a mail-in ballot. Widespread changes in voting laws will be necessary if the November elections are to be safe, fair, and secure. Yet, partisan opposition encouraged by President Trump's error-filled misstatements about voting-by-mail makes it unclear whether these changes will be made.

In just a few short months, the COVID-19 pandemic has already provoked multiple election law disputes. These have tended to track the same normative and policy conflicts that have marked election law for years, particularly the tension between strict adherence to preexisting rules and the willingness to stretch or relax those rules in order to deal with emergency conditions, and the overlapping debate over whether the primary threat to the integrity of the electoral system is fraud or the legal and administrative obstacles to voting during a pandemic. A third, but much less discussed, strand in the emerging COVID-19 election law jurisprudence is the role of local elections officers, often in conflict with state officials, in protecting the right to vote. Tracking the state-local conflicts that have marked the governmental response to the pandemic generally – as well as the red state/blue city disputes over a host of hot-button issues over the last decade – local election law officials in a number of states have sought to find some play in the election-law joints in order to make it possible for voters in their jurisdictions to vote safely in pandemic conditions, while state officials have pushed back, insisting that these county registrars, clerks, or recorders are acting beyond their authority and in violation of state law.

In 1974 Congress authorized public funding for presidential nomination campaigns. Public funding was crucial to Jimmy Carter's nomination in 1976 and to Ronald Reagan's nearly successful campaign the same year, and continued to be an important factor in presidential nomination contests for more than two decades after that. But no major candidate has used the program since 2004. Due the program's built-in limitations, changes in the nomination process, and campaign finance developments, the program is completely irrelevant today. It has been argued that the program isn't really needed. Although one argument for public funding is that promotes electoral competition the 2008 races in both parties and the 2016 Democratic nomination were hotly contested, and the races for the 2012 and 2016 Republican nominations and the current 2020 Democratic campaign have had record numbers of candidates. A second goal of public funding is to reduce the clout of large donors, but the last several elections have been marked by a sharply increased role for small-dollar donors. Nonetheless, the current private-funding system continues to pose major barriers to entry. Although small donations have grown, the volume of very large donations has grown as well, and big donors, big-donor-funded Super PACs, and wealthy self-funded candidates have a disproportionate role in nomination campaign finance. This chapter reviews the history of the presidential nomination public funding program, its initial impact and the reasons for its subsequent collapse. It then examines the state and local public funding systems that have drawn the participation of viable candidates, and increased both competitiveness and the role of small donors. Based on the lessons of the failed federal system and the successful state and local ones, it sketches out the reasons for and the elements of a re-born presidential nomination public funding program.

The Constitution says nothing about the presidential nominating process and has had little direct role in its evolution from congressional caucuses to party national conventions to our current primary-dominated system. Yet, constitutional law is a factor in empowering and constraining the principal actors in the nomination process and in shaping the framework for potential future changes. The constitutional law of the presidential nomination process operates along two axes: government-party, and state-national. The government-party dimension focuses on the tension between the states and the federal government in writing the rules for and administering the electoral process – which may include the primary elections that determine the nominees of the political parties – and the right of the parties to determine how to pick their nominees. Doctrinally, this involves Supreme Court's efforts to reconcile the power of the states to write the rules for state-run elections, including the primary elections that decide party nominations, with the freedom of political association guaranteed to the parties under the First Amendment. This government-party axis affects all nominations for state and federal office. Presidential nominations, however, are distinct. For most elections, federal as well as state, most of the rules are determined by state law. But presidential nominations involve a national-level party decision for a nation-wide office. As a result, national party rules and federal laws factor into shaping the nomination process and add the possibility of conflicts between national- and state-level rules to the more common government-party tensions. Key Supreme Court rulings have held that national party rules and the decisions of the national party conventions take precedence over conflicting state laws and state party decisions. To date, Congress has played a minimal role in this area, and its authority to regulate the nomination process has been contested, but its powers need to be understood if Congress is to be involved in reforming this process. The chapter concludes by suggesting that although the multiplicity of constitutionally-empowered actors may be – and has been – a source of conflict and complexity in the presidential nomination process, it may also be a strength. By permitting so many avenues for change, the constitutional framework creates multiple openings for reform.

Critics of the proliferation of omnibus legislation in Congress have pointed to the constitutions of the American states as providing an alternative, and potentially superior, model for lawmaking. Forty-three state constitutions include some sort of "single-subject" rule, that is, the requirement that each act of the legislature be limited to a single subject. Many of these provisions date back to the second quarter of the nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. Nor is the rule a relic from a bygone era; one recent study found the rule at stake in 102 cases in 2016 alone. Many of these decisions have involved controversial, hot-button issues. In the last two decades, state courts have used single-subject rules to invalidate laws dealing with, inter alia, firearms regulation, abortion, tort reform, immigration, local minimum wage laws, sex offenders, enhanced criminal penalties, and school vouchers. Yet, despite having long been a part of the constitutional law of most states, the single-subject rule is deeply problematic. Courts and commentators have been unable to come up with a clear and consistent definition of what constitutes a "single subject." Instead, a persistent theme in the single-subject jurisprudence has been the inevitable "indeterminacy" of "subject" and a recognition that whether a measure consists of one subject or many will frequently be "in the eye of the beholder." On the one hand, as the Michigan Supreme Court once explained, "[t]here is virtually no statute that could not be subdivided and enacted as several bills." On the other hand, as an older Pennsylvania Supreme Court case put it, "no two subjects are so wide apart that they may not be brought into a common focus, if the point of view be carried back far enough."

Critics of the proliferation of omnibus legislation in Congress have suggested that state constitutions offer a potential solution. Forty-three state constitutions include some sort of "single-subject" rule, that is, the requirement that each act of the legislature be limited to a single subject. Many of these provisions date back to the early and mid-nineteenth century, and, collectively, they have been the subject of literally thousands of court decisions. Nor is the rule a relic from a bygone era. In the last two decades, state courts have used single-subject rules to invalidate laws dealing with, inter alia, firearms regulation, abortion, tort reform, immigration, local minimum wage laws, sex offenders, enhanced criminal penalties, and school vouchers. Yet, despite having long been a part of the constitutional law of most states, the single-subject rule is deeply problematic. Courts and commentators have been unable to come up with a clear and consistent definition of what constitutes a "single subject." Instead, persistent themes in the single-subject jurisprudence has been the inevitable "indeterminacy" of "subject" and disagreement over how deferential courts should be to legislatures. Due to the slipperiness of "subject," many analyses have focused on what are regularly said to be the primary purposes of the rule – the prevention of legislative logrolling and riders, and the promotion of a more orderly and informed legislative process – and have called for reframing the enforcement of the rule around the advancement of these goals. But determining whether a law is the product of logrolling, or whether a provision should be treated as a rider, will often be difficult. And it is far from clear that logrolls and riders are as pernicious as proponents of more vigorous enforcement of the single-subject rule assume. The more aggressive use of the single-subject rule urged by advocates as a means of thwarting "legislative chicanery" and "backroom politics" could also undo the cooperation and compromise necessary to get difficult but important legislation enacted. This article examines the history and purposes behind the single-subject rule; recent state supreme court cases interpreting it; and the arguments for reframing the rule more tightly around the prevention of logrolling or riders. It finds that although the justifications for the rule – improved legislative deliberation, transparency, and public accountability – are admirable goals the state constitutional rule has not been and is unlikely to be an effective means of achieving those ends.