Monthly Archives: July 2013

Smart Pieces Regarding #McCutcheon Today by Brad Smith and Democratic Attorney Bob Bauer

Center for Competitive Politics President (and Capital University Law Professor) Brad Smith’s take in the National Review Online: Objecting to the Declaration of Independence?

Democratic election law attorney Bob Bauer’s criticism of Lawrence Lessig’s novel corruption theory appears on Bauer’s blog, More Soft Money Hard Law: “Dependence Corruption” Before the Supreme Court

David Gans of the Constitutional Accountability Center offers an unpersuasive response to Bauer’s criticism here. For starters, even if one completely accepts CAC’s submission that the Founders were focused on so-called “institutional” corruption, not corruption of individuals, it remains to establish how an institution made up of elected individuals becomes corrupt.  There is no answer offered to the central argument in McCutcheon–that no single candidate is corrupted just because another candidate or political committee received an amount-limited contribution.

“Resigned Kerr County Attorney Stays On Job”

From a piece by Zeke MacCormack at

Although Henneke’s announcement of plans to run for state representative with more than a year remaining on his term triggered his automatic resignation under the Texas Constitution’s “resign to run” provision, he said the law allows him to stay on the job until replaced.

El Paso Council Denies Former Mayor Cook’s Request To Pay 700K Legal Bill from Election Suit

Former El Paso Mayor John Cook sued a local church after it permitted the use of its facilities in a petition-signing effort related to a recall effort against him (alleging the use of the church’s facilities to be an illegal corporate contribution under Texas law).  The case is still being litigated on appeal (and raises very important issues of the constitutionality of the contribution ban in the context of a ballot measure (hint-it is not constitutional), and of the authority of a court to overturn an election result where a measure supporter is found to have made an illegal contribution).  But this story is about the city rejecting his request that taxpayers pay his legal bills:

Former Mayor John Cook’s claim that the city should pay his $550,000 legal bill that stemmed from fighting a recall effort was unanimously denied by the City Council on Tuesday.

In a prepared statement, the city said that Cook initiated a suit tied to his recall as an individual and not an elected official, and that city had not approved the litigation.

Maybe Cook, who just announced a run for the Democratic nomination for Land Commissioner in 2014 (the same race in which George P. Bush is seeking the Republican nomination), wants the taxpayers to fund his recall litigation so that he can preserve his campaign funds for the 2014 race.

The story also cites a dispute as to whether the recall is properly considered an initiative or a referendum.

Restraining Order Paralyzes Hidalgo City Council

A very interesting, and troubling, story in The Monitor. Councilmember Rudy Franz appears to have a business incentive to prevent approval of a permit for a competing transportation company, so he went to court to get a restraining order against a few fellow councilmembers.

With the one-page document, Rudy Franz paralyzed the City Council and blocked a new bus company, which met all Hidalgo’s permit requirements, from serving the Hidalgo-Reynosa International Bridge. Mayor Martin Cepeda called the incident a black eye for Hidalgo.

“As mayor, I’m very disappointed that this is going on,” Cepeda said. “But what can you do? It’s the law.”

The new bus company, S to N Transport, would have competed with Rudy Franz’s businesses — Franz Taxi and STS Transportation, a bus company — that shuttle people from the international bridge to McAllen.

I’ll be interested to pull the documents and see what the judge believed justified a restraining order that prevents elected members of a city council from performing their duties.  This case raises very interesting and important separation-of-powers issues.  We’re used to thinking of separation of powers in terms of federal constitutional law, but structural principles of government are no less important in local affairs.

Those Lamenting the “Hobbled” FEC Should Remember It Operates In Area of Protected Speech

This long Boston Globe piece by Christopher Rowland provides an interesting look at the ideological disputes at work between Republican and Democratic FEC Commissioners. Those who like to describe the FEC as “hobbled” or ineffectual should take account of a simple fact: the FEC is  not quite like other federal agencies in that the subject of its jurisdiction happens to be the most fundamental of all civil rights: the right to speak about and engage in politics.  Punishment should not be meted out based on flimsy evidence or novel applications of the campaign finance laws.  We understand these principles as applied in the criminal justice system, and they are equally important when it comes to policing political activity.  Commissioner McGahn, a Republican campaign finance attorney who has served on the Commission since 2008, discusses a bit of his philosophy in the article:

On matters of campaign finance, he is generally opposed to government interference and believes the Federal Election Commission for decades has unfairly trampled the free-speech rights of candidates, campaign contributors, and special interest groups.

McGahn openly disdains what he calls “reform-industry lobbyists,’’ whom he claims are out to chill political speech with disclosure rules and restrictions on political advertising.

“They have spent their entire life chasing this unicorn of a regulated political state, and it’s just failed miserably,’’ he added. “It’s not really our job to . . . use taxpayer money to push the pet agenda of reform industry lobbyists.’’

“You can’t horse-trade when it comes to the First Amendment,’’ McGahn declared.

McGahn cast himself as a champion of the little guy. He sides with individual politicians and campaign contributors who he says must navigate a maze of rules erected by “unelected bureaucrats’’ seeking to stifle speech and legitimate campaign activity.

Most reporting on the FEC focuses, of course, on the critics of McGahn’s position to the effect that the FEC is dead and ineffectual.  But McGahn’s comments deserve more attention.

Snowden Praises “Human Rights” Record of President Rafael Correa


Edward Snowden today supplicated himself to leftist President Rafeal Correa in a disgusting attempt to gain asylum in Ecuador.  Snowden, from his airport holdout in Moscow, wrote a letter to Pres. Correa which began by “express[ing]” his “deep respect for your principles” and ended by noting his “great personal admiration of your commitment to doing what is right rather than what is rewarding.”  One wonders whether Snowden is aware of the human rights record of Correa, including, and especially, his actions trampling on the very freedoms of speech and journalism that Snowden has cited as motivating his actions.

As one example, late last year Correa’s Labour Ministry raided the offices of a weekly publication called Vanguardia, confiscating its computers and other equipment and effectively preventing publication for a time. Reporters Without Borders noted:

The 31 July raid was not the first of its kind at Vanguardia, which often covers alleged corruption involving government officials. There have also been repeated closures of radio and TV stations that criticize President Rafael Correa’s government.

The Reporters Without Borders page for Ecuador has more such stories (including this one reporting on the selective enforcement, at Correa’s urging, of a ban on “electioneering” communications after an opposition newspaper urged a NO vote on certain referendum items).  And this Economist story summarizes the most recent attempt by Correa to subjugate and silence the press in his country.  It includes this quote:

The new regulatory powers have stoked those fears. “This is a law that will consolidate a state of propaganda in the country and which will strip citizens of the right to freedom of expression and of the right of access to information,” said the country’s association of newspaper publishers. El Universo, a national daily, pledged to continue its editorial policy in spite of what it sees as the government’s attempt to restrict free reporting. Nevertheless, journalists and columnists speak of growing self-censorship prompted by fear of reprisals. International journalists’ organisations such as the Committee to Protect Journalists and Reporters Without Borders chimed in to criticise the new law.

Snowden may be committed to something.  But it is certainly not independent journalism or freedom of speech.

*Image: By Wilson Dias/ABr (Agência Brasil [1]) [CC-BY-3.0-br (], via Wikimedia Commons