Category: Elections

Will a New California Ballot Initiative Usher in the Next National Shift in Privacy Law?

Poyner Spruill

Just 10 years ago, California enacted the first breach notification law and unwittingly transformed the landscape of American privacy and data security law. To date, 45 other states, multiple federal agencies, and even local governments have followed suit. California residents may soon find themselves voting on a ballot initiative that could have an equally dramatic effect on this area of law.

computer broadcast world

The ballot initiative, known as the California Personal Privacy Initiative, is designed to remove barriers to privacy and data security lawsuits and also would promote stronger data security and an “opt-in” standard for the disclosure of personal information. Specifically, the initiative would amend the California Constitution to:

  1. Create a presumption that “personally identifying information” collected for a commercial or governmental purpose is confidential

  2. Require the person collecting such information to use all reasonably available means to protect it from unauthorized disclosure

  3. Create a presumption of harm to a person whenever her confidential personally identifying information has been disclosed without her authorization.

Notwithstanding the presumption of harm, the amendment would permit the disclosure of confidential personally identifying information without authorization “if there is a countervailing compelling interest to do so (such as public safety or protected non-commercial free speech) and there is no reasonable alternative for accomplishing such compelling interest.”

Turning first to the impact on litigation, plaintiffs have largely been unsuccessful in privacy and data security litigation because they have failed to show harm resulting from an alleged unlawful privacy practice or security breach. The obligation to show harm arises at two stages when a case is litigated in federal court: first, the plaintiff must establish that he has suffered an “injury in fact” in order to meet the requirements for Article III standing, and second, the plaintiff must satisfy the harm requirement that applies to the relevant cause of action (e.g., negligence). If the case is litigated in state court, the standing requirement does not apply, but most, if not all, privacy and data security breach class actions have been litigated in federal court.

The ballot initiative would create a presumption of harm that could allow more lawsuits to satisfy the injury-in-fact standard (step one, above) and the harm requirement for the underlying cause of action (step two, above). Without that barrier, business would be stripped of the most effective means of prevailing on a motion to dismiss for certain causes of action. And in some scenarios, business would be forced to rely on untested or tenuous defenses, making companies more likely to settle, rather than fight, previously unsustainable causes of action.

Other components of the initiative would exacerbate the uptick in litigation, including the presumption that personally identifying information collected for a commercial purpose is confidential and the requirement that organizations use reasonable measures to prevent unauthorized disclosure of that information. Plaintiffs’ claims are sometimes based on an allegation that promises made in the defendant’s privacy notice regarding security measures are deceptive. Currently, companies can protect themselves against these claims by making only conservative representations about privacy and security. But the ballot initiative could create a general duty to adopt reasonable privacy and security measures, raising the prospect that plaintiffs could more successfully pursue negligence-style claims, which companies cannot deter solely by adopting conservative privacy notices.

The initiative also employs a very broad definition of personally identifying information: “any information which can be used to distinguish or trace a natural person’s identity, including but not limited to financial and/or health information, which is linked or linkable to a specific natural person.” (The definition does not cover publicly available information lawfully made available to the public from government records.) This expansive definition would force organizations to apply stricter security to types of information that might not otherwise receive those protections. Furthermore, the definition is particularly problematic when considered in conjunction with the presumption of harm discussed above because identifiable data such as names, email addresses, and device identifiers are routinely shared by businesses without consent. If this initiative succeeds, the increased threat of litigation will incentivize businesses to default to an opt-in standard for disclosures of information.

There is, however, at least one reason to believe that the initiative may not be as detrimental to business interests as some are predicting. Showing a nominal harm for the underlying cause of action does not necessarily equate to an award of damages so, even if the ballot initiative is successful, there would in some cases remain a practical limitation on the plaintiff’s ability to recoup money damages. Where statutory damages are available, or where a plaintiff can show some actual monetary harm, money awards would be possible. But in cases where statutory damages are not available and a plaintiff must show actual monetary harm to procure a monetary award, the ballot initiative may not save such claims. For example, the damages award flowing from a negligence claim is generally based on the actual damages incurred by a plaintiff. Therefore, even if the plaintiff could state a cause of action for the purpose of defeating a motion to dismiss, the plaintiff may not be entitled to anything more than a nominal damages award if the plaintiff cannot demonstrate monetary damage such as the cost of credit monitoring, identity theft insurance, or perhaps even therapy bills. On the other hand, courts could interpret the amendment as requiring recognition of a new type of harm, similar to emotional distress, that is compensable through money damages—even without a showing of some concrete financial harm to the plaintiff.

The ballot initiative’s proponents must obtain 807,615 signatures before Californians would have the opportunity to vote on it. If the signatures are collected, then the initiative will appear on the ballot without further opportunity to seek amendments to address business concerns. If the initiative appears on the ballot, it would require only a simple majority vote to pass. Interested organizations should work to ensure that public debate over the initiative includes a discussion of the heavy burden on business that could result from the initiative.

 
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Dewonkify – Electoral College

The National Law Review recently published an article by Hilary M. Hansen of Drinker Biddle & Reath LLP regarding the Electoral College:

 

The Word: Electoral College

The Meaning: The Electoral College is a body of 538 electors that determine the official outcome of the Presidential elections. Each state’s representation in the Electoral College is based on the state population (two per state, plus one for each Congressional district). Washington, DC has three electoral votes, but other U.S. territories do not have any.

