The Massachusetts Senate passed a bill to adopt a National Popular Vote law, approved by the state's House of Representatives earlier this year.

If Gov. Deval Patrick signs the bill, Massachusetts will join five other states that have agreed to cast their electoral college votes for the presidential candidate who wins the national popular vote, rather than the candidate who wins the state's vote, according to the Progressive States Network.

The agreement between the states, which now include Hawaii, Illinois, Maryland , New Jersey and Washington, will not go into effect until states with electoral votes totaling 270 adopt such laws. If the Massachusetts law goes into effect, the number of electoral votes amassed would be 73.

ACSblog reported last month that New York State is also close to adopting a National Popular Vote law. A June 21 editorial in The New York Times urged the New York Assembly to follow the lead of the state Senate and seize the "chance to withdraw from the archaic and unfair way the country picks its chief executives."

The Progressive States Network map (above) shows the progress made in other states.

Jamie Raskin, a Maryland state senator and constitutional law professor at American University, wrote a two-part analysis for ACSblog, available here and here, on the importance of the National Popular Vote movement.

"Why is the NPV plan spreading like political wildfire?" asks Raskin, who introduced the nation's first National Popular Vote bill to be signed into law.

The core reason is that it presents an irresistible proposition: that the person we elect president should be the one who collects the most votes. This is how we elect Governors, Mayors, Senators and Congresspeople, and it is how presidents are elected in most democratic nations that have presidents. On the other hand, the current electoral college regime can produce farcical upside-down results like the one we saw in 2000, a dismal turning point in American history, when the popular vote loser (by more than a half-million votes) tortured out a "victory" in the electoral college after the most dubious sequence of assaults on voting rights and political participation by state and federal actors like Katharine Harris and five Supreme Court justices.

New York lawmakers are getting closer to becoming the sixth state to adopt a National Popular Vote law. Such laws, if adopted by enough states, would pave the way for the election of the president by popular vote.

The New York Times editorial board today urged the New York Assembly to follow the state Senate's lead and adopt the National Popular Vote law, saying the legislature "has a chance to withdraw from the archaic and unfair way this country picks its chief executives."

The Times editorial continues:

The Electoral College was established by the nation's founders in part to appease slave-owning states. It is based indirectly on population, and slaves were counted as three-fifths of a person. Each state now gets as many electoral votes as it has representatives in Congress. New York, for example, has 31 electoral votes, and whoever wins the most votes in New York gets all 31.

The results can be what we all saw in 2000, where the votes of one state, Florida, decided the election despite the fact that Mr. Gore was the nation's choice by more than a half-million votes.

The editorial also notes the work of the organization called National Popular Vote. The nonprofit group educates the public about its proposal to "implement a nationwide popular election of the President of the United States.

The Times editorial noted that since the 2000 presidential debacle that the National Popular Vote organization has advocated proposals that New York lawmakers are moving closer to approving.

Since it takes 270 electoral votes to win the presidency, the National Popular Vote laws would go into effect only if states accounting for 270 or more electoral votes agree to the new system. So far, five states, with a total of 61 electoral votes, have done that. New York should become the sixth. [Hawaii, Illinois, New Jersey, Maryland and Washington have adopted National Popular Vote laws.]

In a recent op-ed for the Albany Times Union, John R. Koza, chairman of the National Popular Vote, maintained, "It's time to reform the system and do what poll results show 78 percent of New Yorkers have long supported - elect the president by a national popular vote."

There's an odd - and therefore probably not surprising - proclivity among some Tea Party members to bemoan the Constitution's 17th Amendment, and call for its repeal.

David Firestone, in an op-ed for The New York Times, notes for us that the 17th Amendment was added to the Constitution in 1913 and provided "for the direct popular election" of U.S. senators. Before the amendment was adopted, state legislatures, "filled with men of property and stature," chose senators, Firestone writes.

Beyond some Tea Partiers, is there a groundswell of support for dumping the 17th Amendment and allowing state legislatures to select senators?

As Firestone notes, "A modern appreciation of democracy - not to mention a clear-eyed appraisal of today's dysfunctional state legislatures - should make the idea unthinkable. But many Tea Party members and their political candidates are thinking it anyway, convinced that returning to the pre-17th Amendment system would reduce the power of the federal government and enhance state rights."

Firestone concludes:

It may be true that appointed senators, accountable only to state legislators, would never approve of many useful federal mandates designed to put the national interest above local parochialism - including everything from the minimum wage to the new health care reform law.

Not enough Americans vote. But, fortunately, almost all like the idea that they can, a thoroughly modern sentiment that will confine this elitist notion to the fringes. That means Tea Partiers who are infuriated by the health care law and everything else now going on in Washington can no longer look to James Madison for a bailout. Their best remedy is the one they seem to spurn: a vote at the ballot box.

