In this pre-Labor Day period when blogging will be light, here are a few notes:

1. Robert Mutch, who has written extensively about the history of campaign finance, has now published a guide to law and rules, Campaign Finance: What Everyone Needs to Know, just published by Oxford University Press. He means “everyone.” It is a citizen’s manual, with accessible explanations of abstruse statutory regulatory, and case law material, a chronology of major developments, and a glossary of key terms. He also provides throughout comments on the campaign finance reform debate. Mutch has a point of view on reform issues--who doesn’t?--but it is not harmful to his project. It adds a little zest to the discussion and more interest, therefore, for the general reader.  That reader has long deserved a resource like this, and here it is, courtesy of Robert Mutch.

2. That same general reader might want to puzzle over some of features of the well-worn law that is Mutch’s subject. An interesting case now on appeal to the Supreme Court, which goes by the name of a plaintiff with an unambiguous politics--Stop Reckless Economic Instability Caused by Democrats--questions why it is that political committees in existence for at least six months, so-called “multicandidate” committees, may give upon passing out of their infancy more to candidates but less to political parties (provided they also meet other minimal conditions on the level of support received and given).  The multi-candidate committee satisfying this 6-month waiting period can give a candidate another $2300 per election, for a total per election limit of $5,000. But its contributions to national and state parties are substantially cut from $32,400 to $5,000 and from $10,000 to $5,000, respectively.

The Seventh Circuit insists that the district court in the Wisconsin ID litigation was too lenient with the option of an affidavit for voters who could not with reasonable effort obtain a qualifying photo ID. So the Court directs that this relief be limited to the class of voters in genuine need, and it is seeking from the court below “objective standards” election officials could use in determining what constitutes “genuine difficulties” in obtaining ID.  To support its position, the Seventh Circuit cites a portion of Crawford, offering this selection:

Yet the Supreme Court held in Crawford v. Marion County Election Board, 553 U.S. 181, 198 (2008), that “the inconvenience of making a trip to the [department of motor vehicles], gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.” A given voter’s disagreement with this approach does not show that requiring one trip to a governmental office is unreasonable.

The Seventh Circuit chooses to omit the opening three words of this sentence in Crawford: “For most voters…” In other words, the Supreme Court in Crawford does not say that the inconveniences are minor for all voters, but more generally for most voters. It does not even suggest that the number of voters for whom these inconveniences would be significant are small or trivial in number, only that it is a “limited number” and that “most voters” don’t confront the problem. Crawford suggested that the limited number may include elderly persons born out of state and those economic and unspecified “personal” limitations. 553 U.S. 199.

As the courts work their way through claims against ID and other voting restrictions, they continue on a course of “softening" voting impediments but not eliminating them altogether. They remain reluctant to deny states the authority to enact rules, on virtually non-existent evidence, to protect against in-person voter fraud. Remedies are then fashioned that provide relief to voters facing a “reasonable impediment” to voting but the question has been legitimately raised: how much of an impact can these sorts of measures be expected to have?

Like the right to a provisional ballot provided for under HAVA, these other remedies-- like accommodating indigent voters with access to cost-free identification--help voters, but only a limited number. The reach and effectiveness of these measures depend upon the states’ performance of their obligations: the information they provide to voters, and the good faith and competence with which they administer the remedies. The same may be true of more robust remedies, like the option recently ordered for Wisconsin, affording access to an affidavit alternative to documentary identification.

Still “softening” is useful. Political actors—notably, parties and presidential campaigns--and nonprofit voting organizations have dramatically improved upon their capabilities in effectively advising voters about remedial options and assisting them in exercising them. Voters are not, then, entirely dependent upon state officials for help. In successive election cycles, the effectiveness of these partisan and nonprofit voter protection programs has improved, each rebuilt successfully on the experience of the last.

Professor Erwin Chemerinsky, Dean of the UC Irvine School of Law,  has maintained a lively defense of Justice Ginsburg's comments critical of Donald Trump, writing first in the New York Times and then elaborating on his position in a Los Angeles Times op-ed and a podcast discussion with one of his faculty members, Rick Hasen. It's an interesting and instructive case about how the intensity of feelings about particular issues and candidates tends to drive views of the First Amendment and in particular of the wisdom of campaign finance restrictions. For Chemerinsky, in defending Justice Ginsburg, insists that more political speech is better than less, and he is clearly moved in saying so by what he views as the exceptional importance of the question – – the potential election of Donald Trump – – that Justice Ginsburg was addressing.

This is another application of the test of conviction on political spending issues. To what extent, when the stakes are high, will citizens and activists tolerate being told that they can’t spend however much they want, or operate as freely as they choose, in advancing public policy positions or promoting candidates?

Justice Ginsburg’s recent press comments have been noted mostly for her openly expressed disdain for the Trump candidacy. Less surprising in the remarks was the Justice’s “impossible dream” that Citizens United be overturned. She has said this before, and since she dissented in that case, there is not much news here, unless anyone still had doubts that for this Justice, the killing off of that decision is a priority.

The comment was reported at the same time as the Complaint filed with the Federal Election Commission by Representative Ted Lieu and others who intend to set into motion the reconsideration the Justice is hoping for. And so it invites an appraisal of its prospects for accomplishing the Justice Ginsburg’s “impossible dream.”

As my colleague Marc Elias has pointed out, the FEC cannot succeed; this is a lost cause. When the Complaint fails, it may do little more than unnecessarily promote the belief that CU is here to stay. It is not clear why this is the best legal maneuver, or the most effective exercise in public communications, in the attack on Speechnow and Citizens United.

Aside from the question of strategy, the Complaint itself  is a surprisingly subdued performance. It has a bit the feel of going-through-the-motions: doing the least possible to set up the agency dismissal and the move to the courts. True, the Complainants knew that the outcome at the agency was inevitable and there is time later to build their argument. But the case they preview in the Complaint seems flat and this certainly can’t help the Complainants in their subsequent appeal.