After the votes are cast on Election Day, electors gather in their respective state capitols to cast votes for President and Vice President based on their state’s popular vote.  The vote is then certified.

In all states except Maine and Nebraska, which use a district-based electoral system, votes are awarded winner-take-all – a candidate just needs to receive 51% of the popular vote to receive all the state’s electoral votes. Each state decides how electors are chosen; no person holding elected or appointed federal office can serve as an elector. A candidate needs 270 electoral votes to win; if no one reaches that threshold the House of Representatives determines the President.

Used in a Sentence: “The election night drama of 2000 may be recreated this year, as experts say there is a real chance for one presidential candidate to win the popular vote but lose the presidency thanks to the Electoral College system.” (from U.S. News article “Electoral College, Popular Vote Split is Possible, Experts Say”)

What it Means: What really matters in an election is getting 270 electoral votes. Under the Electoral College system, the winner of the popular vote can lose an election – it has happened four times, in 1824, 1876, 1888, and 2000. The distribution of votes across the country is important; while the popular vote may swing in favor of one candidate, if the votes are concentrated in certain states, they may not have enough electoral votes to win.

History: The roots of the Electoral College go back to the founding fathers’ debate over the extent to which the United States would be a federal system. Virginia delegates to the 1787 Constitutional Convention proposed having Congress elect the President. Out of concerns about separation of powers and the independence of the President, the “Committee of Eleven” recommended that there be an independent group of electors, apportioned to states in equal numbers as their representation in Congress. This indirect election mechanism was then incorporated into the Constitution; Article II, Section 1 refers to a system of Presidential “electors” and lays out the framework for the Electoral College. While the Constitution describes this system and the role of these electors, the term “Electoral College” was not used until 1845. Throughout U.S. history there have been over 700 proposals to reform the Electoral College, including efforts to change to a proportional vote base rather than winner-take-all and to abolish the system completely and rely on popular vote as the sole electoral method.

©2012 Drinker Biddle & Reath LLP

Voting Day Funny

Thanks to Kendall Gray of Andrews Kurth for the submission to The National Law Review:

 

 

 

Election Primer 2012

The National Law Review recently published a series of articles by Andrew Bowman of Drinker Biddle & Reath LLP regarding the Upcoming Elections:

Election Primer Part One:  The Race for the White House

Election Primer Part Two:  The House of Representatives

Election Primer Part Three:  The Senate

Campaign Money Patterns Entering New Phase in 2012 Judicial Races

The National Law Review recently published an article regarding Judicial Campaigns and Contributions by the Brennan Center for Justice at NYU School of Law:

“Special Interests Are Spending Millions to Capture Our Courts, And They Are Succeeding”

Judicial candidates spent more than $4.6 million in television advertisements this primary season, according to data released by the Brennan Center for Justice and the Justice at Stake Campaign, in an election cycle where changing spending patterns could signal a new phase in the decade-long spending battle to influence America’s state courts.

Ironically, the cumulative effects of a decade of record-setting spending could lead to less spending in some states.  Early reports suggest that some traditionally high-spending states will see less competitive elections, due to the increasing domination of their state courts by a single party after a decade of record spending.

At the same time, traditionally low-cost retention elections will see high levels of spending as interest groups pour money into unseating judges.  Super PACs are also poised to inject money into judicial races, with the potential to transform how campaigns are fought.

“Money and special interests continue to transform judicial elections around the country,” said Alicia Bannon, counsel in the Brennan Center’s Democracy Program.  “We are seeing uncontested races in traditionally high-spending states like Alabama and Ohio, where big money over the past decade delivered the high court to a single party.  In these states, overall spending is likely to be down this year.”

“The new politics of judicial elections is playing out differently in different states, but the threat everywhere is the same,” said Bert Brandenburg, executive director of Justice at Stake. “Special interests are spending millions to capture our courts, and they are succeeding.”

Nationally, there are 20 states with contestable state Supreme Court seats in 2012, with a total of 46 seats at stake, while 25 high court judges in 13 states face one-candidate retention elections, in which voters choose whether to give incumbents another term.

National TV spending data for judicial races, as well as links to ads, are available at “Judicial Elections 2012,” a new web page jointly hosted by the Brennan Center for Justice and the Justice at Stake Campaign.  The site will provide regular updates on TV ads, fundraising, and key political players in 2012 state high-court elections.  Additional analysis is also available at the Brennan Center’s “Buying Time 2012” web page.

EARLY FINDINGS IN 2012

1.  Primary spending on TV advertisements reached new heights, but some traditionally high-spending states are expected to see lower spending overall.

Based on estimates from TNS Media Intelligence/CMAG, TV advertisements this primary season surpassed $4.6 million, with advertisements appearing in seven states(AL, AK, IL, MT, OR, TX, WV).  These figures are more than quadruple the estimated TV spending in 2010’s primaries, when candidates in three states spent just over $1 million, and top the previous record $3.8 million spent in 2004 in nine state primaries.