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By Rick Hasen, William H. Hannon Distinguished Professor of Law, Loyola Law School - Los Angeles & Publisher, Election Law Blog

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Last night, as word leaked out that the President was set to nominate Solicitor General Elena Kagan to the Supreme Court, I put up a post on my Election Law Blog noting that we know virtually nothing about SG Kagan's views on election law issues such as campaign financing, voting rights, redistricting issues, voter identification, and other important issues. I said, however, that just because the SG is likely to be generally liberal on issues related to election law (given that she was nominated by a Democratic president and served in two Democratic administrations), that did not necessarily translate into support for reasonable campaign finance regulation, such as the limits on corporate campaign spending in candidate elections, which the Supreme Court struck down in the recent Citizens United case.

I pointed to Dean Kathleen Sullivan as an example of a leading liberal constitutional law scholar who has written extensively against the constitutionality of campaign finance limits. (To that list, I might add my friend Bob Bauer, who is a staunch Democrat-and current White House counsel charged with shepherding the Kagan nomination through the Senate. He is a longstanding opponent of many campaign finance regulations.)

When I wrote those words last night, I did not know that SG Kagan had written about six pages on the constitutionality of corporate spending limits in candidate campaigns in a law review article, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 464-472 (1996). Marvin Ammori, writing on Balkinization, read those pages and concluded (with some caveats, such as that a person's views may change after 14 years) that SG Kagan is likely a "defender of corporate speech rights" and therefore a likely vote with the majority in Citizens United. (Justice Stevens wrote the dissent in that case for the four dissenters.)

Having reviewed those pages, I am not convinced that we really know anything more about how SG Kagan would have voted in Citizens United or, more importantly, how she will vote as related issues come before the Court. Here are my reasons.

1. SG Kagan expresses concern in the law review article about the fact that campaign finance laws that say they are aiming at equalization might instead by incumbency protection measures, and for this reason, they need to be subject to strict scrutiny. That's a position that is very close to the position Justice Breyer stated in his Shrink Missouri dissent and in his book, Active Liberty. Yet Justice Breyer voted to dissent in Citizens United. He applies strict scrutiny, but sometimes comes out in favor of regulation. Similarly, just because SG Kagan believes these laws are subject to a careful look does not mean they are necessarily unconstitutional.

2. SG Kagan goes out of her way to see the equality rationale and the First Amendment as not incompatible in theory, so long as the incumbency problem/bad motive problem could be solved. (I'm much less enamored of intent tests to figure out the constitutionality of election laws, but that's an issue for another day.) This suggests, for example, that a corporate spending limit passed by voter initiative could be constitutional.

3. Even aside from the equality rationale, which SG Kagan abandoned during the briefing and argument in Citizens United, there are other rationales for upholding a corporate spending limit in candidate elections, including shareholder protection (which the SG pushed hard at the Citizens United oral argument) and prevention of quid pro quo corruption (something I'm writing about more extensively). So even if SG Kagan does not believe equality can be considered a compelling interest to justify regulation (something I don't think she actually says on those pages of her law review article), there could well be other compelling interests to justify the limits.

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So what do we really know about how SG Kagan would have voted in Citizens United? I'll stick with what I wrote last night: virtually nothing. I hope we will learn more at the hearings, though I think some ambiguity from the SG on the question could actually gain her some Republican votes and work toward the Obama Administration's goals of marketing the Kagan nomination as a centrist nomination.

[Image via Office of the Solicitor General.]

Following an ACS event exploring the legal and political fallout of the Supreme Court's recent corporate campaign finance decision, constitutional law expert William P. Marshall talked with ACSblog about the ruling and the Roberts Court. Marshall, a law professor at the University of North Carolina School of Law and member of the ACS Board of Directors, said the decision in Citizens Untied v. FEC shows that "although the Roberts Court is conservative politically, it indicates that it is not a conservative court, judicially."

"This is one of the more activist decisions we've seen in sometime," Marshall said. He noted that the decision, which said corporations, may spend freely on elections, "put in doubt over a hundred years of legislation dealing with the regulation of corporate activity in campaigns."

Marshall moderated a panel discussion, including Jan W. Baran, Laurence E. Gold, James S. Portnoy, Joseph E. Sandler and Monica Youn, at the National Press Club on Citizens United. Video of the discussion is here. Watch Marshall's interview with ACSblog below or download of podcast of it here.

 

Large swaths of the American population oppose the Supreme Court's recent ruling on corporate campaign spending, according to a Washington Post-ABC News poll.

"Eight in 10 poll respondents say they oppose the high court's Jan. 21 decision to allow unfettered corporate political spending, with 65 percent ‘strongly' opposed. Nearly as many backed congressional action to curb the ruling, with 72 percent in favor of reinstating limits," The Washington Post reported.

The newspaper reported that the polling also revealed "little difference of opinion on the issue among" Democrats and Republicans and that it suggested "a strong reservoir of bipartisan support on the issue for President Obama and congressional Democrats, who are in the midst of crafting legislation aimed at limiting the impact of the high court's decision."

Gary Langer, director of polling at ABC News, noted that the survey also revealed that even some supporters of the Tea Party movement, which rails against the federal government, oppose the outcome in Citizens United.

"Even among people who agree at least somewhat with the Tea Party movement," Langer wrote, "73 percent oppose the high court's rejection of this particular law. Among the subset who agree strong with the Tea Party's position on the issues - 14 percent of all adults - fewer but still most, 56 percent, oppose the high court in this case."