But a different picture is emerging for the November general elections in Alabama and Ohio, two traditionally high-spending states.  While both states have led the nation in judicial election spending over the past decade, there has recently been a significant drop in Democratic candidates with strong financial backing as Republicans have taken control of both states’ supreme courts (see charts).  November election spending began falling in both states in the latter part of the decade, and spending on this year’s November election almost certainly will continue to fall compared with previous years.

Since 2006 in Ohio, and since 2010 in Alabama, Democrats in Alabama and Ohio have fielded only a few modestly funded candidates.  In Alabama, Republicans hold all nine of the high court’s seats, and Democrats this year have chosen to put forward a candidate for only one of five contested seats.  In Ohio, the only Democrat among the high court’s seven justices gained her seat through a governor’s appointment, and she faces a stiff challenge from a GOP candidate.  By contrast, no Democrats are challenging two Republican incumbents.

At the same time, winning justices in these states continue to depend heavily on a small number of super-spender groups backing their elections.  In Alabama, for instance, the Business Council of Alabama is a top financial supporter of seven of the court’s nine justices, while the Ohio Chamber of Commerce has spent heavily to elect five of the Ohio Supreme Court’s seven justices.  According to a recent study by the progressive Center for American Progress, rulings in Alabama and Ohio have swung sharply toward business interests as candidates backed by the business lobby gained a decisive advantage in state court elections over the last 10-15 years.

“The similarities in Alabama and Ohio suggest that spending on judicial elections may occur in stages,” said Adam Skaggs, senior counsel at the Brennan Center.  “Spending spikes while opposing sides battle for control in key states, and then falls sharply, along with electoral competition, when the court elections lead to a clear winner and a clear loser over several cycles.  In states with captured courts, a decline in overall election spending does not mean that special interests have abandoned their efforts to influence the courts; it just means that one side has won the current phase of the arms race.”

2. While some states are falling back in spending, others are stepping up to take their place.

Despite expected reduced spending in states with captured courts, high-cost judicial races are likely to continue to be seen across the country.

Judicial races will likely remain costly in states where high courts remain closely divided, such as Michigan, which had the nation’s most expensive judicial elections in 2010, and which has three races for Supreme Court seats this year.  In West Virginia, campaign finance disclosures indicate that candidates have already raised more than $2.5 million in connection with races for two Supreme Court seats.

Traditionally low-cost retention election races are also poised to attract special-interest dollars, including in Iowa and Florida.  In Iowa, three state high court Justices lost their seats in 2010 following a $1 million “Vote No” campaign, launched after the court’s unanimous decision legalizing marriage for same-sex couples.  This year, Justice David Wiggins, who also participated in the marriage decision, faces a retention election.  Opponents have announced their intention to campaign for Wiggins’ ouster.

In Florida, a tea party-linked group Restore Justice 2012 has announced a campaign against three Justices who voted with the majority in a ruling rejecting a constitutional amendment to allow the state to opt-out of federal health care reform.  This announcement has already triggered unprecedented fundraising: While no Florida Justices reported receiving campaign contributions between 2002 and 2010, the three Justices facing this year’s retention elections have already reported raising $974,826.

3. Super PACS may influence judicial elections

This election cycle may also see super PACs playing a role in judicial races.  In Illinois, the pro-choice group Personal PAC created the state’s first super PAC in May, following a court victory challenging Illinois’s campaign finance laws.  Prior to the creation of its super PAC, Personal PAC reportedly spent $200,000 in ads in Illinois’s judicial primary, according to the Center for Public Integrity.  And in North Carolina – one of the few states to provide public financing for judicial elections – a super PAC was recently formed in support of conservative incumbent Justice Paul M. Newby, who is also accepting public financing for his race.  With the Court’s 4-3 conservative balance on the line, this race has the potential to attract significant dollars, and usher in a new role for outside money in judicial campaigns.

Spending on TV Ads in 2012 Judicial Primaries

State

Total Spent

Candidates

Candidate Spent

Alabama

$1,391,530

   Tommy Bryan   $271,440
  Charlie Graddick   $412,810
  Chuck Malone   $598,750
  Roy Moore   $108,530

Illinois

$1,334,170

   Joy Cunningham   $135,580
  Mary Jane Theis   $1,198,590

Texas

$1,167,930

   Don Willett   $1,167,930

West Virginia

$586,050

   Letitia Chafin   $325,110
  Robin Davis   $181,350
  Louis Palmer   $28,790
  Jim Rowe   $50,800

Arkansas

$168,410

   Raymond Abramson   $103,980
  Jo Hart   $64,430

Montana

$22,110

   Elizabeth Best   $22,110

Oregon

$3,170

   Nena Cook   $3,170
  TOTAL SPENDING

$4,673,370

Highlights from the Primary Season: Million Dollar Races

  • In Illinois, Justice Mary Jane Theis spent close to $1.2 million on TV advertisements in successfully defending her seat in the Democratic primary, compared with about $136,000 in spending by her opponent Judge Joy Cunningham, and no TV spending by her other two opponents.  The pro-choice group Personal PAC also reportedly spent $200,000 in print ads attacking Theis’s opponent Aurelia Pucinski, according to the Center for Public Integrity.  Theis will face Judge James G. Riley, who ran unopposed in the Republican primary, in the general election.  Sitting Justice Rita Garman will also face a retention election this November.
  • In Texas, Justice Don Willett spent more than $1.1 million successfully defending his seat in a Republican primary.  His opponent, former Supreme Court Justice Steve Smith – who challenged Justice Willett in the 2006 Republican primary and narrowly lost by 1% of the vote – did not spend any money on TV advertisements.  Willett will face Libertarian candidate Robert Stuart Koelsch in the general election; he will not have a Democratic challenger.  In another contested primary, John Devine won the Republican nod following a primary and runoff election.  Neither Devine nor his opponents spent money on TV advertisements; Devine will not have a Democratic challenger in the general election.  In a third race, sitting Justice Nathan Hecht did not face a primary challenger, but will face San Antonio lawyer Michele Petty in the general election.
  • In Alabama, four candidates spent money on judicial advertisements in two primary races, with expenditures ranging from approximately $109,000 to $599,000.  Big spending did not necessarily translate to a win, however:  In the hotly contested race for Chief Justice, former Chief Justice Roy Moore won the nomination while being outspent by his two opponents, incumbent Charles Malone and former Attorney General Charles Graddick.  Moore gained notoriety when he was removed from office in 2003 after refusing to follow a federal judge’s order to remove a Ten Commandments monument from the state judicial building.  In the other contested primary, Judge Tommy Bryan spent $271,440 in defeating his opponent Judge Debra Jones, who did not run any TV advertisements.  Bryan will run unopposed in the general election.  Three other Justices are also seeking reelection unopposed in both the primary and general elections; none of these candidates spent money on judicial advertisements.

TV Methodology

All data on ad airings and spending on ads are calculated and prepared by TNS Media Intelligence/CMAG, which captures satellite data in that nation’s largest media markets.  CMAG’s calculations do not reflect ad agency commissions or the costs of producing advertisements.  The costs reported here therefore understate actual expenditures.

The Justice at Stake Campaign is a nonpartisan, nonprofit campaign working to keep America’s courts fair and impartial.  Justice at Stake and its 50-plus state and national partners educate the public, and work for reforms to keep politics and special interests out of the courtroom – so judges can protect our Constitution, our rights and the Rule of Law.  For more about Justice at Stake, go to www.justiceatstake.org, or www.gavelgrab.org.

For Additional Information Please Contact: Seth Hoy, Brennan Center for Justice, seth.hoy@nyu.edu, 646-292-8369 or Charles Hall, Justice at Stake, chall@justiceatstake.org, 202-588-9454

© Copyright 2012 Brennan Center for Justice at New York University School of Law

SEC Issues Risk Alert on Campaign Contributions and Pay-to-Play Prohibitions

The National Law Review recently published an article regarding Campaign Contributions written by Paul S. Maco, Laurence A. Levy, Patrick K. Craine, Joshua C. Zive, and Britt Cass Steckman of Bracewell & Giuliani LLP:

 

At the beginning of the Labor Day holiday and in the heart of the campaign season, the SEC’s Office of Compliance Inspections and Examinations issued a Risk Alert targeting compliance by investment banks underwriting municipal bonds with rules limiting political contributions to campaigns of state and local government officials who select firms to be underwriters, remarketing agents, and financial advisors for municipal securities. The Risk Alert is a reminder of existing rules; no new requirements were announced.

The Risk Alert should be of particular interest to:

  1. Candidates for state or local government office and their campaign staff, and candidates for federal office currently holding state or local government office; and
  2. Municipal finance professionals and their firms.

For Candidates

The Risk Alert serves as a reminder to candidates for state and local government office and candidates for federal office who are current state and local elected officials of federal rules that restrict contributions by potential donors to your campaign if (1) those potential donors are firms or certain of their employees that underwrite, act as remarketing agent, or serve as financial advisors for municipal bond offerings and (2) the state or local office you seek or currently hold involves you in the selection of firms for such work. Penalties on contributors are so severe that when made inadvertently, contributors will usually seek return of the contribution.

Municipal Securities Rulemaking Board (MSRB) rule G-37 generally prohibits firms from serving as underwriters, remarketing agents, or financial advisors for an issuer of municipal securities for two years after making a campaign contribution to an official of the issuer who awards or may influence the award of such assignments unless the contribution is no more than $250 per election cycle and the contributor is entitled to vote for the official (the “de minimus exemption”). In addition, such firms and their covered employees, known as municipal finance professionals, are prohibited from soliciting campaign contributions and providing other services for the campaigns of such officials.

The consequences of violation of rule G-37 are serious. One consequence is known as “the death penalty”: firms that act as an underwriter after a covered employee makes a contribution not subject to the de minimusexemption are typically required in SEC enforcement actions to forfeit the gross revenues received from all underwritings for the issuer in the two-year period following the contribution. If the contribution was made inadvertently, firms that discover, report, and recover the contribution may seek – but are not automatically assured of – relief from the death penalty.

Candidates and their campaign staff may wish to be alert to this regulation and avoid accepting contributions which will later need to be reimbursed.