Langer's post includes the entire polling data here.

The 5-4 ruling in Citizens United v. Federal Election Commission found that corporations have free speech rights to spend on campaigns, overturning decades of precedent upholding regulations on corporate campaign financing.

The Post noted that Sen. Charles Schumer and Rep. Chris Van Hollen are working on legislation addressing the ruling in Citizens United. In response to the new poll, Sen. Schumer, said, "If there's one thing that Americans from the left, right and center can all agree on, it's that they don't want more special interest in our politics."

ACS will host a panel discussion on Feb. 24 at the National Press Club on the implications of the ruling, including how it may impact the midterm elections. The panel discussion will include Jan W. Baran, a nationally recognized campaign and elections law attorney, who filed a friend-of-the-court brief in Citizens United arguing in support of corporations' free speech rights to spend on campaigns, and Joseph Sandler, a former general counsel for the Democratic National Committee, and also a campaign finance law expert. Following the ruling, Sandler told USA Today that it will likely make it a tougher challenge for incumbents seeking reelection.

See here for more information about the ACS event, "Citizens United v. FEC: The Decision, Its Implications, and the Road Ahead." Check here for additional expert commentary on the case from ACSblog. 

On "The Daily Show with Jon Stewart," Stewart and correspondent Jon Oliver examine the Supreme Court's recent decision in Citizens United.

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This fall, at American University (AU) in Washington, D.C., ACS Executive Director Caroline Fredrickson moderated a debate about whether to replace the electoral college with a national popular vote in presidential elections. Critiquing the national popular vote plan were John Samples, Director of the CATO Institute's Center for Representative Government, and Alexander Belenky, author of How America Chooses Its Presidents. Debating on behalf of a national popular vote were John Koza, Chairman of National Popular Vote Inc., and Jamie Raskin, a Maryland State Senator and Director of the Law & Government Program at AU's Washington College of Law, who previously outlined his positions on the electoral college for ACSblog here.

With several states having made some movement towards embracing the national popular vote, video is now available here of this timely debate. 

 

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By Bert Brandenburg, Executive Director, Justice at Stake

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This spring, in Caperton v. Massey, the Supreme Court said that due process required a West Virginia Supreme Court justice to step aside from a case involving a supporter who'd spent $3 million to help elect him. But the 5-4 majority left minimal guidance to the states, inviting them to fill in the blanks through state court rules.

First answers are coming from the Midwest, where divided courts have recently taken Caperton in different directions. Wisconsin's high court rejected proposals to require recusal when campaign spending reached a fixed "trigger" level. The proposal was sparked by record-breaking cash washing through the state's last three Supreme Court contests.

But the court's 4-3 majority took a far more radical step, approving requests from two of the state's most powerful players-the Wisconsin Realtors Association and Wisconsin Manufacturers & Commerce-that no contribution or independent expenditure, no matter how large, could ever be the sole basis for recusal. In other words, if Bernie Madoff had spent $100 million to elect a Wisconsin Supreme Court justice, a victim suing him for redress couldn't point to the support and ask the justice to abstain.

In Michigan, the state Supreme Court moved forward instead of backward. A 4-3 majority began by agreeing that a judge should be disqualified when "the judge's impartiality might objectively and reasonably be questioned" -- catching Michigan up with the vast majority of other states that have adopted this standard.

The Wolverine State's Supreme Court went further, adopting a first-in-the-nation provision that a litigant who fails to convince a justice to recuse may appeal to the entire high court (which would have to spell out its reasoning when it decided). "Times are changing and we're becoming increasingly aware of the impact a refusal to disqualify has on the public," said Chief Justice Marilyn Kelly.

Indeed, as spending on high court elections has more than doubled over the last decade, recusal has become a hot issue. Three in four Americans believe that campaign cash influences courtroom decisions. Caperton reaffirmed that this cash matters, and that every state must guarantee litigants a fair trial with due process, including in cases that involve major campaign spenders. And states are very much allowed to set rules that are tougher than the minimum required by constitutional due process requirements.

Since courts typically draft their own recusal standards, watchful eyes are on states like Nevada and Washington, which are now reviewing their rules. But judges don't always get the last word. In Wisconsin, just a week after the high court's retreat, legislators passed a system for public financing of judicial elections -- a reminder that impartial justice is everyone's business.

Following his participation in an ACS preview of the Supreme Court's approaching term, longtime Court litigator Paul M. Smith talked with ACSblog about the major corporate campaign finance case, Citizens United v. FEC and how the Court's decision in that case is likely to reflect a continuing "activism." Smith, a partner at Jenner & Block, said it was "very likely" that the high court could overturn precedent regarding regulation of corporate campaign financing in Citizens United, thereby fundamentally altering the balance of power in elections. Watch Smith's entire interview below or download it as a podcast here. For more discussion of Citizens United, which involves campaign finance regulation and the First Amendment, see an ACSblog guest post from the Constitutional Accountability Center's (CAC) Doug Kendall here.