For Municipal Finance Professionals

The Risk Alert serves as a reminder of MSRB rules in place since 1994 on campaign contributions applicable to brokers, dealers, and municipal securities dealers and their municipal finance employees active in municipal securities markets. The Risk Alert specifically intends to call the attention of municipal firms to compliance concerns of SEC staff observed during their examinations, including:

  • Compliance with the two-year ban following a political contribution by a municipal finance professional beyond the de minimus exception;
  • Potentially deficient record-keeping;
  • Failure to file accurate and complete forms G-37 with the MSRB; and
  • Inadequate supervision.

The Risk Alert also identifies practices that certain firms have taken with respect to avoiding pay-to-play practices, including:

  • Providing training to municipal finance professionals;
  • Required knowledge and compliance self-certification by covered employees;
  • Use of internet and other surveillance techniques;
  • Identification and restriction of employees who may become subject to rule G-37 through promotion;
  • Required preclearance, restriction, or prohibition of political contributions; and
  • Separation of surveillance functions to avoid any possibility of adverse action towards an employee based on political preferences.

© 2012 Bracewell & Giuliani LLP

The Republican Platform – What It Means for Healthcare

The National Law Review recently published an article by Andrew Bowman of Drinker Biddle & Reath LLP regarding The Republican Platform and Healthcare:

The Republicans formalized their party platform yesterday as part of the first day of their national convention.  The document does not contain many surprises, but solidifies the direction GOP leadership will take should they win in November.  Here are some highlights for health advocates:

Repeal of the Affordable Care Act: Again, this comes as little surprise, given that Republicans have promised to repeal the measure since the day it was signed, and the Republican-led House has passed numerous bills to do so.  But the party platform confirms the party’s plans, saying “Congressional Republicans are committed to its repeal; and a Republican President, on the first day in office, will use his legitimate waiver authority under that law to halt its progress and then will sign its repeal.”

The document also offers insight into the framework of potential Republican legislation to replace the ACA, promising to “increase healthcare choice and options, contain costs and reduce mandates, simplify the system for patients and providers, restore cuts made to Medicare, and equalize the tax treatment of group and individual health insurance plans.”  The platform also calls for price transparency for health services, a cap on non-economic damages in medical malpractice lawsuits, and promotion of Health Savings Accounts and Health Reimbursement Accounts to be used for insurance premiums.

Medicaid Block Grants: This is another long-standing idea, which was included in the House-passed budget drafted by current Vice-Presidential nominee Paul Ryan.  Calling Medicaid “the next frontier of welfare reform,” the platform recommends block-granting the Medicaid program.  Currently, the federal government sets standards for Medicaid eligibility and pays about 60% of the cost of covering those individuals.  The block grant program would provide each state with a lump sum annual payment in exchange for greater freedom in administering the program.  The platform says this change would allow “flexibility to design programs that meet the needs of their low income citizens.”

Changes to Medicare: The platform also adopts the portion of the Ryan plan which would convert Medicare from a defined-benefit system into a defined contribution system for Americans under the age of 55.  This is what has come to be known as the voucher system, wherein Medicare beneficiaries would be given the option of traditional Medicare or income-adjusted premium support to purchase their own health insurance.  The platform also suggests an increase in the age of eligibility “without disadvantaging retirees or those nearing retirement,” but does not lay out particulars on when such changes would be implemented or to what age eligibility might be raised.

Investments in Healthcare: While much of the platform’s focus is on reigning in federal spending, Republicans do endorse “investment in healthcare delivery systems and solutions creating innovative means to provide greater, more cost-effective access to high quality healthcare,” specifically “basic and applied biomedical research, especially the neuroscience research that may hold great potential for dealing with diseases and disorders such as Autism, Alzheimer’s, and Parkinson’s.”

©2012 Drinker Biddle & Reath LLP

Union “Death Warrant” Heading for November Ballot in Michigan?

The National Law Review recently published an article regarding Unions and Michigan Ballots written by Gerald F. Lutkus of Barnes & Thornburg LLP:

 

The union-backed “Protect Our Jobs” initiative took two steps closer Monday to being on the November ballot in Michigan.  The initiative would make collective bargaining a constitutional right under the Michigan Constitution for both public and private employees.

After the Michigan Board of Can­vassers originally stalemated on whether the initiative could go on the ballot, the Protect Our Jobs Committee filed suit and Monday afternoon, the Michigan Court of Appeals by a 2-1 vote ordered the Board of Canvassers to proceed with putting the initiative on the ballot.

Though an appeal to the Michigan Supreme Court seems likely, on Monday evening, the state Board of Canvassers certified the proposition for placement on the November ballot.  A coalition of union groups lead by the AFL-CIO, the United Auto Workers and the Michigan Education Association had previously submitted petitions with nearly 700,000 signatures — twice the number needed.

A Reuters News Service report quotes critics who have attacked the proposition as a “death warrant” for Michigan’s economy. Sara Wurfel, a spokeswoman for Michigan Gov. Rick Snyder, told Reuters that the governor remained opposed to the measure because “it has potentially far-reaching implications and ramifications to numerous existing statutes that would turn back progress and appear to go well beyond what paid petition gatherers portrayed.”

© 2012 BARNES & THORNBURG LLP

Evaluating Political Candidates

The National Law Review recently published an article by the Health Government Relations Team of Drinker Biddle & Reath LLP regarding Evaluating Political Candidates:

With Election Day less than 100 days away, primary season is winding down and the candidates for the general elections (Presidential, Congressional, state, and local) in November have become more apparent. As the choices for November’s election are clearer, how does one go about evaluating the candidates? Voting is an important civic responsibility and making an informed choice when voting is essential. Below are some tips and resources to help you research candidates’ positions on issues that are of importance to you.

  • First, decide what issues and qualities are most important to you. You may deem health care, the economy, foreign policy, or something else most important, but it is essential to evaluate your priorities and stances before attempting to evaluate the candidates’ positions. Also, think about what personal qualities you think are important – past experience, previous leadership or political positions, personality, etc.
  • Visit the candidates’ websites – either their official website if they already hold office or their campaign website – to find out their positions. Candidates generally have an “issues” section where they address major policy topics.
    • To research the Presidential candidates, visit the campaign websites of Barack Obama and Mitt Romney.
    • If you do not already know who represents you in Congress, visit the U.S. House of Representatives and U.S. Senate websites and search by your zip code or state to find the Members of Congress representing your state and district. These official websites can give you an idea of issues important to each Member and past actions they have taken. Those running for reelection will also have a separate campaign website, which can be found by searching for the Member on the internet. The title of these websites is usually something such as “Eric Cantor for Congress” or “Tammy Baldwin for Senate” while the official website will generally have a title along the lines of “Rep. Eric Cantor,” “Congresswoman Tammy Baldwin,” or “Max Baucus: U.S. Senator from Montana.”
    • Likewise, to find your state representatives, your state’s official government page should have a search function to find out who represents you more locally.
    • To find out who is challenging these incumbents, either search the internet or visit a site such as the League of Women Voter’s “Vote411” site. Vote411 allows you to enter your address and find your local, state, federal district numbers, which can then be used to search for candidates running in those races.

In addition to checking out issues, official and campaign websites also usually have a biographical section, which can provide information on the candidates’ previous experience, family, and civic involvement. These personal factors may also weigh on your decision.

  • Look up candidates’ records, or any statements they have made or how they have previously voted, on your selected issues. This may be harder to find (or may not be possible) if a candidate has never held elected office before. For current U.S. House and Senate members, visit Thomas, the Library of Congress’ website, to look up cosponsorship of bills. Additionally, the “issues” section on both official and campaign websites can provide information on previous support or opposition and actions the candidate has taken on an issue. Campaign literature can also provide insight.
  • Look to see who has endorsed the candidates. Websites like Open Secrets also will provide clues as to where candidates’ campaign funding is coming from – possibly from people or organizations you trust (or disagree with).
  • Carefully consider what others – opposing candidates, the news, even your friends and relatives – say about the candidate. Monitor the news and listen to what others are saying but be on the lookout for any bias or “spin.” Be wary of any TV ad tactics appealing to emotions – look for any buried messages about issues beneath the “attacks.”
  • Finally, evaluate and match your findings with the issues and qualities you outlined as important to you. In some cases, a clear choice that matches your criteria may be evident early on in your research, other times a distinction between candidates or one candidate who obviously identifies with your views may not be as clear.

Researching candidates does not need to be an extremely time consuming activity – using the resources and tips above, look into candidates in as much or as little detail as you feel is necessary. The important thing is to make a knowledgeable choice aligned with your values going into the voting booth on November 6th!

©2012 Drinker Biddle & Reath LLP

Beer, wine and voter ID laws: Beer and Wine Wholesalers Among Those Behind Legislators Pushing Controversial New Election Rules.

Recently an article by Paul Abowd of the Center for Public Integrity regarding Voter ID Laws was published in The National Law Review:

Wholesalers among those behind legislators pushing controversial new election rules.

Some of America’s best known brands are dropping their membership in the American Legislative Exchange Council at least partly in response to controversy over the group’s backing of voter ID laws. Coca-Cola quit on April 4 and Pepsi, Kraft Foods, Intuit, McDonalds and the Bill and Melinda Gates Foundation followed them out after a coalition of left-wing groups launched pressure campaigns. Nine states have passed strict voter ID requirements just since 2011, which opponents say could result in millions being unable to cast ballots in November.

But there’s been little attention paid to one major ALEC-affiliated sector behind several state legislators pushing these measures: the beer and wine industry.

Major players in beer and wine sit on an ALEC task force that crafted and approved voter ID model legislation in 2009. The industry’s major trade associations — the National Beer Wholesalers Association and Wine and Spirits Wholesalers of America — are among them. Since 2007, the wholesalers have also pumped substantial cash into the campaigns of several ALEC politicians who have been authors or primary sponsors of voter ID bills in their states.

Founded in 1973, ALEC, a coalition of corporate America and almost exclusively Republican state lawmakers, had operated quietly and, by most accounts, effectively in pushing conservative, business-friendly laws including Arizona’s immigration law and the flurry of controversial “Stand Your Ground” laws that have been in the headlines since the February 26 shooting of Florida teen Trayvon Martin.

ALEC has a vast legislative agenda covering state budgets, education, health care, corrections, energy and environment, guided by free-enterprise and limited-government principles. It draws funding from hundreds of corporate members including Koch Industries, ExxonMobil, Pfizer, UPS, AT&T, and Walmart. Corporate membership costs between $7,000 and $25,000, according to the ALEC website. Two thousand state legislators pay $50 a year to be members.

ALEC has been the subject of increasing media attention since last summer, when hundreds of leaked documents shed unprecedented light on ALEC’s reach into state legislatures. The organization did not respond to calls for comment.

The course of voter ID

ALEC didn’t kick off the voter ID movement; a 2005 Indiana law co-authored by Republican Sen. Brandt Hershman, an ALEC member who has received nominal contributions from the state wine wholesalers association, seems to have started the trend. In early 2009, though, ALEC formed a committee within its Public Safety and Elections Task Force to focus on election fraud.

Sean Parnell, the former president of the Center for Competitive Politics, a conservative think tank, said legislators from a dozen states brought voter ID to ALEC in the spring of 2009, but he declined to identify them.

By summer 2009, the full Public Safety and Elections Task Force, including the beer and wine wholesalers, formally approved the voter ID model law before it filtered into dozens of legislatures nationwide — according to internal ALEC documentspublished by the Wisconsin-based investigative nonprofit Center for Media and Democracy.

The model legislation requires voters to show government-issued photo identification at the polls, or else sign an affidavit and cast a provisional ballot. Provisional voters must make a separate trip to provide county election officials with proof of identity by the Monday following an election if they want to ensure their vote is counted. By that time, critics say, most elections have been decided.

Since 2009, 12 states have passed voter ID laws with strict requirements for government-isued identification. Nine of those states have signed such laws just since 2011, and Virginia seems poised to become the tenth.

Conservative legislators tout the laws’ ability to stop voter fraud. ALEC argues that such fraud could be a serious problem, pointing to the nation’s messy voter registration rolls. The assertion is bolstered by a recent report from the Pew Center on the States, which says 1.8 million deceased Americans are still listed as voters and that 2.75 million people are registered to vote in more than one state.

But the laws have drawn rebuke from the U.S. Department of Justice and civil rights advocates, who say the requirements will disproportionately restrict access to the ballot for people of color, students, homeless and the elderly — groups that they say are less likely to possess government-issued identification.

A 2006 survey conducted for the Brennan Center for Democracy found that 25 percent of African Americans and 16 percent of Latinos do not possess state-issued photo IDs. Voter ID laws, together with restrictions on voter registration and early voting, the Brennan Center says, could affect 5 million Americans in 2012. Since December, the Justice Department has rejected voter ID laws in South Carolina and Texas, subject to review by the courts. Under the Voting Rights Act of 1965, changes to electoral laws in states with a history of voter discrimination must get federal approval.

The Justice Department said that, whether or not the new voter ID requirements in both those states had a “discriminatory purpose,” they would have “a discriminatory effect” on people of color.

Political players

The National Beer Wholesalers and Wine and Spirits Wholesalers of America are not strangers to power politics. The beer wholesalers are a trade association representing thousands of companies who deliver beer from breweries to bars. In twenty years, the association has played a substantial role in campaign finance, ranking 25th on a list of federal campaign cash “heavy hitters” compiled by the Center for Responsive Politics.

The wholesalers’ state-based affiliates have used their political leverage in efforts to contain beer and liquor taxes and fight large retailers like Costco Wholesale Corporation, which are competing for a share of the large distribution market.

So why would these industry players back a politically charged issue like voter ID? Formally, they don’t.

“The National Beer Wholesalers Association has no position on this issue,” said spokeswoman Kathleen Joyce, in an e-mail. The wine wholesalers had a similar response. “The task force’s sponsorship of voter ID laws and any other election activities is a mere coincidence, and we have never been involved in those areas,” said Jerry Brown, a spokesman for wine wholesalers.

Both organizations say their groups have been members of ALEC’s Public Safety and Elections task force to foster efforts aimed at preventing underage drinking. The task force has endorsed three pieces of legislation since 2006 seeking heightened penalties for those selling alcohol to underage consumers.

Not everyone is convinced. Among the skeptics is Edwin Bender, executive director of the National Institute on Money in State Politics. “If you see this happening in several states, that’s some indication that there’s a strategy there, especially if they’re giving money to ALEC members,” said Bender. Neither the beer or wine wholesalers would say how they voted when the ALEC Public Safety and Elections Task Force approved the model voter ID law.

Indeed, cash from the beer and wine wholesalers shows up repeatedly backing state legislators who are behind the voter ID measures. Since 2011, five ALEC-member legislators in Virginia, Texas, Tennessee, Kansas and South Carolina were primary sponsors of voter ID bills and relied in part on the flow of beer and wine money for their campaigns. In Wisconsin, 28 of the 48 legislators who introduced voter ID in 2011 are ALEC members, including one who was on the elections task force and received support from the beer industry.

The amounts of cash are modest in comparison to the millions already being spent on the presidential campaign, but are significant in the context of state legislative races, for which candidates usually raise less than $100,000.

Parade of states

In South Carolina, the Justice Department struck down a law sponsored by Rep. James Harrison, a member of the ALEC Public Safety and Elections task force and a recipient of at least $4,000 from beer and wine wholesaler associations since 2007. Harrison was also one of 13 sponsors of a successful 2007 bill that set up education programs for underage consumers of alcohol.

In Texas, Gov. Rick Perry decried the Justice Department’s decision to block a voter ID law introduced by ALEC member and Republican Sen. Troy Fraser. ProPublicaidentified more than $160,000 donated to Fraser between 2007 and 2010 by ALEC member corporations including Time Warner, AT&T, Bank of America. In addition, since 2007 the state-based beer wholesaler association has given Fraser $14,000 in campaign cash.

Fraser had no comment on his role in the law and support from the wholesaler.

In the Texas House, the story was similar. Four of the five representatives who were primary sponsors of a companion to Fraser’s Senate bill are ALEC members who received a total of $13,000 in beer industry support since 2007. Two of them — Reps. Aaron Pena and Larry W. Taylor — sat on the ALEC task force that approved voter ID model legislation. Pena received more than $3,800 and Taylor $2,500 from the beer wholesalers.

Pena says he doesn’t remember when ALEC approved the law, and denied the think tank’s role in shaping the Texas voter requirements. “None of my knowledge of this law comes from ALEC,” he said. “There is no connection.” Rep. Taylor did not return calls.

In Tennessee, longtime Sen. Bill Ketron sponsored a successful voter ID bill in 2011. Since 2007, he has drawn at least $35,000 in donations from ALEC members that approved the model voter ID bill, including $4,000 from the state wine wholesalers’ association.

According to Ketron spokeswoman Darlene Schlicher, the senator introduced voter ID following a high-profile voter fraud case involving a Democratic state legislator. Sen. Ophelia Ford narrowly won a 2005 special election to fill a seat left open by her brother. When her opponent challenged the result, an investigation found ballots had been cast by nonresidents, felons, and in the names of deceased voters. The state Senate voided the election in 2006.

Any connections between the voter ID laws and the beer and wine industry, says Schlicher, are “right out of left field.” Ketron was also one of six sponsors of 2009 legislation heightening penalties for underage drinking.

ALEC member Rep. Lance Kinzer sponsored voter ID in Kansas and has received nominal contributions from the wine wholesalers association. Wisconsin’s embattled law passed with heavy sponsorship from ALEC members in 2011, including that of Rep. Dan Knodl, who has received $1,500 since 2007 from the beer wholesalers association.

Wisconsin has some of the most restrictive ID requirements in the nation, disallowing student IDs and veteran IDs, says Wisconsin ACLU spokeswoman Stacey Harbaugh, whose organization is one of several groups suing to overturn the law. A state judge struck down the strict voter ID requirements in March.

Even though Wisconsin would provide free IDs to those with improper state-issued ID, residents have to show their birth certificate to obtain one, and obtaining a birth certificiate can itself cost time and money. “The free IDs aren’t really free,” says Harbaugh.

Virginia Republican Sen. Stephen Martin, ALEC’s state chairman, introduced voter ID legislation this year. Martin received at least $45,000 from ALEC private sector members from 2006 through 2009, and more than $5,300 from the state’s beer and wine wholesaler associations between 2006 and 2011. Martin did not return calls for comment.

One of three co-sponsors of the Martin bill was ALEC member Frank Ruff. His $40,000 in campaign contributions from ALEC corporations since 2006 included more than $3,000 from beer and wine wholesalers. Republican Lt. Gov. Bill Bolling broke the party-line tie in the Virginia Senate, sending the bill to Gov. Bob McDonnell’s desk. On April 10, McDonnell sent it back, calling on legislators to expand the acceptable forms of identification.

Shifting sands

Links to ALEC are becoming a potential liability for corporations, due to a pressure campaign by Color of Change. The progressive online advocacy organization devoted to strengthening the political voice of people of color says voter ID laws constitute a “modern-day poll tax” aimed at voters from minority groups.

“The hurdles involved in getting proper ID for many people can be expensive,” said Color of Change’s Executive Director Rashad Robinson in an interview.

Coca-Cola dropped its membership five hours after Robinson’s group launched its pressure campaign against the company.

Groups affiliated with ALEC’s voter ID measure, including the beer and wine wholesaler associations, should be aware that they are going to be featured targets, said Robinson.

ALEC Executive Director Ron Scheberle released a statement April 11 responding to the “intimidation campaign” against the group. “We are not and will not be defined by ideological special interests,” he said, “who would like to eliminate discourse that leads to economic vitality, jobs and fiscal stability for the states.”

Color of Change is aiming its latest effort at ALEC members Johnson & Johnson, State Farm and AT&T, which sponsored last year’s ALEC conference to the tune of $50,000. Other progressive groups are targeting pharmaceutical giants Pfizer and GlaxoSmithKline.

Robinson claims ALEC has long provided corporations a behind-the-scenes vehicle for their legislative agendas.

“When corporations are giving money to a group like ALEC, they shouldn’t get a free pass on ALEC’s policies,” said Robinson.

Beer and wine wholesalers behind legislators pushing controversial voter ID laws

A delivery man stacks cases of Guinness and Heineken beer in New York.Mark Lennihan/AP

Reprinted by Permission © 2012, The Center for Public Integrity®